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OPINION - Go to trial, let a jury decide

by Chris Conley

NEWS BLOG (WSAU) “A good prosecutor can get a grand jury to indict a ham sandwich.” The old saying is mostly true. It’s almost unheard of for a prosecutor to ask for an indictment and not get it. The thinking is that a grand jury isn’t a trial. They’re not judging guilt or innocence. If there’s a question, the default position is to let the case go to trial and let a jury sort it out.

The FBI faces similar decision when deciding whether to bring federal charges. And often their position is to bring charges – even if the case is flimsy. After all, a judge could always rule there isn’t probably cause. And a jury could ultimately decide to acquit.

That’s why yesterday’s announcement that the FBI won’t request criminal charges in the IRS–Tea Party scandal is incredible. Does it rise to the level of criminality to delay granting tax exempt status to conservative non-profit groups? Maybe. Let a prosecutor present evidence at trial. Let those who ran the IRS office in Cincinnati present a defense. Let a jury decide.

The process would still be heavily in favor of the defendants. First and most importantly, they’re presumed innocent. Secondly, and almost equally beneficial, an assistant U.S. attorney would prosecute the case – and there’s a good chance that someone appointed by the Obama Administration would draw the assignment. (Most assistant U.S. attorneys are non-political and are non-partisan career prosecutors. But not all. The odds of this case finding its way to the “right” prosecutor would be high.)

So what do we have here? There’s a great deal of evidence, some of which has already come out through congressional investigations, that conservative non-profit groups had their tax exempt applications delayed or ignored. Some of those groups didn’t persevere. Others were asked for a treasure-trove of information that the IRS wasn’t entitled to. If the IRS’s goal was to give extra scrutiny to non-profits who are asking for generous tax breaks, that’s fine so long as it’s across-the-board. Once political ideology enters into the analysis, I believe a criminal case can and should be brought. That would be a case of using government power to stifle political speech.

Such a case would be difficult to prove because a guilty verdict would hinge on motive. You’d have to show that the reason was that a certain actor at the IRS personally didn’t like all of these conservative non-profits and that’s why their applications got stuck in molasses. A winning defense could be as simple as so many of these groups popped up that they overwhelmed the IRS’ approval system.

There is one obvious drawback to bringing this case to trial, and it’s political. A trial keeps this story in the spotlight, especially at a time when other stories have swept this one out of the news cycle. That’s a lousy reason, where politics trumps the justice. That’s why short-circuiting a criminal case is the wrong decision. 

Chris Conley
1.14.14




Image: A Worshipers Masters Gavel By Bill Bradford (Flickr) [CC-BY-SA-2.5 (http://creativecommons.org/licenses/by-sa/2.5)], via Wikimedia Commons