Is the IRS becoming an instrument of partisan warfare?

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 elease of the long-awaited Nunes memo last week sucked up most of the journalistic air in the room. Republicans and Democrats will continue debating whether the memo establishes FBI abuses in obtaining an FISA warrant to eavesdrop on former Trump campaign volunteer Carter Page in October 2016. (The warrant allowed the FBI to search all his e-mails back in time, including during his involvement in the Trump campaign.) A Democratic response is expected out this week.

The hullabaloo about the Nunes memo, however, took away attention from the settlement of a lawsuit brought by Z Street, a nonprofit pro-Zionist organization, against the IRS that demonstrated how politicized the executive branch was during the Obama years.

The Department of Justice entered into a settlement consent order, which admitted that the IRS during the Obama administration had unconstitutionally discriminated against groups seeking tax-exempt status based on those organizations’ policy viewpoints, which are protected by the First Amendment.

Just as the Z Street suit revealed how weaponized the IRS under President Obama was against political opponents, so did it reveal how far the Obama administration was prepared to go to push the American Jewish community in the direction of J Street, an organization that has never found a single action of the Netanyahu government worthy of support or praise.

The Z Street story even comes with a heroine: Z Street founder Lori Lowenthal Marcus, who, ironically, was a Harvard Law School classmate of Michelle Obama. Marcus, an Orthodox Jew and Jewish Press writer, together with her lawyer husband, Jerome, pursued the suit in the face of an IRS willing to interpose ridiculous defenses and resistant to every discovery request. The US District Court and the US Court of Appeals for the D.C. Circuit repeatedly struck down IRS motions.

Z Street first filed for tax-exempt status in December 2009. When nothing had happened eight months later, Z Street’s lawyer asked an IRS official why the application was being delayed. She was told that because the application was connected to Israel it was subject to special scrutiny and had to be sent to a special office in Washington, D.C., to determine whether the filing organizations’ views were contrary to the policies of the Obama administration.

Those would prove to be the last true words spoken by the IRS or its attorneys, and the IRS subsequently denied that they had ever been uttered. (The settlement order contains a set of agreed-upon facts, which admits to the statements made.) Subsequently, the IRS claimed that special scrutiny of the Z Street request was required because there is a great deal of terrorism in Israel and it was necessary to ensure that Z Street was not funding terrorism.

Surprisingly, similar concerns did not stop numerous applications for tax-exempt status by organizations explicitly sending funds to Gaza, a terrorist hotbed ruled by Hamas, which is listed as a terrorist organization by the US government. Moreover, Z Street never sent any funds abroad, as the IRS could have immediately ascertained had it once asked for Z Street’s records during the nearly seven-year period its application was pending.

In the course of the litigation, Marcus discovered that the Obama IRS was particularly concerned with “occupied territory advocacy,” and had prepared a list of organizations that did not share the Obama administration’s view that Judea and Samaria — not to mention the post-1967 new neighborhoods of Jerusalem — are occupied territory. The list was taken from fanatically anti-Zionist websites like The Electronic Intifada and Mondoweiss.

The same month that Z Street filed its suit, three other Jewish organizations seeking tax-exempt status were asked by the IRS to explain their “religious beliefs about the Land of Israel.” Not that the IRS was keen on disclosing what it was doing. When one IRS official asked a subordinate for clarification on IRS policy with respect to entities supporting Jewish activity over the Green Line, he was told that she would only answer questions orally — “not doing this by e-mail.”

THE Z STREET LITIGATION brought to the fore many of the Obama administration’s core beliefs about the Palestinian-Israeli impasse and its attempts to mold American Jewish opinion. But it was also part of a much larger story of the IRS — the governmental institution in America most in need of being nonpartisan — becoming an instrument of partisan warfare.

During the seven years of the Z Street-IRS litigation, the Treasury Inspector General for Tax Administration (TIGTA) issued two reports criticizing the IRS for discriminating in granting tax-exempt status based on the “group’s policy preferences.”

Yet President Obama announced that he had never seen a “smidgen” of evidence to support the claim of discrimination. He might have started with the TIGTA reports. From there he could have moved on to Lois Lerner, the official in charge of tax-exempt organizations, who refused to answer questions from lawmakers based on her Fifth Amendment privilege against self-incrimination.

Finally, there was the remarkable series of disappearing IRS e-mails from the two-year period when Tea Party–affiliated applications for tax-exempt status were being subjected to special scrutiny and then denied in more than half of the cases. No fewer than seven IRS officials, Lerner chief among them, claimed that their e-mails had been lost when their computers crashed.

That wildly implausible claim was contradicted by IRS computer security experts, who testified that Lerner’s hard drive had been scratched. They further recommended that the hard drive be sent to experts to recover lost e-mails. That was never done. Lerner’s Blackberry containing most of the same e-mails was also destroyed, even after congressional investigators sought those e-mails.

In any event, the missing e-mails were surely available from the IRS server, notwithstanding the congressional testimony of IRS Commissioner John Koskinen, who claimed the agency’s $1.8 billion budget only allowed the saving of backup e-mails for six months.

Koskinen’s claim that the backup tapes had been reused was also contradicted by former IRS computer security personnel. Only then did Department of Justice attorneys admit in a Freedom of Information Act suit brought by Judicial Watch that all the e-mails had been retained, even as they claimed that producing them would be too onerous.

The problem, then, was not the absence of a great deal more than a smidgen of evidence of wrongdoing, but the obstacles thrown in the path of those seeking that evidence.

Z Street’s suit would undoubtedly still be languishing today but for a new administration with no interest in covering up the unconstitutional discrimination by the previous administration against citizens with the wrong political views. The only miracle is that the Trump Justice Department did not institute criminal proceedings against Lois Lerner, and that John Koskinen was not dismissed from his post on Trump’s first day in office.

Toby Willig a”h

Toby Willig, a veritable Jerusalem legend, passed away two weeks ago at 92. During the time I knew her — probably close to 20 years — I would be hard-pressed to recall ever attending an interesting pubic lecture or Torah shiur in English at which she was not present. She invariably sat in the front row, and it was the minhag hamakom in Jerusalem that she always asked the first question.

She may have looked and spoken like everyone’s stereotypical Jewish grandmother, but her questions were incisive and on point. The lady knew what she was talking about.

Toby loved Torah, and she loved all Jews and the Jewish People. Most of us can manage to love either individual Jews or the collective people, but many struggle to do both. Not Toby. It is impossible to separate Toby from her Jewishness. It informed every fiber of her being.

She gushed warmth. After she first introduced me as a speaker at the Jerusalem branch of Emunah Women, I made it a practice thereafter to be out of the room for her introductions, lest my ears turn red. (My own grandmothers, however, would have enjoyed hearing Toby kvell, and perhaps even believed her.)

As warm as she was, she would rise up as a lioness defending her cubs against anything that threatened her people or her beloved country, Israel.

The most important thing I learned from Toby was that old age need not be an occasion for disengaging from life, and it is possible to keep learning and growing and enjoying. Indeed, continuing to learn and pursue new interests holds the key to staying young in spirit, despite advancing years.

One of my favorite writers, Theodore Dalrymple, has written recently of the inspiration to be derived from the “sprightly old,” and the cheer they offer us about the future. He relates how upon emerging from a recent exhibit at the British Museum on the Scythians — about whom he knew practically nothing and presumed everyone else was likewise ignorant — he encountered a sensibly dressed elderly woman.

In response to his comment that it was a very good exhibition, she agreed but added that she had not really learned anything new about the Scythians, about whom she had been reading since the ’30s. That remark placed her age at 90 at the youngest and likely closer to 100. Though she professed to have learned little from the exhibit, she allowed that “it’s always nice to see the artifacts in the flesh. I’ve always been fascinated by archaeology.”

Toby was cut of the same cloth. Ever since moving to Israel just over 30 years ago, she read the Jerusalem Post cover to cover every day. And when macular degeneration claimed her eyesight, she had someone else read it to her.

And every morning, she would pick a topic from the previous day’s Post to which she would add her own two cents in a letter to the editor. Those letters were dictated over the phone to her friend Renee Becker. And when she had finished, she would always instruct Renee with a flourish to “send it around the world.”

She kept us all feeling young, and will be deeply missed not just by her family but by hundreds for whom she was a fixture in their lives.

Originally featured in Mishpacha, Issue 698. Yonoson Rosenblum may be contacted directly at rosenblum@mishpacha.com