“The IRS needs to get into gear immediately and provide answers about the scope and status of the alleged investigatory process” into the Hunter Biden whistleblowers, Sen. Chuck Grassley told The Federalist. Grassley’s comment comes after he received a letter from the Internal Revenue Service commissioner stating that the IRS is not investigating the whistleblowers and that any investigation would be handled by the inspector general’s office to ensure independence.
The IRS commissioner’s claim is far from comforting, however, given that a recent court filing indicates the chief counsel office of the IRS is kept apprised of the IG’s apparent probe of the whistleblowers.
Last month, Special Counsel David Weiss responded to a motion Hunter Biden filed seeking dismissal of the criminal tax charges pending against the president’s son in California. In his motion, Hunter argued the IRS’s supposed “outrageous conduct” violated his due process rights and justified dismissal of the indictment. That “outrageous conduct,” according to Hunter’s motion, consisted of the government “not taking action to curtail the misconduct or prevent the unauthorized disclosure of confidential grand jury and taxpayer return information,” by IRS agents Gary Shapley and Joseph Ziegler.
In response, the special counsel attached a declaration, filed under seal, that Weiss said shows “the IRS has taken responsible steps to address Shapley and Ziegler’s conduct.” The government’s accompanying motion to seal the exhibits strongly suggested Shapley and Ziegler were under investigation. Specifically, the special counsel’s office said:
The justification for the redaction and the sealed exhibits is that the redacted information contained in the filing and the sealed exhibits relates to a potential ongoing investigation(s) and the investigating agency(cies) specifically requested that the government request that the court seal the exhibits, as well as any accompanying reference in the pleading, in order to protect the integrity of the potential ongoing investigation(s).
Significantly, the special counsel clarified that “the aforementioned potential ongoing investigations are not references to any investigation of the defendant conducted by the U.S. Department of Justice.” In other words, the potential ongoing investigations did not concern Hunter Biden. The clear import from these filings, then, was that either one or both Shapley and Ziegler were under investigation.
But the IRS is not investigating the whistleblowers, according to an April 12, 2024, letter IRS Commissioner Daniel Werfel sent to Grassley. Nor, to his knowledge, was the DOJ investigating Shapley and Ziegler. Any such investigation, Werfel maintained in the letter, a copy of which The Federalist obtained, would be handled instead by the Treasury inspector general for tax administration (TIGTA). And only after TIGTA completed its “independent” review would the IRS act on TIGTA’s recommendation, Werfel told Grassley.
Werfel’s response raises a huge question mark, however, when read in conjunction with the declaration Senior Assistant Special Counsel Derek Hines submitted in the Hunter Biden case in arguing for the sealing of the exhibits. According to Hines, “The government was advised by the Office of IRS Chief Counsel that the investigating entity referenced in each of Exhibits 2, 4, and 5 agreed that the documents could be provided to the government and used in a filing with the court provided that the government asked the court to seal these exhibits and certain references to those exhibits in order to protect the integrity of the potential ongoing investigation(s).”
But the IRS Office of Chief Counsel represents the IRS, which Commissioner Werfel maintains is not investigating the whistleblowers. And TIGTA, which Werfel suggested would handle any investigation into the types of allegations leveled against Shapley and Ziegler, has its own chief counsel.
For the IRS chief counsel to communicate with Special Counsel Weiss about a potential ongoing investigation into the whistleblowers is particularly concerning for a couple of reasons. First, in noting that any investigation into Shapley and Ziegler’s conduct would have been referred to TIGTA as “is the IRS’s standard practice,” Werfel stressed that “[t]his places the decision on whether to pursue an investigation, not with the IRS, but with an independent and separate authority.”
According to Werfel:
The IRS then awaits any appropriate guidance or recommendations from TIGTA and acts, as warranted, with the benefit of TIGTA’s fact-finding and analysis. This approach is consistent with a longstanding Department of Treasury directive, and it ensures that the relevant questions are independently reviewed, in a manner that is protective of our mission, complies with all legal obligations, and safeguards the rights of the relevant employees and of any impacted taxpayers.
Why then was the IRS, through its chief counsel’s office, speaking with both the “investigating entity,” presumably TIGTA, and the special counsel’s office, about the “potentially ongoing investigation”?
When asked why the IRS Office of Chief Counsel would be communicating with Weiss about any potential ongoing investigation, as opposed to TIGTA’s chief counsel, the IRS told The Federalist that its “contacts with the Justice Department were to defend against allegations being made by the defendant.” The IRS added that it “made these appropriate contacts after consulting with the independent authorities.”
But if the purpose of a referral to TIGTA was to ensure an independent review of the allegations and to safeguard the rights of the IRS employees, involving the IRS Office of Chief Counsel’s office is problematic — particularly so because the IRS’s chief counsel is a Biden appointee who was recently confirmed in a party-line vote.
Also concerning was Werfel’s refusal to acknowledge that Shapley and Ziegler are whistleblowers, even as the IRS commissioner stressed that he “wholeheartedly agree[s] with [Grassley’s] sentiment that we must be supportive of whistleblowers.” Yet, in his letter to the Iowa senator, Werfel referred to Shapley and Ziegler as “two special agents employed by IRS Criminal Investigation … [who] claimed whistleblower status and submitted information to Congress concerning a particular taxpayer.”
In response to Werfel’s letter, Grassley told The Federalist that “[w]histleblowers are some of the greatest patriots I know and, as Commissioner Werfel himself noted to me during a Senate Finance Committee hearing last week, they provide very valuable information to the IRS.”
“Werfel should practice what he preaches,” the Iowa senator added. “It’s not enough to sing whistleblowers’ praises before a camera at a congressional hearing.”
When it comes to the Hunter Biden whistleblowers, Shapley and Ziegler would likely be content if the IRS and DOJ just stopped trying to dirty them up, as Weiss’s recent court filing attempted.
Margot Cleveland is an investigative journalist and legal analyst and serves as The Federalist’s senior legal correspondent. Margot’s work has been published at The Wall Street Journal, The American Spectator, the New Criterion, National Review Online, Townhall.com, the Daily Signal, USA Today, and the Detroit Free Press. She is also a regular guest on nationally syndicated radio programs and on Fox News, Fox Business, and Newsmax. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. Cleveland is also of counsel for the New Civil Liberties Alliance. Cleveland is on Twitter at @ProfMJCleveland where you can read more about her greatest accomplishments—her dear husband and dear son. The views expressed here are those of Cleveland in her private capacity.
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