Late Friday, IRS Supervisory Special Agent Gary Shapley and IRS Special Agent Joseph Ziegler filed a motion to intervene in Hunter Biden’s pending civil case against the IRS, simultaneously also filing a motion to dismiss Hunter’s lawsuit. The move is bold — possibly the first of its kind — but intervention may be the only way the whistleblowers can ensure the Biden administration’s Department of Justice doesn’t throw the case, to the detriment of Shapley and Ziegler.
In mid-September 2023, following months of bad press, Hunter Biden’s legal team went on the offensive, filing a two-count civil lawsuit against the IRS. While the IRS is the named defendant in the case, the complaint focuses on the conduct of Shapley and Ziegler, seeking to hold the IRS liable for the duo allegedly unlawfully disclosing Hunter Biden’s tax returns and return information. Hunter’s lawsuit further claims the IRS violated the Privacy Act by failing to ensure the security and confidentiality of the records.
Hunter’s complaint named the IRS and not Shapley and Ziegler for a simple reason: The statutes on which the lawsuit is based do not allow individual IRS agents to be sued. That may protect Shapley and Ziegler from the expense of paying for a legal defense and potentially a monetary judgment, but it also prevents them from defending themselves against Hunter Biden’s claims that they illegally disclosed his tax returns and tax information.
Under normal circumstances, there wouldn’t be anything for IRS agents to worry about, as they could presume the Department of Justice would zealously defend against accusations of misconduct or illegal disclosures. But this is the Biden administration’s DOJ, and as of yet, it has done little to defend the case based on the whistleblower protections under which Shapley and Ziegler made their disclosures.
Accordingly, on Friday, attorneys for the IRS agents filed a motion to intervene in the case. Federal rules of civil procedure allow a third party to intervene in cases under certain circumstances, and, in fact, in some circumstances, a third party has a “right” to intervene.
In their motion, the whistleblowers claim a right to intervene, arguing they “have a significant concrete interest in the outcome of this action: their careers, their reputations, and fending off adverse collateral consequences.” For instance, if the DOJ fails to zealously argue their disclosures were protected whistleblower communications, leading to a judgment against the IRS, that could lead to an “investigation and potential criminal prosecution by the Department of Justice and the Treasury Inspector General for Tax Administration.”
Further, Shapley and Ziegler argue they have a right to intervene “because it has now become apparent that the IRS — individually and through its legal counsel at the Tax Division — will not adequately represent their interests in this proceeding.” Here, the whistleblowers stress that the “IRS failed to raise fundamental and critical arguments for total dismissal of this lawsuit — a basis set out with an abundance of legal authority in the attached proposed motion to dismiss…”
Alternatively, if they do not have a right to intervene, the whistleblowers maintain that the court should grant their motion under the rules governing permissive joinder.
Both Hunter Biden and the IRS object to Shapley and Ziegler intervening in the lawsuit, meaning the court will likely establish a briefing schedule and hear arguments before ruling on the motion. In their opening brief, the whistleblowers make a strong argument for intervention, but the unique circumstances of the case and the lack of clearly analogous precedent make it difficult to predict how the court will rule.
One thing is certain, though: The DOJ’s representation of the IRS isn’t nearly as forceful as the advocacy Shapley and Ziegler’s attorneys provide. While the DOJ is content to let this case linger, and possibly even allow discovery, the legal team representing the whistleblowers filed a detailed motion to dismiss that eviscerated Hunter Biden’s lawsuit by establishing that the complained-of disclosures were all protected by the whistleblower provisions.
A court opinion declaring as much and then tossing Hunter Biden’s lawsuit against the IRS would be less than ideal for the president, however, especially in the waning days of the campaign season. No wonder, then, that the Biden administration’s DOJ hasn’t pushed that strategy. And that’s precisely why the court should grant Shapley and Ziegler’s motion to intervene.
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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