A federal judge recently dismissed charges against former President Donald Trump for his handling of classified documents, finding that the appointment of Special Counsel Jack Smith was unconstitutional. This news comes weeks after the U.S. Supreme Court rebuked Smith’s separate prosecution of Trump’s actions in the aftermath of the 2020 election. The court found that the president has absolute immunity from prosecution when executing official duties that fall within his “conclusive and preclusive constitutional authority.”
While the prosecutions of Donald Trump brought Smith to public attention, it was not the first time he was accused of weaponizing the federal government against conservatives. Over 10 years ago, Smith was a central figure in the IRS Tea Party targeting scandal that similarly ended in admonishment for the agency — but not before the actions of Smith and others successfully stifled and smeared nonprofits advocating for conservative policies. As Smith’s eventual role in the Trump case attests, the leaders of the IRS targeting scandal largely escaped accountability for their abuse of power, and some remain influential in government to this day.
In 2013, the IRS apologized for subjecting applications for tax-exempt status from conservative organizations to extrajudicial review. The activity occurred during the peak of the Tea Party movement, shortly before the 2012 presidential election, when activists were speaking out loudly against then-President Barack Obama’s policy agenda. We’ll never know how big that movement could have grown, however, because the IRS slammed the brakes (and, in some cases, the door) on the application process for groups expressing conservative viewpoints.
After the scheme was exposed, Congress launched an investigation into the IRS’s targeting of Tea Party groups, which exposed Jack Smith’s role. While Lois Lerner, then-director of the IRS’s Exempt Organizations unit, became the public face of the scandal, Jack Smith was a central figure behind the scenes from his perch as the head of the Department of Justice’s Public Integrity Section.
In late 2010, after reading a New York Times article about conservative nonprofits exercising their First Amendment right to voice opinions about public policy while keeping their donors’ identities private, an incensed Smith pressed federal law enforcement to launch an investigation into the groups. When the FBI resisted, Smith turned to the IRS to do his bidding. There, he found a more sympathetic audience in Lerner. That was no coincidence: Congressional Republicans’ investigation later revealed that Lerner had collaborated with the Times on the very article that first piqued Smith’s interest.
After his appointment as special counsel, House Republicans offered stinging condemnations of Smith’s role in targeting conservative groups. Rep. Jim Jordan observed, “Jack Smith was looking for ways to prosecute the innocent Americans that Lois Lerner targeted during the IRS scandal.” Rep. Darrell Issa lamented, “It is apparent that the Department’s leadership, including Public Integrity Section Chief Jack Smith, was closely involved in engaging with the IRS.”
After many years of investigations and uproar from conservatives, the IRS formally admitted wrongdoing in 2017 and settled with a number of groups who were victimized by the agency’s actions. Several years later, the IRS responded by finalizing a rule exempting many nonprofits from filing an unredacted Schedule B (Form 990) with the agency. (The Schedule B form lists the names and home addresses of a nonprofit’s significant donors.) In the rule, the IRS conceded that it never needed that sensitive information in the first place.
The reform marked a major turnaround for an agency that initially responded to the scandal by proposing to make its crackdown on First Amendment rights official with new rules restricting the speech of nonprofits. Thankfully, those proposed rules were later withdrawn after a historic bipartisan backlash, and Congress began including riders in the budget each year to prevent the IRS — and other agencies — from attempting a similar scheme in the future.
While conservative nonprofits reeled from the betrayal by their own government, and a number of IRS officials were shown the door, Smith remained at DOJ for several more years before leaving for other opportunities. He led the prosecution of former Virginia Gov. Bob McDonnell, a Republican, that was unanimously overturned by the Supreme Court in 2016.
And, of course, Smith was later appointed special counsel by President Biden’s attorney general, Merrick Garland, to investigate former President Trump. Smith would ultimately indict the former president for his actions to challenge the results of the 2020 election; Trump appealed the indictment to the U.S. Supreme Court claiming presidential immunity. The court agreed with Trump in another repudiation of Smith.
While Smith’s legal losses speak for themselves, the potential for abuse at the IRS to carry out lawfare against political opponents remains a major concern for First Amendment rights and personal privacy. Absent the budget riders that must be passed annually, Congress has never solved the underlying policy problems that made the scandal possible. Nor have the political appointees, bureaucrats, and lawmakers who enabled the IRS to run roughshod over our civil liberties been fully — or even mostly — removed from power.
All Americans, regardless of their views, must remain wary of granting government agencies like the IRS power that can ultimately be turned against them. Remember: There is a Jack Smith lurking in every government agency.
Brian Hawkins is the senior director of external affairs at People United for Privacy Foundation.
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