01 Aug

Rule of Law may be Ignored by Federal Employees

It is a return to the Divine Right of Kings when the United States and its employees are not required to follow the rule of law

Federal employees have de-facto total personal immunity for intentionally illegal acts that benefit the United States

For fans of the Constitution, the preceding statement is both sadly and demonstrably true.

I understand that, for some, this premise may be hard to accept.  Nevertheless, federal laws have been written to, on the one hand, limit the power of federal agencies, while, on the other hand,  simultaneously defeating our constitutional “rule of law” protections using embedded clauses within the same federal statutes.  These embedded clauses essentually provide de-facto total personal immunity for federal employees’ intentional violation of the rule of law.

Therefore, when a federal agency wishes to pursue an agenda that is not supported by the rule of law, the agency may direct or enable its employees to violate the rule of law without fear that those employees will be later held accountable for harm created by violating the rule of law. If a harmed citizen catches the federal agency breaking the law, the United States (actually the taxpayer) steps in and assumes responsibility for the harm.  Notably, the individual federal employee is immune from personal liability.  Since one cannot sue the government for punitive or deterring damages, there is no consequence for intentionally breaking the law.  Thus, lawless behavior is never discouraged.

In our particular legal confrontation with the United States, we have encountered two statutory examples of this statutory deceit:

  • For IRS employees (within the Internal Revenue Code)
  • For Federal Employees Generally

There are no doubt other examples.  Each federal agency has its own set of rules and governing statutes.  Usually, congress includes a remedy statute whereby aggrieved citizens can sue to have their harm redressed when the agency employee violate the rule of law.  Though I have not checked them all, the remedy statute generally includes a provision to enable federal employees intentional violation of the rule of law if the employee’s act benefits the United States.

Federal employees rationalize this right to break the law as necessary for proper governance.  But now, the behavior is resulting in a pattern of lawlessness.  For example, we have taken one of our disputes to the Ninth Circuit Court of Appeals.  The chief attorney (Tamara Ashford) for the IRS had the following to say in the IRS’ final brief:

We nevertheless maintain that the language in Wilkie, as well as the principles underlying that decision, are broad enough to bar a RICO suit against government employees in any situation where the employees are acting for the financial benefit of the United States.” (Deputy Assistant Attorney General Tamara Ashford, 9th Circuit Appeal, 11-56062-Dkt. 18; 31, ¶2);’

RICO is a law alleging a pattern of lawlessness.  So here, Ms. Ashford is asking the appeals court to condone lawlessness when it has become systemic so long as the United States is the beneficiary.

We think the embedded immunity clauses have created a culture of lawlessness within all federal agencies.