We must of course remain vigilant that laws not be used to harass or destroy political opponents. A Wall Street Journal editorial of this morning says as much. But this is not a reason for rulers or former rulers to be above the law like dictators.
The fear of Leviathan—the all-powerful state modeled by Thomas Hobbes—and a certain mistrust of those in power are inseparable of the classical liberal and libertarian tradition. A rule of law developed that is supposed to apply equally to government rulers. The constitutional structure is meant to prevent statocrats from treating the res publica as their private thing. (Res publica, which means “public thing” in the sense of “public affairs” in Latin, ultimately gave the word “Republic.”) Countervailing powers and institutions provide incentives to statocrats not to pursue authoritarian temptations. We have good reasons to think that controls over government have become much too weak. (Nobel economist F.A. Hayek has done important work in that area.)
The strongest argument against the state—all levels and branches of government—is that there is no way to prevent even liberal rulers from nurturing the democratic Leviathan, which will become impossible to control. (See Anthony de Jasay, The State.) As the Latin poet asked, “Quis custodiet ipsos custodes?”
When we live under a state, the truly dangerous abuse of power does not come from the constraints imposed on rulers and their agents. It does not show in the search of the home of a former ruler who is apparently suspected of stealing public documents related to his tenure at the res publica. It is instead the sort of abuse of power targeting ordinary citizens, who have come to be engulfed in a net of minute and complex laws and regulations. Looking at the federal government only, the number of restrictions and obligations (estimated by the number of the words “shall,” “must,” “may not,” “required,” or “prohibited”) contained in the Code of Federal Regulations has gone from less than 500,000 in 1970 (the first year the data is available) to more than 1.3 million in 2021 (according to the latest version of RegData developed by Patrick McLaughlin at George Mason University’s Mercatus Center). Some 8% of American adults have a felony record, which means they remain “convicted felons” for their whole lives (Sarah K.S. Shannon et al., “The Growth, Scope, and Spatial Distribution of People with Felony Records in the United States, 1948-2010,” Demography, vol. 54 [2017]).
Note that none of the recent presidents and very few politicians have done anything, or even indicated any intention of doing anything, about this evolution. Even the “law and order” types, overt of covert, target their toughness towards the groups of citizens they don’t like, not against the holders of power.
It is mainly rulers and government agents who need to be surveilled and controlled, including the Department of Justice and the FBI, as well as presidents for what they do (or did) during their tenure.
As I was putting the last hand on this post, the Wall Street Journal reveals that Mr. Trump has just pleaded the Fifth Amendment—probably repeatedly as his acolytes have often done in other proceedings—in an unrelated affair of “fraud” investigated by the New York Attorney General. Afterwards, Trump made a remarkable declaration (“Trump Invokes Fifth Amendment Rights in Deposition for New York AG James’ Civil Investigation,” Fox News, August 19, 2022):
I once asked, “If you’re innocent, why are you taking the Fifth Amendment?” Now I know the answer to that question.
Better late than never, but this guy was the president of the United States! Let us hope that the American institutions meant to protect individual liberty can withstand the 2016 election of Donald Trump.
READER COMMENTS
Todd Moodey
Aug 10 2022 at 12:29pm
Pierre–
I just have to ask because you write so well. Are you using “modelized” intentionally, as a portmanteau of “modelled” and “idolized”?
Regards,
Todd
Pierre Lemieux
Aug 10 2022 at 12:49pm
Todd: Thanks for the correction (and the compliment)! I just made the change in my post. (Correction upon correction: I think that, in America, “modeled” would take only one “l” as opposed to British English.) I write better in French, my mother tongue, and my “modelized” or “modellized” was a pure Gallicism.
Scott Sumner
Aug 10 2022 at 12:30pm
Good point about the 5th amendment. People don’t see the need for legal rights until the law comes after them. I’d add that many on the right ridiculed the “defund the police” movement (probably for good reason.) But now that some Republicans are calling for defunding the FBI and the tax police, I’d like to think they now have a bit more sympathy for inner city kids harassed by the cops.
Pierre Lemieux
Aug 10 2022 at 12:54pm
Thanks, Scott! And the “defund the police” argument is a good addendum.
Craig
Aug 10 2022 at 1:08pm
If there is a federal government with the power to enact legislation either the federal government possesses a ‘police power’ or it doesn’t. Take your pick, but if one concedes that the police power exists that doesn’t mean the state can wield that authority in an arbitrary and capricious manner. One can be against the arbitrary and capricious use of the state’s police power and not support defunding the police. This sentiment is embodied in Madison’s ‘angels’ quote: “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.” Indeed, if there is going to be a federal government it makes sense that it should have a police power if its going to be effective and capable of enforcing its laws — it would necessarily need to be funded.
Yet I would still support defunding the FBI and the IRS, not because it makes sense from the point of view of making the federal government effective, but because I’m a secessionist and doing that would render the federal government ineffective.
Jim Glass
Aug 13 2022 at 5:12pm
This is spot on. Historical reality.
Jefferson famously wrote the classical prescription: “Life, Liberty and Property” (in the original, edited by Franklin to ‘Pursuit of Happiness’ for obvious rhetorical purpose.)
Note that “Life”, i.e. safety, is #1, comes first. To protect the citizenry’s life the state must eliminate the power of others to take life — that is, strive for a monopoly over violence. (To reduce violence – which is how monopolists function, eliminating other suppliers of the monopoly service.) Thus the potential Leviathan arises as forced necessity.
Trying to move #2 or #3 up to #1 – as so many libertarians so devoutly desire – just isn’t going to work. No life, then no liberty or property. Right out of Locke.
Not out out Locke. 🙂
Jim Glass
Aug 13 2022 at 5:19pm
now that some Republicans are calling for defunding the FBI and the tax police, I’d like to think they now have a bit more sympathy for inner city kids harassed by the cops.
Aw c’mon Professor. You know those Repubs don’t give a rat’s derriere about “inner city kids harassed by cops”. They just care about the populist Repub voters they can motivate by claiming Trump is a “victim” of the FBI, and they themselves are about to be victims of the IRS’s jack-booted stormtroopers.
(ROTFLMAO, if you ever been inside the IRS … that’s so funny.)
In Bryan Caplan’s days here there used to be a much talk about politicians playing to alliances of “Baptists & Bootleggers”. Now it’s Trumpistas & Tax Cheats.
Jim Glass
Aug 13 2022 at 8:02pm
I’d add that many on the right ridiculed the “defund the police” movement (probably for good reason.)
Probably?
Something that really cheeses me about Libertarians is that when the government gives them exactly what they say they want, they never respond with “Good job, government! Thank you! Can we have more please?”
New York City 1990 to 2019 dropped violent crime by 70% and property crime by 90%(!). Moreover, NYC did it while slashing incarceration (especially keeping drug offenders out of jail). Prisons that formerly held tens of thousands were sold off to the private sector.
Libertarians are anti-violence, pro-property, hate incarceration (especially for drug offenses) and are pro-privatization too. Right? The NYC crime strategy was win-win-win-(especial win)-win by libertarian standards.
So the Libertarians cried out “Hooray for NYC! Much less violence! Much safer property! Much less incarceration! New privatization of government property! More freedom and safety for all! How did NYC do this? Let’s talk about it. More please! Show America the way!” Right? Um … no. They were totally silent. Mute. Why? It’s not like life in New York City is a secret:
My hypothesis: Libertarians just can’t support any major government program, even when it is win-win-win-win by their own standards, because their pathological fear of the horrible potential abuses of Leviathan trumps all. Tops merely, you know, in fact improving the world and making lives better. How can supporting Leviathan please libertarians?? Does not compute! Hey, prove me wrong.
On this site I pointed out the above book several years ago, and added this:
I just used the Econlog search engine and found zero constructive discussion of reducing crime while increasing freedom in practice (using the NYC model or any other) in all the years since then. I conclude libertarians have no interest in actually improving the lot of “inner city kids harassed by the cops”, or they’d have been all over the NYC reforms.
After all, who benefits the most from slashed incarceration, violence and crime? Those very kids! And their families, and their (formerly high crime) neighborhoods.
But do libertarians want to build on this? Nah, their crime policy is just to find something else to stoke fear of Leviathan — preferably something counter-intuitive enough to prove loyalty to the cause. (Russian Oligarchs in Europe maybe being subject under foreign laws to something like civil forfeiture? Now there’s an imagined civil rights abuse to grab libertarian interest!)
And now the conversation right here is back again to invoking “inner city kids harassed by cops”, just as if nothing had happened since 1990.
Felony crime in NYC was up 31% last month. How are those “inner city kids”, and their families, and their neighborhoods, doing now? Do libertarians care?
John Brennan
Aug 10 2022 at 3:29pm
https://www.youtube.com/watch?v=d-7o9xYp7eE
Also read Leonard Levy’s ORIGINS OF THE FIFTH AMENDMENT, perhaps the greatest book written regarding legal history in the last 100 years.
It does not matter which police power you do not trust or want to defund–never talk to any of them. Nothing personal. Just Constitutional.
MarkW
Aug 10 2022 at 5:32pm
It is mainly rulers and government agents who need to be surveilled and controlled, including the Department of Justice and the FBI, as well as presidents for what they do (or did) during their tenure.
The ruler with the agents and power of state behind him in this case is Biden, not Trump. There is a great danger in rulers abusing their executive powers to harass political opponents. Of course, Trump should not be above the law. But in directing the state’s police power against a political opponents, a ruler must be like Cesar’s wife–beyond reproach. Any search warrant executed against the leader of the opposition party, needs to be absolutely, incontrovertibly by the book.
That is clearly not the case here. Biden, who is ultimately responsible, (implausibly) claims not even to have been aware of what was going on. And, AFAIK, the warrant has not been made public nor was the search necessarily limited specifically to those items listed in the warrant (and what were those?). Is there anything at all about the way this was handled that would lead the opposition party supporters to feel this was being done in an even-handed, apolitical way?
I’ve never liked Trump, and never voted for him, but so far, this stinks. I find it chilling.
Scott Sumner
Aug 10 2022 at 7:11pm
There is no evidence that Biden ordered the search.
Trump can make the warrant public whenever he wishes. It’s totally up to him.
Pierre Lemieux
Aug 10 2022 at 9:01pm
Mark: Perhaps I have some naïveté left, but I go along with Scott. I tend to believe the White House that Biden was not forewarned. This would be consistent with the conventions developed since Watergate. Moreover, hunting down any naïveté, the Attorney General would have known that forewarning Biden would have made the latter complicit.
Craig
Aug 10 2022 at 10:12pm
“I have some naïveté left”
And I have some bridges across the East River for sale!
“but I go along with Scott. I tend to believe the White House that Biden was not forewarned.”
How do you know a politician is lying? His lips are moving. Biden’s assertions have no weight.
It strains credulity to suggest this happened without Biden’s direct approval, at minimum knowledge it was going to happen.
“Attorney General would have known that forewarning Biden would have made the latter complicit.”
But nobody is going to believe that anyway. The buck stops with…Garland? Uh, no.
MarkW
Aug 11 2022 at 6:49am
I tend to believe the White House that Biden was not forewarned.
He may not have been. But the lack of forewarning would have been a deliberate decision, not because the raid was some kind of routine law-enforcement procedure that didn’t warrant his attention. I guess we don’t even know for sure that Merrick Garland authorized (or even knew about) the raid, since he has said nothing so far. If you scan the headlines, the common assumption (on both left and right) is that this is not a standalone issue about documents but is a opening salvo in the DOJs effort to go after Trump (with progressives obviously in favor). Trust in the FBI and DOJ is already low (even relatively low among Democrats). That’s not healthy and the way this is playing out (with silence about who authorized and why) is surely not helping.
Michael
Aug 11 2022 at 7:29am
Actually, routine DOJ policy is not to forewarn the President on routine matters. Garland pledged when nominated not to have the President in the loop on matters of law enforcement. The President’s input to the AG and DOJ is limited to matters of policy (e.g., reinstatement of the moratorium on the federal death penalty) and not on specific criminal cases and investigations.
It’s DOJ policy not to comment on investigations. This policy was notably violated by James Comey with regard to the investigation of Hilary Clinton.
My assumption differens from the common one. I think this search was about retrieval of classified documents as a standalone issue and is not likely to lead to any charges being filed. I think the government’s objective here was to get its stuff back, and, having done that, this matter may be largely over.
Silence is the norm. There may be a case here for beaking the norm, but the norm is there for good reason. Most people against whom the FBI would execute a search warrant would be harmed more by public commentary than by silence.
Craig
Aug 11 2022 at 10:54am
“Actually, routine DOJ policy is not to forewarn the President on routine matters. Garland pledged when nominated not to have the President in the loop on matters of law enforcement. The President’s input to the AG and DOJ is limited to matters of policy (e.g., reinstatement of the moratorium on the federal death penalty) and not on specific criminal cases and investigations.”
Great GENERAL rule. And in 999,999 out of 1mn cases, I could believe that to be true, BUT NOT THIS ONE. Trump is the exception to that.
Michael
Aug 11 2022 at 7:21am
What would have been inappropriate is for Biden to be involved in the decision to order any investigative steps in this case. Biden is ultimately responsible, but the only appropriate way for him to discharge that responsibility is to hire an AG who is up to the job and stay out of the matter. That’s “by the book” which you claim to want.
There is a lot about this search that is not known as of yet, though there is public reporting that it relates to Trump’s continued possession of government doucments including classified documents.
We can expect that: 1) the government applied for a warrant, 2) a federal judge granted the warrant, 3) the warrant specified what evidence the government was seeking, where they intended to look for it, and what crime the evidence they were seeking relate to – this would be minimal, like a statute, not a detailed description, and it would not say who the target of the investigation was, 4) the warrant and an inventory of items taken was left at the scene. That’s “by the book.” We may later learn that something was done improperly, but there is no honest fact based reporting supporting that claim – merely a belief that Donald Trumop should be above the law.
There are 3 key documents:
1) The warrant application. This is what was presented to the judge in order to get his sign off on the warrant. It would have included the bare-bones information in the warrant (what areas are to be searched for which items; what statute the evidence, if found, would be a violation of), and an affidavit with the narrative of the investigating officers that makes the case that there is probable cause to believe that evidence of a crime could be found via the search.
The warrant application will never see the light of day unless 1) someone is charged or 2) the target of the investigation asks for its public release and the government agrees. This is intended for the protection of the person charged. Let’s say that Trump is the target here (a very safe assumption IMO). That would mean the warrant application would include a description of how he allegedly violated the law. It would be for Trump’s own protection that this document, containing by definition, unproven claims of criminal wrongdoing by Trump, is not disclosed to the public.
2.) The warrant itself. This is a barebones document that merely says what items are being searched for and where the government is allowed to look. It is not policy for the government to release this information, but Trump and his legal team have this in their possession and they are free to release it to the public should they choose to do so. (The general rule here is that Trump and his lawyers get to decide what is in his best legal interests, and then act on that; the government doesn’t get to make that calculus, it would violate procedure for them to release it).
3) A list off all items taken. This also would be left with the defendent or his represenative. The government won’t release it per procedure. Nothing stops Trump from releasing it.
Is the search limited to materials specified in the warrant? Yes and no. The warrant enumerates specific items and locations and states the alleged crime. If the officers executing the warrant looked in different areas, for different itels, relating to a different crime, that would violate the warrant. With an exception: the searchers would be allowed to take anything “in plain sight” that appeared to be evidence of a crime. Example: Let’s say that this warrant was for government and classified documents illegally in Trump’s possession, and in walking around Maralago the officers found a bunch of paraphenalia used to cook meth (I picked this example to be absurd). They could take that.
That sounds like a huge loophole, and it is, but usually not in a white collar/national security case against a high profile defendant. I think that to cover their bases, the officers executing this warrant would have sought another warrant for additional items rather than relying on the plain sight rule. If the people executing the warrant relied on “plain sight” in a shady way, I think Trump’s lawyers would be ecstatic abouttheir chances to get those items suppressed in court.
I think that there is nothing that would convince Trump’s supporters that a hypothetically perfectly legal and properly executed search warrant was done in an even-handed, apolitical way, so, no.
But there is no evidence in the public domain to support any accusations of wrongdoing.
Vivian Darkbloom
Aug 11 2022 at 12:12pm
“3) A list off all items taken.”
I understand that under current federal practice under Rule 41 of the Federal Rules of Criminal Procedure this inventory list is satisfied if items taken in bulk are described. For example, the FBI might leave a list consisting of 20 boxes of paper documents, 3 computers, etc, etc and not a description of each individual paper document that has been seized.
More troublesome for this type of thing is that the federal rules and practice regarding classified documents is pretty arbitrary and constantly changing. It’s ridiculous how many things are classified that are public knowledge. It’s a trap for the unwary as several recent prosecutions of government employees have shown. I’m willing to bet a million bucks that if a search of all living former Presidents was conducted, all of them would be susceptible to prosecution.
As to Trump taking the Fifth: He was an idiot to formerly state that this is an indication of guilt when it was others involved. Any competent lawyer would advise against voluntary testimony at this stage because it is also a trap for the unwary—the purpose is very often to set someone up for a later perjury charge.
Michael
Aug 12 2022 at 12:26pm
If Trump does not object to release of the list, we may find out as soon as today what was taken and how it was described.
As to changing standard of classification, there are 3 separate issues here: 1) Did Trump take items that were government property, classified or not. I don’t mean did he steal the sheets, but did he take records of his Presidency that by law he was required to hand over to the National Archives. 2) Did he take classified documents? 3) If he did take classified documents, how stringently classifed were they?
There is also the question of why, apprised of the fact that he had such documents at MAL, he did not fully comply with efforts to retrieve them.
rick shapiro
Aug 11 2022 at 1:28pm
Don’t forget that the FBI delivered copies of the warrant and the inventory of seized material to Trump, but are forbidden by privacy policy from publicizing them. Trump, however, if he has nothing to hide from the public, is perfectly free to release them.
The MAGAts are braying completely unsupported accusations against the FBI’ when it was Trump who fired AGs who wouldn’t do his illegal bidding, and then instigated IRS compliance audits of them. It’s not inconceivable that a liberal could do the same thing; but respect for truth and law is a big part of what being a liberal is.
Mark Z
Aug 11 2022 at 3:05pm
I have little doubt that the raid was technically legal. The main point of concern isn’t with the legality, but the possibility of selective enforcement. Here’s David French – as zealous a critic of Trump as exists on this planet:
“But consider me skeptical that we have the full explanation for the search. I just finished recording an emergency Advisory Opinions podcast with Sarah Isgur—who just so happens to be a former senior Department of Justice official—and she rightly observed that there are a number of ways of securing classified information without executing a search warrant against a former president and seizing the documents.
There is technically no problem with such an action, but practically, if you’re going to take law enforcement actions that get “civil war” trending on Twitter, then the alleged underlying offense should rise to a certain level of seriousness.”
Executing a raid on – and especially prosecuting – Trump for possessing classified documents would be both technically legal and suspicious, especially when contrasted with, say, the non-prosecution of Hilary Clinton for mishandling classified information. It may be suggestive of a cop ticketing someone he doesn’t like for jaywalking. This is why French and Isgur are skeptical that the raid is really just about document retrieval.
Michael
Aug 12 2022 at 12:34pm
That is some wild moving of the golaposts.
Warrants were served against Clinton, she complied, she was ultimately not prosecuted.
Warrants were served against Trump, he complied, then he went public to his base with his grievances and accusations, he has not yet been prosecuted and may not be. (I think it is entirely possible that the sole purpose of this warrant was to retrieve sensitive/classified materials that Trump refused to turn over.)
Vivian Darkbloom
Aug 13 2022 at 11:49am
Search warrants were never issued against Hillary Clinton, much less a search warrant that authorized a search of documents stored at her private residence (what would they have found there? We’ll never know.).
Rather, Clinton was requested to turn over all government work related e-mails. Through her lawyers she denied there were ever any e-mails through her private address that contained classified information. Her lawyers turned over 30,000 work-related e-mails and *deleted the rest* (i.e., those *they themselves* determined were not “work related”). Investigators later found that there indeed were e-mails containing classified information including several classified “top secret”.
If you have information that Hillary Clinton was served with a search warrant, I’d be very interested if you would point me to the source of that information and the name of the magistrate who issued it.
On the other hand, there *was* an actual search warrant issued after the initial investigation into Clinton’s e-mails was supposedly settled and after Hillary and her lawyers had supposedly “fully complied”—that is, a search warrant to search the laptop of Andrew Weiner. That search warrant was issued after the FBI, investigating Weiner for exchanging explicit text messages with a minor, found over 300,000 between Clinton and her former aide Huma Abedin including several containing classified information that had not previously been disclosed.
Jim Glass
Aug 13 2022 at 5:06pm
The ruler with the agents and power of state behind him in this case is Biden
“Ruler”. Ha. In his dreams! 🙂
‘Twas Trump’s dream too — if not his active delusion — and what happened to him?
Monte
Aug 10 2022 at 5:32pm
Like matter subjected to heat, there has been a constant volumetric expansion of government since 1930. And sadly, our younger generations are asking for even more. If this trend continues, Hobbe’s Leviathan untethered. We would all do well to remember these words my Mises (excerpted from Omnipotent Government: The Rise of the Total State and Total War):
nobody.really
Aug 12 2022 at 12:39am
The worst evils which mankind has ever had to endure were infectious disease and ignorance; the state has been the chief weapon against both.
Monte
Aug 12 2022 at 11:16am
Too superficial, nobody. Disease isn’t evil, it’s simply indifferent: disability or death by natural causes and part of the human condition. And ignorance? Ignorance is bliss! “In nil sapiendo vita iucundissima est” (In knowing nothing, life is most delightful). Ignorance knows nothing of evil.
But humankind’s proclivity towards evil is inherent and, combined with the State, the scale of harm increases exponentially:
In giving precedence to the State over the individual, we bind ourselves over to it as servants, allowing the State to ultimately become the master of its individual citizens:
nobody.really
Aug 15 2022 at 11:23am
How often on this blog do we read that various forms of regulation (up to and including communism) are bad not because they were produced by bad motives, but because they produce bad results? So it’s refreshing to find someone expressing the alternate point of view.
I prefer judging policies primarily on the basis of outcomes–and I prefer the outcome of less infectious disease and more education. In fairness, I acknowledge that the concept of evil is important to many religions. I don’t happen to share yours, but I defend your right to practice it.
Jim Glass
Aug 13 2022 at 5:02pm
The worst evils which mankind ever had to endure were inflicted by bad governments.
Really? Pre-state societies were far more violent than states.
This is the third time I’ve posted this recently, and I won’t again. But why should I have had to? Anyhow, here’s much more data on the point.
Through all history as states have risen and continually grown, violence has steadily declined. Why do Libertarians insist on not knowing this? Motivated reasoning? Confirmation bias (going back to 80-year old sources)?
Mises maybe had half an excuse, lack of data way back all those decades ago. But we are in the 21st Century.
Monte
Aug 13 2022 at 7:42pm
Violence isn’t the only form of evil. There’s fear, coercion, suppression, loss of liberty, over-taxation, over-regulation, ad infinitum. But you have a point. If we’d just accept the fact that the State is the highest form of societal evolution and trust in the government with all our hearts, souls, and minds, there would be NO violence.
David Seltzer
Aug 10 2022 at 6:25pm
A game of tit for tat. Is it unreasonable to expect the next republican administration would execute a similar action against a former dem president in reprisal? Another rent in the fabric of the republic. At the granular level, why does the IRS need 87,000 new agents to go after a handful of billionaires? Our founders were not fearful men and women. Hence, we as a republic, are descended from those seeking liberty. This republic will survive these torturous transgressions.
Jim Glass
Aug 13 2022 at 4:55pm
At the granular level, why does the IRS need 87,000 new agents to go after a handful of billionaires?
Not agents. Employees. And not to go after billionaires. Like, people to answer the phone. Do you ever try to get someone to answer a call there? Call you back?? And maybe people to fix the computer system, which has been an infamous fiasco forever, since before I first met it in the 1980s. And answer letters, answer questions, customer service(!?!?). Get returns processed not weeks late. Handle appeals expeditiously when taxpayers have honest problems…
Look at tables showing how the IRS’s funding has been slashed, in the paper linked to by Vivian. (Thanks!)
There’s never been gridlock in DC when it comes to underfunding the IRS. Because … obvious. Who wants to fund a revenue service that actually efficiently collects taxes that people actually owe? The HORROR! Leviathan gone frothing mad! Gestapo!….
Vivian Darkbloom
Aug 11 2022 at 1:51am
“…why does the IRS need 87,000 new agents to go after a handful of billionaires?”
Because Larry Summers says they are needed and will raise trillions of dollars in additional tax revenue (one trillion over 10 years) despite what the CBO might say.
And, can the IRS find 87,000 people in today’s workforce qualified to do that?
https://www.nber.org/papers/w27571
Monte
Aug 11 2022 at 2:38am
An interesting question, given that the IRS deleted a job posting Wednesday seeking Special Agents “willing to use deadly force” for its law enforcement division, Criminal Investigation (CI). Other “Major Duties” listed in the job description included “a level of fitness necessary to effectively respond to life-threatening situations on the job, and being willing and able to participate in arrests, execution of search warrants, and other dangerous assignments.”
Not exactly the kind of wording the IRS should be posting in want ads to assuage the fears of Americans who don’t cheat on their taxes, but who remain terrified nonetheless, and with good reason.
Monte
Aug 11 2022 at 11:52am
And it’s not the “billionaires” the IRS is interested in going after so much as the low-hanging fruit.
Jim Glass
Aug 13 2022 at 4:47pm
And it’s not the “billionaires” the IRS is interested in going after so much as the low-hanging fruit.
OK, let’s take a look at this…
1) About 20 million lower-income people claim the Earned Income Tax Credit on their returns. “Excess” credits are paid on a massive scale, billion$ worth, because (a) when you offer people free money what are they going to do? and (b) how many understand the rules?
So the IRS sends out about 250,000 letters to these people each year asking them to verify facts about their credit claims. Each paper letter is counted as an “audit”.
2) Millions of higher-income types don’t get these letters because … none of them claim the EIC. So, yes, they have a lower letter-receiving “audit” rate than do claimants of the EIC — 100% lower as to the EIC itself. Horror!
3) Big corporations and ultra rich individuals have seen their audit coverage fall significantly, which is a bad thing. Why? Because when going after these parties who have $500/hour accountants and lawyers using state-of-the-art financial processing technology the IRS needs the same. You can’t use letters! And with its budget gutted the IRS lacks the people, while using 1980s computers powered by hamsters running in a wheel. (Not exaggerating as much as it sounds.)
Which makes it difficult. The IRS can’t collect taxes from big corporations and the ultra rich by proclaiming “I am the Leviathan!” and waving a stick.
What’s the solution to all these inequities and injustices? I dunno. Maybe fund the IRS so it can do its job as to everybody?
Again, look at the “defunding” tables in the Summers paper linked to by Vivian. Does all that seem like good sense to anybody?
Monte
Aug 13 2022 at 7:22pm
This Cato study, conducted over 25 years ago, found that the IRS remained “incapable of administering and enforcing the nation’s tax law” even after doubling its resources over a 10 year period. The song remains the same. But wait! Lets supercharge the IRS with 87,000 new agents and $84 billion in taxpayer money! This time is sure to be different!
Monte
Aug 13 2022 at 7:26pm
https://www.cato.org/policy-analysis/why-you-cant-trust-irs
Jim Glass
Aug 13 2022 at 4:38pm
OMG! It’s almost like the IRS has to deal with organized crime families, drug cartels (domestic and international), indeed violent criminals of all kinds … who don’t want to pay their taxes!
Imagine if the FBI or Secret Service, or your local police department, used such wording. The Horror!
Btw: Who put away Al Capone?
“Terrified … with good reason“? Really? Exactly what reason?
The audit rate for audits that aren’t mere letters (“you forgot to sign your return” “you gave a wrong account number”) which actually involve seeing a living, breathing auditor, is 0.6 per 1000 taxpayers annually. (And those audits are highly skewed to those who actually do cheat on their taxes — the IRS isn’t entirely inept — so the audit rate for non-cheaters is a lot less than that.)
Let’s say you aren’t a drug cartel member or other violent criminal who has cheated on your taxes, you are just an honest middle-class guy:
At that 0.6 per 1000 rate you have a much less than 50% chance of meeting a live IRS auditor once in the next 80 years. Are you terrified yet?
Well then be terrified of these: Mosquitoes. Yes, mosquitoes kill more innocent taxpayers than the IRS does. Look it up.
Monte
Aug 13 2022 at 7:08pm
I’m glad you’re out there advocating for our poor, underfunded, and misunderstood IRS. Obviously, most taxpayers rarely have to worry about interacting with the FBI, Secret Service, or even their local police department. They expect those law enforcement agencies to be well equipped for deadly force in dealing with criminals. We all, however, have to deal with the IRS every year and, justified or not, many suffer from IRS phobia and find themselves in a situation that they feel is beyond their control or beyond what they can mentally handle. Tax professionals encounter many clients who refuse to open letters from the IRS fearing the worst. They’ve seen people close to panic attacks when discussing their tax issues. They’ve witnessed people break down in tears, exhibit feelings of stress, and even entertain thoughts of suicide, so want ads like the one referenced do little to reassure these folks that they shouldn’t fear the IRS.
But, what the hell, proliferate those want ads! Just tell taxpayers to suck it up and remind them that the IRS took down Al Capone and they have more to fear from mosquitoes.
David Seltzer
Aug 13 2022 at 8:16pm
Monte, BRILLIANT response. Recent Pew research indicates only 20% of those polled trust the government. Now the IRS wants to hire accounts willing to use deadly force. I’m surprised the number is as high as 20%
David Seltzer
Aug 13 2022 at 8:19pm
Monte, I meant accountants. Not accounts. Apologies
David Seltzer
Aug 11 2022 at 11:16am
Thanks Viv.
Michael
Aug 13 2022 at 10:19am
What text in the bill specifices the hiring of 87,000 new IRS agents?
The answer: none. Political opponents of the bill are making their own claim about the bill, unsupported by its text, and people who are ideologically sympathetic to the bill’s opponets are grabbing onto it amd publicizing it.
Some of the money in the bill goes to the upgrading of outdated IRS IT systems.
vince
Aug 11 2022 at 4:06pm
Scott Sumner wrote: “many on the right ridiculed the “defund the police” movement (probably for good reason.) But now that some Republicans are calling for defunding the FBI and the tax police”
Apples and oranges, and rather trolling, no?
Pierre Lemieux
Aug 11 2022 at 4:49pm
Vince: I think that Scott was criticizing conservatives (or Republican Party supporters) who clamor for authoritarian forms of “law and order” not knowing that they are calling for laws that will entrap honest ordinary people, and not understanding young people who instinctively (and generally not very rationally) resist that. As Acton said, “power corrupts.”
vince
Aug 11 2022 at 4:13pm
How did the FBI do with that FISA warrant to spy on Trump? What it must be like to go against the Establishment …
Pierre Lemieux
Aug 11 2022 at 4:25pm
Vince: You are right if you mean that any secret court like FISA is a big blemish on the rule of law. Being against populist tyranny (and compulsive lying) is of course not to be in favor of uncontrolled state power. Just the contrary.
Capt. J Parker
Aug 11 2022 at 4:14pm
So much ado about nothing. Trump is GUITLY and sooner or later the DOJ will figure out what of.
Pierre Lemieux
Aug 11 2022 at 4:40pm
J.: You are right if America is just like what Trump, according to certain testimonies, seemingly confirmed by Republican Senator Jeff Flake, called “s******* countries.” We have to keep our eyes open, our critical minds alert, and read books, of course, but there is much evidence (and theory) that this is not true.
vince
Aug 11 2022 at 4:45pm
“Trump is GUITLY and sooner or later the DOJ will figure out what of.”
Nice judicial philosophy. Determine guilt first, and then keep looking for it. How many of us could not be found guilty of something if the entire Federal government put its resources into an exhaustive search?
Pierre Lemieux
Aug 11 2022 at 4:53pm
Vince: You point to a real problem. As Lavrentiy Beria, Stalin’s police chief, reportedly told his boss, “Show me the man and I will show you the crime.” This is why the rule of law is important as was emphasized by classical liberalism.
Capt. J Parker
Aug 11 2022 at 7:31pm
My lame attempt at sarcasm having failed, I would like to state clearly that I’m in total agreement with you Mr. Lemieux, and with vince.
And if our government wanted to find a crime for any of us, the tax code would be as likely as any a place to start. That is why I find Congress’ subpoenas for Trumps tax records even more troubling than the Mar-a-Largo search. Congress already knows Trump is guilty, it’s just a matter of finding out what of.
vince
Aug 11 2022 at 11:39pm
My response was a hedge, but I suspected that you were being sarcastic.
nobody.really
Aug 12 2022 at 12:45am
Lewis Carroll, Alice’s Adventures in Wonderland (1865)
Thomas Lee Hutcheson
Aug 11 2022 at 4:36pm
While broadly sympathetic to your main point, counting prohibitions might only reflect greater complexity of economy and society. Consider a case in which the only limitation of freedom is not to steal but for some reason it was necessary to prohibit item by item. As the economy expands and more items are created the number of prohibitions would grow but with increases in freedom to interact with the growing number of items.
Pierre Lemieux
Aug 12 2022 at 12:12pm
Thomas: You may be right that an argument could be built along these lines (and I appreciate your objections and challenges). I have some problem, though, imagining how the argument would be exemplified in laws. “It is forbidden to steal black cars”; “It is forbidden to steal red cars,” and so forth? Or “It is forbidden to carry burglary tools such as a hand saw for the purpose of committing a burglary”; “It is also forbidden to carry an electric saw for the purpose of committing a burglary”; “It is forbidden to carry a battery-operated electric saw for the purpose of committing a burglary”, and so forth?
But I think that, such an argument, even if it would not just translate in useless repetitions, would still anyway be too uncomfortably close to Mussolini’s statement (quoted by Hayek in The Road to Serfdom):
David S
Aug 11 2022 at 7:09pm
Isn’t this incorrect? I thought that one of the “good” aspects of the Trump administration was that for every new reg made 2 had to be deleted? The simple number of rules metric is a little misleading in Trump’s case, as they count deregulation rules as new regulation:
https://www.forbes.com/sites/waynecrews/2018/10/23/trump-exceeds-one-in-two-out-goals-on-cutting-regulations-but-it-may-be-getting-tougher/?sh=67d872063d40
Pierre Lemieux
Aug 12 2022 at 11:44am
David: Trump’s “deregulation” is very overrated. The most he has done is to stop the growth of regulation; in fact, he has merely reduced the annual rate of regulation growth. See the regulation section of my evaluation of his policies after three years in the Summer 2020 issue of Regulation. There, I use more recent data from Clyde Wayne Crews, the author of the Forbes article you link to. As you point out, measuring regulation is not easy, but all measures we have show that regulatory growth continued between Obama’s last year and Trump’s last year. The number of words in the CFR (the total stock of federal regulations) increased from 102,561,731 to 103,524,233. The total number of restrictions (ban or mandate words, as listed in my post) increased from 1,271,557 to 1,325,826. (These last two numbers use a later version of RegData than I used in my Regulation article.)
Indeed, it is not easy to find a long list of the regulations he abolished. They were minor regulations and never major regulatory structures or agencies, and he did nearly all that by executive action even during the two years that Congress would have done anything feasible he would have asked, including changing the name of the Virgin Mary into “Stormy Daniels.” It is even more difficult to find abolition of regulations that make the life or ordinary people miserable. For example, he did not even just slow down the war on drugs or promote any decriminalization. Another example: he did not not reduce the regulations undermining the Second Amendment, but increased them (with the bump stock prohibition). He did not do anything to reduce the net of daily regulations on ordinary people’s lives–ordinary people including the sort of poor souls who were later to follow him and be convicted of criminal offences on January 6, 2021. He worked hard however to make it impossible for them to buy sporting goods or shoes from Chinese producers. His proclamation of the Defense Production Act during Covid sent the Department of Justice after “price gougers” who sold PPE that was otherwise unavailable on the price-controlled market. And so forth.
Thomas Lee Hutcheson
Aug 11 2022 at 10:32pm
If one does not cheat on one’s taxes, or only does so in safe white collar ways, why would one care the some IRA agents might need to get physical during some arrests?
Vivian Darkbloom
Aug 12 2022 at 10:49am
Only those already proven guilty are subject to arrest?
Pierre Lemieux
Aug 12 2022 at 11:50am
Vivian: You are right. And, as Trump (my preferred political philosopher) used to say until his little person was in criminal peril, why invoke the 5th Amendment if you are not guilty? Or why don’t cops stop protecting with their hands the heads of arrested people put into police cars, for this does not happen to the innocent anyway? We only get physical with the guilty.
vince
Aug 12 2022 at 7:17pm
“why invoke the 5th Amendment if you are not guilty”
Maybe the charge is frivolous. Would you answer the question “When was the last time you beat your wife?” Even if one wants to answer, his attorney may advise him to use his 5th amendment right.
vince
Aug 12 2022 at 7:13pm
“If one does not cheat on one’s taxes, or only does so in safe white collar ways”
What is safe white collar tax cheating? Exaggerating charitable contributions? Claiming more business miles than actually driven? Ignoring a little bit of side income? A waiter not reporting all of his tips? A tax return is signed under penalty of perjury that it’s is accurate. All of those examples could be considered tax fraud.
Jim Glass
Aug 13 2022 at 4:16pm
All of those examples could be considered tax fraud.
Nope, none are. Under-reporting your taxable income by itself isn’t fraud. Exaggerated charitable contributions, excess driving deductions, etc., are all things the IRS could catch in a routine examination of your records. It has a three-year limitation period within which to do so.
Fraud requires willful acts to deceive the IRS. Taking funds using a false name, hiding them in a foreign bank account, then reporting on your tax return that you don’t have any foreign bank accounts — that’s fraud. No statute of limitations on that, the IRS has forever to get you.
Michael
Aug 13 2022 at 6:02pm
This is counterintuitive. If I deliberately underreported my taxable income in order that I might pay less tax, that would seem like fraud to me in the commonsense definition of the word. (Though, in the real world, I think I would expect that most people who underreport probably do so by accident rather than with any intent to defraud.)
Under reporting isn’t fraud, do you mean that there is a specific statutory definition of tax fraud that does not include underreporting?
vince
Aug 13 2022 at 6:33pm
Jim, let’s say you do some side work but don’t want to pay taxes on it. You intentionally decide to lie to the IRS about the income you earned and omit it from your tax return. The IRS audits you, finds the deposits, and asks why you didn’t report. You tell the IRS you didn’t want to pay tax on it–yet you signed the return under penalty of perjury. You, my friend, commited tax fraud.
Jim Glass
Aug 13 2022 at 5:29pm
Mr. Trump has just pleaded the Fifth Amendment …in an unrelated affair of “fraud” investigated by the New York Attorney General.
Why put “fraud” in scare quotes?
Do you believe fraud does not really, truly, exist? In the NYC real estate industry!!?? 🙂
I personally employed two NYC real estate management firms the CEOs of which, with whom I worked personally, are now in jail. (I think, might be paroled by now.)
The irony is, of all the firms I employed over near 30 years, those two provided by far the best service. (When stealing money one doesn’t have to worry so much about margins.)
But I can’t think of any other industry located north of New Orleans that is more known for endemic fraud than NYC real estate.
Pierre Lemieux
Aug 15 2022 at 3:16pm
Jim: You ask:
Because we need to be prudent: a large part of what is officially called “fraud” has just been defined as such (as basically victimless “fraud”) by the state over the past half century.
Jim Glass
Aug 13 2022 at 8:32pm
The strongest argument against the state—all levels and branches of government—is…
There is no credible argument “against the state” unless one has an actual better alternative to it. If all the alternatives are worse…
We know that pre-state societies are massively violent, well beyond the level of states. We know that overt attempts to eliminate states produce the likes of the Reign of Terror of the French Revolution (resolved by a military dictator-Emperor who brought a generation of war across Europe) … the 1871 Paris Commune, “The first Dictatorship of the Proletariat” – Engels … the Russian Revolution and Civil War … the deca-million deaths of the Great Leap Forward … one could make quite a list. So what’s the alternative? If you are “against the state”, then what non-state alternative are you for? I want to see it with my eyes in this world.
I’ve always enjoyed how Marxists and Libertarians have the same fundamental fantasy: get rid of the state and then, without the evil state enforcing property rights/violence, society will spontaneously reorganize of itself and all will be better! Each without any plan or model at all for how the reorganization will take place. (Anyone here remember South Park’s “Underpants Gnomes”?) And ignoring all the many data points that exist on the topic.
I have friends who work in health care who rant on about evils in our health care system that kill patients in hospitals, impoverish the survivors, and let gamers profiteer off it all. Yet none of them say, “The best argument against hospitals — and all branches of health care — is …” I wonder why they don’t?
Pierre Lemieux
Aug 15 2022 at 3:01pm
Jim: Until the 17th century, what was the alternative to state control of speech, religion, or trade? How many data points existed for alternatives? History is not finished. For my take on anarchy, see my review of Mike Huemer’s The Problem of Political Authority; you might even find some of your ideas. De Jasay is technical reading, and The State may not be his best exposé of alternatives. He is in the Hume tradition, where conventions are the alternative.
Comments are closed.