The director of the Internal Revenue Service sent a memo to employees on Friday clarifying the agency’s whistleblower policy amid pressure and investigations from Congress.
In May, following reports that an IRS whistleblower made protected disclosures to Congress about alleged Justice Department interference with the Hunter Biden criminal investigation, leaders at the IRS emailed employees with whistleblower guidance that failed to inform employees of their right to make disclosures to Congress.
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Commissioner Danny Werfel sent an updated memo on Friday, obtained by the Washington Examiner, to employees with new guidance on making protected disclosures to Congress, informing employees of their right to do so and saying the IRS will “always encourage a ‘see something, say something’ philosophy.”
“And in the event that you believe that the best course of action is not to raise issues up your IRS chain of command, but to raise the issue with an independent authority, there are a number of different options for raising concerns, including but not limited to: Treasury Inspector General for Tax Administration (TIGTA) Relevant Oversight Committees of the U.S. Congress; U.S. Office of Special Counsel (OSC); and/or U.S. Department of Justice Office of Inspector General,” the memo reads.
Werfel also explains who whistleblowers should go to in specific instances. For example, with respect to grand jury material, individuals should make protected disclosures to a supervisor, any management official, the DOJ inspector general, and Treasury Inspector General for Tax Administration, the memo reads.
For information that is not a grand jury matter, individuals should make protected disclosures to their supervisors, a management official, or the Treasury Inspector General for Tax Administration. Employees can also make disclosures to the Office of Special Counsel if they “believe that they have been subjected to a prohibited personnel practice, such as reprisal for whistleblowing.”
The memo continues by saying, “upon belief that a return and/or return information may relate to possible misconduct, maladministration or taxpayer abuse, IRS employees may also disclose such return or return information to the chairman of the House Ways and Means Committee, the chairman of the Senate Finance Committee and/or the chairman of the Joint Committee on Taxation, or the examiners or agents as the chairmen of these committees may designate or appoint.”
Werfel said this guidance “supersedes and replaces the guidance emailed by the Deputy Commissioner of Services and Enforcement to Services and Enforcement employees on May 25, 2023.”
An IRS spokesperson did not respond to a request for comment.
The guidance on May 25 came from Doug O’Donnell, the Deputy Commissioner of Services and Enforcement. In an email to IRS employees, he informed them of their right to make protected disclosures to a supervisor, management, the DOJ Office of the Inspector General, or the Treasury Inspector General for Tax Administration. However, he did not inform them of their right to make disclosures to Congress.
The May 25 email followed a previous email sent on May 19, when the acting special agent in charge, Kareem Carter, also failed to inform employees of their right to make protected disclosures to Congress. Carter sent an email to employees emphasizing the importance of “following the chain of command” when it came to raising concerns and said that “there should be no instances where case-related activity discussions leave this field office without seeking approval from your direct report.”
IRS Whistleblower Gary Shapley and one unnamed whistleblower made protected disclosures to the House Ways and Means Committee in which they alleged the DOJ blocked David Weiss, the lead US Attorney on the Hunter Biden criminal investigation, from filing charges in the jurisdiction of his choice, rejected his request for Special Attorney status, and “concealed” information relating to an alleged foreign bribery scheme involving Hunter Biden and then Vice-President Joe Biden. Attorney General Merrick Garland has denied the allegations of DOJ interference in the Hunter Biden investigation.
The whistleblowers also provided Congress with text messages that show Hunter Biden invoking his father’s name with Chinese business associates, which resulted in him receiving millions of dollars. President Joe Biden has denied any involvement in his son’s business dealings.
After it was found out they were making these disclosures to Congress, the two whistleblowers were removed from the Hunter Biden investigation. In addition, Shapley also claimed he was passed over for a promotion afterward.
The change in guidance from the IRS comes after Senior Republicans in Congress demanded the Office of Special Counsel to investigate alleged “retaliation” against whistleblowers on July 5.
In a bicameral letter sent to Henry Kerner, the head of OSC, chairman Jason Smith (R-MO) of the House Ways and Means Committee, James Comer (R-KY) of House Oversight, and Jim Jordan (R-OH) of the House Judiciary Committee, and Sens. Chuck Grassley (R-IA), and Ron Johnson (R-WI) claimed the IRS “engaged in unlawful whistleblower retaliation against veteran IRS employees.”
“We request that you immediately seek the appropriate disciplinary actions against all who engaged in unlawful conduct against these whistleblowers,” the members said in the letter to Kerner. “The DOJ and IRS must be held accountable for all instances of whistleblower retaliation and misconduct, and federal agencies cannot conceal their wrongdoing behind illegal nondisclosure directives and related documents.”
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Following the updated guidance from the IRS on whistleblower protections, Smith, the chairman of Ways and Means, said in a statement he is “glad that Commissioner Werfel finally issued a memo with updated guidance, recognizing Congress’s proper role in holding agencies accountable and protecting whistleblowers.”
“The IRS must be clear with its employees that they have a constitutional and statutory right to make protected disclosures to Congress. Period. Full stop,” Smith said.
