DoJ Nominee Threatens Religious Liberty

President Obama’s nominee to serve as the top U.S. tax prosecutor has stalled over an obscure letter he wrote 7-years ago questioning the legal tactics of a group that wants pastors to speak out on politics.

The standoff involves Cono Namorato, a Washington defense attorney and former government lawyer, who was nominated February 24, 2015 to serve as the assistant attorney general over the Justice Department’s (DoJ) tax division.  The outcome will determine the leadership of the division’s 370-criminal/civil lawyers, who pursue offshore tax evasion and other investigations.

73-year old Namorato, won bipartisan praise at his July 22 hearing in the Senate Judiciary Committee; but never got a confirmation vote from that panel.  Some members of the judiciary panel have expressed concerns.  After Namorato’s hearing Republican Senator Charles Grassley, the panel’s chairman, asked him about a 2008 letter he co-signed that urged the Internal Revenue Service (IRS) to investigate the actions of lawyers at the Alliance Defense Fund (ADF).  ADF seeks to use the legal system to promote Christian values like religious freedom, the sanctity of life and marriage and family.  It opposes a 1954 change to the tax code that bars tax-exempt organizations from taking a stand on political candidates.  ADF has challenged IRS to enforce the law, which would lay the groundwork for a legal challenge on 1st Amendment grounds.  

According to its website, ADF encourages pastors to speak “freely and boldly from their pulpit about the issues of the day.”  It says the “IRS controls pulpits” because it can “tell pastors what they can and cannot preach.”  The ADF claims that 4,100 pastors agree the 1954 law must be changed, that 2,032 have violated it since 2008; and that 1,600 preached an election sermon in October 2014.

In September 2008, when the group was starting its “Pulpit Freedom Initiative,” Namorato and two other lawyers at his Washington firm, Caplin & Drysdale, wrote to the IRS Office of Professional Responsibility.  They said the ADF was “explicitly soliciting churches across America to violate Federal law” for tax-exempt organizations in section 501(c)(3) of the Internal Revenue Code.  By encouraging “mass violation of Federal tax law,” the ADF engaged in “incompetent and disreputable conduct” under regulations governing behavior for lawyers who practice before the IRS, they wrote.  The letter urged an investigation into whether the lawyers violated the conduct rules, and advocated “immediate and appropriate action to address this flagrant disregard of the ethical rules for practice before the IRS.”  The IRS took no action against the ADF.

“Mr. Namorato’s documented involvement in encouraging the IRS to investigate lawyers working with the Pulpit Freedom Initiative is quite concerning to a number of members, including the chairman,” said committee spokesman Taylor Foy.  “The committee thoroughly vets all nominees,” Foy said.  “When questions arise during that deliberative process, those concerns are dealt with before proceeding.  At this point, those concerns have not been addressed for this nominee.”

In 19-written questions and responses dated July 31 and August 14, Grassley pressed Namorato on the 2008 letter.  The senator asked what guidance Namorato, if confirmed, would give the IRS about whether it should monitor the content of sermons.  Namorato said the Tax Division’s role on that question is limited.  Grassley asked Namorato how he would view the Pulpit Freedom Initiative.  “If I am confirmed and the IRS were to determine that a church or pastor violated the restrictions on political activity and referred the matter to the Tax Division, I would ensure that the merits of the litigation were evaluated in the same manner as any other referral,” Namorato responded.  In response to Grassley, Namorato also said he didn’t believe the lawyers acted criminally.  Yet, he said, his concern was with the ADF’s “active solicitation of clients for the purpose of assisting them in committing a violation of law.”

If Namorato is confirmed, his work in a DoJ tax division is a valid concern for America’s pastors and churches, who could be in jeopardy of losing their tax-exempt status for exercising their 1st Amendment rights.

ADF has written a letter to the Judiciary Committee chair, Senator Chuck Grassley, urging the nomination be rejected.  If you believe in religious liberty as clearly defined in the U.S. Constitution, then add your voice to the rejection of Obama’s nomination … while there is yet time.

Rev. Dr. Kenneth L. Beale, Jr.

Chaplain (Colonel-Ret), U.S. Army

Pastor, Ft. Snelling Memorial Chapel