There is an empty chair in the Justice Department’s Tax Division. Its rightful occupant is legally empowered to overrule the IRS on the meaning of federal tax law, preside over civil tax litigation and appeals in Article III courts, oversee hundreds of Tax Division lawyers, and direct the 93 U.S. Attorneys on how to prosecute criminal tax cases.

Yet the powerful and important post of Assistant Attorney General (AAG) has been vacant for more than a decade. Except for one two-year term, the office has been vacant since January 2009. Leaving the Tax Division without a Senate-confirmed leader is demoralizing to its employees, degrading to the Department of Justice, damaging to tax administration, and detrimental to taxpayers.

The career officials entrusted with running the leaderless tax agency are lawyers with exceptional experience, competence and integrity. But high-level law enforcement positions are reserved for presidential appointees for good reason. Presidential appointees, usually respected private lawyers with expert knowledge, bring unique perspectives. They implement change and take responsibility for difficult decisions.

President George W. Bush appointed Senate-confirmed leaders to lead the Tax Department during all eight years of his administration. The first, Eileen J. O’Connor, served from 2001 to 2007, demonstrating that a Senate-confirmed leader can have a positive impact.

She filled every senior position with a lawyer appointed by the President or transferred from other parts of the Justice Department. She updated Tax Division policies, expedited criminal investigations, authorized parallel criminal and civil actions, improved recruiting efforts, and created senior positions that allow highly qualified trial lawyers to secure promotions and raises.

Nathan J. Hochman, who replaced O’Connor in 2008, strengthened tax enforcement before retiring in January 2009. Since his departure, the office has been vacant nearly 90 percent of the time.

President Barack Obama appointed Kathryn Keneally as Director General of Taxation toward the end of his first term. During her tenure, from April 2012 to June 2014, the Tax Department implemented a successful initiative to prevent Swiss banks from facilitating tax evasion.

Obama nominated another AAG nominee early in his first term and a third late in his second, but neither was confirmed by the Senate. President Donald Trump never filled the post during his four years in office, although he did nominate a potential AAG, but he never received a Senate hearing.

President Joe Biden also left the position vacant for four years, but did not recommend a candidate and turned the Tax Division over to full-time officials. Unlike previous presidents, he did not appoint a presidential appointee to run it in the AAG’s absence. The Tax Division is now the only one among the Justice Department’s key litigation divisions that does not have a full-time official supervising full-time government lawyers.

The failure to fill the post held in 1936 by the esteemed Robert Jackson – who a few years later served as U.S. Attorney General and then as a U.S. Supreme Court Justice – is a sign of the IRS’s declining reputation. In the absence of political leadership, there is no Attorney General to take responsibility for decisions about whether and how the tax laws are enforced – or not.

The leadership vacuum is palpable throughout the Internal Revenue Service. Its website states that “an Assistant Attorney General, appointed by the President and confirmed by the Senate, leads the Internal Revenue Service. Four Deputy Assistant Attorneys General, one of whom is a career attorney, help run the agency.”

The tax authority is not headed by anyone appointed by the president, and only a deputy attorney general with professional experience helps in its administration. All other senior positions remain vacant and their duties are performed by civil servants.

There is no easy way to measure the impact of the political leadership vacuum on tax policy decisions and civil tax litigation. On the criminal side, the number of annual federal tax criminal prosecutions has declined sharply since the departure of the last Senate-confirmed head of the Tax Division, falling 72% since 2013. Tax cases are often unpopular with U.S. attorneys, and many prosecutors do not prioritize them unless encouraged by Justice Department leaders speaking on behalf of the president.

The empirical decline in the number of tax crime cases is at least partly due to the absence of the AAG in tax cases. It may also be due to the anecdotal perception of many white collar criminal defense attorneys that some grand jury investigations in tax crimes lack the usual justification—”arguable facts supporting a reasonable belief that the target or person is committing or has committed a tax crime”—and that these investigations continue even when it is clear that prosecution is not warranted.

When high-profile tax cases make national headlines, the rudderless IRS responds with deafening silence. When IRS whistleblowers accused the IRS of delaying the Hunter Biden investigation, only career lawyers took the blame. Since the Obama administration, the IRS has neither set new priorities nor commented on tax policy issues.

For more than a decade, there has been no AAG hiring Tax Department employees, approving their work, celebrating their successes, or speaking at their retirement parties. There has been no AAG interacting with the private tax attorney community, engaging with the news media, revising policy, motivating U.S. Attorneys, coordinating with the IRS, or testifying before Congress. These opportunities have been missed almost every time except for 27 months since 2008.

Depriving the IRS of politically responsible leadership will disadvantage its employees, private attorneys, and law-abiding taxpayers. The next administration and the U.S. Senate should make it a priority to end the IRS’s long-standing absence.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Information about the author

Rod Rosenstein, a partner at King & Spalding, served as an Assistant U.S. Attorney General from 2017 to 2019. Previously, he served as U.S. Attorney for Maryland and First Deputy Assistant Attorney General in the Tax Division of the Department of Justice.

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