WASHINGTON – In a significant turn of events, counsel for IRS whistleblower Gary Shapley have learned that a March 11, 2024, U.S. Department of Justice (DOJ) filing appears to have intentionally misled the public by falsely implying that Shapley, and fellow IRS whistleblower Joseph Ziegler, were under investigation for misconduct.
The Office of David Weiss, the Delaware U.S. Attorney later named “Special Counsel” in the Hunter Biden criminal tax evasion case, carefully drafted and redacted the filing to suggest the opposite of the truth. The public version led readers to believe that some unnamed federal agency was investigating the whistleblowers for misconduct. However, counsel for Shapley learned this week that the filing omitted key context. The “potential investigation(s)” in the filing is actually a reference to a probe the whistleblowers themselves asked for into DOJ and IRS retaliation against them.
Such reprisal investigations are conducted by the Office of Special Counsel (OSC), an independent whistleblower protection agency separate from Weiss’s office. OSC is currently investigating complaints filed by Shapley and Zeigler regarding retaliation for their protected whistleblower disclosures about Weiss’s office. Counsel for Shapley learned from OSC that it is OSC’s inquiry that Weiss’s office misleadingly referenced in its public filing to falsely suggest that the whistleblowers were being targeted by the probe rather than those who retaliated against them.
Shapley counsel have referred the conduct to the Office of the Inspector General and the Office of Professional Responsibility at the Justice Department.
And, in a letter today to OSC they wrote:
“Yesterday we contacted OSC staff to inform them of a filing from the Justice Department last Friday, May 10, 2024. It acknowledged unequivocally for the first time that SSA Shapley and SA Ziegler had not violated the taxpayer privacy laws, as Hunter Biden had falsely alleged. In a subsequent phone call, OSC staff stated that because it had been contacted by the IRS regarding various exhibits the IRS wanted to include in Special Counsel Weiss’s March 11, 2024, filing, OSC was the ‘investigating agency’ that ‘specifically requested that the government request that the court seal the exhibits . . . in order to protect the integrity of the potential ongoing investigation(s).’”
Shapley’s counsel went on to write, “It means the IRS and Special Counsel Weiss’s office hid and twisted the significance of OSC’s investigation into the whistleblowers’ own allegations that the IRS and Special Counsel Weiss retaliated against them. Rather than acknowledging the truth that OSC is investigating the reprisal against the whistleblowers, the DOJ filing falsely suggested to the public that some unnamed agency was investigating the conduct of the whistleblowers themselves.”
Of additional concern is OSC’s silence in the two months since the misleading public filing. OSC’s mission is to investigate whistleblower reprisal, yet the office did nothing to correct the record that Weiss had misrepresented OSC’s exhibits in his March 11, 2024, filing.
In part due to the Weiss’s March 11 filing, members of Congress have raised concerns about potential retaliatory investigations, and there has been speculation about where the investigation against the whistleblowers was being spearheaded. Notwithstanding these allegations and concerns swirling in the public, OSC watched from the sidelines—despite the fact that Shapley and Zeigler had open whistleblower retaliation claims with OSC.
The letter to OSC added, “[Y]ou should not allow the Justice Department to mischaracterize your work for the purposes of a retaliatory attack on the reputation of whistleblowers who have done nothing wrong.”
Counsel for Shapley asked OSC to correct the record.
To read the full letter to the Office of Special Counsel, click here.