“When the president does it, that means it is not illegal”

— Former President Richard Nixon, as quoted in a new Sen. Mitch McConnell ad titled “Demand Answers”

This slick and hard-hitting video ad by Sen. Mitch McConnell’s reelection campaign seeks to highlight McConnell’s warnings in 2012 about possible shady doings by the Internal Revenue Service and tie President Obama personally to the scandal. The ad closes with the words: “Intimidation. Retaliation. Secretive...We demand answers.”

We have no issue with the first part of the 2 ½ minute video, which shows excerpts from a pair of speeches the Senate minority leader gave to the American Enterprise Institute and the Conservative Political Action Conference. This section depicts McConnell as prescient, warning about the problems some tea party groups were apparently having with the IRS, as the ad quickly follows with news clips about the revelations this year.

But, starting at about 1:50, with clips of the IRS’s Lois Lerner refusing to testify before Congress, the end of the ad raises serious questions because of its manipulative editing and juxtaposition of words and images.

Let’s take a closer look.


The Facts

Lerner, of course, is the career official who was in charge of the IRS division responsible for targeting conservative groups. After images of her appear, the words “Zero Accountability” appear on the screen. Then, there are quick cuts of testimony by former IRS commissioners Douglas Shulman (a George W. Bush appointee) and Stephen Miller (a career employee), saying variations of “don’t know” or “I did not know.”

The net effect is to make these officials appear shifty and lacking credibility. That may be par for the course for such ads, but it’s worth remembering that these were not officials appointed by Obama; he inherited them. (Update: A reader notes that Shulman’s last political contribution before being appointed was $500 to the Democratic National Committee.)

Then the video starts to push the envelope. A black screen shows the words: “What aren’t they telling us?” A voice asks, “Do you believe it is illegal” and Miller is seen saying, “I don’t believe it is.” Finally, former president Richard M. Nixon, in a clip from his interview with David Frost, says: “When the president does it, that means it is not illegal.”

Let’s back up a moment. First of all, the exchange with Miller is severely truncated. Here is the full exchange from a congressional hearing on May 17, with the parts in the video indicated in bold.


REP. TOM PRICE (R-Ga.): Do you believe it is illegal for employees of the IRS to create lists to target individual groups and citizens in this country?
MILLER: I think the Treasury Inspector General indicated it might not be, that others will be able to tell that it…
PRICE: What do you believe?
MILLER: I don't believe it is. I don't believe it should happen...
PRICE: Thank you, Mr. Chairman.
MILLER: Don't get me wrong. It should not happen.

So, first of all, Miller is engaged in a bit of a debate about whether this activity is illegal or not. Indeed, at the same hearing, Treasury Inspector General J. Russell George, who investigated the matter and wrote a comprehensive report, said “it is not illegal, but it was inappropriate.”

But then Miller states quite clearly that the activity should not have taken place. So the ad turns a theoretical debate over the law into an apparent dodge.

Jesse Benton, campaign manager for McConnell, defended the editing.

“Miller wasn’t asked for his opinion on whether IRS targeting should happen. He was asked a very specific question about the legality of the IRS targeting groups and individuals. His response to that question was ‘I don’t believe it is.’ Whether he believes it should happen or not is irrelevant to his view on the legality, which was the question, and is the exact context it was presented in the video. Obviously we’re not going to air an entire committee hearing as a campaign ad but inclusion of both a question and an answer is more than sufficient to communicate the accurate context.

Adding Nixon into the mix raises the stakes even more, because of course that attempts to associate Obama with the only president who resigned his office. Inserting the clip appears designed to suggest that Obama engaged in illegal behavior.

Benton disagrees: “The Nixon quote is included to illustrate a mentality that leads to an abuse of power by government officials. That clearly happened here. Who knew what, and when, is still being established through investigations, which is why ‘we demand answers’ is the tagline.”

Then the ad displays two more ominous banners: “What are they hiding?” and “What don’t they want to us to know?” ABC’s George  Stephanopoulos is seen asking, “What does the president believe? Does the president believe that would be illegal?” And presidential aide Dan Pfeiffer is seen replying: “The law here but the law is irrelevant.” 

The fadeout appears: “Intimidation. Retaliation. Secretive....We demand answers.”

Now the video is really in the realm of the ridiculous. Here is the full transcript of the exchange between Stephanopoulos and Pfeiffer, with the sections in the video indicated in bold:


STEPHANOPOULOS: What does the president believe? Does the president believe that would be illegal?
PFEIFFER: I can't speak to the law here, but the law is irrelevant. The activity was outrageous and inexcusable, and it was stopped and needs to be — we need it to be fixed, so we can ensure it never happens again.
STEPHANOPOULOS: You don’t really mean the law is irrelevant, do you?
PFEIFFER: What I mean is that whether it's legal or illegal is not important to the fact that it — that, the conduct as a matter. The Department of Justice said they’re looking into the legality of this. The president is not going to wait for that. We have to make sure it doesn’t happen again regardless of how that turns out.


Readers may recall that we gave Pfeiffer Three Pinocchios for a different assertion, concerning the Benghazi attack, made on this round of Sunday talk shows. But in this case, this clip job is unfair.

Pfeiffer, who is not a lawyer (“I can’t speak to the law here”), may have sounded bad on television, but he certainly clarified that he meant that whether or not it was illegal, the “activity was outrageous and inexcusable” and that changes needed to be made. In other words, the video completely twists Pfeiffer’s response so that he sounds like he is rejecting any legal authority over the president.

“Pfeiffer was asked a direct question on the President’s view of legality. He chose his words, ‘the law is irrelevant’ and went onto explain what the Administration was going to do to address this,” Benton responded. “He was given the exceedingly rare opportunity to walk that statement back on the next question and he instead chose to defer to the the Department of Justice on the legality. He condemned the IRS action, which we do not dispute, but he clearly stated that the White House’s view is that the law is irrelevant to the actions they were prepared to take.”

We would argue that this brief snippet does not do any justice to Pfeiffer’s key point — that regardless of whether or not the activities were illegal (still to be determined) the administration wanted to take steps to make sure it did not happen again.

Benton asserted that the clip was completely in context. “Whether or not he condemns the action is irrelevant to the question on the White House’s view of the legality, which was the exact context it was presented in the film,” he said. “At no point do we make an accusation towards Mr. Pfeiffer that he condoned the IRS targeting on the Sunday show; we simply provide his answer to the question of the legality. That is in perfect context.”

Benton concluded: “The entire premise and conclusion of this video is based on already substantiated facts: One: IRS admitted to targeting. Two: We don’t have all the answers. Thus, the tag line of the video is: ‘We demand answers.’”

The Pinocchio Test

We understand that political ad makers like to capture what they call the “essence” of interviews by grabbing short clips. But even with those low standards, this video goes too far.

The McConnell campaign video takes a legitimate debate over whether the activity is illegal and turns it into the next Watergate. The full extent of the administration’s involvement in the IRS activities may not be fully known yet, but no evidence has emerged that Obama or his aides directed the IRS to engage in illegal activities.

The McConnell campaign should not be so quick to levy such accusations, especially when it has to rely on deceptive editing to make them. It is perfectly fine to ask questions, but in this case, the campaign suggests it already knows the answers.

Three Pinocchios


(About our rating scale)

Check out our candidate Pinocchio Tracker

Follow The Fact Checker on Twitter and friend us on Facebook