UPDATE(5/17): the New York Times is now reporting that the general counsel of the Treasury was informed in 2012, before the election, of the Inspector General's investigation. I have the same questions about that lawyer (as well as IRS and WH lawyers): was there a demand for legal compliance, was there "reporting up," and were any documents created? I also wonder if President Obama shouldn't waive privilege so we can all get to the bottom of this.
UPDATE (5/18): The story is still developing but it now appears that the lawyer who was prompted to ask the planted question at the ABA conference did not know the answer and was surprised at Lerner's answer. If that's true, think about how rotten that was: set up a colleague to ask what will become a notorious Q-and-A when she assumed it was just an ordinary question at an ordinary conference and would be answered with the same, ordinary answer the IRS had been giving Congress and the public for some time. Now, unfortunately, when that lawyer's name pops up here or there it will be associated with the IRS's deceptive scheme. When a federal agency has been falsely answering a persistent, urgent question from Congress, the agency should report the truth directly to the Congress rather than scheme to create a ruse (and use an unwitting accomplice) only when the truth is going to come out anyway. That's active concealment of bad conduct. (Btw, someone mentioned in the comments that Lerner is a lawyer.)
UPDATE (5/19): The Wall Street Journal gathers some of the testimony about the planted question. I find it hard to believe. The IRS had known about the targeting for years but Miller claims, essentially, that he learned of it only once the Inspector General's report was completed, which happly for the IRS timed prescisely so that it could be revealed via a planted question on Friday -- but not revealed earlier that week when Lois Lerner testified before Congress. Put it another way: if Miller and Lerner saw a need to to plant a question with a private practice lawyer on Friday, why not plant the same question with Congress 48 hours earlier? I also find unpersuasive Miller's testimony that the IRS had no obligation to report to the Congress that its earlier answers were false.
UPDATE (5/20): The Wall Street Journal is reporting that "The White House's chief lawyer learned weeks ago that an audit of the Internal Revenue Service likely would show that agency employees inappropriately targeted conservative groups, a senior White House official said Sunday." President Obama said that he first learned of the targeting from the news accounts on May 10th. If both those facts are true, it might have been the case that people around the president thought it best if he didn't know about the facts until the IG report came out. That strike me as plausible, especially if the report was supposed to be released soon.
UPDATE (5/21): Listening to Miller today, I got the sinking feeling that there's a whole 'nother level to this scenario. Recall that the IRS developed two different, problematic screening mechanisms. The second one was developed because the first one was so inappropriate. Yet somehow Miller and Shulman and the IG report author testified that none of them knows how that that scecond protocol was developed or who developed it. That strikes me as very odd -- that on May 21st they would all profess to have no idea who did the second protocol. Stay tuned.
UPDATE (5/22): Here is some speculation from Ed Rogers at the WaPo about how the WH counsel did handle the new and how that counsel might have expected the news to travel -- or not travel -- further up the org chart.
As the IRS scandal unfolds, it's interesting to watch for references to the lawyers. I have not seen any evidence that any lawyers did anything wrong. But knowing how lawyers are supposed to act makes me wonder what role, if any, they played in leaving a document trail or in demanding compliance with law or in "reporting up." The Inspector General's timeline has three references to "chief counsel" inside the IRS who had early meetings about the targeting, but those could be references to the office of chief counsel. Still, the references suggest that some IRS lawyer knew of the targeting a long time ago. Was that lawyer aware of the testimony the IRS officials had been giving Congress? Was there a "reporting up"? Was there a demand that the agency comply with law? (Note, too, that lawyers may give advice about political factors, under MR 2.1. Did any lawyer give that kind of advice, along the lines of, "at a minimum, you're playing with fire.")
And we're now learning the the revelation of the targeting was done very carefully with a planted question at the ABA conference rather than directly to the Congress. Were any lawyers aware of that?
Finally, Lanny Davis has begun to ask questions about the role of White House counsel. President Obama says that he first learned of the situation from the news, just like ordinary Americans. Given that so many people knew the IG's report was imminent, the way the president learned is surprising (because, as Lanny Davis suggests, it's not good to leave the president surprised on big developments) or perhaps not surprising (if some people thought that insulating the president was in the president's best political interests).