House Hearing, 113TH Congress - Irs Targeting Scandal: The Need For A Special Counsel

IRS TARGETING SCANDAL:
THE NEED FOR A SPECIAL COUNSEL
HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY

HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
JULY 30, 2014
Serial No. 11392

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BOB GOODLATTE,
F. JAMES SENSENBRENNER, JR.,
Wisconsin
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
STEVE CHABOT, Ohio
SPENCER BACHUS, Alabama
DARRELL E. ISSA, California
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
JIM JORDAN, Ohio
TED POE, Texas
JASON CHAFFETZ, Utah
TOM MARINO, Pennsylvania
TREY GOWDY, South Carolina
L LABRADOR, Idaho
RAU
BLAKE FARENTHOLD, Texas
GEORGE HOLDING, North Carolina
DOUG COLLINS, Georgia
RON DeSANTIS, Florida
JASON T. SMITH, Missouri
[Vacant]
Virginia, Chairman
JOHN CONYERS, JR., Michigan
JERROLD NADLER, New York
ROBERT C. BOBBY SCOTT, Virginia
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
STEVE COHEN, Tennessee
HENRY C. HANK JOHNSON, JR.,
Georgia
PEDRO R. PIERLUISI, Puerto Rico
JUDY CHU, California
TED DEUTCH, Florida
LUIS V. GUTIERREZ, Illinois
KAREN BASS, California
CEDRIC RICHMOND, Louisiana
SUZAN DelBENE, Washington
JOE GARCIA, Florida
HAKEEM JEFFRIES, New York
DAVID N. CICILLINE, Rhode Island
SHELLEY HUSBAND, Chief of Staff & General Counsel

PERRY APELBAUM, Minority Staff Director & Chief Counsel
(II)
CONTENTS
JULY 30, 2014
Page
OPENING STATEMENTS
The Honorable Bob Goodlatte, a Representative in Congress from the State
of Virginia, and Chairman, Committee on the Judiciary .................................
The Honorable John Conyers, Jr., a Representative in Congress from the
State of Michigan, and Ranking Member, Committee on the Judiciary .........
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WITNESSES
Jay Alan Sekulow, J.D., Ph.D., Chief Counsel, American Center for Law
and Justice
Oral Testimony .....................................................................................................
Prepared Statement .............................................................................................
Ronald D. Rotunda, Professor, Chapman University
Oral Testimony .....................................................................................................
Charles Tiefer, Professor, University of Baltimore School of Law
Oral Testimony .....................................................................................................
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LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Material submitted by the Honorable Robert C. Bobby Scott, a Representative in Congress from the State of Virginia, and Member, Committee on
the Judiciary .........................................................................................................
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APPENDIX
MATERIAL SUBMITTED
FOR THE
HEARING RECORD
Letter from Ronald D. Rotunda, Professor, Chapman University .......................
(III)
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IRS TARGETING SCANDAL:

THE NEED FOR A SPECIAL COUNSEL
WEDNESDAY, JULY 30, 2014
HOUSE OF REPRESENTATIVES
Washington, DC.
The Committee met, pursuant to call, at 10:15 a.m., in room
2141, Rayburn House Office Building, the Honorable Bob Goodlatte
(Chairman of the Committee) presiding.
Present: Representatives Goodlatte, Coble, Chabot, Bachus, Issa,
Forbes, King, Franks, Gohmert, Jordan, Poe, Chaffetz, Gowdy, Labrador, Farenthold, Holding, Collins, Conyers, Nadler, Scott, Jackson Lee, Johnson, Richmond, Garcia, Jeffries, and Cicilline.
Staff Present: (Majority) Shelley Husband, Chief of Staff & General Counsel; Branden Ritchie, Deputy Chief of Staff & Chief Counsel; Allison Halataei, Parliamentarian & General Counsel; Caroline
Lynch, Counsel; Robert Parmiter, Counsel; Kelsey Deterding,
Clerk; (Minority) Perry Apelbaum, Staff Director & Chief Counsel;
Danielle Brown, Parliamentarian; and Aaron Hiller, Counsel.
Mr. GOODLATTE. Good morning. The Judiciary Committee will
come to order.
And without objection, the Chair is authorized to declare recesses
of the Committee at anytime. We welcome everyone to this mornings hearing on the IRS Targeting Scandal: The Need for a Special Counsel, and I will begin by recognizing myself for an opening
statement.
On May 10, 2013, the Internal Revenue Service admitted to inappropriately targeting conservative groups for extra scrutiny, in
connection with their applications for tax-exempt status. Following
the revelation of the IRS targeting, President Obama denounced
the targeting as outrageous and unacceptable and stated that the
IRS as an independent agency requires absolute integrity and people have to have confidence that theyre applying the laws in a nonpartisan way. He pledged that the Administration would find out
exactly what happened and would make sure wrongdoers were held
fully accountable.
In testimony before this Committee on May 15, 2013, Attorney
General Eric Holder promised me and everyone else on this dais
that the Justice Department would conduct a dispassionate investigation into the IRS admitted targeting of conservative groups.
The Attorney General pledged that this will not be about parties,
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this will not be about ideological persuasions, and anyone who has
broken the law will be held accountable.
Last month, FBI Director Comey assured this Committee that
the FBI was conducting a very active investigation into the IRS
targeting matter, and not 2 weeks ago Deputy Attorney General
Cole stated that DOJ investigators will follow the facts wherever
they lead and apply the law to those facts. Unfortunately, despite
the Administrations stated commitment to its investigation, the
facts and recent events have demonstrated repeatedly that the Administrations real commitment is to slow walk this investigation
and undermine congressional efforts to uncover the truth.
Earlier this year, unnamed Justice Department officials leaked
information to the Wall Street Journal suggesting that the Department does not plan to file criminal charges over the IRS targeting
of conservative groups. On Super Bowl Sunday, President Obama
stated that there was not even a smidgen of corruption in connection with the IRS admitted targeting of conservative groups based
upon their beliefs.
Finally, as we all know, the Justice Department appointed an attorney in the notoriously politicized Civil Rights Division to head
the investigation. That individual donated more than $6,000 to
President Obamas campaigns in 2008 and 2012. In response to
this, on May 7, 2014, the House passed H. Res. 565, a bipartisan
resolution calling on the Attorney General to appoint a special
counsel to investigate the IRS targeting of conservative groups.
That resolution was supported by 26 Democrats, including two
Members of this Committee. Since passage of the House Resolution, additional troubling facts have come to light that solidify the
need for a special counsel to investigate the IRS matter.
On June 13, 2014, after agreeing to turn over to Congress all
emails belonging to Ms. Lerner, the IRS announced it had lost an
untold number of emails belonging to Ms. Lerner. The lost emails
covered the period between January 1, 2009, and April 2011, a period when the IRS targeting of conservative groups was occurring
regularly.
In his testimony before the House Oversight Committee, Deputy
Attorney General Cole made the shocking admission that the Justice Department did not learn until June of this year that the Internal Revenue Service had lost the emails and, even then, only
learned of it via media reports. Both the Attorney General and the
FBI director have insisted that the Justice Department is conducting a very active, and dispassionate investigation. How,
then, is it possible that investigators pursuing this matter very actively and dispassionately were unaware that a sizable, potentially
key piece of evidence had simply vanished?
On July 10, 2014, U.S. District Judge Emmet G. Sullivan ordered
the IRS to provide a full explanation of the notorious computer
crash and infamous missing emails within 30 days and assigned a
magistrate judge to assist the parties, in the process. Not surprisingly, less than 2 weeks later, the IRS announced that investigators looking into these missing emails had located backup tapes
which may contain the missing Lerner emails.
The relevant special counsel regulations require appointment
when the Attorney General determines that three circumstances
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exist: One, criminal investigation of a person or matter is warranted; two, investigation or prosecution of that person or matter
by a United States Attorneys office or litigating division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances; and, three, under
the circumstances, it would be in the public interest to appoint an
outside special counsel to assume responsibility for the matter.
As I have said before, there can be little doubt to any neutral,
honest observer that these requirements exist. First, further criminal investigation of this matter is clearly warranted. The Administration, particularly the FBI, admits as much. Second, there is
clearly a conflict of interest between the Justice Department investigators and this Administration. The Administrations statements
and actions have repeatedly served to undermine the Departments
investigation. The fact that President Obama prejudged the investigation by saying there was not a smidgen of corruption and the
fact that unnamed department officials leaked information to the
media designed to undermine the investigation has made it impossible for the Department to conduct a fair, unbiased investigation.
Even assuming for the sake of argument that there is no conflict,
there clearly exists other extraordinary circumstances called for in
the regulations.
Finally, it is clear that appointing an outside special counsel to
investigate this matter would be in the public interest. The American people are very concerned that their government has targeted
individual American citizens for harassment solely on the basis of
their political beliefs. The Administrations delays, denials, and
continued efforts to obfuscate the truth have further eroded this
trust.
As Ive said repeatedly, the American people deserve to know
who ordered the targeting, when the targeting was ordered, and
why. I look forward to exploring these and other important issues
with our witnesses today.
And it is now my pleasure to recognize the Ranking Member of
the Judiciary Committee, the gentleman from Michigan, Mr. Conyers, for his opening statement.
Mr. CONYERS. Thank you, Mr. Chairman and Members of the
Committee.
Today is the last full working day before the August recess, and
Im concerned and deeply disappointed by how we have chosen to
spend it. Under Federal regulations and according to all available
precedent, the appointment of special counsel is reserved for extraordinary circumstances, where a conflict of interest at the highest levels of government requires the Department of Justice to
abandon its normal process of investigation and prosecution.
Two separate congressional Committees have sorted through
more than half a million pages of documents, conducted 40 transcribed interviews, and held more than three dozen hearings and
markups to examine the criteria used by the IRS to screen applicants for tax-exempt status. The Committees have not uncovered
one shred of evidence to suggest that the involvement of senior officials of the Department of Justice, the Department of the Treasury
or the White House itself. Without that evidence, calls for a special
counsel are simply unwarranted.
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The Chairman now has mentioned House Resolution 565, which
demands that the Attorney General appoint special counsel in this
matter. Of course, as a matter of law, the Attorney General has absolute discretion to determine whether a special counsel is necessary. Congress cannot compel him to do so. I repeat: Congress
cannot compel him to do so. Nor can this Committee, of course. We
might have explained this point had we maintained regular order
and discussed House Resolution 565 in this Committee prior to consideration on the House floor.
What troubles me most about this resolution is its preamble:
Eight pages of unsubstantiated claims, carefully tailored halftruths, and political innuendo. For example, the resolution references two anonymous sources in a January 13 Wall Street Journal article who claimed that the Department has concluded its investigation. That claim ignores the testimony of both Attorney General Eric Holder and FBI Director James Comey, who assured this
Committee that the investigation is ongoing. The resolution claims
that the Department of Justice and the FBI have refused to cooperate with congressional oversight. Of course, as the Chairman
knows, that under long-standing policy applied consistently by Administrations of both parties, Congress is not entitled to materials
related to an ongoing criminal investigation. Otherwise, the departments attempt to accommodate our needs have been, in my mind,
extraordinary. The resolutions largest error is the same false
premise underlying this hearing. House Resolution 565 claims that
the IRS targeted conservative nonprofit groups for extra scrutiny
in connection with applications for tax-exempt status. That is partly true, but it is a deliberate half truth and one that leads to the
wrong conclusion.
The record is clear. Overwhelmed with applications for tax-exempt status after the Citizens United decision, the IRS created a
list of search terms in an attempt to sort legitimate applicants from
mere political shells. Those search terms applied across the political spectrum to Tea Party groups but also to groups with the
words progressive and occupy in their titles. We all agree that
this approach was poorly conceived, but not a single applicant was
denied tax-exempt status because of it. The majority knows or
must know that this is a case of bureaucratic ineptitude and not
so-called political targeting. They only frame it as such because it
is politically expedient to do so.
This underscores my final point. Given the long list of urgent
matters pending before us, this hearing is an unacceptable misuse
of our time and our resources. The 113th Congress has spent more
than 18 million taxpayer dollars investigating the IRS. The House
has held more than three dozen hearings and markups on the
topic. Weve already voted on the particular question of appointing
special counsel, but we have not held one hearing in the House Judiciary Committee on comprehensive immigration reform, not one.
Weve not held one hearing on legislation to update the Voting
Rights Act, not one. Not one hearing on much-needed reform of the
Electronic Communications Privacy Act. Not one hearing on stemming the tide of gun violence in this country, a scourge that has
claimed nearly 20,000 lives since this Congress began. Not one
hearing on a range of local civil rights issues across the map, in-
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cluding police practices in New York, due process rights for minors
at the Texas border, prison conditions in California, access to the
ballot box in Florida, and access to drinking water and other basic
utilities in Michigan. Any one of these topics would be appropriate
for consideration today, which I repeat is our last full day of work
before the break. Instead, we will hold one more hearing in the line
of dozens of hearings on a so-called scandal in which one office in
the IRS bureaucracy denied zero applications for tax-exempt status.
In terms of actually compelling the Attorney General to appoint
a special counsel, this hearing stands about as much chance of success as the Speakers woefully misguided lawsuit against the President of the United States.
I hope, Members of the Committee, that after the break, cooler
heads will prevail. Theres still time to correct this Committees priorities before the Congress ends.
Mr. Chairman, that concludes my remarks, and I yield back.
Thank you.
Mr. GOODLATTE. Thank the gentleman.
And we welcome our distinguished panel today.
If you would all rise, Ill begin by swearing in the witnesses.
[Witnesses sworn.]
Mr. GOODLATTE. Thank you, and let the record reflect that all
the witnesses responded in the affirmative.
Ill introduce our witnesses. Mr. Jay Sekulow is chief counsel of
the American Center for Law and Justice. He is an accomplished
Supreme Court advocate, renowned expert on religious liberty, and
a respected broadcaster. At the Supreme Court of the United
States, Mr. Sekulow has argued several landmark cases which
have become part of the legal landscape in the area of religious liberty litigation.
Mr. Sekulow expanded the ACLJs work globally, working to protect religious liberty and religious freedom. He launched the European Center for Law and Justice, where he serves as chief counsel
and has opened offices around the world. Prior to joining ACLJ,
Mr. Sekulow worked in the Office of Chief Counsel for the Internal
Revenue Service as a tax trial attorney. Mr. Sekulow received his
Ph.D. from Regent University with a dissertation on American
legal history, is an honors graduate of Mercer Law School, where
he served on the Mercer Law Review, and an honors graduate of
Mercer University. He was appointed a visiting fellow of Oxford
University at Harris Manchester College, where he lectured on
Middle East affairs and international law. He also serves as a
member of the Summer Research Institute at Oxford from 2013 to
2016.
Professor Ronald D. Rotunda joined the faculty of Chapman University in 2008. Prior to coming to Chapman, he was a university
professor and professor of law at George Mason University School
of Law. Before that, he was the Albert E. Jenner, Jr., professor of
Law at the University of Illinois. He joined the University of Illinois faculty in 1974, after clerking for Judge Walter R. Mansfield
of the United States Court of Appeals for the Second Circuit, practicing law in Washington, D.C., and serving as assistant majority
counsel for the Watergate Committee. He has coauthored the most
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widely used course book on legal ethics and is the author of a leading course book on constitutional law, Modern Constitutional
Law. He has written several other books and more than 350 articles in various law reviews, journals, newspapers, and books. These
books and articles have been cited numerous times by State and
Federal courts at every level, from trial courts to the United States
Supreme Court. He has been interviewed on radio and television
on legal issues, both domestically and abroad. In 1993, he was constitutional law adviser to the Supreme National Council of Cambodia and assisted that country in writing its first democratic Constitution. Professor Rotunda received his bachelor of arts and juris
doctor degrees from Harvard University.
Professor Charles Tiefer joined the faculty of the University of
Baltimore Law School in 1995. Previously, he served as solicitor
and deputy general counsel of the U.S. House of Representatives
for 11 years. He also taught as a visiting lecturer at Yale Law
School and for a decade as an adjunct at Georgetown University
Law Center. He was an associate editor of the Harvard Law Review, a court law clerk for the D.C. Circuit, a trial attorney with
the Civil Rights Division of the U.S. Department of Justice, and an
assistant legal counsel for the U.S. Senate. Professor Tiefer wrote
Congressional Practice and Procedure and the Semi-Sovereign
Presidency, a book on separation of powers. He has published articles on legislation, separation of powers, international law, and
Federal Government operations in the Harvard Journal on Legislation, Yale Journal on Regulation, Texas International Law Journal
and the Boston University Law Review and numerous other law reviews. Professor Tiefer received his bachelors degree from Columbia College and his juris doctor from Harvard University.
I would ask each witness to summarize their testimony in 5 minutes or less, and to help you stay within that time, theres a timing
light on your table. When the light switches from green to yellow,
youll have 1 minute to conclude your testimony. When the light
turns red, thats it, youre done, time is up. And we will start with
Mr. Sekulow. Welcome.
TESTIMONY OF JAY ALAN SEKULOW, J.D., Ph.D.,
CHIEF COUNSEL, AMERICAN CENTER FOR LAW AND JUSTICE
Mr. SEKULOW. Thank you, Mr. Chairman, Ranking Member Conyers, distinguished Members of the Committee, and on behalf of
the American Center for Law and Justice, thank you for allowing
me to participate today.
I serve as counsel to 41 organizations that have filed Federal litigation against the IRS and related officials regarding the targeting.
We were in cooperation with the Department of Justice for a period
of time with their investigation, but when I chronicled the order in
which things have developed over the last several months, specifically the missing emails, which is key evidence in this case, the
faux apology that Lois Lerner gave when this scandal broke over
a year ago, I have unfortunately had to conclude that the investigation by the Department of Justice is also a faux investigation. It
is at surfaced at best, and we were compelled in a situation where
we were producing clients for these investigators, for DOJ officials,
for FBI agents, for Ms. Bosserman to interview, with the assurance
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from the FBI that our clients were not and have not been subject
to criminal investigations and were not targets of those investigations. They made that clear.
Then an email surfaced in a batch of emails that were delivered.
This one was dated May 8 of 2013. Of course, it just came out several weeks ago. It is from Lois Lerner. It is to Nicole Flax, who was
the chief of staff for the then commissioner of Internal Revenue
Service: I got a call today from Richard Pilger, director, Election
Crimes Branch at DOJ. I know him from contacts from my days
there. He wanted to know who at the IRS the DOJ folks could talk
to about Senator Whitehouses idea that a hearing that DOJ could
piece together false claim cases about applicants who liedthis
is her emailon their 1024s, saying they werent planning on doing
political activity and then turning around and making large visible
political expenditures. DOJ is feeling like it needs to do something
to respond, but they want to talk to the right folks at the IRS to
see whether there are impediments from our side and what, if any,
damage this might do to the IRS programs. I told them we need
to talk to several folks at IRS. Im out of town all of next week,
so wanted to reach out and see who you think might be right for
such a meeting, all hands on thisIll hand this off to Nan as a
contact person if things need to happen while Im gone.
Piece together false claim cases so that my clients, which, by the
way, and let me acknowledge no evidence, could be subject to what,
grand jury investigations? And at the very same timethis comes,
by the way, out 2 days before the apology from Lois Lerner. So this
was an ongoing systematic scheme.
And Ranking Member Conyers, with due respect, there were a
couple of liberal groups that were picked up in this dragnet. None
of them were denied their tax-exempt status. Ive got one client, by
the way, that has been held for 5 years, still does not have that
status resolved.
So weve got an email saying lets piece together or attempt to
piece together false statement cases.
Another email, March 27, just a few months before, this one
again Lois Lerner: As I mentioned yesterday, there are several
groups of folks from the FEC world that are pushing tax fraud
prosecution for (c)(4)s who report they are not conducting political
activity when they are or at least these folks think they are. One
is my ex-boss, Larry Noble, former general counsel at the FEC,
who is now president of Americans for Campaign Reform. This is
their latest push to shut these down. One IRS prosecution would
make an impact, and they wouldnt feel so comfortable doing this
stuff. By the way, the stuff theyre talking about is activity protected by the First Amendment.
So Ive got an email from the IRS referencing a Department of
Justice call while the Department of Justice is supposed to be conducting this investigation. We know that theres the missing
emails, but what may not be known is that there was actually a
much earlier FOIA request. This has not been discussed publicly.
This FOIA request was made in May 27 of 2010, right when this
whole issue started just getting some attention. It came in from
Lynn Walsh. She did this as an independent journalist. She sent
it to the Internal Revenue Service disclosure office asking for, as
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she phrased it, documents relating to any training, memos, letters,
policies, et cetera, that detail how the Tax-Exempt Government Entities Division reviews application for nonprofits, 501(c)(3)s, and
other not-for-profit organizations specifically mentioning Tea Party,
the Tea Party, Tea Party or tea parties. The response that came
in to this request, of course, took until January 6, 2011. Its a quick
response. We found no documents specifically responsive to your request. Well, we know thats absolutely false because theres been
take out the ones that are missing, there are literally thousands,
tens of thousands that were responsive to this. This is the cavalier
attitude upon which the IRS was conducting itself. Thats problematic. This is an office I served in, my first job out of law school, 250
years ago, was Chief Counsels Office of the IRS. I have a lot of respect for the office. I served on the legal faculty for the Department
of Justice. This isnt something that Im pleasant about this. This
is damaging, its troubling, and Mr. Chairman, in all due respect,
it could be solved so easily by appointing a special counsel to get
to the bottom of what is clearly a significant problem, the last of
which is the missing emails. Thank you.
Mr. JORDAN [presiding]. I thank the gentleman for his testimony.
[The prepared statement of Mr. Sekulow follows:]*
*Attachments to this prepared statement are not printed in this hearing record but are on
file with the Committee and can be accessed at http://docs.house.gov/Committee/Calendar/By
Event.aspx?EventID=102569.
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Mr. JORDAN. I would just point out that that very first email you
referenced, we had Mr. Cole in front of the Oversight Committee
2 weeks ago asking about that very email, and nothing happened,
he said, afterwards, and the reason nothing happened is because
2 days later, that email that you first referenced, May 82 days
later, May 10, Lois Lerner went public and told the story. So, of
course, nothing happened after the fact, but well get to that in a
second.
But professor, you are recognized for your 5 minutes.
TESTIMONY OF RONALD D. ROTUNDA, PROFESSOR,
CHAPMAN UNIVERSITY
Mr. ROTUNDA. Thank you very much.

We have an anniversary today actually, 40 years ago to the day
President Nixon released the White House tapes to comply with
the U.S. Supreme Court order. A day earlier, the House Judiciary
Committee approved articles of impeachmentone dealt with
abuse of power, and one of the counts was that the President unsuccessfully tried to use the IRS to harass his political opponents.
Now any claim that Lois Lerner, any IRS official tried to use the
IRS to harass or attack political opponents undercuts the peoples
faith in the IRS, which is supposed to be nonpartisan; not bipartisan, but nonpartisan. So we all should be very happy if the President is correct when he solemnly assured us that theres not even
a smidgen of corruption regarding Lois Lerner and the IRS.
The problem is that theres a lot of evidence of a smidgen of corruption, and I think a thorough investigation by a special counsel
would hopefully show how far this leads. Does it go up within the
IRS, above Lois Lerner? Does it go to the Department of Justice?
What was the basis for the Presidents assurance that theres not
a smidgen? Did somebody in the Department of Justice mislead
him, either intentionally or unintentionally, either incompetently
or with scienter? We all know she pled the Fifth Amendment and
refused to testify just after assuring us under oath that she had
committed no crimes.
The months after the Presidents assurances of not a smidgen of
corruption, the inspector general issued an audit that said that the
IRS systematically used inappropriate criteria to identify the taxexempt applications for review, and the inspector general is also
nonpartisan. Last month, the IRS, represented by the DOJ, agreed
to pay $50,000 for the illegal disclosure of tax return information
leaking the 2008 return and donor list of the National Organization
for Marriage to an activist who turned it over to NOMs adversary,
the Human Rights Campaign. Thats a coincidence: the president
of the organization just happened to be the national cochair of the
Presidents reelection campaign.
The DOJ is defending the IRS and actually defending itself
against these charges. We really cant expect the DOJ to competently and objectively investigate itself. By the way, the DOJ refused to give immunity to this activist who could tell us who gave
him the information. He said he got it from a good contact in the
IRS, and there was more to be given. But were not going to find
out.
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Now, theres no longer a statute that provides for a special prosecutor. However, we dont need a statute to have one. There was
a special prosecutor for Teapot Dome done by regulation, not by
statute. No statute for Watergate. That was also by regulation. The
regulation says the Attorney General will appoint a special prosecutor of criminal investigationhe will appoint if criminal investigation of a person or matter is warranted, theres a conflict of interest, or in the public interest to appoint the outside special counsel. We cannot expect the DOJ to impartially investigate itself, and
it will not do this impartially.
The problem here, frankly, is not simply how far up in the IRS
did it go. It is the DOJ part of the cover-up? The impartial investigation may undercut the Presidents assurance that theres not a
smidgen of corruption or maybe the independent counsel will determine that, in fact, theres nothing wrong or it didnt go past Lois
Lerner, and then we would all be much happier for that.
Now, the special counsel regulation is not a statute. Its a regulation, but regulations are law, as the Supreme Court explained in
the United States v. Nixon, when referring to the regulation that
governed the Watergate special counsel, so long as this regulation
is extant, it has the force of law. Then it went on to say, the Supreme Court went on to say, As long as the Attorney Generals regulations remain operative he denied himself the authority to exercise his discretion.
Now, that doesnt mean that a court will order him to appoint
a special prosecutor. There are a lot of laws that people dont obey,
and theres no way we can enforce them. The President could have
refused to turn over the tapes, and we dont see a court putting
him in contempt, jailing the President, but the President complied,
and the Department of Justice, the Attorney General should recognize hes also under the law.
The government officials require us to turn square corners when
dealing with them. They should turn square corners when dealing
with us. The Attorney General should follow the regulations when
he denied himself the authority to exercise discretion. By the way,
even discretion, the cases say, is not abuse of discretion. You may
not abuse your discretion.
Now, the Attorney General can restore Americas faith in a nonpartisan IRS and in the DOJ by appointing the special counsel. It
probably should be a Republican. During the Watergate counsel,
during the Watergate controversy, the Attorney General appointed
a prominent Democrat, first Archibald Cox and then Leon Jaworski, to investigate the President. In the Teapot Dome, the Attorney
General appointed two prosecutors, one Democrat, one Republican,
to investigate. If a Democrat had given Nixon a clean bill of health,
we would feel better for it, and if a special prosecutor gives the IRS
a clean bill of health, we would feel good about that, too, and we
hope thats what would happen. Thank you.
[The prepared statement of Mr. Rotunda follows:]
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Mr. JORDAN. Thank you, Professor.
Professor Tiefer.
TESTIMONY OF CHARLES TEIFER, PROFESSOR,
UNIVERSITY OF BALTIMORE SCHOOL OF LAW
Mr. TIEFER. Im Charles Tiefer. I was in the Senate Legal Counsels Office from 1979 to 1984 and in the House General Counsels
Office 1984 to 1995, rising to be acting general counsel. I had more
years than anyone else in the House of Representatives looking at
this issue, working with the Justice Department special and independent counsels. Im now a professor at the University of Baltimore Law School.
The regulation at issue here gives the Attorney General broad
and total discretion. It says, the Attorney General will appoint a
special counsel when he or she determines that investigation and
prosecution would present a conflict of interest for the department. And I think it has been agreed by all the witnesses here
today, certainly clearly by Mr. Sekulow in his testimony, that the
Attorney General has that discretion.
Moreover, hes supposed to look at conflicts of interest in the Department of Justice in exercising his discretion. It doesnt matter
what problems there are at Treasury, at the IRS, at the White
House. Their problems are their problems. His only consideration
is whats going on at the Department of Justice.
Now, since this 1999 regulation, we had the entire two terms of
the Bush administration to see what the experience is under this
regulation. There were very, very few special counsels. Patrick
Fitzgerald is one, and he is the only regular special counsel I know
of in the Bush administration. Even though the applications, the
quests from the Congress for special counsels included two times
where the person being charged was Attorney General Gonzalez
himself. Now, they didnt have special counsels even though the
person being charged for perjury and in connection with authorizing alleged torture was the Attorney General himself.
Now, if it doesnt do it to get a special counsel when the Attorney
General is the target, the effort here today is about as realistic as
a fishing expedition for the Loch Ness monster.
Now, the arguments that have been made as to why the Department of Justice is conflicted, Professor Rotunda has noted that the
President said there was no corruption, but as the Members here
have already noted, Attorney General Holder testified that theyre
investigating. Jim Comey, who is the head of the FBI and was a
Republican, was an appointee as Deputy Attorney General of the
Bush administration says theyre investigating. Within the Public
Integrity Section, Jack Smith and Mr. Pilger, who are respectively
the head of the section and the head of the Elections Branch thats
doing this, both submitted to questioning by staff, House Committee staff, which is unheard of. I wish they had been willing to
do it in my time, but they did it, and they said theyre investigating
seriously. So theyre doing it. What more assurance do you want
that theyre doing it?
And, finally, theres been some fuss made that Barbara
Bosserman, who was said in Mr. Sekulows testimony to be the
leading attorney in this investigation, gave donations to a political
32
party. Shes not the leading attorney. Even the greatest, the most
intense accusations have admitted in H. Res. 565, shes just an attorney from the Civil Rights Division. This is a Criminal Division
Public Integrity Section investigation, and her role is, shes sort of
visiting from the Voting Rights Section I think of the Civil Rights
Division. So to believe that the Public Integrity Section, contrary
to its mission, its history, its very reason for existence, the pride
of its career prosecutors, and all my experience with them is not
doing its job, that weve caught them in a conflict of interest here
is like, were like a hunter who catches a squirrel and says, look,
Ive caught bigfoot here. I thank you for allowing me to present
this.
Mr. JORDAN. I thank the gentleman for his testimony.
[The prepared statement of Mr. Tiefer follows:]
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Mr. JORDAN. I would recognize the gentleman from North Carolina, Mr. Coble, for his 5 minutes of questions.
Mr. COBLE. I thank the Chairman, and its good to have you all
with us today.
Mr. Sekulow, let me start with you.
Mr. SEKULOW. Yes, sir.
Mr. COBLE. Can you defend General Holders decision not to appoint a special counsel to the IRS matter by regarding the investigations that took place under the Bush administration? Can you
compare the two?
Mr. SEKULOW. Well, I think the difference here is, number one,
acknowledging the discretion. There were special counsels under
the Bush administration, Patrick Fitzgerald being one of them. The
situation you have here, and I think this is whats significant in
referring to the last witness, the comment, its not what the IRS
has done. I dont think any of us have the scope and understanding
what the IRS has done. The problem is the agency investigating
the IRS also does not know the scope of what the IRS has done
and its not comforting to me as a litigant, to answer the question,
lawyer representing clients, that the DOJ would come before Committees like this and say, we learned of the missing emails in the
press, when they had been conducting a 1-year criminal investigation, and they learned in the press.
Granted, the Attorney General has the discretion here, but discretion is sometimes the better part of valor, and I think that in
a situation like this you want to assure the American people and
specifically those that have been targeted, that a real investigation
is taking place. We had clients that were interviewed by the IRS.
I will tell you the level of questioning was at the line agent level.
And that was while, Congressman, I had the letters in my file from
lawyers in Washington, not just Lois Lerner and others, but they
were focusing on, did the agent keep you on hold too long, which
is not a crime. Its impolite, but not a crime. So I think its clearly
within the discretion of the Attorney General. It was the Attorney
General of the United States that said there may well be criminal
violations here. He brought that up, talking about the civil rights
statute. But when youve got an email from the IRS saying DOJ
is basically colluding with us and saying, could we piece together
this is what, I remind you, piece together false claims statements
for people that lied, and then what are we going to do, impanel
a grand jury? This is why I believe the special counsel would be
appropriate and would stop any of the serious questioning that a
lot of us have on whether this investigation is real or not. By the
way, it took them 9 months to get to us to even talk to our client.
Mr. COBLE. Let me elaborate on your conclusion that they found
out in the media. Does this cast a shadow over their claim that
they are engaged in an ongoing investigation, the fact that they obtained it through the media?
Mr. SEKULOW. Well, it certainly does, and how can they be conducting a thorough criminal investigation, and due respect to Professor Tiefer, I mean, and not any disrespect to Barbara
Bosserman, but they loan her over to a group. She was the one
that was in the meetings, but they did not know that the emails
that were the key years involved in the investigation were missing?
43
And that is a criminal investigation? They should be fired then if
thats what they did. If it wasnt criminal what they were doing,
it wasnt, they just made a mistake, those agents should have been
fired for that because thats not a real investigation. How do you
not have the 9 months or 12 months or 14 months of the key time
and the emails are gone, and that was not known by the FBI?
Mr. COBLE. I thank you, sir.
Mr. SEKULOW. Thank you.
Mr. COBLE. Professor Rotunda, in your view, did the Presidents
statement about there not being a smidgen of corruption by itself
create a conflict of interest?
Mr. ROTUNDA. I think its a real problem because the chief law
enforcement officer of the land has prejudged the conclusion of the
investigation. So youre asking the DOJI mean, what are they
supposed to do? If they find evidence of corruption, like the inspector general did, theyre undercutting their boss. And I think what
were interested in is not only the emails at the time, its whats
going on now. Theres a group called Z Street, they applied for taxexempt status. Theyre a group that has the views of Israeli policy
that they think are contrary to the Administration. They sued the
IRS, the Department of Justice is representing them, and as we
speak now, the Department of Justice is trying to stop all discovery
in the case. The Wall Street Journal said slow walk the investigation. The Department of Justice seems to be defending the IRS in
court while they also claim theyre investigating the IRS. You cant
serve two masters.
Mr. COBLE. And the Justice Departments apparent lack of interest in the investigation?
Mr. ROTUNDA. Im sorry, the what?
Mr. COBLE. The Department of Justices apparent lack of interest
in the investigation?
Mr. ROTUNDA. Well, thats actually a polite term. In the Z Street
case, theyre doing more than nothing, theyre trying to slow walk
and prevent discovery. So think about it this way: If, in fact, IRS
officials higher than Lois Lerner were involved and if, in fact, some
DOJ officials were involved in trying to gin up something to harass
political opponents, the DOJ, if that were the case, the DOJ would
do exactly what its doing now, slow walking investigations, claiming theyre doing something without doing it, learning that there
is a third party who got, who says under oath, I got information
frombrags to people, I got information, I have a conduit in the
IRS but refuses to tell us who, and not give them immunity, not
try to find out. You would do exactly what youre doing now if you
wanted to slow walk the investigation. I think thats active; more
than lack of interest, it is the opposite, but its not good interest.
Mr. COBLE. Mr. Chairman, I see that my red light is illuminated,
so I yield back.
Mr. JORDAN. I thank the gentleman.
The gentleman from Michigan, the Ranking Member, Mr. Conyers, is recognized for 5 minutes.
Mr. CONYERS. Thank you, Mr. Chairman.
Professor Tiefer, I want to bring you in on this. As you noted in
your testimony, where the regulations for special counsel are found,
is it your opinion that these regulations give the Attorney General
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sole discretion to appoint special counsel if, in his judgment, it is
appropriate to do so?
Mr. TIEFER. Yes, exactly. I think they give the Attorney General
sole discretion.
Mr. CONYERS. May I ask our distinguished witness, do you agree,
sir?
Mr. SEKULOW. Yes, its the discretion of the Attorney General.
Mr. CONYERS. And do you agree, sir?
Mr. ROTUNDA. Well, to be precise, it is discretion. Discretion can
be abused. I dont think theres a way to legally enforce the Attorney General, but there are a lot of things that people have to do
under the law that are difficult to enforce legally. Theres President
Nixon turned over the tapes, I dont know what we would have
done if he just refused.
Mr. CONYERS. Okay.
Mr. ROTUNDA. The regulation says shall appoint.
Mr. CONYERS. I dont want to go into it. All I wanted to know
is do you agree that the Attorney General has sole discretion to appoint special counsel.
Mr. ROTUNDA. No, I dont, because it doesnt use the word sole
discretion, it just says, shall appoint if he determines a criminal
investigation is warranted and if there is a conflict of interest.
Mr. CONYERS. So your answer is no?
Mr. ROTUNDA. Yes, sir.
Mr. CONYERS. Okay. Now let me ask you three this question,
starting with Professor Tiefer: Can the House compel the Attorney
General to appoint special counsel?
Mr. TIEFER. It absolutely cant. Not only is it not given that
power in the statute and it wouldnt be constitutional for the House
to interfere in law enforcement, but Mr. Conyers, you and I go back
to the old statute which had a role for the House Judiciary Committee. At least the statute said it could make a statement, and the
old role that we used to have back then, we dont even have that
under the regulation.
Mr. CONYERS. May I ask, Mr. Sekulow, your view?
Mr. SEKULOW. Well, I would take a little bit of an issue here. I
think the House has the right to pass a resolution requesting or
sending a letter requesting the Attorney General to exercise his authority.
Mr. CONYERS. But compel? Can we compel?
Mr. SEKULOW. No, not compel, but certainly allow him toI
think the House has a role to play. This idea that the House is inappropriate by moving this way I think is wrong. They do; the
House certainly can bring it and request it. It cant compel it.
Mr. CONYERS. All right, thank you very much.
May I ask you that same question, Professor Rotunda?
Mr. ROTUNDA. Sure. Basically, Mr. Sekulow has summarized my
position.
Mr. CONYERS. You agree with him?
Mr. ROTUNDA. For example, Powell v. McCormack, the Supreme
Court ordered Congress to
Mr. CONYERS. Okay, I dont need
Mr. ROTUNDA. But I dont think a court will issue an order compelling the appointment of a special prosecutor, I agree with that.
45
Mr. SEKULOW. Correct.
Mr. CONYERS. Its been suggested, witnesses, in statements and
testimony today that President Obama created a conflict of interest
for the entire Federal Government when he suggested in a preSuper Bowl interview on Fox News that he believed there was no
evidence of corruption in the Internal Revenue Service. In your
opinion, does the statement create a conflict of interest at the Department of Justice?
And Ill begin with you again, Professor Tiefer.
Mr. TIEFER. Positively not. Mr. Pilger and Mr. Smith and the
others who actually as career prosecutors are the Justice Department on this matter, I can just imagine how little they care for
what the President says in pre-Super Bowl hearings. They just
blow it off.
Mr. CONYERS. All right. Let me just get to Professor Rotunda.
What is your view, does the statement create a conflict of interest
at the Department of Justice?
Mr. ROTUNDA. At the DOJ, yes, and I care what the President
says. I would be shocked if the DOJ lawyers, including the people
that serve at his pleasure, do not care. They should. Hes the President of the United States. Hes our President.
Mr. CONYERS. And Mr. Sekulow, I ask you finally.
Mr. SEKULOW. It does raise the conflict of interest without question, number one, and number two, the idea that the President of
the United States could prejudge a case or if he did not prejudge
it was given evidence that no one else has seen that there was no
smidgen of corruption certainly presents a conflict of interest.
Hes the chief executive.
Mr. CONYERS. All right. Thank you very much.
My time has expired. I yield back.
Mr. JORDAN. I thank the gentleman.
Before yielding to the gentleman from Alabama, I would just
make one comment. I read Mr. Tiefers testimony last night, and
he spent like five pages on discretion. No one up here on either side
of the aisle I think, save to the former Chairman, thinks the Attorney General doesnt have discretion. Of course, he has. Plain reading of the resolution, its a sense of the House Resolution. All were
saying is look at the fact pattern, and we think that cries out for
a special counsel. And not just Republicans; 26 Democrats voted for
that resolution. Recognize the gentleman from Alabama for 5 minutes.
Mr. BACHUS. Thank you.
Mr. NADLER. Mr. Chairman.
Mr. JORDAN. The gentleman from New York.
Mr. NADLER. Just to reply to you, I, too, agree this hearing is a
total waste of time.
Mr. JORDAN. No, I didnt say that. I said that
Mr. NADLER. You implied it.
Mr. JORDAN. I dont think I implied it at all, but the gentleman
can have his editorial comment there, and we will move to the gentleman from Alabama.
Mr. BACHUS. Thank you.
One email was read, Mr. Sekulow, you read one of the emails,
but another one I was just noting here is from Lois Lerner on
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Wednesday, March 27, and said everyone is looking for a magic
bullet.
Mr. SEKULOW. Right.
Mr. BACHUS. To prosecute these people. And that traffic included
the DOJ.
Mr. SEKULOW. Right, and also several of the others included the
FEC. I mean, theres no doubt that this is a multi-agency engagement. The question is, in a situation like this, when you have got
a multi-agency engagement, has the DOJs ability to impartially investigate this been compromised? No one is questioning that it is
the authority of the Attorney General to determine whether a special counsel can be appointed, but its certainly appropriate for this
Committee to bring forward the facts that show why it would be
prudent, and again, in this particular case, youre pointing to the
March 27 email, there are emails going back even further. Youve
got the statements that Lois Lerner made at Duke University.
But it all started with the fake apology and a planted question
in the ABA. That should have been the focus of the FBIs investigation, not questions to our clients about if they were on the phone
calls too long or treated rudely.
Mr. BACHUS. Yeah, its pretty clear here that they were looking
for a way to prosecute these people.
Mr. SEKULOW. Oh, yeah. They say it.
Mr. BACHUS. And the Justice Department was involved in this.
I mean, if thats not a conflict, to investigate yourself
Mr. SEKULOW. Well, Congressman
Mr. BACHUS. And were talking about, but if part of the issue
youre talking about to whether to have a special counsel is to investigate wrongdoing, and the wrongdoing is in your very department, how can you investigate yourself? That would be my question, Professor Rotunda or Sekulow or maybe Tiefer.
Mr. ROTUNDA. Yeah, and of course you cant, at least not objectively, and the problem is not only what happened a year or two
ago; its whats happening as we speak today, that is the Z Street
group is in litigation, the DOJ is defending the IRS and slow walking the discovery. The IRS, to settle litigation against the IRS, the
DOJ approves this $50,000 settlement. The IRS is not in the habit
of handing out money. Theyre there to collect money. And to say
that theres not a smidgen of corruption and then pay a $50,000
check to make the case go away because of the corruption area,
thats inconsistent, and what I would like, I think the advantage
of the special counsel is if he tells us in fact it went no further than
Lois Lerner, maybe Lois Lerner and the IRS commissioner, somebody else, we could believe that. When this Administration, when
the people are investigating themselves, its very hard to believe
that.
Mr. BACHUS. Well, and let me ask you this. Lets assume the
Justice Department is investigating Lois Lerner. They say they
are. And to investigate someone, the first thing you do is you ask
for all the documents. Emails now
Mr. ROTUNDA. Right.
Mr. BACHUS [continuing]. Are probably the central thing, phone
records. How is it, and Ill ask any of you, how is it conceivable that
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if theyre investigating or asking her for emails, there could have
been all these emails destroyed and they didnt know it?
Mr. ROTUNDA. How can the IRS commissioner testify to the
House under oath that the emails have been destroyed and then
the inspector general says actually theyre there? Why did the IRS
commissioner say that? Somebody lied to him? Somebody was incompetent? Certainly somebody wasnt looking very hard because
the inspector general, the nonpartisan official, signed it. There are
a lot of things here that are, shall we say, eyebrow raisers.
Mr. BACHUS. Professor Tiefer, go ahead.
Mr. TIEFER. You may think theyre too slow, okay? I wont argue;
I dont know enough to argue. It took them a while in the investigation to find this out, point taken that they may have been slow.
The scale of what it takes to find that the Justice Department has
a conflict of interest such that they cant do this investigation, that
its taken away from them, if you did that every time they did a
slow investigation, you would have to build a new Main Justice
building just for the special counsels.
Mr. BACHUS. Well, you realize, theres 70 percent of the American people say theyre covering up and theyre guilty of misconduct. Now, thats just their opinion. But isnt that enough, when
70 percent of the people think their government is lying to them
and covering up and destroying evidence, isnt that reason enough?
Mr. SEKULOW. They didnt find it slow, Congressman.
With due respect, Professor, they didnt find it slow. They didnt
find it at all. It was only public after a Freedom of Information Act
request. Thats the problem. The FBI investigation did not uncover
the missing emails from the key period and, apparently, from people that also received them.
Mr. ROTUNDA. Yeah, third parties without a subpoena get more
information than the Department of Justice with a subpoena.
Mr. BACHUS. Another word you used, slow walking, if nothing
else, this is a case of slow walking.
Mr. JORDAN. The gentleman from New York is recognized.
Mr. NADLER. Mr. Chairman, before Im recognized, can Professor
Tiefer answer Mr. Bachuss question about the 70 percent?
Mr. TIEFER. Ill refer back, if the regulation said anytime the
public puts thumbs down about their government, now we have
twice as many special counsels as I was worried about before, but
Ill just note that the instances I talked about in the Bush administration involving Attorney General Gonzalez, I dont know the
exact poll figures, but I know there were times during the Bush administration that there was grave public doubt about either Attorney General Ashcroft or Attorney General Gonzalez, and we didnt
get special counsels.
Mr. BACHUS. But that doesnt make it right, does it?
Mr. JORDAN. No, it doesnt make it right that the Justice Department learned of the missing emails from the press accounts when
the IRS wrote the letter.
The gentleman from New York is recognized.
Mr. NADLER. Thank you, Mr. Chairman.
Mr. BACHUS. I just dont think a defense that someone else did
something just as bad is a defense.
Mr. JORDAN. I hear you.
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The gentleman from New York is recognized.
Mr. NADLER. Thank you.
Professor Rotunda, in your written testimony, you state, We also
know that the Department of Justice is in a conflict of interest in
continuing that investigation because the President has compromised it. That occurred when the President, the chief law enforcement officer of the United States, announced last February
that there has not been a smidgen of corruption. Youre referring, and I think you did today earlier, to the Presidents comments
in an interview with Bill OReilly on February 2, are you not?
Mr. NADLER. Thank you. In your view, the President has created
a conflict of interest for the entire Federal Government because he
gave his opinion based on the facts of a case as he understood that
at the time?
Mr. ROTUNDA. Not for the entire Federal Government, but for the
Department of Justice, and hes never gone back on his remarks.
Mr. NADLER. Well, whether hes gone back on his remarks or not,
thats not the question. By saying that hes created a Federal conflict of interest for the entire Department of Justice although not
the Department of Agriculture is what youre saying?
Mr. ROTUNDA. Thats right. Command influence we call it in the
military.
Mr. NADLER. December 6, 2005, you wrote a column in The
Washington Post titled, A Shaky Ethics Charge. Reports show
that John Roberts then on the D.C. Circuit had interviewed with
senior White House officials, including Alberto Gonzalez, then the
Attorney General, Dick Cheney, then the Vice President, Karl
Rove, I presume then the politician in chief, while sitting as a
member of the three-judge panel considering Hamdan v. Rumsfeld.
A number of people called for his recusal from that case. You argued that, Roberts had no obligation to withdraw from the case
and concluded that conflict of interest charges should not be raised
lightly.
There a sitting judge consulted with the White House, presumably for appointment, possibility of appointment as the chief justice
while hearing a case that tested a central theory of the White
Houses war on terror, but there was no conflict of interest. Here
the President gave his opinion on a case far removed from the
White House, but there is a conflict of interest. How is that consistent?
Mr. ROTUNDA. Well, as I pointed out then, we had a lot of case
law that fit under Roberts. And Justice Breyer, for example, was
deciding cases as a First Circuit judge and then appointed to the
Supreme Court and talking to the Supreme Courtor talking to
the Department of Justice about positions. Theres a lot of case law
on this. We have in the executive branch
Mr. NADLER. But that doesnt apply to an off-the-cuff expression
of opinion by the President.
Mr. ROTUNDA. The Presidents never said it was off-the-cuff. I
dont think it was off-the-cuff.
Mr. NADLER. Well
Mr. ROTUNDA. Ive never heard that one before.
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Mr. NADLER. It was an expression of opinion on a TV show, not
in a legal brief or anything else.
Mr. ROTUNDA. He was command influence, he was telling us
what the investigation shows is theres not a smidgeon of corruption. What was the basis for that? That somebody may have misrepresented to him? Somebody may have been incompetent, but its
little difficult for the Department of Justice to show
Mr. NADLER. And yet
Mr. ROTUNDA [continuing]. But argue the President was incorrect.
Mr. NADLER. Well, thats a different question, whether he was
correct or incorrect. Yet you published an article in the Hofstra
Law Review, titled, Alleged Conflicts of Interest Because of the
Appearance of Impropriety. In it you discuss the situation where
a lawyer openly takes a position on a controversial issue. You conclude, Those who claim that there is some sort of conflict of interest in public statements about policy matters do not refer to any
rules, regulations, case law or ethics opinions to support their
charge; that is because the law on this subject all points the other
way.
Can you point to any precedent, any rule, regulation, case law or
ethics opinion that suggests the Presidents unscripted remarks
from a pre-Super Bowl interview compelled the Department of Justice to recuse itself from a criminal investigation?
Mr. ROTUNDA. I referred to them briefly earlier. In the military,
its called command influence. If the general says
Mr. NADLER. Wait a minute. This is not the military.
Mr. ROTUNDA. Id like to finish my sentence if I could. All right?
The President is not in the military, but he cant prejudge that as
well. I objected to that article talking about the appearance of impropriety, because we never define what is not an impropriety but
appears to be. We ought to have stricter rules.
Mr. NADLER. Can you pointand Ill repeat the question. Can
you point to any rule, regulation, case law or ethics opinion to support the charge that the President sets up a conflict of interest for
the entire Justice Department by expressing his opinion?
Mr. ROTUNDA. Yeah.
Mr. NADLER. Question mark.
Mr. ROTUNDA. All the cases on command influence that cover
even the President, whos not
Mr. NADLER. Command influence
Mr. ROTUNDA [continuing]. Military.
Mr. NADLER [continuing]. Is within the military structure, which
is a very different thing, where the President is on top of thenot
only the prosecution but the judicial chain.
Mr. ROTUNDA. Yeah. The President is the chief law enforcement
agent of the land.
Mr. NADLER. Hes not the chief judge, as he is in the military,
in effect.
Mr. ROTUNDA. Hes not the chief judge, no. Thats why he cant
exercise command influence.
Mr. NADLER. Cannot exercise command influence. In the military, he exercised command influence. Thats what you were saying, otherwise, why did you mention it?
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Mr. ROTUNDA. Im sorry. I guess I dont understand.
Mr. NADLER. I asked if there was any case, rule, regulation or
anything, and you cite the military because of command influence.
This is not the military. There is no command influence.
Mr. ROTUNDA. Even though the case will be decided by a military
judge or prosecuted by the military attorneys and the President
has no direct rule, hes still not allowed to tell people how the case
is supposed to come out. And wed like to know, since I think part
of the investigation here is whether the DOJ is involved in the
coverup, why did the President say that? Was it about
Mr. NADLER. The President
Mr. ROTUNDA [continuing]. Off-the-cuff remark
Mr. NADLER. The President
Mr. ROTUNDA. Was it because the DOJ
Mr. NADLER. Hold on.
Mr. ROTUNDA [continuing]. Gave him information?
Mr. NADLER. The President is not the subject of the investigation. There is no evidence whatsoever to tie senior Administration
officials to the case, and yet its your position that the Presidents
expression of opinion creates a government-wide or at least a department-wide conflict of interest. This seems to go against everything else youve ever written on the subject.
Mr. ROTUNDA. I dont think so.
Mr. GOODLATTE [presiding]. The time of the gentleman has expired, but the gentleman will be allowed to answer the question.
Mr. ROTUNDA. Yeah. I dont think so. Thats why I got footnotes.
I cite the various authorities. Now, I will add
Mr. NADLER. But you cant cite a single
Mr. GOODLATTE. The time of the gentleman has expired.
The Chair recognizes the gentleman from Virginia, Mr. Forbes.
Mr. NADLER. A point of order, Mr. Chairman.
Mr. GOODLATTE. The gentleman will state his point of order.
Mr. NADLER. Yeah. Before you came in, the gentleman who was
seated in the Chair was commenting after every question and every
witness, and took a minute or two or three to make his comments.
I think I can ask one more question of the professor.
Mr. GOODLATTE. Without objection, the gentleman will have 1
more minute.
And yet when I asked you whether you can cite any regulation,
rule, case law or ethics opinion to support the charge, all you can
come up with is military stuff, command influence, nothing civilian.
Is that correct?
Mr. ROTUNDA. Well, in my written testimony, thats correct.
Mr. ROTUNDA. What I tried to point out today, because the email
just came out, we now learn that the Department of Justice is slow
walking the discovery in cases defending the IRS, and that is also
creating a conflict, much more serious, because it is the Department of Justice officials defending the IRS while theyre supposed
to be investigating the IRS.
Mr. NADLER. So nothing outside the military. Thank you.
Mr. GOODLATTE. The Chair recognizes the gentleman from Virginia, Mr. Forbes, for 5 minutes.
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Mr. FORBES. Thank you, Mr. Chairman.
I want to try to get back to the essence of this hearing, which
is basically, its not the credibility of one particular individual, but
would all of the witnesses, would any of you disagree that currently
the credibility of the Internal Revenue Service is a major question
now with a vast majority of the American people? Would any of our
witnesses disagree with that?
Mr. Tiefer would, I take it.
Mr. TIEFER. I would just say its nothing new. The public has always hated the IRS.
Mr. FORBES. Well, its a difference between hating them.
Mr. Sekulow, have you seen any difference in actually with the
American public in terms of the credibility of the Internal Revenue
Service?
Mr. SEKULOW. I can give you actual evidence of the concern, and
generally, the IRS doesnt winwhen I used to get introduced and
you said you were chief counsel of the IRS, that usually didnt get
applause in the early days, but the reality is now, Ive been literally inundated with cases, requests for assistance from people
that are simply getting notices of deficiency, wondering if they have
been targeted for something, because its coming out of nowhere.
So there is this palpable general distrust, and what counters that
is the reality of it is its not just one person, this is happening time
and time again. And then you had, which has not been brought up,
you know there were a series of audits conducted by the IRS
against adoptive parents because of the adoption tax credit. They
recovered less than 1 percent of the revenue that was of the credit
that was actually taken. These kind of actions lead to an increased
concern by the American people.
Mr. FORBES. Would you not agree that the IRS is not just any
agency. Its a core agency in terms of both the overreaching power
that they have on the American people and also the core of its capability of raising revenue for this country, and then the other part
of that is it depends on the voluntary
Mr. SEKULOW. Right.
Mr. FORBES [continuing]. Compliance of the American people.
Now, having said that, I want to go back to this question that
most of you agree that this is a discretionary issue for the Attorney
General, but if you take Mr. Tiefers response that any time anybody comes in here and just says, were doing an investigation,
then this Committee should just go home and not do anything,
then I will tell you, we wouldnt do any of our oversight roles, because time and time again, this Administrations come in and said,
oh, yeah, we got into look that, were going to get back to you, were
doing an investigation, and we dont hear anything.
And then when you look at the other comment, Mr. Tiefer, that
you said about the people in the Justice Department not paying
any attention to what the President of the United States says, I
know its a different role, but look at the generals and admirals
who have lost their jobs at the Pentagon because they disagree
with this Administration. Theyve issued gag orders on them.
Theyve fired them because they disagree, and you tell me if Im
in an agency and the President of the United States, whos my boss
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and I serve at will, comes out and says theres no evidence here,
Im sending that message, Im not going to pay attention to it?
Mr. SEKULOW. I was just going to say, Congressman Forbes, and
this goes to what Congressman Nadler was talking about, this was
not just an off-the-cuff statement. It was a statement by the President of the United States that there was not a smidgeon of corruption on what was purportedly an ongoing criminal investigation.
Now, if an attorney was involved in a case and made that kind
of statement, they would be reprimanded by the court. An ongoing
criminal investigation, and the President of the United States has
prejudged it, and theres an executive function within the Department of Justice, that is very troubling. Again, its discretionary to
the Attorney General what he wants to do with that, but to say
that doesnt raise an issue, I think, is
Mr. FORBES. Mr. Sekulow, let me come back to this question. The
essence of this case, to me, comes down to this, whether you appoint this special counsel. Mr. Rotunda, you talked about the Nixon
tapes, and he probably didnt have to turn them over. If you had
it to go over now and it wasnt a worry about impeachment, he
wasnt worried about the politics of it, and you had to advise him,
and he had two questions to ask: Do you want to make sure youre
restoring the credibility of the Internal Revenue Service, or do you
want to make sure that your agencies arent held accountable for
perhaps some misconduct that took place there, what would you
have advised him to do, turn over that information or not turn it
over?
Mr. ROTUNDA. Turn it over, that is, comply with the law, even
though it cant be enforced.
And by the way, this is not Super Bowl Monday. That is, were
not talking about asking for a special prosecutor an hour after the
President issued his remark. We have that remark, which raised
my eyebrows, what does he know that we dont know, and weve
had a whole series of things after that, including the DOJ attitude
and actions in the lawsuit involving the Z Street Corporation, the
$50,000 settlement in the National Organization of Marriage, the
refusal of the DOJ to give immunity to this individual who could
tell us who gave him the information from the IRS.
Mr. FORBES. Thank you.
My times expired. Im not going to take more time.
And, Mr. Chairman, with that, I yield back.
Mr. GOODLATTE. I thank the gentleman.
The Chair recognizes the gentleman from Virginia, Mr. Scott, for
5 minutes.
Mr. SCOTT. Thank you. Thank you, Mr. Chairman.
As the Ranking Member has indicated, this is the last full working day before we go on a 5-week recess. Weve still got pending,
and apparently not enough time to consider voting rights legislation to improve voting rights generally or the voting rights bill that
would respond to the Shelby decision. We havent passed immigration reform or done anything about gun violence and a host of
other issues, but here we are with a hearing, and you wonder about
the purpose of the hearing generally, but the House has already
passed H. Res. 565, demanding that the Attorney General appoint
a counsel. This hearing might have made sense before we consid-
53
ered that resolution, but after we passed it, it wonders what this
is all about, but let me get to aweve been talking about a lot of
regulations.
The code of the United States under 501(c)(4) says that those organizations that could get that tax-exempt status are civic league
organizations not organized for profit but operated exclusively for
the promotion of social welfare.
The regulations say that to qualify as a social welfare organization under 501(c)(4), an organization must be operated exclusively
for the promotion of social welfare. An organization is considered
to be operated exclusively for the promotion of social welfare if it
is primarily engaged in activities which in some way promote the
common good and general welfare of the community. They say that
political activities are not considered to be activities for the promotion of social welfare.
Then they go on to talk about attempts to influence legislation
are considered to be activities that further Section 501(c)(4) social
welfare purposes so long as such legislation is germane to the accomplishment of its social welfare purposes.
Promotion of social welfare does not include participation or
intervention in political campaigns, but 501(c)(4) organizations may
intervene in political campaigns without jeopardizing its tax-exempt status provided it is primarily engaged in other activities
which further the promotion of social welfare.
Those are the regulations. Let me get back to the code. Organized not-for-profit but operated exclusively for the promotion of social welfare. Arent these regulations that essentially changed the
law? Isnt this the problem were confronted with?
Mr. SEKULOW. Well, the issue under 501(c)(4), Congressman
Scott, is the test that the IRS has been applying for over 50 years
was the primary test. It was primary. The word does say exclusive, and then the regulations define exclusive to be primary.
However, there has been a 50-year history of how (c)(4)s are allowed to operate, what they can and cannot do. And, frankly, as
someone thats been involved in tax work since 1980, there has not
been a significant issue here. Theres been very few revocations of
tax-exempt status of (c)(3)s or (c)(4)s. Theres been some, but it has
been very rare. The applications actually during the years in question here were down from the previous year.
What you have is the regulations are not clear. Youll remember,
they were trying to do a quick fix to this problem. The acting commissioner said, what were going to do is if youll agree to expend
no more than 40 percent of your activity for political expenditures,
we will automatically grant youwhich is different than the standard they even set in their regulation. So its fair to say that the
rules and regulations are complex. However, theyve been administered for 50 years pretty consistently.
Mr. SCOTT. They essentially amend the law by regulation exclusively as meaning in the English language that would not include
significant political activities.
Mr. SEKULOW. Unless that was social welfare. Social welfare
could include political engagement.
Mr. ROTUNDA. Yeah. I think we add something else, and that is
the inspector general said there was inappropriate criteria. Lois
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Lerner in her full apology acknowledged it was inappropriate criteria. So its a little late for the IRS to argue that what they did
was appropriate, when the head of the decision and the IRS independent inspector general says that it is inappropriate. And the
reason it was inappropriate is because it focused on the political
views of the people, of the people involved.
Mr. SCOTT. Well, now, theres no evidence to that. There are were
liberal groups that were alsohad their
Mr. ROTUNDA. Well, actually
Mr. SEKULOW. None denied.
Mr. ROTUNDA [continuing]. Theres lots of evidence to that.
Mr. SEKULOW. None of those denied. There were seven groups
picked up, Congressman, but none denied their exempt status.
Mr. SCOTT. Well
Mr. TIEFER. Mr. Scott, I think they were caught in the problem
youre talking about, but they had outdated criteria. And the decisions on how to handle it, which were not to deny, not to deny Tea
Party applications, but just trying to figure out what to do with
them, were made at the lower level of the bureaucracy, passed back
and forth between the unit that gives advice, technical unit, and
the people who have the frontline roles.
Mr. SEKULOW. That is absolutely incorrect.
Mr. ROTUNDA. And it doesnt justify a $50,000 settlement, because you dont act that way if youve got nothing to worry about.
The Chair recognizes the gentleman from California, Mr. Issa,
for 5 minutes.
Mr. ISSA. I thank the Chairman.
You know, I dont want to get too far into the weeds on the last
colloquy we just heard, but during those 50 years, more or less,
werent we living with the decision in the NAACP v. Alabama?
Mr. SEKULOW. Yes.
Mr. ISSA. Werent we living with the recognition that a state,
Alabama, had tried to get the records of people who gave to the
NAACP, because the NAACP, a not-for-profit, on their behalf was
trying to do voter registration, was trying to do political things as
a social service, and the Supreme Court held very much that they
had an anonymous right. And wasnt one of the situations in this
targeting demanding that these 501(c)(4)s turn over their contributor list?
Mr. SEKULOW. Their donor records, contributor lists. In fact, in
our response back, Congressman, to the IRS, we cited all the
theres a lot of NAACP cases on this, and we cited
Mr. ISSA. Theres a great history.
Mr. SEKULOW. A really rich history, and its a fascinating study,
but the end result is what the IRS was asking for was outside of
the scope of legitimate inquiry and was protected by the First
Amendment. Ultimately, they backed down, but, Congressman, it
took months for them back down.
Mr. ISSA. But of course, its a very powerful agency against
Mr. SEKULOW. Yep.
Mr. ISSA [continuing]. A small startup in the case of a Tea Party
group.
55
Arent the other cases that you often seehear about anonymous
free speech, union cases where time after time, people wanted to
identify the union element so they could be targeted? It is amazing
that were relitigating something that was so settled during the
civil rights era.
Well, let me go to the special counsel, because thats what
Mr. ROTUNDA. The decision in the Social Workers Party v. Ohio,
its not just civil rights cases. The court said if you release the
names of the political contributors in the Social Workers Party,
theyre afraid of harassment of the donors. Thats what happened
in the National Organization for Marriage.
Mr. ISSA. I think youre exactly right. And so one of the key tenets here is, in fact, your ability to take your after-tax money,
youve already paid your taxes, and give it to a group thats considered tax exempt, but 501(c)(4)s, they only pay tax on retained
money. The reality is if they spend all the money that people give
them with their after-tax money, theres no tax consequences anyway.
Mr. SEKULOW. Right.
Mr. ISSA. So the major part of the harassment, these endless
questions of delay, but a major part of it was asking for information that the IRS clearly should have known was inappropriate to
ask for. So when we have an investigation into this wrongful act,
when we have a clear wrong act, Lois Lerner went before the
American Bar Association, planted a question so she would be
asked about a TIGTA investigation that was coming out, and she
could then spring it as a release, when in fact what she was really
doing was sending something out so she could spin a false narrative. Now, that happens to be a crime.
So when you have that and then you have the President following up with theres not a smidgeon of evidence, pre-determining
the case, does it fit any of these criteria, one, conflict of interest,
Ill set that aside, it has been talked about a lot. The or in the
first test is extraordinary circumstances. Is, in fact, the series of
events pretty extraordinary for the American people to digest?
Lastly, is there a public interest?
So Ill ask the question, leaving the first one out for a moment,
even though the Attorney General sat before this Committee and
told us he wore two hats, one, the highest law enforcement office
and the other a political appointee, and he said that sitting right
in that middle chair, but leaving that aside, the conflict of interest,
isnt it pretty extraordinary to have a President taint a jury pool,
so to speak, by saying there isnt a smidgeon of evidence while
there is, in fact, an ongoing investigation?
And isnt there a public interest in the American people believing
that anyone who was involved in this now known to be wrongful
activity at the IRS has been held accountable? And I would take
them in reverse order if possible, public interest, extraordinary circumstances.
Mr. SEKULOW. Well, the public interest is clear, because the integrity of the IRS right now is in complete disarray, and, in fact,
there are some that question whether theyre institutionally capable of self-correcting this. Thats one.
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With regard to the nature of whats happened here and the impact that that has on the conflictnot even the conflict, but the
standards or review for a special counsel, its unprecedented that
you had the President pre-judge the case while the evidence was
lost, and the IRS lost it, allegedly, and the FBI doesnt find out
about that during the scope of their investigation. They find that
from media reports. When you put all of that together, it would be
an easy justification for a special counsel, that is for sure.
Mr. ISSA. Mr. Chairman, at this time, Id like to ask unanimous
consent that the Oversight report authored that says, Debunking
the Myth the IRS Targeted Progressives, be placed in the record
so that Members could resolve those conflicts that seem to be unresolved by our panel.**
Mr. GOODLATTE. Without objection, it will be made a part of the
record.
Mr. ISSA. I thank you, Mr. Chairman.
Yield back.
Mr. SCOTT. Mr. Chairman.
Mr. GOODLATTE. For what purpose does the gentleman from Virginia seek recognition?
Mr. SCOTT. Unanimous consent request.
Mr. GOODLATTE. The gentleman will state his request.
Mr. SCOTT. Mr. Chairman, I ask unanimous consent that two articles be admitted into the record, one entitled, Meet the Group
the IRS Actually Denied: Democrats, and the other, the IRS Sent
Same Letter to Democrats That Fed Tea Party Row, and it outlines the fact that the Democratic-leaning group actually saw its
tax-exempt status denied, forcing it to disclose its donors and pay
some taxes.
Mr. GOODLATTE. Without objection, the articles will be made a
part of the record.
[The information referred to follows:]
**The information referred to is not printed in this hearing record but is on file with the Committee and can be accessed at http://oversight.house.gov/wp-content/uploads/2014/04/4-7-2014IRS-Staff-Report-w-appendix.pdf.
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58
59
60
61
62
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Mr. ISSA. Mr. Chairman, one more unanimous consent, since we
are on a roll. Id also like to also put in, How Politics Led the IRS
to target Conservative Tax-Exempt Applications for Their Political
Beliefs.***
Mr. GOODLATTE. Without objection
Mr. ISSA. I thank the Chairman.
Mr. GOODLATTE [continuing]. Itll be made part of the record.
Mr. TIEFER. If I can respond to Mr. Issas last question.
Mr. GOODLATTE. Without objection, you may respond to the question.
Mr. TIEFER. Okay. When we go back to look at the special counsels regulations in 1999, when it was adopted in the Federal Register, it says that you have a special counsel when the Attorney
General concludes that extraordinary circumstances exist. And
heres what he has to decideit isnt whether you want to restore
the IRS, it has nothing to do with anybody outside the Department
of Justice, as we were talking about on both sides of the aisle, the
questioning so far until now. When the Attorney General would be
served by removing a large degree of responsibility for the matter
from the Department of Justice.
You dont get away from the criterion. Are you going to say, Oh,
Public Integrity Section, youre conflicted; oh, FBI, youre conflicted.
Weve got to take it out of your hands?
Even if the head of the FBI is a Republican, I dont think that
this criterion is met here.
Mr. GOODLATTE. Thank you.
Mr. BACHUS. Mr. Chairman.
Mr. GOODLATTE. For what purpose does the gentleman from Alabama seek recognition?
Mr. BACHUS. You know, I recall reading somewhere, and maybe
somebody can pursue this
Mr. GOODLATTE. If I may, I think the gentleman needs to get
someone else to yield time to him, and then he can make the point
at the appropriate time.
At this time, I
Mr. BACHUS. Ten seconds. Thank you.
Mr. GOODLATTE. I will make sure you get that time yielded to
you, but now its the time of the gentleman from Rhode Island, Mr.
Cicilline. Hes recognized for 5 minutes for his questions.
Mr. CICILLINE. Thank you, Mr. Chairman.
Mr. Tiefer, are you aware of any serious argument that has been
made in the 15 years since this regulation existed, any serious
claim that disputes the Attorney General has discretion for this appointment?
Mr. SEKULOW. Youre asking
Mr. CICILLINE. No. Im asking the gentleman on the end. Professor Tiefer, I believe.
Mr. TIEFER. Im sorry.
Mr. CICILLINE. Are you aware of any serious argument that has
been made in the last 15 years or any serious claim that the Attor***The information referred to is not printed in this hearing record but is on file with the
Committee and can be accessed at http://oversight.house.gov/wp-content/uploads/2014/06/HowPolitics-Led-to-the-IRS-Targeting-Staff-Report-6.16.14.pdf.
64
ney General does not have discretion for the appointment of a special counsel?
Mr. TIEFER. There has never been, I guess I just heard a couple
of words today, never been until now an argument that he lacks
discretion.
Mr. CICILLINE. And in fact, in your written testimony, you describe claims to the contrary as a, and I quote you, a convenient,
unheralded concoction of fanciful imagination. What do you mean
by that?
Mr. TIEFER. I dont think theres a lot of reality to it.
Mr. CICILLINE. And there is an ongoing investigation by both the
Department of Justice and the Federal Bureau of Investigation on
this matter, correct?
Mr. TIEFER. Correct.
Mr. CICILLINE. And has it been the practice of the Congress to
engage in hearings, to sort of piggyback on ongoing criminal investigations?
Mr. TIEFER. Absolutely not.
Mr. CICILLINE. And why is that?
Mr. TIEFER. Because the Department has a very firm stance that
it will not provide material from open investigations. I worked with
not only with House Committees during my time as general counsel; I testified in favor of Mr. Issas investigation of Fast and Furious. I was the lead witness at his hearing. I said, as long as youre
going after closed stuff, you can get it; but open investigations, you
cant.
Mr. CICILLINE. Thank you. I think in light of that, as the gentleman from Virginia just mentioned, with all of the work that we
have unfinished, the Voting Rights Act, immigration reform, enacting responsible gun safety legislation, its hard to understand what
were doing here today.
But Id like now to go to Mr. Sekulow. In your written testimony
accusing the Department of Justice and the IRS of collusion, you
cite Criminal Statute 18 USC 241, which makes it illegal for two
or more persons to conspire to injure, oppress, threaten or intimidate any person in any State in the free exercise or in enjoyment
of any right or privilege secured to them by the United States or
laws of the United States.
You conclude that the targeting of any American based upon
their personal beliefs or freedom of association is repugnant to the
Constitution. And while you uphold principles of anti-discrimination in the U.S. Code and constitution, Human Rights Watch
named the organization which you head, the American Center for
Law and Justice, to their LGBT Rights Hall of Shame for their active support of discriminatory policies in Africa, for example, the
East African Center for Law and Justice, an offshoot of your organization, and I quote, lobbied against Kenyas progressive new
constitution in 2010 solely on the basis that the constitutions
anti-discrimination clause would eventually be used to advance
LGBT equality, according to Human Rights Watch.
You then opened a Zimbabwe chapter, and your organizations
chairman led a prayer march with President Mugabe, who is a notorious homophobe dictator, who has referred to gays and lesbians
as dogs and pigs and said, and I quote, they should rot in jail.
65
A State Department spokesman, Victoria Nuland, said, we are
deeply concerned when security forces have become an instrument
of political violence used against citizens exercising their democratic rights.
And so my question to you, sir, is how do you reconcile your support for civil rights under the Constitution and U.S. law while your
organization is actively promoting discriminatory policies abroad?
And dont we have a right, as Members of this Committee, to consider this hypocrisy in evaluating what weight to give your testimony?
Mr. SEKULOW. Well, youre conflating, Congressman, with due respect, an issue where there is a discussion or a debate within a culture about a constitutional referendum. You certainly wouldnt
deny, Congressman, that individual citizens would have the right
to object to a provision of a constitution, at least vocally through
free speech rights, to engage in the process. Thats what they were
doing down there.
Mr. CICILLINE. I
Mr. SEKULOW. Let me
Mr. CICILLINE. I would not agree with that. I do not
Mr. SEKULOW. Oh, you think if theres a discussion between
Mr. CICILLINE. No. I dont think there is a discussion that can
be had in the context of recognizing basic human rights that would
authorize the discrimination, imprisonment and acts of violence
against people because of sexual orientation, period. So my question really is
Mr. SEKULOW. Well, youre conflating the two again.
Mr. CICILLINE [continuing]. Your organization is actively engaged
in promoting discriminatory policies, and you claim in your written
testimony that youre here trying to vindicate free expression. The
two seem to be in direct contradiction.
Mr. SEKULOW. Well Congressman, you needed to do some more
reading, with due respect, because youd find out Ive represented
the ACLU before the Supreme Court of the United States.
Mr. CICILLINE. Im asking you about your representation promoting
Mr. SEKULOW. Why dontwe also have offices in Russia
Mr. CICILLINE [continuing]. Policies that
Mr. SEKULOW [continuing]. In Jerusalem, in Pakistan.
Mr. CICILLINE [continuing]. And criminalize behavior of people in
the LGBT community and your claim today
Mr. SEKULOW. Weve never taken that position in the United
States. And these are different issues
Mr. CICILLINE. Oh, not in the United States, but internationally.
Mr. SEKULOW. Youre making a very serious accusation, but
youre conflating a groups ability to organize to say, we dont like
the direction of a law in a country: We think that it should be X;
you think it should be Y. The people have the right to say that,
and thats why you have free discourse.
Mr. CICILLINE. Reclaiming my time.
Mr. NADLER. Would the gentleman yield?
Mr. CICILLINE. Certainly.
Mr. NADLER. Thank you. Would it be more
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Mr. NADLER. Would it be more of a
Mr. NADLER. I ask unanimous consent for one additional minute.
Mr. GOODLATTE. I object. This is not the appropriate time for
asking for unanimous consent, when I just denied the gentleman
from Alabamas request to speak out of order. We have a number
of people who wish to ask questions, and the time now turns, as
it happens, to me. And after that, Ill ask someone else to take the
chair, and if there is a unanimous consent request or if another
Member wishes to yield to you, that would be the appropriate thing
to do, but we are here to talk about this issue, and Id like to return to a focus on the issue of whether or not the Attorney General
should appoint a special counsel.
So, first of all, let me ask Professor Rotunda, your testimony
highlights that in discussing the special counsel regulations, the
regulations call for appointment of a special counsel when investigation or prosecution of that person or matter by the United
States Attorneys Office or litigating division of the Justice Department would present a conflict of interest.
Now, would you like to respond to Professor Tiefers argument
that there is no conflict of interest within the Justice Department
on this issue?
Mr. ROTUNDA. Yeah. I think there is; that is, the Justice Department is defending the IRS in court today opposing the discovery of
these documents. Theyre slow walking it, the cases involving, what
is it, the Z Street, their tax-exempt status. Theyre supposed to be
investigating the IRS at the same time theyre defending the IRS.
Now, Professor Tiefer said that the person in charge of this investigation is, what, on loan, if I heard you right, its on loan from
Civil Rights to Office of Public Integrity. Is that what you said?
Mr. TIEFER. Barbara Bosserman. I said shes not in charge, but
she is on loan.
Mr. ROTUNDA. Yeah. I find that bizarre, because the whole idea
of the Office of Public Integrity is theyre supposed to be nonpartisan and separate. So what do we do? We bring somebody from
another part of the Justice Department to be involved, either in
charge or involved with the investigation in Public Integrity. Thats
like shifting it away from Public Integrity. Thats another part of
the conflict.
Mr. GOODLATTE. Would you say that the investigation was being
slow walked if over a year after the investigation supposedly began,
the Justice Department did not even know that emails that would
seem to me to be a core part of the investigation were not even
available, making it apparent that they had not even asked for
those documents?
Mr. ROTUNDA. Slow is an adverb that is not slow enough to describe what theyve been going. Its just very slow. And when NOM,
the National Organization for Marriage, finds somebody who actually got information illegally from the IRS, the Department of Justice reaction is lets pay the $50,000, get rid of the lawsuit, and not
put that person under oath, give them immunity to find out who
in the IRS violated the law. So that slow isif I had a thesaurus,
I think maybe Id find a better word, but it is very slow.
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Mr. GOODLATTE. Professor Tiefer, you dismiss as absurd a claim
that the House of Representatives possess the authority to appoint
a special counsel; in fact, you say it is pure fantasy for the House
to deny that the Attorney General has discretion to appoint a special counsel. Where was the claim made that the House has this
authority and who made it?
Mr. TIEFER. I was kind of stumped to understand what H. Res.
565 was. I dont remember another time. I really dont remember
another time.
Mr. GOODLATTE. Let me read you the specific language from H.
Res. 565. It says, it is the sense of the House of Representatives
that Attorney General Holder should appoint a special counsel
without further delay to investigate the IRSs targeting of conservative nonprofit advocacy groups.
Is it not within the authority of Congress to urge an executive
branch official to act on a matter, however discretionary, that the
House deems to be important?
Mr. TIEFER. Well, I am glad it was the sense of resolution, Ill
say that, instead of a
Mr. GOODLATTE. That would make a big difference, wouldnt it?
No ones denying that the Attorney General has the discretion.
What were asking is, why hasnt he exercised that discretion?
Thats the subject of this hearing today.
Mr. TIEFER. I am glad that there is agreement here that he has
the discretion, because I think after this, that will calm people
down who are wondering whats going on.
Mr. GOODLATTE. Good. Thank you. I like that answer.
Mr. Sekulow, when the Justice Department first launched its
supposed investigation against the IRS, the groups you represent
were cooperating with that investigation, however, you explain in
your testimony that your clients are no longer cooperating in that
investigation. Can you tell us why?
Mr. SEKULOW. Well, when the emails came out from Lois Lerner
that statedand the one in particular is the one dated May 9,
2013, which we just received this summer back in early June, its
the email that says that the call took place between the director
of Election Crimes at DOJ, talked about piecing together false
claims statements about applicants who lied, saying they were
planning on doing political activity and then turning around and
not doing it. DOJ feels like they need to respond.
Well, we were assured initially that our clients were never the
subject to an ongoing criminal investigation, they were just being
produced as witness. Then I get this email that says, in fact, they
were looking at piecing together evidence and cases against our client. Piecing together. No evidence of anything.
And, by the way, that letter that we sent to J.P. Cooney, the trial
attorney at the United States Department of Justice, it was the
lawyer that the letter was addressed to, that letter from the ACLJ,
which is part of the record, was dated June 18, 2014, and has
never been responded to.
Mr. GOODLATTE. Thank you.
My time has expired. The Chair recognizes the gentlewoman
from Texas, Ms. Jackson Lee, for 5 minutes, and would advise the
gentlewoman that, while you were not present, the gentleman from
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New York asked unanimous consent to speak out of order, and I
suggested to him, as I did the gentleman from Alabama, that perhaps some time might be yielded to him.
And I would ask whoever takes the chair here in a moment,
since I need to leave for a few minutes, be generous in the granting
of the amount of time so people can yield.
Mr. BACHUS. Mr. Chairman, I only would like that time after
every other Member has had
Mr. GOODLATTE. Well, Ill ask if other Members would have the
forbearance to yield the gentleman time.
At this time, the gentlewoman from Texas is recognized for her
time.
Ms. JACKSON LEE. Just a point of clarification. Im always eager
to be gracious to colleagues. Someone explain, what did the Chairman say? Someone needing time? Okay.
Then Mr. Gowdy is taking the chairpardon me? All right. After
Mr. Gowdy has taken the chair, if I can continue to a period of
time, I may be happy to have my extra time yielded to Mr. Nadler
if that be the case.
Let me thank the witnesses for their presence here today. The
title of this hearing is, The IRS Targeting Scandal: The Need for
a Special Counsel. I want to be very clear that as I read the particular section in the Federal Register articulating the provision,
600.1600.2, clearly there is a section, Professor Tiefer, that indicates alternatives, because at least this particular hearing does
say, the need for a special counsel.
Just a little background. I want to make it very clear, what I understood when this first came forward, the President had a very
stern representation of wanting to get to the bottom of it, speaking
directly to the American people, as I am suggesting, that no one
wants to tolerate targeting, it is abhorrent, and that whatever laws
need to be applied should be applied. As I understand, there have
been a number of investigatory hearings. There is certainly an individual in the eye of the storm at this point, a Ms. Lerner, there
are suggestions of looking for additional emails and other resources, but I think this hearing on the Judiciary Committee
should be very clear. We are not commenting on the issue of
whether there should be an investigation. There is one going on.
There is a question for the need for a special counsel. Now, thats
an interesting terminology, because maybe the underbelly of that
is, Mr. Attorney General, we are telling you to appoint a special
counsel.
So my question to you, as I look at 600.2, it says the Attorney
General may appoint a special counsel or direct that an initial investigation consisting of such factual inquiry or legal research as
the Attorney General deemed appropriate be conducted in order to
better inform the decision.
How do you characterize the question need? And in the backdrop of what Ive just said, do you not see a framework where the
Attorney General can do many things?
Mr. TIEFER. I have not only read the regulation, as in the way
you read it, but I went to look at the background of the regulation,
and the background says very strongly that the regulation is set up
to give him many ways to go. And the specific background, which
69
we may remember is, under the old statute, there hadnt been that
kind of choice of ways and alternatives, it was inflexible, and during the Reagan administration, it drove people crazy that there had
to be five special counsels on Ed Meese, and then during the Clinton administration, it drove people crazy that so much jurisdiction
had to get handed over again and again to Ken Starr. And the regulation in contrast with the statute gave flexibility to avoid that,
and has avoided that. I read it the way you do, Ms. Lee.
Ms. JACKSON LEE. And can you just go into the regulation, I
think youve done it well, but the discretion that the Attorney General has? And you said something very valuable. The burden that
the American people feel: how many more are we going to have and
pay for? I should have had the numbers for what Ken Starr spent
for an ultimate nonconviction. But this discretion is an important
element on behalf of the American people. It takes into the seriousness of the question, or can, takes into an elongated, expensive
process with dollars being spent. Could you comment on the word
discretion?
Mr. TIEFER. Exactly. That once you remove the Department of
Justice from the investigation, in effect, you have to set up a parallel Department of Justice, pay all the salaries, pay all the stuff,
and then you end upif I can answerby the way, one technical
point that was said earlier: Oh, there are civil suits that the Department of Justice is handling at the same time its doing this
criminal investigation, so we have to remove the criminal work
from the Department of Justice, we have to have a special counsel.
The Department of Justice has had many, many times where
theyre handling civil in the Civil Division and criminal in the
Criminal Division. You look at the papers these days, and theyre
having the criminal trial from Nisour Square of the guards for alleged homicide at the same time theyve had civil suits on the same
matter. They do it all the time. Thats why they have different divisions.
Ms. JACKSON LEE. Let me thank you.
Mr. Sekulow, are youIm sorry. Give me how to pronounce
your
Mr. SEKULOW. Sekulow.
Ms. JACKSON LEE. Thank you so very much. Are you here testifying that the AG must appoint a special counsel?
Mr. SEKULOW. No. We clearly have stated in my written testimony and in our testimony today, its discretionary. What were
asking is that the Attorney General utilize that discretion to appoint a special prosecutor.
Ms. JACKSON LEE. And your reasoning is?
Mr. SEKULOW. That the Department of Justice has been compromised in the investigation, particularly because they were, in
coordination with the IRS, in manufacturing, as they said, piecing
together criminal cases against clients like mine. And that in and
of itself raises a significant conflict, in fact, puts the whole investigation in a taint, because the Department of Justice is investigating itself for potentially involving themselves in violation of
criminal laws. And Id just like to add for the record that it was
the Attorney General of the United States, and it might have been
in this very room, who was the one who brought up the code sec-
70
tions, 242, of the criminal code that could well have been violated
if, in fact, the evidence showed it. And now weve got the email saying his department
Ms. JACKSON LEE. Thank you. Mr. Gowdy, if the
Mr. GOWDY [presiding]. The gentlelady
Ms. JACKSON LEE. I was asked a little general time here, if Mr.
Gowdy would just allow me to ask
Mr. GOWDY. You mean
Ms. JACKSON LEE. [continuing]. Mr. Tiefer
Mr. GOWDY [continuing]. In addition to the 53 seconds already
allotted for additional time?
Ms. JACKSON LEE. Your kindness, Mr. Chairman, so I can have
Mr. Tiefer respond to that very quickly, and I would appreciate
your indulgence.
Mr. Tiefer, if an investigation by the DOJ is not yet finished, can
we cede the point that there is conflict and that theyre not fully
investigating as professional staff members of the DOJ? Can we
make that judgment? I think we cannot. What is your assessment?
Mr. GOWDY. Professor, you may answer the question with all deliberate speed.
Ms. JACKSON LEE. I thank you. So to avoid the $80 million that
have been spent on special counsels.
Thank you, Mr. Chairman.
Mr. TIEFER. There is an investigation going on. We cant decide
theyre not doing their job, because theyre doing their job.
Mr. GOWDY. I thank the gentlelady
Ms. JACKSON LEE. Thank you.
I yield back.
Mr. GOWDY. Thank the gentlelady from Texas and now recognize
the gentleman from Arizona, Mr. Franks.
Mr. FRANKS. Well, thank you, Mr. Chairman.
Mr. Sekulow, a lot of the questions that weve had here prepared,
some other person on the Committee has stolen. Im thinking about
filing some sort of deliberate inquiry as to how that always happens to me. So Im going to, if I can, just back up and take a broad
look at this.
Weve heard the central talking point of our friends on the left
here is that this is the last full day before the break, that we
shouldnt be dealing with such a miniscule issue. And I would just
suggest to you that I think the issue that we deal with here is one
of profound significance, in that the entire basis of a government
that is essentially predicated on the rule of law is that somehow
we can trust our government to treat us all equal under the law,
and I think thats the central point here.
And if indeed the IRS is guilty of using the power of the Federal
Government to discriminate against people on the basis of political
motivation, then the entire rule of law here is at stake. And this
Committee, being the Judiciary Committee, should be first and
foremost committed to protecting the constitutional rights of the
American citizens and to do everything that we can to further this
notion of the rule of law. So I think its a really big issue here that
were dealing with, and I guess Im going to ask you to put it in
your own words. Why do you think this is such a big deal?
71
Mr. SEKULOW. Because fundamentally, when you look at the tax
code as it exists, its a voluntary compliance. The idea that if a conflict were to arise during the course of an investigation, that you
have to wait for the investigation to be completed, is absurd. If the
rule of law means anything, and with due respect to the Congresswoman, if the rule of law means anything, when youve got an
agency with this amount of authority, both the Department of Justice and the IRS, and there is evidence in writing, not denied, that
there was activity going on between two agencies while there is a
criminal investigation going, if the rule of law means anything, if
that conflict becomes known, it should be actionable.
Now, that action rests with the Attorney General, but to say that
we shouldnt be able to bring it up or discuss it or that its not as
significant as these other issues that the Congress is dealing with
right now, I beg to differ. The freedom of speech, the freedom of
press, the freedom of assembly, the freedom to petition your government for redress of a grievance is at the very core of who we
are. And when that is tampered by two agencies, and one in particular that controls the lives of every American citizen, I dont
think its insignificant that this work is going on today. No disrespect to any other piece of legislation youre dealing with, but
this is a very significant burden placed on American people for simply exercising their free speech rights. And when an agency has
violated that trust and there is notification that in fact there is a
conflict, you do not have to wait for the investigation to be completed. Because you want to talk about a waste of money? Know
about a conflict, dont react on that conflictin the law, if you do
that, its malpracticeand you know what ends up happening?
Youve got to do the investigation all over again, and, Congresswoman, that becomes a lot more expensive.
Mr. FRANKS. Well, obviously, I couldnt agree with you more. I
would suggest to you that were in violent agreement on that subject.
The notion that we all pay our taxes voluntarily, is something
that you brought up in your response. It seems to me that if people
believe that the IRS will arbitrarily begin to persecute particular
groups, that people begin to wonder why do we even pay taxes, and
the entire process, the entire hope of our government is based on
a fundamental intrinsic trust of the American people that somehow
that this thing called law is going to prevail, that everybodys going
to be treated fairly under it. And if it isnt, then its time for us
to go ahead and give our apology to England for being so recalcitrant in the revolutionary days, and to board this place up and
go home and wait for the end patiently. So this is not a small issue
that my friends on the left would try to suggest.
So my last question to you, Mr. Sekulow, is this: What do you
think is the most significantI know weve got, you know, the conflict of interest. I know weve got the President saying that theres
not a smidgeon of corruption here. All of those things bear thought,
but what do you think, in your opinion, is the most significant legal
or glaring piece of evidence that shows that the IRS has deliberately used its power in an untoward and an unfair and outside
the rule of law?
72
Mr. SEKULOW. Besides their own admission, Congressman, of
that
Mr. FRANKS. Thats a detail.
Mr. SEKULOW. Thats right.
Mr. FRANKS. Yeah.
Mr. SEKULOW. If you look at the email exchange from Lois
Lerner to other officials within the IRS referencing her conversation with the director of the Election Crimes Branch of the Department of Justice and uses the words, piece together false statement
cases to see if they lied, to impanel a grand jurythat would be
the next thing. Of course, no evidence of any criminal wrongdoing
here. That is a government that is out of control, out of check, and
needs to be put back in balance. And thats why a special counsel
would be a good move, not mandated, but a good move for the Department of Justice to make here. They themselves are part of the
problem, and its in emails right here.
Mr. FRANKS. Well, thank you, Mr. Chairman.
Mr. GOWDY. I thank the gentleman from Arizona and now recognize my friend from Louisiana, Mr. Richmond.
Mr. RICHMOND. Thank you, Mr. Chairman.
Mr. Sekulow.
Mr. RICHMOND. Ill pick up right where you left off. And youre
mentioning this sentence where shewhere it says, could piece together false statements about applicants who lied on their 1024s.
Mr. SEKULOW. Uh-huh.
Mr. RICHMOND. And the piece together is whether you can
piece together a hearing, right, because
Mr. SEKULOW. No, no, no. The hearing already took place. Its
piece together false claim cases about applicants.
Mr. RICHMOND. Right. But it doesnt say manufacture false claim
statements. Wait. Does it say manufacture? Does it say create?
Mr. SEKULOW. No. It says piece together false cases. They have
no evidence of any wrongdoing.
Mr. RICHMOND. Well, wait, wait. I dont think
Mr. SEKULOW. I didnt write this. Lois Lerner did.
Mr. RICHMOND. Right. I dont think you know what they have
evidence of, but
Mr. SEKULOW. Right. Evidently none of is do.
Mr. RICHMOND. But theyre not saying, lets manufacture, lets
create it, lets make it up. Theyre not saying that. So I think were
taking small things to get to where we want to go. But let me ask
you another question. Part of what you said, and I want to use
your words, I didnt find it in your testimony, part of what you said
was part of the reason why we need special prosecutor, the Department should appoint one, is because the President said, and I want
to use what you quoted, and was it not even a smidgeon of evidence?
Mr. SEKULOW. Of corruption.
Mr. RICHMOND. Oh. Not even a smidgeon of
Mr. SEKULOW. Corruption.
Mr. RICHMOND [continuing]. Corruption?
Mr. Sekulow. Right.
73
Mr. RICHMOND. Which would mean not a smidgeon of evidence
of corruption. Would you agree with that?
Mr. SEKULOW. Sure.
Mr. RICHMOND. What if he said, I have evidence of whatever?
Would that make it just as a potential conflict?
Mr. SEKULOW. No. I would want to get the Presidents evidence,
get him under oath, find out what he knows that the Department
of Justice havent had. So youre conflating, though, the issue of
when you would have a pre-judgment of guilt, not a smidgeon of
corruption, so theres no guilt
Mr. RICHMOND. Right.
Mr. SEKULOW [continuing]. On an ongoing criminal investigation
by the Internal Revenue Service, and its not just
Mr. RICHMOND. But wait. Thats exactly what Im asking. So
what if theres a pre-determination of guilt? Does it matter?
Mr. SEKULOW. Well, sure it would matter if there was a predetermination of no guilt on behalf of the IRS.
Mr. RICHMOND. The question is about whether the guy at the
top, the President or the AG, and their departments can be impartial. Youre saying they cant be impartial, because his statement
was theres not a smidgeon of corruption. And Im saying if he said,
I have evidence of corruption, should he still be this impartial guy
that heads up the investigation?
Mr. SEKULOW. Well, if he had evidence of corruption, he would
if he had evidence, he shouldnt be talking about it on a television
show. Okay. Now, lets put this in the real context of what happened here, Congressman.
Mr. RICHMOND. Thats what Im trying to do.
Mr. SEKULOW. The President of the United States is asked a
question.
Mr. RICHMOND. And he said there was no evidence.
Mr. SEKULOW. The question is, exactly from Bill OReilly, lets
talk about the IRS scandal.
Mr. RICHMOND. Yes.
Mr. SEKULOW. Youre concerned about that, and then he gets into
the dialogue of boneheaded decision, you know, not a smidgeon of
corruption. Now, there is an ongoing criminal investigation, and
who told the President there was not a smidgeon of corruption?
And this, of course, is before he learned of
Mr. RICHMOND. So
Mr. SEKULOW [continuing]. The IRS emails.
Mr. RICHMOND [continuing]. Were bothered because
Mr. SEKULOW. So the President
Mr. RICHMOND. Were both-hold on. Wait. Stop.
Were bothered because the President is saying he has not seen
anything that suggests a smidgeon of corruption. Now, lets switch
over to the same parallel, because we now have this select
Benghazi committee where a very capable, intelligent person is
heading that Benghazi committee
Mr. SEKULOW. Right.
Mr. RICHMOND [continuing]. And his statement before we even
started is, I have evidence of guilt, that before I even start the investigation, I know where Im going to end. Whats the difference?
I still think
74
Mr. SEKULOW. I dont believe the Chairman said he knows where
its going to end.
Mr. RICHMOND. Well, I think
Mr. SEKULOW. You just said he said he knows where its going
to end.
Mr. RICHMOND. Well, no. That was the conclusion. The words
was he has evidence of a systematic intentional effort to break the
law. So
Mr. SEKULOW. Okay. Well, I have evidence of a systematic attempt
Mr. RICHMOND. So I think
Mr. SEKULOW [continuing]. To break
Mr. RICHMOND. Hold on. Wait.
Mr. SEKULOW [continuing]. The law here, too, but, I mean
Mr. RICHMOND. Were going to do this
Mr. SEKULOW. I dont think
Mr. RICHMOND [continuing]. One of us is going to talk at a time.
Mr. SEKULOW. Im sorry.
Mr. RICHMOND. And I promise you its going to be me when Im
talking and itll be you
Mr. SEKULOW. Go ahead.
Mr. RICHMOND [continuing]. When youre talking.
Mr. SEKULOW. Please.
Mr. RICHMOND. So in an effort to break the law. So that is almost a conclusion, but
Mr. SEKULOW. Thats the opposite.
Mr. RICHMOND. But let me just say this. I think that we are trying too hard to get to where we want to go without listening or
looking at the process to get there. You just cant make it up to get
there.
And the frustration that I really have is that I just defied the
greatest advice I ever got from my grandmother, was that if you
see a circus going on, dont jump in the middle of it and think people wont see you with a red nose and a wig and big shoes and looking like a clown, and I have jumped right into this circus. I think
were going on wasting time on something when we can be doing
more important things, because there is an investigation going on,
there are people looking at this, and for some reason, because were
not in charge or someones not in charge of the White House, we
decide that we will have a full circus.
And with that, Ill yield back my time and try to heed the advice
that I already broke.
Mr. GOWDY. I thank the gentleman from Louisiana.
And the Chair would now recognize the gentleman from Texas,
Judge Gohmert.
Mr. GOHMERT. Thank you, Mr. Chairman.
And thank each of the witnesses for being here.
I want to go to the comment about smidgeon, but before that,
just a comment. Im going to go back, as I used to as a judge and
chief justice, and look at exactly what was said in the record, but
I think I heard a very amusing answer, Professor Tiefer, when
if I understood correct, you saidyou said that we couldnt assess
the investigation, but its doing a good job. But Ill go back and see
exactly what you said. Im not asking for comment.
75
But lets go back to what the President said about there not
being a smidgeon of evidence. Now, if someone has influence over
an investigator and tells the world, where the investigator can
hear, that as your boss, Im saying, I dont see a smidgeon of evidence, then if that person were an attorney, hypothetically, say,
this was an attorney, then that would be a potential breach of ethics. And, in fact, as a judge, I have called lawyers in and warned
them, one more comment, and youre going to jail for contempt of
court for breaching our canon of ethics and commenting on an ongoing case about the evidence.
There is no such citation available for a President, but hypothetically, I think weve got to give this President a pass, because
to really be culpable in making a statement like that, youd have
to be a lawyer, youd have to be a professor of constitutional law,
maybe, to know the complexities of that kind of comment, and so
weve got to give this President a pass.
But, Professor Rotunda, you were talking earlier about how
tough it is for the Department of Justice thats currently defending
the IRS to do a criminal investigation, and that triggered in my
mind a line of questions that I think needs to be followed up. If
you are defending a person or an entity in court, the communications between you as the Attorney General and your client, the defendant, the IRS in this case, theyre privileged, arent they?
Mr. ROTUNDA. Yes.
Mr. GOHMERT. And they have to be privileged in order for you
to do a decent job as their attorney.
Mr. ROTUNDA. Yes.
Mr. GOHMERT. And they have to know, the client does, in this
case the IRS, that anything they say to their own attorney will be
used to help them and will not ever be used to prosecute them.
Isnt that right?
Mr. ROTUNDA. Yeah. Thats the theory. Thats what the
Mr. GOHMERT. Well, I hadnt really thought about it until you
brought this up, but it seems to bring to the forefront just how critical it is that there be an independent look at what the Department
of Justice and the IRS has done. There is a relationship established
when DOJ represents the IRS in matters that is an absolute conflict. Would you elaborate?
Mr. ROTUNDA. Yes. They get information from the IRS official
that theyre defending. Theyre deciding whether or not to approve
a $50,000 settlement or whether or not to slow up discovery, and
then they discover things that look bad, usually thats why you settle a case, but the DOJ is not supposed to release that information
to other DOJ attorneys because of the privilege. I mean, you cant
have it both ways. You cant tell the client, the IRS, you can be
candid with me, because this is all protected by the privilege, and
then say, Im going to use the information against you. Of course,
if they dont use the information against them, theyre not doing
their job as a prosecutor.
Mr. GOHMERT. Well, Mr. Sekulow, let me askmy time I see is
running out, the light turned yellow, but with regard to John
Mitchell, he went to prison.
Mr. ROTUNDA. Yes.
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Mr. GOHMERT. Lets say hypothetically John Mitchell and Richard Nixon decide, you know what, if we dont appoint a special
counsel, nobody can touch us. Wouldnt that have been true?
Mr. ROTUNDA. I think thats right.
Mr. GOHMERT. Mr. Sekulow, your thoughts.
Mr. SEKULOW. Sure, I mean, I agree with Professor Rotunda on
that. I think that the need for a special counsel becomes evident
when the Department of Justice has been compromised. Its the call
of the Attorney General, but when the Department of Justice is
compromised, you put in a special counsel to restore trust and the
law.
Mr. GOHMERT. So historically speaking, you could learn the lesson that Richard Nixon
Mr. SEKULOW. I would think.
Mr. GOHMERT [continuing]. Dont appoint a special counsel and
nobody in the Administration goes to jail.
Thank you, I yield back.
Mr. GOWDY. The gentleman from Texas yields back.
The Chair will now recognize the gentleman from New York, Mr.
Jeffries.
Mr. JEFFRIES. Thank the distinguished gentleman from the Palmetto State for yielding.
And Professor Rotunda, let me try and get an understanding of
why you believe that a special prosecutor is merited in this case,
notwithstanding the fact that no senior Administration official is
even alleged to be part of the wrongdoing. And so I just want to
walk you throughI just want to walk youI still have the floor.
Mr. ROTUNDA. I mean, I dont know if theres a factual precedent.
Mr. JEFFRIES. Sir, sir, sir.
Mr. ROTUNDA. Go on.
Mr. JEFFRIES. Sir, I still have the floor. I just want to walk you
through your testimony here. Now, on page 2, you stated, we
should all be happy if the President is correct when he assured us
that there is not even a smidgen of corruption regarding Lois
Lerner and the IRS targeting of Tea Party groups, correct?
Mr. ROTUNDA. Uh-huh.
Mr. JEFFRIES. And then you stated that the problem is that there
are many suggestions of much more than a smidgen of evidence,
correct?
Mr. JEFFRIES. And then you make the point that because, apparently, the information that exists out there has not been forthcoming is the word that you use, weve got to have a special prosecutor, right? Thats the conclusion that you draw on page 3 of your
testimony, correct?
Mr. ROTUNDA. Its not just not forthcoming; I give examples on
pages 3 to 4.
Mr. JEFFRIES. I appreciate that because were going
Mr. ROTUNDA. To 5, what is the evidence.
Mr. JEFFRIES. I appreciate that because were going to get
Mr. ROTUNDA. Im in the middle of a sentence.
Mr. JEFFRIES. Were going to get into those examples, okay?
Mr. ROTUNDA. Im sorry, what?
77
Mr. JEFFRIES. You answered the question. Were going to get into
those examples.
Mr. ROTUNDA. All right.
Mr. JEFFRIES. Now, you believe in the sanctity of the United
States Constitution, correct?
Mr. ROTUNDA. Yes.
Mr. JEFFRIES. And within the United States Constitution theres
a Bill of Rights incorporated in that document, correct?
Mr. ROTUNDA. Yes.
Mr. JEFFRIES. And as part of that Bill of Rights theres a Fifth
Amendment, correct?
Mr. ROTUNDA. Yes.
Mr. JEFFRIES. Now, the Fifth Amendment of the United States
Constitution in part states no person shall be compelled in any
criminal case to be a witness against himself, and thats been
broadly interpreted to imply as well to a congressional proceeding,
correct?
Mr. ROTUNDA. Civil cases, too, sure.
Mr. JEFFRIES. Okay. So you just mentioned this whole list of
things that trouble you, that suggest that we take the extraordinary step of a special prosecutor, and I just for the life of me am
flummoxed. I cant understand. At the top of that list, presumably
because you believe its the most significant piece of evidence, you
say Ms. Lerner pled the Fifth Amendment and refused to testify
before Congress, oddly enough, after assuring us under oath that
she did nothing wrong. Thats your point, correct?
Mr. ROTUNDA. My list is chronological, but thats correct, thats
what I said.
Mr. JEFFRIES. Okay. So because she exercised her Fifth Amendment right under the United States Constitution, a document that
you just said you believed in its sanctity, that provides evidence,
in your viewthats not my interpretation, thats your testimony
that provides evidence of wrongdoing here?
Mr. ROTUNDA. No, not at all, thats not what I said.
Mr. JEFFRIES. So why is that here?
Mr. ROTUNDA. Look, I think youre putting words in my mouth,
and thats not fair.
Mr. JEFFRIES. No, this is your testimony, sir.
Mr. ROTUNDA. No, what I said is that she pled, first of all, she
swears under oath that she did nothing wrong, and then, 30 seconds later, she says shes taking the Fifth. Thats inconsistent. In
fact, theres a lot of cases say youve waived the Fifth Amendment
Mr. JEFFRIES. Does she have a constitutional right to plead the
Fifth Amendment?
Mr. ROTUNDA. Absolutely
Mr. JEFFRIES. Is that consistent with the great tradition of our
founders. Why would you possibly include that as evidence, suggesting youre on a fishing expedition?
Mr. ROTUNDA. Youre absolutely right, she has a right to plead
the Fifth Amendment, but you cant open the door a crack, thats
what the cases say. And this woman says under oath two things:
Ive done nothing wrong; I plead the Fifth Amendment. Theyre in-
78
consistent, and thats a bit of a smidgen. We find after that is that
she interviewed for a long time with the DOJ without immunity.
Mr. JEFFRIES. Right. Is she a high level government official, sir?
Mr. ROTUNDA. Is she high level? Shes head of the not-for-profit
section, yeah, I thought she was high
Mr. JEFFRIES. Is she the commissioner of the IRS?
Mr. ROTUNDA. Was she commissioner? No.
Mr. JEFFRIES. The commissioner of the IRS at the time actually
was a Republican appointed by George Bush, correct?
Mr. ROTUNDA. Maybe. The IRS is supposed to be nonpartisan.
Mr. JEFFRIES. Okay. And now shes not the Secretary of the
Treasury, correct?
Mr. ROTUNDA. No.
Mr. JEFFRIES. She didnt have any high level position in the
White House, correct?
Mr. ROTUNDA. She was with the IRS.
Mr. JEFFRIES. Okay. Her position required congressional approval in the Senate?
Mr. ROTUNDA. Was she subject to confirmation? I dont know.
Mr. JEFFRIES. Okay. So you have no real evidence, no basis for
making an argument that she was a high level official subjected to
this statute, do you, sir?
Mr. ROTUNDA. Actually, I thought I did. Shes making policy.
Shes making these decisions. I mean, shes not an auditor. Shes
making policy as head of the not-for-profit section, and it turned
out, under her own words, they were using inappropriate criteria,
and she apologized.
Mr. JEFFRIES. You expressed respect for the sanctity of the Constitution and presumably congressional statutes, but you cant
point to a single statute, you cant point to a single case, you cant
point to a single provision of the Constitution that would subject
Ms. Lerner to designation as a high-level official in this Administration, and I yield back.
Mr. ROTUNDA. To the contrary. Shes making policy for this
whole, for the whole section of not-for-profits. Shes making policy
that overturns 50 years of tradition. I think shes pretty high level.
Mr. GOWDY. The gentleman from New Yorks time has
Mr. ROTUNDA. Senior Executive Service.
Mr. GOWDY. The gentleman from New Yorks time has expired.
The Chair will now recognize the gentleman from Ohio, Mr. Jordan.
Mr. JORDAN. I thank the Chairman.
Theres the three key facts. Theres the fact that on January 13
of this year, Justice Department leaks to the Wall Street Journal,
no one is going to be prosecuted. There is the now famous statement from the President of the United States where he prejudges
the outcome of the case and says theres no corruption, not even a
smidgen. And then, of course, theres the fact that the lead attorney, and lets be clear, shes the lead attorney because shes the one
asking all the questions when they interview the witnesses. We
talked to some of the same witnesses when we do our congressional
investigation, congressional interviews and depositions, and its
Barbara Bosserman who is doing it, the lead attorney, the maxedout contributor to the Presidents campaign. Shes got a financial
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stake and a beneficial outcome to the President and his administration; thats the lead attorney. So youve got those three key facts,
but the one that gets me is the one thats been cited already, its
when James Cole, the number two guy at the Justice Department,
sat at a table just like this in the room next door in the Oversight
Committee and told us he learned of the lost emails from the press.
Now, its not just that fact that he learned from the press; its the
fact that he learned from the press but when also the IRS knew
that they had lost the emails. So the IRS knew, according to John
Koskinens testimony, he knew that they were lost in April, his
Chief Counsels Office knew they were, the hard drive had crashed
and was unrecoverable in February, so 4 months before the Deputy
Attorney General in the Justice Department learns, the Chief
Counsels Office in the IRS office know. So its those four key facts
that underscore and warrant and cry out for a special prosecutor.
And thats why you had a resolution with every single Republican
House Member supporting and, more importantly, 26 Democrats
supporting, including two Members from the Judiciary Committee.
Now, what I want to ask about is this, and Ill start with Mr.
Sekulow. I think theres one other key fact. I think but for outside
organizations doing FOIA requests, but for that fact, Im not sure
the IRS would have told us yet, and let me walk you through it.
So we learn from a FOIA request from Judicial Watch that Richard
Pilger and the Public Integrity Section Elections Division in the
Justice Department is meeting with Lois Lerner, and its an email
that Mr. Sekulow started off todays hearing referencing, they met
in 2013. So we say, wow, we probably should talk to Mr. Pilger. So
we bring him in. Mr. Tiefer references in his opening statement; we
bring him in, and we interview him, our staff at the Oversight
Committee. We interview him, and we learn in that interview,
frankly in his opening statement, where he says, you know what
I didnt just talk to Ms. Lerner in 2013 looking for ways to make
false claims, which, by the way, is unbelievable, this is the blindfolded lady equals the balanced scale, and theyre trying to look at
false claims at the taxhe says, I not only talked to her in 2013
just days before this thing went public, but we also met in 2010.
And we were, like, wow, the Justice Department was interacting
with Lois Lerner in 2010?
So you know what we did? We subpoenaed the Justice Department. We said, we want all the correspondence between the Justice
Department, Lois Lerner, and the IRS, and we got a bunch of
emails, talked about 1.1 million pieces of pages of information, 21
disks, 21 files, donor information, including in that confidential
6103 that the FBI had for 4 years that they got from the IRS. So
we get those emails. We say, wow, weve had a subpoena at the
IRS for over a year; why didnt the IRS give us these emails? So
we sent a letter to the Internal Revenue Service and said, you
know what, we got these emails from the Justice Department, why
didnt you get them to us? And that was on June 9, and suddenly
4 days later they tell us, oh, you know what, weve lost Lois
Lerners emails.
Mr. SEKULOW. Right.
Mr. JORDAN. Mr. Sekulow, they may have waited, we still might
not know that those emails had been lost because the investigation
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seems that theyre doing at the Justice Department sure isnt
diggingand Ill quit giving a speech and let you guys respond, but
let me say this: Why in the world when May 10, when Lois Lerner
uses the planted question and makes the statement or, more importantly, May 24, the day after she came in front of our Committee and pled the Fifth, why didnt the Justice Department then
go to her office with a warrant, with a court order, seize all the documents, and grab the computer then?
Mr. SEKULOW. Because its a faux investigation. This isnt real.
There was a Freedom of Information request from 2010 from an organization regarding documents related to the Tea Party, Tea Partys, training memos, emails, anything. You know what the response of the IRS was? The response of the Internal Revenue Service is, a year later, by the way, I found no documents specifically
responsive to your request. Those documents would have never
been produced. Its questionable whether we will ever see them,
and the fact is that you go back to 2010, and theres a discussion
between the Internal Revenue Service and a prosecutorial arm of
the IRS, of the Department of Justice, and how can anybody with
a straight face say this doesnt rise to the level of a situation where
the Attorney General should exercise his discretion? It really is
that simple. That in and of itself should end the inquiry.
Mr. JORDAN. Yeah, Mr. Tiefer, I would be curious your, with that
fact pattern, obviously, youre still on the other side, but is there
anything in that fact pattern which would cause you concern?
Mr. TIEFER. Well, a lot of thisI mean, you did your job in the
other Committee and youve been writing reports and so forth, and
I feel like Im hearing an echo chamber, its what I was reading
about what you used to do and now were hearing the same thing
here now. Barbara Bosserman is not the head of this investigation.
Mr. JORDAN. Let me ask you a question. Did you represent one
of the IRS employees in front of a congressional transcribed interview?
Mr. TIEFER. I was the pro bono person for him, yes.
Mr. JORDAN. So you represent one of the people who could potentially be targeted in a criminal investigation, and yet youre here
telling us we dont need a special prosecutor because we like just
the way this criminal investigation is going on?
Mr. JOHNSON. Mr. Chairman
Mr. TIEFER. He was
Mr. GOWDY. You may answer the gentlemans question. The gentleman is out of time, but you may answer the gentlemans question.
Mr. TIEFER. He was a witness. He was never considered a target.
He was a low level guy, and I did pro bono for him, yes.
Mr. GOWDY. The gentleman from Ohio yields back.
The Chair will now recognize the gentleman from Georgia, Mr.
Johnson.
Mr. JOHNSON. Thank you.
Dr. Sekulow
Mr. JOHNSON. Your name will live in infamy as a litigator
extraordinaire. Whether or not you agree with your positions or
not, you have to tip your hat to a litigator, a man who uses the
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courts as the courts should be used, and that is to rectify and redress harms that afflict his clients and so I take my hat off to you
for that, sir.
Mr. SEKULOW. Thank you.
Mr. JOHNSON. And youre also from Georgia, are you not?
Mr. JOHNSON. Yes, sir. I remember.
Mr. SEKULOW. Decatur.
Mr. JOHNSON. Decatur, Georgia, which is where I started practicing law back in 1980.
Mr. SEKULOW. Same here.
Mr. JOHNSON. Is that right?
Mr. SEKULOW. I did.
Mr. JOHNSON. Did you take the bar exam in 1979? February?
Mr. SEKULOW. I did. Probably sitting right there with you, wherever we took it in downtown.
Mr. JOHNSON. Is that so? We have more in common than I
thought.
Mr. SEKULOW. There you go.
Mr. JOHNSON. But Im going to tell you, Dr. Sekulow, you are
aware that weve got a broken immigration system in this country,
are you not?
Mr. SEKULOW. I am.
Mr. JOHNSON. And you are aware, are you not, of how many
hearings that this Committee has held on that issue?
Mr. SEKULOW. I dont think immigration has been before the Judiciary Committee. Im not sure.
Mr. JOHNSON. Isnt that a shame?
Mr. SEKULOW. Well, I think the immigration situationto be
honest, I worked on the immigration reform when President Bush
was trying to get it through many years ago.
Mr. JOHNSON. Its a shame that this Congress has not had one
hearing on comprehensive immigration reform.
Do you agree with that, Professor Rotunda?
Mr. ROTUNDA. I dont know about the hearings or even if this
was the Committee to bring it before, I just didnt know about that,
but Ill take your word for it.
Mr. JOHNSON. Well, you are aware of the gun violence that weve
had in this country, you are certainly aware that over the last 18
months, there have been 74 school shootings in our country?
Mr. ROTUNDA. I didnt know the numbers.
Mr. JOHNSON. You did not know that?
Mr. ROTUNDA. But I lived south of Chicago.
Mr. JOHNSON. Is that because you do nothing but pay attention
to a purported IRS scandal, and thats it? Youve got blinders on?
Mr. ROTUNDA. Dont have blinders. I just think the IRS is a really big stage scandal, something Congress could do about.
Mr. JOHNSON. Its a big scandal.
Mr. ROTUNDA. Whereas a problem in Chicago is something that
Chicago can work on.
Mr. JOHNSON. What about all of those gun deaths in Chicago?
Mr. ROTUNDA. Gun thefts?
Mr. JOHNSON. Gun deaths.
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Mr. ROTUNDA. Deaths, yeah. Well, I think they ought to work on
that. Its a problem.
Mr. JOHNSON. Weve got a lot of things we could be working on
in this Congress, Im sure that you would agree.
Mr. ROTUNDA. What do I
Mr. JOHNSON. We have a lot of things that we could be working
on in this Congress, Im sure that you would agree.
Mr. ROTUNDA. Well, I mean, we
Mr. JOHNSON. Such as Section 5 of the Voting Rights Act invalidated by the U.S. Supreme Court last year. Do you know how
many Judiciary Committee hearings have been held on the Voting
Rights Act, the legislation that would protect people from discrimination at the polls? Do you know how many hearings weve held
in this Committee on that issue?
Mr. SEKULOW. I dont know how many hearings youve held on
the Voting Rights Act.
Mr. JOHNSON. Ill tell you.
Mr. SEKULOW. Ill assume its zero.
Mr. JOHNSON. Ill tell you. Its zero.
Mr. SEKULOW. Having said that, though.
Mr. JOHNSON. Attorney Sekulow
Mr. SEKULOW. I dont think that takes away from the significance of this. This is a constitutional issue, also.
Mr. JOHNSON. Attorney Sekulow
Mr. SEKULOW. Yes.
Mr. JOHNSON. I mean, how many hearings are we going to have
on this? Weve had over three dozen hearings, and still no smoking
gun.
Mr. SEKULOW. Well
Mr. JOHNSON. No nothing.
Mr. SEKULOW. Can I give you one that just came out? Let me
give you one that just came out.
Mr. JOHNSON. Please.
Mr. SEKULOW. Maybe this is a smoking gun.
Mr. JOHNSON. I know that we are trying
Mr. SEKULOW. So we dont need to worry about alien terrorists;
its our own crazies that will take us down. Lois Lerner email just
came out.
Mr. JOHNSON. I know we are trying to get everything on the
record.
Mr. BACHUS. Mr. Sekulow, is that the one where she called conservatives assholes?
Mr. SEKULOW. Uh-huh, thats the one.
Mr. BACHUS. Okay.
Mr. JOHNSON. We are scraping the bottom of the barrel when it
comes
Mr. SEKULOW. A Senior Executive Service member of the IRS, by
the way. I dont think you would say this either, Congressman,
when youre talking about peoples fundamental constitutional
rights, even if you disagree with their politics, this is not insignificant, this Committee is not wasting its time. The American people
have the right to be protected in those rights, and they have the
right not to be targeted, and they have the right to a real investigation.
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Mr. JOHNSON. Well, I know
Mr. SEKULOW. So I think we agree on this.
Mr. JOHNSON. I know, Dr. Sekulow, that you take your work very
seriously, and I respect that.
Mr. SEKULOW. I appreciate that.
Mr. JOHNSON. And we see things differently, but as a legislature,
we have a job to do, and we havent been doing it. Thats why we
will go down in history as being the most do-nothing Congress in
the history of this great Nation, and were doing ourselves a disservice by continuing to focus on what some call scandal but which,
actually, when you look at it closely, errors were made, but its not
the kind of scandal that should replace the hard work on other
issues that are before this Committee.
Mr. BACHUS. Would the gentleman yield?
Mr. JOHNSON. And with that
Mr. BACHUS. Would the gentleman yield?
Mr. JOHNSON. Yes, Ill yield.
Mr. BACHUS. Do you
Mr. GOWDY. The gentleman is out of time, but the gentleman
from Alabama may have 30 seconds.
Mr. BACHUS. Do you consider Lois Lerner, head of the IRS investigating conservative groups and saying on her official email account with the IRS that conservatives are assholes who are crazies,
who are going to take this country down, is that not a scandal?
Mr. JOHNSON. Well, some would say that she made a truthful
comment, and others would say that in addition to making a truthful comment, she also erred in investigating groups other than Tea
Party groups.
Mr. GOWDY. And I think everyone would say she lacks the objectivity that you should have if youre in a position like that.
And with that, I would now recognize the gentleman from Texas,
Judge Poe.
Mr. BACHUS. All these groups theyre investigating.
Mr. POE. Thank you, Mr. Chairman.
It concerns me that it appears that some even not in the Committee regard all of this with a flippant attitude, as no big deal.
I agree, this is a constitutional issue. It involves real people. One
of those is Kathryn Engelbrecht, a friend of mine in Texas, who,
because she had the nerve to make sure that the voting booth was
sacred and there werent dead people voting and there wasnt other
corruption, starts an organization called True the Vote. And immediately thereafter, here come the government officials. She was audited by the IRS, visited by the FBI terrorist squad. She was audited by the equivalent of EPA in Texas. OSHA investigated her,
constantly under the surveillance of the IRS, questions after questions after questions. Its real people. Her constitutional rights
were violated because she was persecuted, because she took a
stand different than government. The Constitution protects that
absolute right for all Americans.
And then heres a timetable. Im sure you have it all memorized.
Eric Holder hides information, misleads Congress in 2011. So, in
June 2012, over 2 years ago, the House in a bipartisan vote holds
him in contempt. April 2013, the D.C. District Court rejected the
governments motion to dismiss. October 2013, the D.C. District
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Court judge who is handling this case rejected the DOJs claim that
there was no standing. May 2014, the district judge took the DOJ
motion for summary judgment under advisement. Two hearings
since then. In July 25th, all the parties met with a mediator and
still no resolution to the Attorney General of the United States
being held in contempt.
Now, I look at a contempt of Congress similar to an indictment.
Would you agree with that, Mr. Sekulow?
Mr. SEKULOW. The repercussions are very serious, yes.
Mr. POE. Its an indictment and then tried by the Senate if it
ever gets that far.
Mr. SEKULOW. Right.
Mr. POE. We have a situation that is similar to a district attorney down in Texas or Louisiana or Chicago, wherever, pick one,
getting indicted by a grand jury for corruption, but yet the DA decides whether or not there will be someone not in his office or her
office to prosecute him. Isnt that the same situation were in?
Mr. SEKULOW. It is, and thats why the discretion and the better
part of discretion here would be for the Attorney General to appoint a special counsel.
Mr. POE. No kidding.
Mr. SEKULOW. Also, talking about judges.
Mr. POE. Just a second, Mr. Sekulow, I only have 5 minutes.
Mr. SEKULOW. Please, please.
Mr. POE. Ill let you talk when Im through.
Mr. SEKULOW. No, no, no, your floor.
Mr. POE. Not only that, youve got the Justice Department, Eric
Holder, representing Lois Lerner in court.
Mr. SEKULOW. Thats what I was going to hold up.
Mr. POE. Where I come from, you cannot have lawyers for one
law firm and the same lawyers on the other law firm representing
opposing individuals. Its a violation of ethics. Is that not generally
true, Mr. Sekulow?
Mr. SEKULOW. It is. Their argument is, Congressman, that its
different departments handling it.
Mr. POE. Its still the Justice Department.
Mr. SEKULOW. Of course, it is. Its still within the Justice Department.
Mr. POE. Just a second, just a second. I know youre talking. Im
like Mr. Johnson, I admire your passion.
Mr. SEKULOW. No, go, please.
Mr. POE. But Eric Holder is defended by the Justice Department
Mr. SEKULOW. Right.
Mr. POE [continuing]. In the District Court here whether or not
to uphold the contempt, so hes in court as a defendant, taxpayers
are paying for his lawyer. I personally think he ought to get his
own lawyer. Taxpayers shouldnt pay for his lawyer. He should get
his own criminal defense lawyer. And yet theyre on the other side
as well or we have private lawyers on the other side trying to get
the district judge to make a decision. Doesnt this seem a little bizarre, that youve got the government representing the accused individuals on one side and the prosecution on the other? My question is, maybe we should step back eventually and pass legislation
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that the District or Circuit Court, like in D.C., should have jurisdiction to pick a special prosecutor when its the Attorney General
that is in trouble with Congress. What do you think about that?
Mr. SEKULOW. I think its an interesting proposal. You would
have to look at the ramifications and how it would affect the working of the Department of Justice, but you raise the right issue, and
that is, Im holding up the lawsuit. So, in this particular case, this
is our amended complaint, youve got the Department of Justice
representing the IRS and all the government officials, also the individuals, and the individuals also have outside counsel, which I believe are being paid for by taxpayer dollars. Im not a hundred percent sure of that.
Mr. POE. With my analogy, if I might have one more question,
with my analogy of the district attorney being indicted for corruption, its like having the district attorneys office represent the district attorney in court?
Mr. SEKULOW. Right.
Mr. POE. Yet the district attorney has got to pick the prosecutor
to prosecute him or her for corruption. That seems a little bizarre.
Mr. SEKULOW. Lack of incentive to get to the bottom line of the
issue, thats the problem, yes.
Mr. POE. I yield back.
Thank you.
Mr. GOWDY. The gentleman from Texas yields back.
The Chair will now recognize himself for questioning.
Professor Tiefer, would you seat a juror who referred to your client as an obscene body part?
Mr. TIEFER. Im sorry?
Mr. GOWDY. Would you seat a juror in a trial who referred to
your client as an obscene body part?
Mr. TIEFER. I really have trouble giving you an answer, except
it sounds like its bad.
Mr. GOWDY. Well, then you would starve to death as a lawyer if
you cant answer that question, Professor. You would seriously consider seating a juror in a trial, a criminal trial, where your client
was accused of a crime if that juror had referred to your client as
an obscene body part, you would struggle with whether or not to
strike that juror?
Mr. TIEFER. Well, it doesnt sound too good.
Mr. GOWDY. No, its not, and Ill give you some free litigation advice, youll want to use one of your strikes on that juror.
How about if you were a prosecutor, and one of the potential jurors referred to the police as terrorists who were going to bring the
country down, would you seat that juror in a criminal prosecution
if you were the prosecutor?
Mr. TIEFER. I wish I saw the connection here, but
Mr. GOWDY. Ill give you the connection. Lois Lerner just referred
to conservatives as an obscene body part, and she said we were
crazies and likened us to terrorists.
Mr. JOHNSON. Well, Mr. Chairman, if I
Mr. GOWDY. You are not recognized. The gentleman from Georgia
is not recognized.
Mr. JOHNSON. Well, would the gentleman yield?
Mr. GOWDY. No, sir, I will not.
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Lets go to the regulation, Professor. Conflict of interest for the
Department. People like standards, they like bright lines, so I
thought it would be interesting to go find out what the Attorney
Generals standard is for recusal, and you know when he recuses
himself? Ill quote him: When theres the potential appearance of
a conflict. He recused himself from a criminal prosecution when
theres the potential appearance of a conflict. Those are his words,
not mine.
So thats the standard for when there should be a conflict. I want
us to analyze whether or not there could possibly be the potential
appearance of a conflict. You have the President of the United
Stateswhen I ask a question, it will be very clear, Professor. The
President of the United States in the most widely viewed television
show in our country said theres not a smidgen of corruption. You
dont think that is the potential appearance of a conflict?
Mr. TIEFER. For the issue of a special counsel, which is what Im
here for, I think
Mr. GOWDY. How about giving me a yes or no, and then you can
explain your answer.
Mr. TIEFER. I think its irrelevant what the President says to
whether there is a conflict of interest.
Mr. GOWDY. Well, what if a judge says lets go give this guilty
bastard a trial, is that irrelevant? Would you want that judge? If
he prejudged the outcome of a prosecution, said lets go give this
guilty guy a fair trial.
Mr. TIEFER. Given the independence of the public integrity section for the last 30 years, I dont think it matters what the President says.
Mr. GOWDY. So you dont think it matters that the chief law enforcement officer for this country before there is an investigation,
while there are emails missing, before he has analyzed one scintilla
of evidence prejudges and says theres not a scintilla of corruption,
you dont think that matters? You dont even think it creates the
potential appearance of a conflict?
Mr. TIEFER. I absolutely reject that the standard here is the
standard youre naming for recusal. If he recuses himself, its still
the same Justice Department without a special counsel whoIm
sorry.
Mr. GOWDY. How about when the Department of Justice trades
emails with Lois Lerner seeking to implement an idea from a Democrat Senator? Do you know Senator Whitehouse?
Mr. TIEFER. My understanding is the idea was rejected after the
meeting in question, that the idea was
Mr. GOWDY. Im simply saying, do you really want the Department of Justice and the IRS taking their prosecutorial advice from
a Democrat Senator? I thought the Department of Justice was
blindfolded.
Mr. TIEFER. Im glad they rejected the idea.
Mr. GOWDY. Im sad that they even discussed it. Im sad that
they even discussed pursuing because when the AG sits where Professor Rotunda is, all we hear about is how he doesnt have the resources to actually do his job, and now theyre going to contemplate
manufacturing false statement cases?
Mr. TIEFER. The standard is not a potential
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Mr. GOWDY. So you do no think there is even the potential appearance of a conflict?
Mr. TIEFER. Thats not the standard. Youre talking about
recusal, which is whether its the AG or the deputy AG who deals
with the matter, thats recusal.
Mr. GOWDY. All right. Just so the record is clear, you dont
Mr. TIEFER. This is special counsel, which is whether
Mr. GOWDY. So you dont think theres even a potential appearance of a conflict?
Were not even going to get into Ms. Bosserman.
How about extraordinary circumstances? Do you think it is extraordinary when a government agency targets people based on
their political ideology, do you think that that is extraordinary?
Mr. TIEFER. I think its an issue with the Department of Justice,
not the IRS. The IRS is much criticized, and I assume rightly so,
but the Department of Justice under the special counsel regulation
is the one were talking about here.
Mr. GOWDY. Well, Ill tell you what, lets go to the third element.
How about whether it would be in the public interest to do so?
Would you agree to let our fellow citizens decide whether or not
they think a special prosecutor is warranted in this case? Thats
the third element.
And, by the way, the Attorney General drafted this regulation,
this CFR. So I assume he put in there it would be in the public
interest to do so. Would you agree to let our fellow citizens decide
whether or not there should be a special prosecutor?
Mr. TIEFER. You mean by poll?
Mr. GOWDY. However. We elect Presidents that way.
Mr. TIEFER. No, I dont think polls should tell the Department
of Justice what laws to enforce. No, I dont.
Mr. GOWDY. So you see no potential conflict of interest, you dont
think this is an extraordinary fact pattern, and you dont trust your
fellow citizens to make the call?
Mr. TIEFER. Its not a matter of trusting. You cant run the Department of Justice and decide extraordinary questions of the law
by poll numbers. No, I would not.
Mr. GOWDY. Neither can you prejudge the outcome of an investigation that hasnt even started. You cant do that when you are
the chief law enforcement officer for this country, and it wasnt a
hot mike situation where hes whispering to Eric Holder. Its on the
most watched television show in our culture, and he prejudges an
investigation, and you want us to expect that the outcome of this
is going to have any validity or credibility? Its not going to happen.
And with that, I would recognize the gentleman from Idaho.
Mr. LABRADOR. Thank you, Mr. Chairman.
I just have a couple questions.
Professor, you say in your testimony that Democrats requested
special counsels to investigate accusations of torture by the Bush
administration and possible perjury by the Attorney General Gonzalez. You also said that you didnt think in those cases there
should be an appointment of a special counsel; is that correct?
Mr. TIEFER. I thought that it was within the discretion of the Attorney General. Im not sure I said that it shouldnt be done.
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Mr. LABRADOR. So do you think there should ever be a special
counsel appointed?
Mr. TIEFER. I think that the one in the Bush administration, the
one regular one we know of in the Bush administration, Patrick
Fitzgerald, on the Libby Scooter matter, I think that was a good
choice.
Mr. LABRADOR. So youre okay with special counsels being appointed, yes or no?
Mr. TIEFER. Yes.
Mr. LABRADOR. Yes, okay. Now, you also seem to think that the
Congress has its authority in the future to stop whatever abuses
of the executive authority. So what other tools do we have to stop
any abuse of the executive authority?
Mr. TIEFER. Every year, the money has to be appropriated for
them. You put on riders, and they dont have the money to do
whatever it is youre saying is wrong.
Mr. LABRADOR. Okay, so just through the appropriations process?
Mr. TIEFER. Well, you also have the authorizing process here.
That is, if you pass a statute and say the Department of Justice
should no longer do this, that, and the other thing, this is the Committee on the Judiciary.
Mr. LABRADOR. Now, there seems to be some evidence suggesting
that the DOJ colluded with the IRS regarding prosecution of conservative groups. If the DOJ colluded with the IRS to target organizations on the basis of their political beliefs, wouldnt that be a
conflict of interest and require a special prosecutor?
Mr. TIEFER. Oh, I think that Im a little unsure about the discussion here, but in any event, factually, the idea was rejected, and
the question is from rejecting an idea, should there be a special
counsel on it, do they have a conflict of interest?
Mr. LABRADOR. If they actually colluded and if they were actually
working together to go after conservative groups, dont you think
thats enough evidence of a conflict of interest? Im not asking you
to determine whether there was a collusion, but if there is an actual collusion, dont you think thats enough evidence?
Mr. TIEFER. Its one of those hypotheticals that I cant get my
mind around because the Public Integrity Section Ive known for 30
years wouldnt do such things.
Mr. LABRADOR. Okay. So your testimony today is that you trust
the Public Integrity Section, that you think that they can make
these decisions. But many of us trusted the IRS that they wouldnt
make these kind of decisions. So at what point do we start thinking
that theres an Administration that has just gone above and beyond
what we have thought in the past? Most of us didnt like the IRS
before because we dont like paying taxes, but we never assumed
that they would go after different groups just because the leader
of their group was somebody not to their liking.
Mr. TIEFER. I wont quarrel with you. I understand the parallel
youre making.
Mr. LABRADOR. Okay.
Mr. Sekulow, can you tell me at what pointIm having a hard
time understanding from my friends on the other side if they have
a bright line rule of when we actually need to have special counsel
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because the professor seems to be arguing that its the Attorney
General who decides, and I agree with that.
Mr. SEKULOW. Right.
Mr. LABRADOR. I dont think we need to decide. I think the Attorney General decides. But at what point should we decide or should
there be a bright line that that automatically goes to a special
counsel, or should we even have that bright line?
Mr. SEKULOW. Well, theres been a continuing debate about the
whole reinstatement of an independent counsel statute, and I think
probably its pretty overwhelming people dont want it. The integrity of the system rests on the ability of the Attorney General to
make the decision, but it needs to be made on a decision where
there is evidence being presented, which I think is what your
House Resolution did, urging, which is the appropriate response, to
take action. The inaction here is palpable. I mean, my team has
been in these meetings with these FBI agents. This is a faux investigation, this is not a real investigation. I mean, theyre talking
about, you know, how long were you placed on hold in talking to
a revenue agent instead of asking where in the world are Lois
Lerners emails, and how in the world did she write that my clients
were A-holes, her words, okay, and worse than foreign terrorists.
And shes a member of the Senior Executive Service at the IRS,
which is a very high ranking position.
Mr. LABRADOR. Thats outrageous.
Mr. SEKULOW. Yeah, outrageous, and whats the response? Well,
the Department of Justice is investigating it. Thats the problem.
The Attorney General could end this himself. Hes the one who
raised the specter of criminality, I believe it was in this room or
next door, he raised the specter when he said it could be violations
of 242. He should now realize hes been compromised or his agency
has been compromised, appoint somebody that will get to the bottom of this quickly.
Mr. LABRADOR. All right. Thank you.
I yield back my time.
Mr. KING [presiding]. The gentleman yields back.
The Chair would now recognize himself for his 5 minutes, and
I turn first to Mr. Sekulow, and I would say that, you know, as I
have listened to the dialogue that exchanged back and forth, it has
been as rapid fire and fiery as anything Ive heard in here in a
while. I appreciate the intensity of that matter, and I think this
has been sliced and diced with a significant focus, but to bring it
back to the larger focus, I would pose this from the hypothetical
part of this, and that is that lets just suppose that we had a President of the United States and inside the operation, he had a network of Cabinet members that were utilizing the assets and resources of the executive branch to advance the political interests of
his political party and punish the political interests of the opposing
political party and to whatever level of potential criminality that
might be and however that network might lead its way up through
the chain from, lets say, perhaps, an office out somewhere in the
Midwest working its way up through the chain and to the White
House itself, and if the Attorney General was part of that understanding, and if the Cabinet members were part of that understanding that they were going to lock together and resist, then
90
what would be the alternative for the United States Congress, and
what would be the alternative for the American people to try to get
justice if a relentless suppression of their liberty was being enacted
in such a fashion?
Mr. SEKULOW. If a fortress mentality were to be utilized by the
executive to protect itself and its team, and the Department of Justice becomes part of that, which is the situation here, nothing.
Theres nothing the American people othershort of the next election cycle, but a lot could happen to the country between that
pointthats the reality. Thats the problem. Im not saying lets
get an independent counsel statute back on the books, but Im saying youre the Attorney General of the United States. This is a
mess. You know its a mess. We know its a mess.Put somebody in
charge to restore confidence of an agency, dont get into a fortress
mentality, which is what theyre in right now.
Mr. KING. Well, let me suggest that weve seen a response from
the American people, and I draw the comparison of Obamacare,
when tens of thousands of people came to this Capitol, surrounded
the Capitol building for the first time in the history of America,
and rose up in objection to their God-given liberty, the risk, the
threat that it would be usurped by Obamacare itself. And the response of the American people was, as you mentioned the election,
Mr. Sekulow, 87 freshmen Republicans came to the United States
Congress as a result of that overreach, and all 87 pledged to repeal
Obamacare. And every Republican since then has voted to repeal
Obamacare, and still we have Obamacare, and still were stuck in
this place, so the quick response of the hot cup of coffee in the
House of Representatives isnt adequate. Could you take that another step?
Mr. SEKULOW. Well, in a situation like that, which is the reality
in the world we live in, the problem is, how do people seek recourse
and redress? I mean, thats really whats at the bottom here, and
where I think this is significant, and not to diminish in any way,
Congressman Johnson, any other issues that you are compelled or
you are passionate about in dealing with, but this isnt insignificant. This is really significant. This is the core of our freedom, this
is the core of the republic, the ability to engage your government
for a redress of a grievance, for freedom of speech and freedom of
association, and when you get targeted by an agency and their answer, Congressman, is, we apologize for that, we have a serious
problem, and thats when the Attorney General needs to take serious action, which hes refusing to do right now.
Mr. KING. Let me take another step. Another round of elections
and perhaps then you see the same kind of fury that came about
in 2010, and thats reflected within a change in the majority in the
United States Senate.
Mr. SEKULOW. Yeah.
Mr. KING. Is that enough then to fix this problem with the IRS
having software that targets people that say, Im a patriot?
Mr. SEKULOW. No, because the bureaucracies are running the
government.
Mr. KING. And so when I get criticism from my constituents that
say, Why dont you do something about the IRS abuse of me and
my neighbors and my friends, how do I respond to them?
91
Mr. SEKULOW. This is the real situation we live in, and I said
this, and it could get you in a little bit of trouble. Its almost as
if the Presidency doesnt matter. The government is being run by
the bureaucrats. The bureaucrats have no accountability. You pass
laws, theyre signed by the President, and then the regulations
overtake the law. Thats the bureaucratic nonsense were living in,
and thats why theyre able to put out emails with these kind of
nastywho even would think about writing an email like that on
a government computer? And yet they do it with impunity, and
thats the problem.
Mr. KING. And then if we continue with this, if there was a process to remove the obstructing bureaucrat, do you think that would
change anything?
Mr. SEKULOW. I think that wouldif there was a process to remove the obstructing bureaucrat, if there was a price to be paid by
bureaucrats that do this, I think that would go a long way. Right
now, the defense of the Department of Justice to our lawsuit is,
sorry, you dont get to touch them because theyre acting in their
official capacity.
Mr. KING. And they will drag this out until this Administration
leaves the White House, and I believe that theres a calculation
thats been made, even if we have to sit under oath and lie to the
United States Congress, the price for that is less than the price for
admitting the truth. Would you agree with that?
Mr. SEKULOW. Well, I think that there is a serious argument to
be made that the American people are not getting truthful answers, period.
Mr. KING. No question. I thank all the witnesses for your testimony here, and I appreciate the panel for the intensity you brought
to this.
Mr. BACHUS. Mr. Chairman?
Mr. KING. This concludes todays hearing.
Mr. KING. Thank you to all of our witnesses, and I adjourn this
hearing.
Mr. KING. Oh, excuse me, I would yield to the gentleman from
Alabama.
Mr. BACHUS. Mr. Chairman, I would like to have an opportunity
to follow up on some questions before he left.
Mr. KING. I temporarily recognize the gentleman from Alabama
to follow up.
Mr. BACHUS. Professor Rotunda
Mr. ROTUNDA. Uh-huh.
Mr. BACHUS [continuing]. You actually served, I note, as assistant majority counsel of the Senate Watergate Select Committee?
Mr. ROTUNDA. Yes.
Mr. BACHUS. This really has the makings of a Watergate. There
the President was accused of basically taking down, attempting to
take down his political opponents by using the IRS. The IRS resisted. In this case the IRS, it wasnt an attempt, the IRS is actually taking down their, you know, theyre bringing action against
their political enemies. So in the second count in the impeachment
was that they attempted, that the President or the Administration
92
attempted to take down their opponents, but in this case, we have
evidence that the IRS was being used for political purposes.
Mr. ROTUNDA. We hope it would not come to that, and thats why
the advantage of an independent counsel is that we can rely on
that, and if he tells us it doesnt go much further or maybe goes
to Lois Lerner or the person just above her, we would be happier.
Mr. BACHUS. As opposed to the Attorney General, who is the
chief political officer for the President, among otherhe has political interests. He has personal interests, and he probably has financial interests, which are three of the definitions of conflict of interest. I looked at the statute, I think one thing that we really need
to do is look at the statute, and all of a sudden, Im wondering
where it is.
Mr. ROTUNDA. Is this the special counsel regulation?
Mr. BACHUS. The special counsel.
Mr. ROTUNDA. Oh, yeah.
Mr. BACHUS. And weve talked about presenting a conflict of interest, but we also, what we didnt talk as much about is extraordinary circumstances. Now, when you have an email that says we
are looking for a magic bullet to take down our political opponents,
thats extraordinary.
Mr. ROTUNDA. Its scary.
Mr. BACHUS. It is.
Mr. KING. Could the gentleman expedite his inquiry?
Mr. BACHUS. Yes. Well, Im just going to say it. It also says when
it would be in the public interest, and you know, there was a bipartisan resolution, not a partisan, a bipartisan resolution of this Congress, including that was voted on by both Republicans and Democrats, and two Democrats on this Committee voted for a resolution
urging the Attorney General, but and then, of course, we have
George Will, and Im going to close with this. This will be it.
Mr. KING. Okay.
Mr. BACHUS. He said he wished the Justice Department was interested in this investigation, but the trouble is that instead, the
Justice Department is uninterested in this investigation, and I
think we need to ask ourselves, why arent they doing this? They
have a duty under Section 3 of the special counsel thing to conduct
an ably expeditious and thorough investigation. Now, that is part
of the
Mr. KING. The gentlemans time has expired.
Mr. BACHUS. And theyre not doing any of those things.
Mr. KING. And
Mr. JOHNSON. Mr. Chairman
Mr. KING [continuing]. This concludes todays hearing. I want to
thank all the witnesses for attending.
Mr. JOHNSON. Mr. Chairman.
Mr. KING. Without objection, all Members will have 5 legislative
days
Mr. JOHNSON. Mr. Chairman?
Mr. KING [continuing]. To submit additional written questions for
the witnesses or additional materials
Mr. JOHNSON. Mr. Chairman, I just have
93
Mr. KING [continuing]. For the record, and I would point out to
the gentleman from Georgia that theres a hearing upstairs that
must commence exactly at 1.
Mr. JOHNSON. Just one statement.
Mr. KING. Thirty seconds.
Mr. JOHNSON. Thirty seconds?
Mr. KING. Yes.
Mr. KING. And Im ready to adjourn.
Mr. JOHNSON. I just want everybody to know that should I ever
have an issue with the First Amendment and my case needs to go
all the way up to the U.S. Supreme Court, Im going to call Jay
Sekulow and the American Center for Law and Justice, regardless
of whether or not its a progressive or conservative issue. I just
wanted to state that for the record.
Mr. KING. I thank the counsel, my friend from Georgia
Mr. JOHNSON. Thank the Chairman.
Mr. KING. And this hearing is adjourned.
[Whereupon, at 1:01 p.m., the Committee was adjourned.]
APPENDIX
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House Hearing, 113TH Congress - Irs Targeting Scandal: The Need For A Special Counsel

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IRS TARGETING SCANDAL:

THE NEED FOR A SPECIAL COUNSEL

COMMITTEE ON THE JUDICIARY

JULY 30, 2014

Serial No. 11392

For sale by the Superintendent of Documents, U.S. Government Printing Office

COMMITTEE ON THE JUDICIARY

SHELLEY HUSBAND, Chief of Staff & General Counsel

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Letter from Ronald D. Rotunda, Professor, Chapman University .......................

IRS TARGETING SCANDAL:

Mr. ROTUNDA. Thank you very much.

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