WASHINGTON — The IRS scandal now has a mystery figure – someone in a position of great power who requested the targeting of conservative groups.
The congressional committee leading the investigation into the IRS abuse scandal obtained a bombshell email from a Justice Department employee to an IRS official that says, “I have been asked to run something by you.”
The “something” is the possibility of criminally investigating conservative groups, the “you” is former IRS tax-exempt division chief Lois Lerner, and the email was sent by Justice Department employee Richard Pilger, director of the Election Crimes Branch of the Public Integrity Section.
But the big questions is: Who asked Pilger to ask Lerner?
Who triggered the inquiry?
Who wanted to prosecute conservatives for political activity that even Lerner would concede was not illegal?
One question for the House Oversight Committee is whether that person was at the Department of Justice, or, perhaps, in the White House.
Chairman Darrell Issa, R-Calif., and 16 committee members sent a letter to Attorney General Eric Holder asking the Justice Department, or DOJ, to produce documents to explain why his agency would consider prosecution of tax-exempt groups already improperly targeted by the IRS.
They also requested a transcribed interview with Pilger.
Judicial Watch released IRS documents last week showing Lerner was in contact with the DOJ about potential prosecution of tax-exempt groups.
This latest email, which was not released in the previous batch, was sent by Pilger to Lerner on May 8, 2013.
The committee said the DOJ considered prosecuting conservative groups for actions that are actually legal for 501(c)(4) nonprofits under federal tax law – that is, engaging in political speech.
The committee members wrote to Holder that Pilger’s communications with Lerner were also striking for their timing.
“They show that the IRS and the Justice Department were actively considering efforts to target tax-exempt organizations just two days before Ms. Lerner’s public apology for the targeting.
“This information certainly undermines the sincerity of Ms. Lerner’s apology, but it calls into question your reaction that targeting was ‘outrageous’ and ‘unacceptable.’
“These comments ring hollow in light of evidence that your subordinates apparently colluded with the IRS to target nonprofit groups less than a week before.”
An email from Lerner indicated someone at the DOJ wanted to target conservative groups for “lying” about their political activity.
According to the committee, after Pilger and Lerner spoke, she summarized the conversation in an email to Nikole Flax, then chief of staff to Acting Commissioner Steve Miller. She wrote:
“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 IRS the DOJ folks could talk to about Sen. Whitehouse idea at the hearing that DOJ could piece together false statement cases about applicants who ‘lied’ on their 1024s – saying they weren’t planning on doing political activity, and then turning around and making large visible political expenditures. DOJ is feeling like it needs to respond, but want to talk to the right folks at IRS to see whether there are impediments from our side and what, if any damage this might do to IRS programs.”
The committee said Lerner then asked veteran IRS official Nan Marks to arrange the meeting, but it is was not clear what additional steps the department took to coordinate with the IRS about the targeting of tax-exempt applicants.
The committee’s letter tells Holder:
“This e-mail is shocking on several levels. As an initial matter, this e-mail is further evidence that the Administration’s targeting and inappropriate treatment of conservative tax-exempt applicants was the result of political pressure from prominent Democrats to ‘fix the problem’ posed by the Supreme Court’s Citizens United decision.”
The letter goes on to indicate that the targeting of conservatives was the result of not-so-subtle prodding by the White House and Democratic lawmakers:
“Information obtained by the Committee shows that beginning in 2010, the President and congressional Democrats loudly and aggressively criticized the Court’s decision and conservative nonprofit groups that they believed would benefit from it. This e-mail makes clear that the Justice Department, like the IRS and the Securities and Exchange Commission, played a role in a government-wide effort to target political speech.”
The letter then indicates it is apparent the DOJ was taking its marching orders from the White House and other Democrats:
“Certainly, as is apparent in this e-mail, the Department felt the need to do something in response to Democratic rhetoric against nonprofit political speech.”
The committee saw the DOJ as taking the matter to dubious extremes:
“More unbelievably, this e-mail also suggests that the Department actually considered prosecuting nonprofit groups for their political activities. Even more astounding, the Department considered prosecuting these groups for actions that are legal for 501(c)(4) nonprofits under federal tax law – that is, engaging in political speech.
“The Department’s use of alleged false statement on the tax-exempt application is an unfortunate instance of prosecutorial ‘gotcha,’ targeting these victims for supposed ‘lies’ about activities that they are legally allowed to do.
“In this way, the tactics suggested by Mr. Pilger appear to be nothing more than harassment by the Justice Department of groups engaged in otherwise lawful activity.”
The committee called the DOJ’s tactics “outrageous” and pointed out that even Lerner knew they were not on firm legal ground.
The letter to Holder cites an email Lerner wrote to her colleagues explaining that the law does not support the prosecution of a nonprofit for making false statements about political speech. She wrote:
“Whether there was a false statement or fraud regarding an [sic] description of an alleged political expenditure that doesn’t say vote for or vote against is not realistic under current law. Everyone is looking for a magic bullet or scapegoat – there isn’t one. The law in this area is just hard.”
Still, the committee noted, Lerner indicated in another e-mail, that those individuals pushing for the prosecution of politically active nonprofits for “tax fraud” were seeking to “shut these down.” She wrote:
“One IRS prosecution would make an impact and they wouldn’t feel so comfortable doing stuff. So, don’t be fooled about how this is being articulated – it is ALL about 501(c)(4) orgs and political activity.”
Expressing its disappointment in the DOJ’s “apparent contribution to the Administration’s targeting of tax-exempt applicants” and coordination with the IRS, the letter asks Holder for:
- All documents and communications referring or relating to 501(c)(4) tax-exempt organizations or applicants for 501(c)(4) tax-exempt status for the period Jan. 1, 2009, through the present.
- All documents and communications between or among Lois Lerner and employees of the Department of Justice for the period Jan. 1, 2009, through the present.
- All documents and communications referring or relating to the potential prosecution of tax-exempt organizations for alleged false statements made on Internal Revenue Service forms for the period Jan. 1, 2009, through the present.
Just two weeks after Pilger contacted Lerner, she appeared before the Oversight committee at a hearing on May 22, 2013, and invoked her Fifth Amendment right to refuse to answer questions, but first read a statement declaring her innocence.
On June 28, 2013, the committee declared in a party-line vote of 22 to 17 that Lerner had waived her Fifth Amendment rights against self-incrimination by reading that statement and declaring her innocence.
Almost a year later, after Lerner’s attorney indicated that she was ready to answer questions, she appeared again before the Oversight committee on March 5.
But, to members’ surprise, Lerner again took the fifth.
Chairman Issa read a statement to Lerner that she had made on Oct. 19, 2010, that said:
“The Supreme Court dealt a huge blow, overturning a 100-year-old precedent that basically corporations couldn’t give directly to political campaigns. And everyone is up in arms because they don’t like it. The Federal Election Commission can’t do anything about it. They want the IRS to fix the problem.”
“Wanted to fix the problem caused by Citizen United,’ what exactly does that mean?” Issa asked Lerner.
When Lerner refused to answer that question and several others, Issa adjourned the hearing.
On April 9, the House Ways and Means committee voted to refer Lerner to the DOJ for possible criminal prosecution, and the next day the Oversight committee voted to adopt a resolution recommending the House find Lerner in contempt of Congress for refusing to testify.
Follow Garth Kant on Twitter @DCgarth