House hears call for special IRS prosecutor

WASHINGTON, D.C. – Republican congressional pressure to expose an alleged Obama administration cover-up in the Department of Justice investigation of the IRS discrimination against conservative organizations ratcheted up a notch yesterday.

Legal experts testifying to a House subcommittee suggested IRS officials may have committed criminal violations and called for a special prosecutor to be appointed.

George J. Terwilliger III, former deputy attorney general under Attorney General Edwin Meese and a partner in the Washington office of Morgan, Lewis & Bockius, began the hearings with a prepared statement calling for the appointment of a special prosecutor to look into the controversy.

“I am no fan of the now-expired independent counsel statute,” Terwilliger said in his prepared statement. “But existing law permits the attorney general to appoint a special or independent counsel from within the Justice Department or from outside it. Such counsel can be given all the authority and have the final word on what should be investigated or prosecuted.”

At the hearing, five expert legal witnesses testified about what subcommittee chairman Rep. Jim Jordan, R-Ohio, characterized as the Obama administration’s apparent unwillingness to conduct a “serious and unbiased” investigation into allegations the IRS was discriminating against conservative groups applying for tax-exempt status.

Terwilliger explained that his call for Attorney General Holder to appoint such as special counsel was needed “to provide assurances of the integrity of the investigation that the public deserves and that respect for venerable Justice Department practice requires.”

Agreeing with Terwilliger that a special prosecutor was needed in the IRS investigation, Richard Painter, professor of corporate law at the University of Minnesota Law School, suggested criminal charges involving Hatch Act violations might be appropriate if it can be proved IRS officials denied conservative groups tax-exempt status in order to influence the outcome of elections in favor of the Democratic Party.

The Hatch Act of 1939 was designed to prohibit employees of the executive branch of the federal government, except the president, the vice-president and a select list of additional executive branch employees, from engaging in partisan political activities in the administration of their federal government duties.

“I am frustrated at not knowing the purpose and scope of the DOJ investigation, Painter testified.

Painter suggested the Office of Special Counsel should be involved because the OSC is specifically charged with violations of the Hatch Act.

“Which specific criminal statutes are potentially involved in the investigation, and what evidence is there to date of violations of such provisions and by whom?” Painter asked. “If there is evidence of criminal activity the DOJ should investigate thoroughly and swiftly, but if not the DOJ should stand down and allow other government officials, including the Inspector General and Congressional oversight committees, to do their job of investigating alleged misconduct that falls short of criminal violations.”

Painter noted the OSC may determine that it is appropriate to rely on an inspector general investigation rather than conduct its own investigation, provided the inspector general investigation addresses the Hatch Act issues.

“The OSC, however, should not remain silent,” Painter continued. “I am not claiming that there necessarily were Hatch Act violations at the IRS – I don’t know. However, the American people are entitled to a definitive answer to this question, and the OSC has a responsibility to play a central role in finding it.”

'Not even a smidgen'

The hearing held Wednesday afternoon by the Subcommittee on Economic Growth, Job Creation, and Regulatory Affairs centered on the question, “Is the Obama Administration Conducting a Serious Investigation of IRS Targeting?” It took on heightened drama after Rep. Darrell Issa, R-Calif., the chairman of the House Oversight and Government Reform Committee, announced on Wednesday morning that Lois Lerner, the IRS official at the center of the IRS targeting controversy, had been recalled to testify under oath on March 5.

The subtext of the subcommittee’s hearing were the statement President Obama made in a televised interview with the Fox News Channel's Bill O’Reilly that there was “not even a smidgen of corruption” in the IRS handling of organizations applying for tax-exempt status.

“The president’s statement was most unfortunate,” Terwilliger insisted. “Can you imagine if Ronald Reagan had come out in the middle of the Iran-Contra controversy and said there is nothing really to see here? When you have the president of the United States to come out and declare there was no corruption before the DOJ investigation was complete undermines public confidence in the integrity of the investigation.”

Eileen J. O’Connor, former assistant attorney general of the tax division for the Department of Justice and a partner in the Washington office of the Pillsbury law firm, agreed.

“The president’s statements carry a lot of weight,” O’Connor noted. “Markets can rise and fall on a president’s statement. Back in 2010, President Obama began bashing conservative critics of the administration and various administration officials as a consequence began investigating conservatives in a completely inappropriate manner.”

Under questioning by Rep. Scott DesJarlais, R-Tenn., all five legal experts testified they could not tell if a serious and unbiased investigation of IRS targeting was being undertaken by the Obama administration DOJ.

“We had a president who said ‘I am not a crook,’ and we all know how that turned out,” DesJarlais noted, referring to President Richard Nixon.

The congressman suggested Obama should be impeached if it turns out he took steps to ensure that the DOJ investigation ended up in a whitewash of the IRS targeting scandal.

Subcommittee chairman Jordan, in his attempt to demonstrate the Obama administration Justice Department was now engaged in a cover-up of partisan activity by IRS officials, got into a heated exchange with ranking member Rep. Matt Cartwright, D-Pa., with Barbara Bosserman, a trial attorney in the Department of Justice with a history of political contributions to President Obama’s election campaigns and the Democratic National Committee since 2004.

Jordan insisted Jay Sekulow, the chief council of the American Center for Law and Justice, had identified Bosserman as lead DOJ attorney assigned to conduct the IRS. Bosserman, meanwhile, rejected Sekulow’s opinion as definitive, given that Sekulow has claimed the DOJ investigation has called for testimony from none of 41 clients the ACLJ claims suffered IRS discrimination.

“Ms. Bosserman should be removed because her involvement raises questions about the integrity of the Department of Justice,” insisted Hans von Spakovsky, senior legal fellow at the Heritage Foundation, under combative questioning by Democratic members of the subcommittee.

“Specifically, she gave a large number of political contributions to the Obama administration that is under investigation in the IRS probe.”

Nor was von Spakovsky convinced the Justice Department was conducting a genuine, unbiased investigation of the allegations against the Obama administration IRS.

“I find that simply incredible – that nine months after Attorney General Holder announced he was opening an investigation, neither the FBI nor the Justice Department has conducted basic interviews with the victims to gather information about their dealings with the IRS officials and employees who may have been involved in wrongdoing,” von Spakovsky said.

“The ratio of liberal groups caught in the IRS targeting filters was somewhat like 100-to-2,” O’Connor added, maintaining that the IRS targeted conservative groups in a discriminatory fashion.

O’Connor joined in the criticism of Bosserman.

“DOJ officials have selected a career attorney in the Civil Rights Division to conduct the investigation into the allegations of misconduct by IRS personnel,” O’Connor stressed.

“Some have criticized that selection as inappropriate because the attorney contributed to the president’s campaign and to other causes of his political party. But when does support for the sitting president and his party make one an imprudent choice for an assignment? Not usually. But perhaps it does when the assignment is to investigate the administration’s alleged mistreatment of its political adversaries. Here is why: Justice must not only be done, it must be seen to be done.”

Among the five legal experts testifying, the only one defending President Obama in the IRS investigation was Glenn F. Ivey, partner in the Washington office of Leftwich & Ludaway.

Under questioning by Rep. Mark Meadows, R-N. C., Ivey admitted he had donated funds not only to the Obama re-election campaign but also to the Democratic opponent running against Meadows for the House of Representatives in North Carolina.

Coded communications?

Before the hearing adjourned, questioning turned to the criminal indictment of filmmaker Dinesh D’Souza, who is facing two felony counts with a maximum of seven years in prison for alleged violations of campaign-finance laws.

O’Connor took up the issue, developing the theme that Obama’s public statements criticizing conservative opponents were designed as coded communications to Democratic Party operatives placed within the federal government administration bureaucracy to discriminate against or otherwise disadvantage conservatives whenever possible.

O'Conner said it was "in 2010, after Obama made public statements in radio addresses bashing conservative donors for making contributions to conservative tax-exempt organizations, that the IRS for the first time started investigating donor contributions to tax-exempt organizations.”

He suggested Obama’s criticism of conservative donors was designed to “tip off” the IRS that investigating conservative donors to tax-exempt organizations was the order of the day.

In addition to the selective enforcement of IRS rules and regulations to deny applications by conservative groups for tax-exempt status, various Republican members of the subcommittee suggested another offense. They said the Obama Justice Department was engaging in selective prosecution by indicting for criminal violations of campaign finance laws vocal administration critics such as D’Souza, whose anti-Obama documentary “2016” was the second-highest revenue grossing political documentary of all time.

“The accusation against Dinesh D’Souza was for a ‘conduit contribution,’” O’Connor pointed out. “That could only be discovered if the Federal Election Committee had been tipped off that D’Souza reimbursed others for making contributions, because a typical examination of campaign contributions only reveals who made a particular contribution. It would take inside information to reveal D’Souza reimbursed others for contributing to a candidate of his choice.”