[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]




 
 IS THE OBAMA ADMINISTRATION CONDUCTING A SERIOUS INVESTIGATION OF IRS 
                               TARGETING?

=======================================================================

                                HEARING

                               before the

                    SUBCOMMITTEE ON ECONOMIC GROWTH,
                  JOB CREATION AND REGULATORY AFFAIRS

                                 of the

                         COMMITTEE ON OVERSIGHT
                         AND GOVERNMENT REFORM

                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED THIRTEENTH CONGRESS

                             SECOND SESSION

                               __________

                           FEBRUARY 26, 2014

                               __________

                           Serial No. 113-92

                               __________

Printed for the use of the Committee on Oversight and Government Reform


         Available via the World Wide Web: http://www.fdsys.gov
                      http://www.house.gov/reform


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              COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

                 DARRELL E. ISSA, California, Chairman
JOHN L. MICA, Florida                ELIJAH E. CUMMINGS, Maryland, 
MICHAEL R. TURNER, Ohio                  Ranking Minority Member
JOHN J. DUNCAN, JR., Tennessee       CAROLYN B. MALONEY, New York
PATRICK T. McHENRY, North Carolina   ELEANOR HOLMES NORTON, District of 
JIM JORDAN, Ohio                         Columbia
JASON CHAFFETZ, Utah                 JOHN F. TIERNEY, Massachusetts
TIM WALBERG, Michigan                WM. LACY CLAY, Missouri
JAMES LANKFORD, Oklahoma             STEPHEN F. LYNCH, Massachusetts
JUSTIN AMASH, Michigan               JIM COOPER, Tennessee
PAUL A. GOSAR, Arizona               GERALD E. CONNOLLY, Virginia
PATRICK MEEHAN, Pennsylvania         JACKIE SPEIER, California
SCOTT DesJARLAIS, Tennessee          MATTHEW A. CARTWRIGHT, 
TREY GOWDY, South Carolina               Pennsylvania
BLAKE FARENTHOLD, Texas              TAMMY DUCKWORTH, Illinois
DOC HASTINGS, Washington             ROBIN L. KELLY, Illinois
CYNTHIA M. LUMMIS, Wyoming           DANNY K. DAVIS, Illinois
ROB WOODALL, Georgia                 PETER WELCH, Vermont
THOMAS MASSIE, Kentucky              TONY CARDENAS, California
DOUG COLLINS, Georgia                STEVEN A. HORSFORD, Nevada
MARK MEADOWS, North Carolina         MICHELLE LUJAN GRISHAM, New Mexico
KERRY L. BENTIVOLIO, Michigan        Vacancy
RON DeSANTIS, Florida

                   Lawrence J. Brady, Staff Director
                John D. Cuaderes, Deputy Staff Director
                    Stephen Castor, General Counsel
                       Linda A. Good, Chief Clerk
                 David Rapallo, Minority Staff Director

  Subcommittee on Economic Growth, Job Creation and Regulatory Affairs

                       JIM JORDAN, Ohio, Chairman
JOHN J. DUNCAN Jr., Tennessee        MATTHEW A. CARTWRIGHT, 
PATRICK T. McHENRY, North Carolina       Pennsylvania, Ranking Minority 
PAUL GOSAR, Arizona                      Member
PATRICK MEEHAN, Pennsylvania         TAMMY DUCKWORTH, Illinois
SCOTT DesJARLAIS, Tennessee          GERALD E. CONNOLLY, Virginia
DOC HASTINGS, Washington             MARK POCAN, Wisconsin
CYNTHIA LUMMIS, Wyoming              DANNY K. DAVIS, Illinois
DOUG COLLINS, Georgia                STEVEN A. HORSFORD, Nevada
MARK MEADOWS, North Carolina
KERRY BENTIVOLIO, Michigan
RON DeSANTIS Florida


                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on February 26, 2014................................     1

                               WITNESSES

The Hon. George J. Terwilliger, III., Partner, Morgan, Lewis & 
  Bockius LLP
    Oral Statement...............................................     6
    Written Statement............................................     9
The Hon. Eileen J. O'Connor, Former Assistant Attorney General 
  (2001-2007), Tax Division, U.S. Department of Justice
    Oral Statement...............................................    14
    Written Statement............................................    17
The Hon. Hans A. Von Spakovsky, Manager, Election Law Reform 
  Initiative and Senior Legal Fellow, Edwin Meese III, Center for 
  Legal and Judicial Studies, The Heritage Foundation
    Oral Statement...............................................    21
    Written Statement............................................    23
Mr. Glenn F. Ivey, Partner, Leftwich and Ludaway LLC
    Oral Statement...............................................    29
    Written Statement............................................    31
Mr. Richard W. Painter, S. Walter Richey Professor of Corporate 
  Law, University of Minnesota Law School
    Oral Statement...............................................    37
    Written Statement............................................    39

                                APPENDIX

June 11, 2007 letter to the Senate Rules Committee from members 
  of The Voting Section, submitted by Rep. Connolly..............    64


 IS THE OBAMA ADMINISTRATION CONDUCTING A SERIOUS INVESTIGATION OF IRS 
                               TARGETING?

                              ----------                              


                      Wednesday, February 26, 2014

                  House of Representatives,
Subcommittee on Economic Growth, Job Creation, and 
                                Regulatory Affairs,
              Committee on Oversight and Government Reform,
                                                   Washington, D.C.
    The subcommittee met, pursuant to call, at 1:35 p.m., in 
Room 2154, Rayburn House Office Building, Hon. Jim Jordan 
[chairman of the subcommittee] presiding.
    Present: Representatives Jordan, DeSantis, DesJarlais, 
Lummis, Meadows, Bentivolio, Issa (ex officio), Cartwright, and 
Connolly.
    Staff Present: David Brewer, Senior Counsel; Drew 
Colliatie, Professional Staff Member; Linda Good, Chief Clerk; 
Tyler Grimm, Senior Professional Staff Member; Christopher 
Hixon, Chief Counsel for Oversight; Ashok M. Pinto, Chief 
Counsel, Investigations; Sarah Vance, Assistant Clerk; Jeff 
Wease, Chief Information Officer; Meghan Berroya, Minority 
Counsel; Susanne Sachsman Grooms, Minority Deputy Staff 
Director/Chief Counsel; Jennifer Hoffman, Minority 
Communications Director; Adam Koshkin, Minority Research 
Assistant; Julia Krieger, Minority New Media Press Secretary; 
Elisa LaNier, Minority Director of Operations; Juan McCullum, 
Minority Clerk; Brian Quinn, Minority Counsel; Donald Sherman, 
Minority Counsel.
    Mr. Jordan. The committee will come to order. Today's 
hearing constitutes the committee's ongoing oversight of the 
Department of Justice's investigation into the IRS' 
inappropriate treatment of conservative groups applying for 
tax-exempt status. On May 10th, 2013, Lois Lerner apologized 
for the IRS' targeting of Tea Party groups while answering a 
pointed question at some obscure Friday morning tax law panel. 
She said, ``They use names like 'Tea Party' or 'Patriots,' and 
they selected cases simply because the applications had those 
names in the title. That was wrong. That was absolutely 
incorrect, insensitive, and inappropriate.''
    Immediately after Lerner's apology, the President and the 
Attorney General vowed to get to the bottom of the targeting. 
Attorney General Holder called it, ``outrageous and 
unacceptable,'' and the President said his administration would 
not tolerate this behavior in any agency.
    One month later, I asked then FBI Director Mueller a couple 
of basic questions. I said, Who is the lead agent? How many 
agents have you assigned to the case? And have you interviewed 
any of the victims? His answers were, I don't know, I don't 
know, I don't know. Not exactly inspiring a lot of confidence 
in the quality of this investigation, one month after the 
President and the Attorney General had made the statements that 
they made.
    We sent letters to the FBI and the DOJ seeking information 
about the investigation. At every turn, they refused to 
cooperate. There is new information raising concerns about the 
integrity of the Administration's investigation. Department of 
Justice Attorney Barbara Bosserman is leading the 
investigation. Publicly available records show that Ms. 
Bosserman contributed almost $7,000 to President Obama's 
political campaigns and the Democratic National Committee over 
the last few years.
    Last month, anonymous sources in the Justice Department 
leaked information to the Wall Street Journal that no criminal 
charges would be filed in the IRS matter, despite the fact that 
many victims of the targeting had not yet been interviewed. And 
shortly thereafter, on national television, the President 
declared that there was, ``not a smidgeon of corruption in the 
IRS targeting.''
    I don't know how the President can make this claim because 
the Department of Justice had told me and lot of other members 
that it cannot discuss an ongoing investigation. Earlier this 
month, the committee heard from victims Catherine Engelbrecht 
and Becky Gerritson, who testified that they have not been 
interviewed. Jay Sekulow testified that not one of his 41 
clients had been interviewed. He also testified under oath that 
Ms. Bosserman was the highest ranking Department of Justice 
official he had spoken with about the investigation.
    Just imagine how this looks to the American people. The 
President says, there is not a smidgeon of corruption. The 
Administration leaks that it will not file charges, and yet 
witnesses have not been interviewed, and a substantial 
contributor to the President is leading the investigation.
    Again, doesn't inspire much confidence that this is a true 
investigation. There is still serious questions that needs to 
be answered. Our witnesses this afternoon come with years of 
experience, either working at the Department of Justice or 
advising the President on governmental ethics. Through their 
testimony, the hope is we may understand the dangers of 
perceptions of bias and politicized leaks in how the 
Administration can work to restore public faith in this 
critical investigation.
    The American people are rightly outraged. They deserve the 
truth. And that is what we are going to get to today. And with 
that, I would yield to the ranking member for his opening 
statement.
    Mr. Cartwright. I thank you, Mr. Chairman.
    Today marks the second hearing that this subcommittee has 
held in a span of 3 weeks about the IRS. In less than 24 hours 
from now, it will be convening yet another hearing on this very 
same matter. Thus far, the Oversight and Government Reform 
panel has interviewed no fewer than 38 IRS and Treasury 
Department employees and has received more than 385,000 pages 
of documents to review in this matter. Responding to 
congressional investigations in this matter has now cost 
American taxpayers at least $14 million so far and still 
counting.
    And none of the evidence uncovered so far shows any 
political motivation or any White House involvement, which is 
exactly the same thing that the Inspector General of the 
Treasury Russell George told us in this room many months ago 
that he found no evidence of a political animus either.
    The Department of Justice and the FBI are conducting their 
own independent investigation to determine if there was any 
crime committed by anybody at the IRS. They do not rely on our 
investigative findings, and they will reach their own 
conclusions. Today's hearing is about allegations that there is 
some political bias in the Department of Justice's 
investigation.
    Republicans have criticized the Department for failing to 
discuss the details of its ongoing criminal investigation and 
that this is somehow a coverup for the political bias that they 
are alleging. As the majority knows well, the Department of 
Justice has a longstanding practice, to which I have alluded 
many times from this side of the dais of not disclosing 
information about ongoing criminal investigations. It is a 
practice that Americans are familiar with. When the county 
sheriff at home is involved in an investigation and is 
interviewed on television, he or she always says, ``I can't 
comment on an ongoing investigation,'' and Americans understand 
that, and they're comfortable with it.
    The Justice Department handles it the same way, and this is 
a practice spanning Democratic and Republican administrations 
in longstanding practice of not commenting. That is why none of 
the witnesses testifying today have any direct knowledge about 
the investigation and including who in the Department is 
actually leading that investigation, what they found, and when 
they will conclude.
    But maybe the most troubling criticism is the chairman's 
claim that the investigation has, ``the appearance of a 
substantial and material conflict of interest,'' and the basis 
for the chairman's claim is that a career prosecutor who is one 
of at least 13 DOJ and FBI employees involved in the 
investigation exercised her constitutional right to participate 
in the democratic process and made political donations.
    During the last hearing we had on this very same topic, I 
entered into the record the legal opinion of Professor Daniel 
Richman of Columbia University Law School, who has spent 
decades working on just such issues, and prior to serving in 
academia, served as an assistant U.S. attorney in the Southern 
District of New York and was the chief appellate attorney in 
that office. Professor Richman categorically rejected the 
chairman's interpretation of the law saying any claim that 
these contributions in and of themselves create a conflict of 
interest strikes me as meritless.
    The plain and undisputed--and indisputable language of the 
law allows career civil servants, like any other American, to 
exercise their constitutionally protected right to participate 
in the democratic process. Can you imagine, Mr. Chairman, if a 
private employer looked into a private citizen's participation 
in the political process before hiring them or didn't give them 
an assignment based solely on whether they were a Democrat or a 
Republican? Where would it end? Would it end at campaign 
contributions, or what about signing a petition to get their 
Member of Congress on the ballot or about whether they--whether 
or not they simply voted in the last election.
    In fact, what is even more interesting is that this is the 
exact same thing that some of the groups applying for the 
(c)(4) status at the heart of this matter are complaining 
about, that they are being scrutinized excessively because of 
their political stances and their involvement in the political 
process.
    So let me make this final point clear: If the Justice 
Department were to adopt the Republican position here and start 
screening career Federal prosecutors for their participation in 
the democratic process before assigning them cases, it would 
not only be illegal; it would be unconstitutional and downright 
un-American.
    I yield back, Mr. Chairman.
    Mr. Jordan. I would just remind the ranking member, no one 
is talking about Ms. Bosserman not keeping her job. No one has 
ever questioned the character and the professionalism of Ms. 
Bosserman. All we are saying is, is that 28 CFR. 45.2, says 
``Disqualification arising from personal or political 
relationship, the employee's participation would not create an 
appearance of conflict of interest likely to affect the public 
perception of the integrity of the investigation or 
prosecution.''
    It couldn't be any clearer. This is not--this is not me 
making this up. This is straight from the rules that apply to 
the Justice Department personnel. So, to equate it to the 
private sector, it has just simply no bearing whatsoever on the 
issue at hand.
    With that, I recognize our distinguished panel today.
    Excuse me, is Mr. Connolly giving an opening statement? I 
was looking for the--I thought the chairman and the ranking 
member of the full committee were going to be here for an 
opening statement, but if they are not, we are willing to see 
if Mr. Meadows or Mr. Bentivolio has an opening statement, or 
Mr. DeSantis.
    Mr. Connolly.
    Mr. Connolly. Thank you, Mr. Chairman.
    I don't really have an opening statement, other than I just 
heard the ranking member statement and your own. I would just 
say if we are going to, you know, apply the standard across the 
board equally, then frankly, it would tend to disqualify the 
credibility of the IG, Mr. Russell George, who has done 
precisely the same kind of political activity, has contributed 
to Republican causes was a member of the Republican staff, has 
met exclusively with the Republican staff of this committee. So 
if we are going to cast aspersions of somebody else's character 
or just questioning whether she meets the standard, we could 
apply the same thing to the IG, whose testimony we rely on to 
create, you know, a great scandal, that turns out to be very 
limited testimony and rather cherry-picked at that, so I look 
forward to hearing us explore this issue. I hope we will do it 
fully and across the board in an evenhanded way.
    Thank you, Mr. Chairman.
    Mr. Jordan. We are going to pause for just a second because 
I know the chairman is on his way and would like to make an 
opening statement, and I know we do have votes any minute now. 
Let me introduce our panel.
    Maybe we can swear them in and then come back to Mr. 
Chairman Issa's opening statement.
    We have first Mr. George Terwilliger, who is a partner at 
Morgan Lewis law firm. We have Ms. Eileen O'Connor, who is a 
partner at the firm Pillsbury Winthrop Shaw Pittman. Mr. Hans 
von Spakovsky is the Edwin Meese, III,
    Center for Legal and Judicial Studies senior legal fellow 
at the Heritage Foundation. Mr. Glenn Ivey is a partner at 
Leftwich and Ludaway. And finally, Mr. Richard Painter is a 
Walter Richey professor of Corporate Law at the University of 
Minnesota School of Law.
    I want to thank you all for being here. We know it is not 
easy always to come for these, and--but we appreciate your 
expertise and your willingness to share with us that expertise 
today.
    Pursuant to committee rules, all witnesses will be sworn in 
before they testify, so if you will please stand and raise your 
right hand.
    Do you solemnly swear or affirm that the testimony you are 
about to give will be the truth, the whole truth and nothing 
but the truth, so help you God?
    Let the record show that each of our witnesses answered in 
the affirmative.
    The rules are, you are going to get 5 minutes, more or 
less, close to 5 is how we will do it, and we will work right 
down the line, but unfortunately, that is not going to happen 
until after we vote, and I am hoping chairman--so we are going 
to recess now, and the chairman will have an opening statement 
when we come back and we will get to your testimony. This is a 
good way to break as we are going to get on a day like today, 
so you can retire to either room. There are restroom 
facilities, coffee, whatever you need, and we will be back in, 
how many votes again?
    Mr. Connolly. Three votes.
    Mr. Jordan. Two or three. Three. So, 45 minutes. 30 to 45 
minutes is what it is going to take, so thank you very much, 
and we stand in recess.
    [Recess.]
    Mr. Jordan. The committee will be in order. And we 
recognize the chairman of the full committee with the 
understanding that Ms. O'Connor is on her way back. But 
recognize the chairman for his opening statement.
    Chairman Issa. Thank you, Mr. Chairman.
    And I took special note of your hearing today. The series 
of hearings you have held really are critical to a full and 
complete understanding of the scope of the injustice going on 
before, during, and after the discovery of the IRS targeting of 
501(c)(4) groups. Today's panel is an excellent panel, and I 
look forward to hearing all of their testimony. I think the one 
thing that we all know is that solutions for large 
bureaucracies, and particularly ones that operate by necessity 
behind closed doors, must first start with a full admission of 
what has happened, what safeguards existed and were not 
observed, and what safeguards did not exist.
    This committee has discovered that the safeguards of 
confidential information are selective and that in fact the 
safeguards to protect against the release of private 
information, although they failed at times at the IRS, are 
currently being used to hamper investigation and the public's 
right to know who was targeted and for how long and, in fact, 
who is still being targeted. I know tomorrow you will have a 
list of groups, both nonprofit 501(c)(3)s and 501(c)(4)s, all 
of whom are opposed to the very selective partisan change that 
the President has proposed. I am more concerned today with this 
hearing because DOJ's decision, prosecutory discretion, appears 
to be a clear abuse of discretion. There is no doubt that DOJ 
claimed to be doing investigations, but the highest law 
enforcement officer at the FBI could not name someone. The 
Attorney General seemed not to know anyone. And there have been 
mixed statements about nothing was expected to come, but maybe 
it would come. This is as ambiguous as the Attorney General's 
statement that he will leave sometime in 2014, or he won't.
    I believe that our committee, and with your leadership, Mr. 
Chairman, has an absolute responsibility to make sure that the 
Department of Justice reconsiders their investigations and 
their possible prosecutions of people who abused the trust of 
the American people. And so, for that, I am already in your 
debt, Mr. Chairman. I look forward to this hearing, and I very 
much believe that this committee has a special role in making 
sure this never happens again. Thank you.
    I yield back.
    Mr. Jordan. I thank the chairman for his statement and for 
his leadership on this issue and many others.
    With that, we will turn to our distinguished panel.
    Mr. Terwilliger, you are going to start. You have got 5 
minutes. There will be members trickling in and out of here, 
but you have done this before, so fire away.

                       WITNESS STATEMENTS

     STATEMENT OF THE HONORABLE GEORGE J. TERWILLIGER, III

    Mr. Terwilliger. Thank you, Mr. Chairman, Chairman Issa, 
Mr. Cartwright, members of the committee.
    Thank you for inviting me to express my views concerning 
the Justice Department's investigation of possible abuse of IRS 
authority. I am not here today to opine on the merits of the 
underlying allegations of improper conduct involving the IRS. 
Rather, I agreed to speak to what is, in my experience and best 
judgment, the appropriate means for the Department of Justice 
to conduct such an investigation.
    That background and experience at the Department of Justice 
began when I served while in law school as a law clerk in the 
Civil Appellate Section and ended when I was the acting 
Attorney General at the conclusion of the Bush One 
administration. In the 15 years in between, I served as a 
career assistant United States attorney, and as the Deputy 
Attorney General, as well as a Presidential-appointed United 
States attorney.
    I also would like to note at the outset that so long as we 
have a tax system that depends on voluntary payment by our 
citizens, we need a strong IRS capable of performing tax 
examinations and enforcement that can render the tax system 
equal and fair for all. I am sure most IRS personnel work hard 
to do just that. But if, from either within or without, their 
work has been despoiled by the actions of a few, then, 
obviously, that needs attention.
    Two fundamental points establish why questions need to be 
answered concerning how the matter is being addressed by the 
DOJ investigation. First, any credible allegation that IRS 
powers of inquiry or approval are being influenced by or used 
in furtherance of partisan political objectives is a matter of 
the utmost concern and needs to be investigated credibly and 
thoroughly. Second, and equally important in my view, public 
confidence in such an investigation is critical, not just to 
this specific matter, but more broadly to the Justice 
Department's institutional responsibility to secure the 
independent administration of justice. These two very critical 
objectives affecting public confidence in government have now, 
due to a combination of circumstances, been put in jeopardy by 
legitimate questions concerning at least the appearance of 
independence of the current DOJ investigation. How can the 
public have confidence that an investigation under the control 
of the Attorney General and subordinates at the Department of 
Justice will be vigorous in its pursuit of the truth and fair 
in its analysis of the facts when the President has already 
stated, in effect, that there is nothing to it, as he has 
publicly stated while the investigation has been pending.
    Public reports also state that the prosecutor leading the 
investigation, or substantially responsible for it, has 
provided financial support to Democratic Party campaigns, 
including the President's. I do not believe such contributions 
should disqualify this lawyer, nor do I believe that the lawyer 
assigned is on account of such political contributions 
incapable of conducting a vigorous and thorough investigation, 
nor do I believe as a general proposition that the decision as 
to whom to assign to a case for investigation or prosecution 
ought to turn on whether a given prosecutor has a particular 
political affiliation or association.
    However, given the circumstances as they have developed in 
this matter, if the objective is to assure the public that an 
investigation of allegations that government officials in this 
administration may have intentionally impeded the exercise of 
First Amendment rights by private citizens, then this is a case 
where more investigative independence, rather than less, is 
needed. I am no fan of the now expired independent counsel 
statute, and nothing I say today should be construed as 
suggesting that we put that law back on the books. It is not 
needed because the Attorney General already has wide authority 
to make investigative assignments to persons within or outside 
the Justice Department that can assure the public of the 
independence and integrity of an investigation.
    Such appointments are not new, and examples of them abound. 
Current FBI Director Comey, for example, while serving as 
acting Attorney General under President George W. Bush, made 
such appointments. So did Attorney General Reno during the 
Clinton administration. And while I served as Deputy Attorney 
General and acting Attorney General, we made such appointments. 
In each of these and many other instances, the common factor in 
making such an appointment is taking steps to assure the public 
that an investigation of unquestioned integrity will be 
conducted.
    In my view, it is past time for the Attorney General to act 
in this instance to use these authorities and appoint a lead 
counsel for the investigation of alleged IRS abuse who will 
have a charter of independence. Such an appointment is needed 
to provide assurance of the integrity of the investigation that 
the public deserves, and respect for venerable Justice 
Department practice is required. I thank you.
    Mr. Jordan. I thank the gentleman.
    [Prepared statement of Mr. Terwilliger follows:]

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    Mr. Jordan. Ms. O'Connor.

         STATEMENT OF THE HONORABLE EILEEN J. O'CONNOR

    Ms. O'Connor. I thank the chairman, ranking member, members 
of the committee. Thank you so much for inviting me.
    I speak on my own behalf as a private citizen and not on 
behalf of my firm or partners or clients. I hope to bring to 
you some of the understanding I have gained through my many 
decades of working with the Internal Revenue Code and therefore 
with the Internal Revenue Service, including the 6 years I was 
privileged to lead the honorable and dedicated men and women of 
the Justice Department's Tax Division.
    Americans deserve to trust and respect the institutions of 
their government. Revelations that the machinery of government 
might have been turned against our own citizens damaged that 
trust. And I am grateful for your efforts to learn the whole 
truth about the group of government activities that have 
collectively come to be called IRS targeting. Perhaps you are 
more limited than this in your current inquiry, but for my 
purposes, the targeting you should be considering is not just 
the disparate and apparently discriminatory treatment of 
certain groups in the processing of applications for tax 
exemption, but also the leaking of confidential information, 
the disproportionate selection of certain groups for 
examination, what appears to be a coordinated attack by a 
multitude of Federal agencies based on information that might 
be available only to the Internal Revenue Service.
    I hope that you are looking into the entire spectrum of 
what looks very much like serious misconduct by IRS and perhaps 
other government personnel. The U.S. tax system depends on 
Americans taking upon themselves to gather their tax 
information and prepare and file their tax returns every year. 
One reason they are willing to do this, to provide personal 
information to the government, is the government's solemn 
promise, embodied in law providing criminal consequences for 
its violation, that the information they provide will be kept 
in the strictest confidence.
    When people form organizations and apply for tax-exempt 
status, they are entitled to expect that their confidential 
information will be respected as such, that their applications 
will be processed promptly and considered fairly, in accordance 
with the applicable law, not in accordance with special 
procedures designed just for them.
    On a Friday last May, a planted question at an ABA 
conference prompted an IRS official, just in time to get out 
ahead of an IG report, to admit that the IRS had, as some had 
long suspected, been targeting conservative groups for 
additional scrutiny. By Monday, according to news reports, Ways 
and Means Committee Chairman Camp, Senate Finance Committee 
Chairman Baucus, the President, Senate Majority Leader Reid, 
former Speaker Pelosi, Senator Warner of Virginia all had 
expressed outrage and said something must be done.
    These were all a day before the IG's report was even 
issued. The day it was issued, news reports noted that the 
President's half brother had received, in just over a month, a 
determination of tax-exempt status for a questionable 
organization he had been operating for more than 2 years. Early 
the following week, a group of nearly 20 organizations spanning 
the political spectrum had expressed concern about this serious 
threat to the First Amendment.
    What a shame that Members of the House and Senate 
squandered the opportunity then to immediately use the tools at 
their disposal to specially authorize an investigating 
committee, to appoint a special counsel, to engage in outside 
counsel to investigate them.
    I turn now to the administration's investigation of these 
matters. My written testimony outlines the Federal regulations 
that describe the authorities of the civil--excuse me, the 
Civil Rights, Criminal, and Tax Divisions. Generally speaking, 
the Tax Division handles all litigation, civil and criminal, 
trial and appellate, arising under title 26, the Internal 
Revenue Code. But when criminal offenses to be investigated and 
prosecuted involve allegations of misconduct by IRS personnel, 
the investigation and prosecution is the responsibility of the 
Criminal Division. The Civil Rights Division is charged with 
the enforcement of the Nation's civil rights laws.
    DOJ officials have selected a career attorney in the Civil 
Rights Division to conduct the investigation. Some have 
criticized the selection as inappropriate because of her 
political contributions. But when does support for a sitting 
President and his party make a person 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. This has two elements. First, when wrongdoing comes 
to light, the public deserves to know that those responsible 
have been identified and dealt with appropriately. Second, not 
only must laws be enforced impartially, but they must be seen 
to be enforced impartially. This is why judges recuse 
themselves from cases; not because they can't rule on them 
impartially, but because there might be something that would 
make the public think they are not impartial, and damaging the 
public trust is a dangerous thing to do.
    In 1959, Ian Fleming had his character Goldfinger say, 
``Once is happenstance. Twice is coincidence. Three times is 
enemy action.'' We know, because the Treasury IG's 
administration report says so, that groups banding together to 
promote an understanding of, and fidelity to, our Nation's 
founding principles were targeted for special scrutiny that was 
harsh, intrusive, probably unnecessary, and resulted in delay, 
if not the constructive denial, of their applications for tax-
exempt status, effectively silencing them during the better 
part of two election cycles. We know, because they had the 
courage to come forward and tell us about it, that people 
engaged in activities directed at improving the integrity of 
our elections were targeted for scrutiny, not just by the IRS 
but also by other arms of the Federal Government.
    We know because we have seen it in the public domain that 
the private information of people who contributed to 
organizations devoted to preserving traditional values was made 
public, in violation of laws providing for fines and 
imprisonment of up to 5 years. As an American who cares about 
our country and our laws and our future, I thank the committee 
for continuing to press to learn the truth about what appears 
to be the administration's targeting of people who disagreed 
with its policies and encourage you to use all the tools 
available to you to do so. Thank you.
    Mr. Jordan. Thank you, Ms. O'Connor.
    [Prepared statement of Ms. O'Connor follows:]

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    Mr. Jordan. Mr. von Spakovsky.

        STATEMENT OF THE HONORABLE HANS A. VON SPAKOVSKY

    Mr. von Spakovsky. Thank you, Mr. Chairman.
    I appreciate the invitation to be here today. I am a career 
veteran of the Civil Rights Division of the Justice Department. 
I also spent 2 years as a commissioner at the Federal Election 
Commission, where we worked with the public integrity section 
of the Criminal Division when there were potential civil and 
criminal violations of the Federal Election Campaign Act.
    Now, on May 14th of last year, Attorney General Eric Holder 
announced that he was opening up an investigation of the IRS 
targeting of conservative organizations, something that he 
called outrageous and unacceptable. Yet the Justice Department 
has refused to provide this committee with any information or 
updates on the investigation.
    Now, it is certainly true that the Justice Department 
cannot reveal sensitive information. But an active 
investigation does not prevent the FBI and the Justice 
Department from giving Congress basic information that does not 
compromise the investigation. There is no reason why the 
Justice Department can't provide this committee with a briefing 
on, for example, how many FBI agents and Justice Department 
lawyers have been assigned to the investigation; who the lead 
lawyer and supervising FBI agent are; what Federal statutes the 
lawyers are reviewing that they believe might have been 
violated; what the general plan is for the investigation of 
this matter; and without identifying them specifically, what 
types of witnesses they have already interviewed or intend to 
interview. The Justice Department----
    Mr. Jordan. Mr. von Spakovsky, if I could just interject 
for a second, I apologize, but in your experience, were those 
kind of pieces of information given to congressional committees 
and to people inquiring about an investigation? Were those done 
in the past?
    Mr. von Spakovsky. We would give basic information, yes.
    Mr. Jordan. All the time?
    Mr. von Spakovsky. Not specific information.
    Mr. Jordan. But I mean basic information you just outlined 
in your----
    Mr. von Spakovsky. Yeah.
    Mr. Jordan. Okay. Thank you.
    Mr. von Spakovsky. They could also provide you with how 
long they expect the investigation to take, what progress has 
been made to date, and when they expect to conduct their 
preliminary or final review. None of this information would 
compromise the integrity and confidentiality of the 
investigation. Yet lawyers representing dozens of the targeted 
conservative groups say their clients have not even been 
contacted or interviewed by the FBI.
    I find it simply incredible that 9 months after the 
investigation was opened, little or no basic interviews have 
been done with the victims about their dealings with the IRS 
employees who may have been involved in wrongdoing. In 
addition, there is the troubling selection of Barbara 
Bosserman, a lawyer in the Criminal Section of the Civil Rights 
Division, where I used to work, as the lead lawyer in the 
investigation. She has given almost $7,000 in political 
donations to President Barack Obama's Presidential campaigns. 
Now, the Criminal Section where she works prosecutes cases, and 
this is according to their own Web site, quote, ``Involving the 
violent interference with liberties and rights through the use 
of force, threats, or intimidation.'' Now, as bad as what the 
IRS may have done, I don't think anyone would characterize the 
actions of IRS employees as violent. I find it difficult to 
understand why the Public Integrity Section of the Criminal 
Division is not conducting this investigation in its entirety.
    This scandal involves possible corruption, public 
corruption by IRS employees. It is the Public Integrity Section 
of the Criminal Division, not the Civil Rights Division, that 
has long been responsible for investigating and prosecuting 
this type of public corruption. That is made clear on its own 
Web page. And General Holder would certainly know that. Why? 
Because the very first job he got out of law school, when he 
went to the Department of Justice, was in the Public Integrity 
Section of the Criminal Division.
    Now, DOJ claims, and others have said, that Ms. Bosserman 
can't be removed because it would be, according to Justice, a 
prohibited personnel practice to consider political affiliation 
making personnel decisions. That claim totally mischaracterizes 
the situation. Taking a lawyer off a particular case because of 
a conflict of interest or the possible appearance of a conflict 
of interest is not a prohibited personnel practice. A 
prohibited personnel practice would be if they terminated her, 
changed her pay, disciplined her because of her political views 
or her political donations.
    No one questions the fact that Federal employees can give 
political donations. But the rules that govern the Justice 
Department specifically say that lawyers are supposed to avoid 
even the appearance of corruption and anything that would cause 
the public to question the integrity of an investigation. Now, 
that certainly is the case where we have an investigation that 
potentially could embarrass the administration being conducted 
by a lawyer who has given a large amount of money to the 
President. And we have a situation where the President had 
already told her and others in the Justice Department how he 
wants their investigation to come out, because he says there is 
not a smidgen of corruption involved.
    Taking a lawyer off a case at the Justice Department to 
avoid a conflict of interest is a routine occurrence at the 
Justice Department. DOJ should be making every effort to 
conduct a thorough investigation and avoid any questions about 
the objectivity of the attorneys and investigators involved in 
the investigation. The possible bias of one of the supervising, 
if not lead, lawyers in this investigation, is a very serious 
issue. When combined with the refusal of DOJ to provide even 
basic information about the status of the investigation, as 
well as the seemingly unjustifiable delays in talking to key 
witnesses, substantial questions are raised about whether or 
not a serious and unbiased investigation is being truly 
conducted. Thanks.
    Mr. Jordan. Thank you.
    [Prepared statement of Mr. von Spakovsky follows:]

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    Mr. Jordan. Mr. Ivey. You have 5 minutes.

                   STATEMENT OF GLENN F. IVEY

    Mr. Ivey. Thank you, Mr. Chairman, members of the 
subcommittee. I appreciate the opportunity to testify before 
you today. My name is Glenn Ivey. I am a partner at the 
Washington law firm of Leftwich & Ludaway, where I specialize 
in civil and criminal litigation. I am a former Federal 
prosecutor and elected State prosecutor, and an adjunct 
professor of law.
    I am very familiar with these types of issues you are 
considering here today in the Oversight hearing. By way of 
introduction, I spent about half my career as a prosecutor. I 
served as an assistant U.S. attorney in Washington, D.C., from 
1990 to 1994, first under U.S. Attorney Jay Stephens, and then 
for 2 years under U.S. Attorney Eric Holder. Before leaving, I 
handled about 45 criminal jury trials and argued appeals and 
conducted grand jury investigations.
    In 2002, I was elected State's Attorney for Prince George's 
County, Maryland, a jurisdiction of about 850,000 people that 
covers the eastern border of Washington, D.C. During my two 
terms there, we handled a variety of high-profile 
investigations that sometimes overlapped with the U.S. 
Department of Justice. I also became a founding chairman of the 
Association of Prosecuting Attorneys.
    Finally, for the past 17 years I have taught courses on 
advanced criminal procedure, white collar crime, and others at 
the University of Maryland School of Law. With respect to the 
length of the investigation, I understand from my review of 
statements by subcommittee members and hearing testimony that 
there is concern about the length of this investigation. While 
I was State's attorney, my office conducted several 
investigations, in fact many, that took long periods of time to 
complete. Sometimes I was accused of taking longer than I 
should. But as my father used to say, you measure twice and cut 
once. It's critical for prosecutors to be extremely careful and 
thorough in conducting their investigation because they might 
not get a second chance to do it right. Certainly, when it 
comes to a matter as sensitive as this one, there should be no 
rush to judgment and no pressure to cut corners. It is more 
important to do it right than to do it fast. Moreover, I also 
had the experience of waiting for the Department of Justice to 
complete investigations my office had referred to the 
Department. In one case, an accused cop killer was found dead 
in his prison cell just 2 days before he was arrested for the 
murder. And in another, a college student was beaten by local 
police officers when a college celebration spun out of control. 
In these and other cases, my office sometimes waited months or 
even years before the Federal investigation was completed.
    So I understand that there can be frustration in waiting 
for the results of Department of Justice investigations, 
especially in high-profile matters that have captured a good 
deal of public attention. Sometimes long investigations lead to 
public questions about how the prosecutors are conducting the 
investigation or whether it could have been completed more 
quickly. Nevertheless, I think it is critical to give 
prosecutors the time they need to conduct a careful and 
thorough investigation, particularly in matters with this 
degree of sensitivity.
    With respect to confidentiality, I know from personal 
experience, there can be a great deal of pressure on 
prosecutors to release information while an investigation is 
ongoing. But it is important for prosecutors to control the 
flow of information made public during the course of their 
investigations for several reasons: First, prematurely 
disclosed information can undermine an investigation by tipping 
off potential witnesses about the scope, direction, and details 
of the investigation. Second, individuals who might be named in 
the course of an investigation but ultimately cleared of 
wrongdoing should be shielded from the negative impact of 
disclosing incorrect information about them. Finally, any 
information that is gathered pursuant to the laws that require 
secrecy, like rule 6(e), might require a court order to be 
released. That reflects the longstanding view held by both 
Congress and the courts that matters before a grand jury should 
largely remain secret before trial. In the short run, these 
secrecy rules may conflict with the goal of transparency and 
disclosure. Elected officials want updates; the public and the 
media want real time information. But in the long run, it 
usually makes more sense to allow the criminal investigation to 
run its course before public disclosures are made that might 
undermine or even preclude a criminal prosecution.
    With respect to the politics issue, a hallmark of the 
Justice Department is that it allows its line prosecutors to do 
their jobs without forcing them to disclose their political 
views or bend to political considerations. That is why the 
department has career prosecutors who have sometimes spent 
decades in office despite the changes in Presidents and 
Attorneys General. This provides consistency in the handling of 
cases, helps to retain top talent, and preserves institutional 
memory. It also helps to reassure the public that regardless of 
who is at the top, the line prosecutors will wield their power 
and handle their cases based solely on the merits.
    I know the committee has received letters from the 
professors that the ranking member mentioned a moment ago, so I 
won't speak to that. But I do want to say that with respect to 
my personal experience, I saw these principles in action while 
I worked at the Department. Fortunately, during the transition 
that I was present for from the Bush administration to the 
Clinton administration, line prosecutors were insulated from 
the politics of the day and allowed to conduct their work in an 
apolitical environment. After my election, I brought that 
approach to my State office. I worked hard to reduce the 
politics that swirled around the office, where line prosecutors 
had been expected, essentially as a condition of employment, to 
donate to their bosses' campaigns and to work for their 
reelections as well. Eventually, my line prosecutors came to 
understand that they did not have to contribute to my campaign, 
and I was not going to check whether they worked on political 
campaigns or made political contributions. My line prosecutors 
learned that they did not have to sacrifice their 
constitutional rights to work for me and that they could handle 
their cases based solely on the merits. That is the way it 
ought to be, even in high-profile matters like this. So thank 
you again for giving me a chance to testify today. I look 
forward to questions.
    Mr. Jordan. Thank you, Mr. Ivey. We appreciate you being 
here.
    [Prepared statement of Mr. Ivey follows:]

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    Mr. Jordan. Mr. Painter, you are recognized for 5 minutes.

                STATEMENT OF RICHARD W. PAINTER

    Mr. Painter. Thank you, Mr. Chairman.
    I teach corporate law, securities law, lawyers ethics, and 
government ethics at the University of Minnesota. For 2 and a 
half years, I was the chief White House ethics lawyer under 
President Bush.
    For the vast majority of Americans, the burden of Federal 
and State and local taxes is excessive, and the regulations 
under which taxes are collected are excessively complex. 
Taxpayers are entitled to competence and impartiality from the 
government agencies that collect our taxes. It is unacceptable 
for the Internal Revenue Service to use politicized search 
terms to single out individuals and organizations for 
additional scrutiny. Whether such actions result from gross 
incompetence or from political motivation of IRS employees, it 
is serious misconduct.
    This misconduct took place in one of the most powerful 
agencies in the executive branch. The President must accept 
responsibility for it and make sure that it never happens 
again.
    Now let me discuss for a moment the 501(c)(4) organizations 
and the issues related to campaign finance. These organizations 
are growing in number, and they have proliferated since the 
Supreme Court's decision in the Citizens United case. I discuss 
them extensively in my own book on government ethics that was 
actually written before that case was decided. I share the 
concerns of many Americans who are disgusted with the current 
state of affairs in campaign finance. And I believe that the 
future of our republican form of government depends on finding 
some way for ordinary Americans, the vast majority of us who 
cannot afford to set up our own 501(c)(4) or fund it, to have a 
meaningful voice in our government.
    There are many options, including enactment of 
constitutionally acceptable campaign finance reform 
legislation, enhanced disclosure obligations, and additional 
taxpayer funding of political campaigns.
    Close IRS scrutiny of 501(c)(4) applications to discern so-
called political purpose of an organization, however, is not 
the way to arrive at a better system of campaign finance. The 
notion that social welfare is somehow distinguishable from 
politics is in my view unworkable, particularly in a society 
where politics is the process by which we choose our 
government, and social welfare is to a great extent help or 
hindered, I believe usually hindered, by government taxation, 
expenditure, and regulations.
    Now, the IRS needs focus on its mission, which is 
collecting taxes from people who owe the taxes. And if the 
statutes and regulations invite the IRS to inquire into the 
political opinions or political purpose of persons or 
organizations in determining an organization's tax status, 
those regulations and statutes need to be changed.
    Now, more specifically with respect to the IRS, American 
taxpayers are entitled to an IRS which responds promptly to 
their requests. And delay in the response to a 501(c)(4) 
application for any reason is unacceptable. And I believe 
Congress should impose on the IRS specific deadlines for taking 
action with respect to applications for particular taxpayer 
matters. And if they can't meet their deadlines, perhaps they 
should be paying us penalty and interest like we have to pay 
them when we can't meet our deadlines. As for the DOJ 
investigation, the Department has opened an investigation, but 
I believe that it has been compromised by the controversy over 
the staffing of the investigation. No particular ethics rule 
explicitly prohibits a career prosecutor who has made campaign 
contributions from participating in or even directing an 
investigation such as this one. Not knowing the present scope 
of the DOJ investigation or where it might lead, however, I 
cannot be certain that such a conflict would not arise. I 
discuss in my written testimony the impartiality rule at 5 CFR. 
2635.502 that I believe should have led to a discussion within 
the Department of Justice about the staffing of this 
investigation. If I had been a senior official at the 
Department of Justice, I would have chosen in this instance to 
choose someone to lead the investigation who did not have a 
strong affiliation with either of the two major political 
parties.
    Finally, I want to point out that there are serious Hatch 
Act issues here if--and I emphasize if because I do not know 
the facts in this matter--if IRS employees were politically 
motivated in the conduct that occurred. If there was an attempt 
here to influence an election, these 501(c)(4) organizations do 
have an enormous impact on the outcome of elections. We all 
know that. And if IRS employees were politically motivated in 
these decisions, there are serious Hatch Act concerns. And I 
believe the Office of Special Counsel should be involved in 
this, whether they conduct their own investigation or whether 
they review the Inspector General's investigations and 
determine that no further action is required. But they cannot, 
in my view, responsibly remain silent. Thank you, Mr. Chairman.
    Mr. Jordan. Thank you, Mr. Painter.
    [Prepared statement of Mr. Painter follows:]

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    Mr. Jordan. I want to thank all our witnesses for their 
testimony.
    We go now to the vice chairman of the committee, Mr. 
DeSantis.
    Mr. DeSantis. Thank you, Mr. Chairman.
    Thank you, witnesses, for your testimony.
    I think there is a little confusion here with what I am 
hearing from the other side in terms of, yeah, you can give to 
a political candidate and be perfectly fair and do your job. 
And the idea that that should disqualify you I don't think is 
what anyone up here on this side is saying.
    But I think what I am saying and what I think some of my 
colleagues are saying is this is not like you are just 
investigating corruption at the Department of HUD for someone 
lining their pockets. You are talking about a misuse of one of 
the most potent agencies we have in this government to target 
dissent from the administration in power seeking to be returned 
to office in 2012. So that really strikes at the heart of what 
the First Amendment is all about, what limited government is 
meant to ensure. And I think the American people need to have 
the utmost confidence in the investigation.
    And so what do we know right now? Well, we know that Jay 
Sekulow came in front of this committee a couple weeks ago, and 
he has 40 clients who have been targeted by the IRS in one form 
or another. Not one of them, as of a couple weeks ago, had been 
interviewed by anyone associated with this investigation. What 
do we also know? We know the President went on national TV and 
said there is not a smidgen of corruption involved with any IRS 
targeting. It is amazing how he would know that, but 
nevertheless, you know, that is what he said. And of course, we 
haven't gotten even rudimentary cooperation from the Department 
of Justice and the department of FBI. So it may not be against 
the regulations to have Barbara Bosserman. Look, she is a loyal 
Obama supporter, and there is nothing wrong with that. And it 
may not be proscribed exactly. Maybe someone makes the argument 
it is. Just because it is not, doesn't mean it is the right 
thing to do. So I would say, in this situation, given the 
sensitivities involved, why would you not steer clear of any 
appearance of impropriety, particularly given what we have seen 
over the last several months.
    I think, turning to all these other career people in the 
Department of Justice would have made probably a lot more 
sense, who maybe just don't have any bone in this either way. 
But to go with, you know, you give $7,000 to the Democratic 
Party and President Obama, you are a loyal foot soldier in the 
Army of Hope and Change. Let's just be clear about what we are 
talking about here. So I think--and so, from my perspective, 
what I see now is I think we need a special prosecutor to look 
into this just to avoid any of this. Because guys like me, guys 
like the chairman, if this keeps going on and it just ends with 
a whimper, we are not going to have a lot of confidence in what 
happened.
    And I know the people who have testified in this committee, 
they are not going to have any confidence if that one ends up 
being the outcome. And also, how are you supposed to react when 
your boss, the President, says there is no corruption? I mean, 
what kind of signal does that send to these folks? So I think 
what we need is some independence here.
    So let me just go down, Mr. Terwilliger, do you think that 
a special prosecutor would be in order given these facts?
    Mr. Terwilliger. I do.
    Mr. DeSantis. Okay.
    Ms. O'Connor?
    Mr. Connolly. I do.
    Mr. DeSantis. Mr. von Spakovsky?
    Mr. von Spakovsky. I do.
    Mr. DeSantis. Mr. Ivey?
    Mr. Ivey. I guess I have mixed views about it.
    Mr. DeSantis. Let me ask you this. So are you still 
elected, or you had served two terms?
    Mr. Ivey. No, I am in private practice.
    Mr. DeSantis. Okay. And you probably had people who were 
prosecutors who would be handling cases. You weren't 
micromanaging everything. People were probably doing their job. 
It is a little bit different for you because you were a 
politician, whereas in the bureaucracy, you are not supposed 
to. But I mean if you would have come out and said, Oh, well, 
there is nothing doing here, there is no corruption there, then 
probably your line prosecutors aren't going to then think that 
is a good signal for them to go and pursue that matter. I mean 
don't you think there was a little bit of a problem for the 
President to say that there is not a smidgen of corruption, 
given that we are supposedly in the middle of this 
investigation?
    Mr. Ivey. No. I actually had a similar kind of scenario 
with the case I mentioned in my testimony in which the police 
officer who had been killed, the guy who killed him was 
allegedly found dead in his prison cell. The county executive 
at the time announced that this was a lynching. And I had other 
elected officials who made similar kinds of statements, 
including some statements from police officials who, as you can 
imagine, grieving about the loss of a comrade, had strong 
feelings.
    Mr. DeSantis. But in that instance, you are independently 
elected from the county executive, correct? So in other words, 
you didn't report to the county executive like someone in the 
Justice Department. Ultimately, in our Federal Constitution, 
you know, you have one person in the executive branch that is 
elected, and everyone--ultimately, the buck stops with the 
President. So I take that point, and I think that is a good 
point, but I think the difference that I would just draw is 
ultimately you had an independent duty to your voters. You were 
not somebody who was dependent on any of those elected 
officials. Is that correct?
    Mr. Ivey. That is correct. Although I will say this, the 
police who actually reported directly to the county executive 
and many of my prosecutors who had just finished working for 
him still had strong allegiances.
    But with respect to the point about the Federal level of 
independence issue, unlike the independent counsel statute that 
Mr. Terwilliger mentioned, you would still have a prosecutor, 
even a special prosecutor appointed by the Attorney General, 
and still subject to the same kind of chain of command 
essentially that is raising concerns here.
    Mr. DeSantis. No, absolutely.
    Mr. Ivey. So the only reason I kind of hesitated about it 
is because the special prosecutor statute and regs looks a lot 
like, you know, the sort of just sort of setting it up. And I 
don't know that it gives you the type of screen that your 
concerns address. I am not saying it is not appropriate here, 
but I don't know that it really gets to the heart of the 
problem that you have outlined.
    Mr. Terwilliger. Let me be clear, Mr. Chairman, if I may, 
just quickly, when I said I do to the vice chairman's question, 
I was addressing not an appointment under the independent 
counsel regulation, but the use of the Attorney General's 
plenary authority to appoint a special counsel to whom all the 
powers of the Attorney General could be delegated if the 
Attorney General believed that was the right thing to do.
    Mr. Jordan. Unbiased special prosecutor, in light of the 
circumstances, in light of the fact pattern, unbiased special 
prosecutor makes sense in this case. Yes, yes, yes.
    And Mr. Ivey, you are a maybe.
    Mr. Ivey. Maybe.
    Mr. Jordan. Mr. Painter, could you answer?
    Mr. Painter. If there is evidence of criminal activity, 
significant evidence of criminal activity, the Justice 
Department should conduct an investigation. And in this type of 
situation, I think the investigation should be led either by a 
career prosecutor who is not affiliated with either political 
party or by an independent prosecutor. If there is no evidence 
of criminal activity right now, what I would do is let the 
inspector general finish their job, and the Office of Special 
Counsel and have DOJ pick up from there.
    Mr. DeSantis. Thank you, Mr. Chairman.
    Yield back.
    Mr. Jordan. Thank the gentleman.
    Mr. Cartwright.
    Mr. Cartwright. Thank you, Mr. Chairman.
    Well, we have had a wide ranging discussion, and I 
appreciate the presence of all the witnesses here today. I 
always like to say here in Congress people don't realize we 
agree on a lot more than what we disagree about. And I want to 
talk about what we can agree on. You know, the chairman and I 
had a colloquy right before we went to go vote about whether it 
was--it would be illegal, whether it would be against the rules 
for a person who gave a political donation, such as Ms. 
Bosserman. And I believe the chairman was quite forceful in 
saying it would be illegal. Am I correct in that?
    Mr. Jordan. No, I simply read the rule, which said if there 
is an appearance of--the appearance to the public that there 
might be bias, then that person should not be heading an 
investigation. I read the rule.
    Mr. Cartwright. Okay. So what I want to do is I want to 
make sure we are all on the same page.
    Are any of the witnesses here today able to confirm or deny 
that Barbara Bosserman is leading this investigation? Just go 
ahead and raise your hand if you can say yes or no.
    Seeing no hands, I see that no light is shed on this 
question here. In fact, Attorney General Holder has testified 
that Ms. Bosserman is, in, fact not leading the investigation.
    Mr. Jordan. Would the gentleman yield for a second?
    Mr. Cartwright. Certainly.
    Mr. Jordan. Do you know something we don't know? Do you 
know who is leading the investigation? Because we have asked. 
What we do know is Mr. Sekulow testified under oath in front of 
this committee that the highest ranking official he has 
interacted with in the limited interaction he has had, the 
highest ranking official at the Justice Department who has 
interacted with him is Barbara Bosserman.
    Mr. Cartwright. And reclaiming my time, as is absolutely 
crystal clear from all of this discussion, we do not have 
evidence that Barbara Bosserman is leading this investigation 
or any other. And all we are doing is stabbing around in the 
dark and making suppositions here and there, which I suggest, 
respectfully to everyone involved, is an inappropriate use of 
our time and energy, making suppositions like that. I also want 
to follow up on the question of asking line prosecutors about 
their political donations. We have a number of people here who 
have worked for the Justice Department, people who know about 
this. And I will start with you, Mr. Terwilliger, when you were 
at the DOJ, did you ever check the political donations of line 
prosecutors before assigning them cases? Yes or no.
    Mr. Terwilliger. No, but I certainly would consider 
removing----
    Mr. Cartwright. I only have limited time.
    Ms. O'Connor, did you ever check into the past political 
donations of line prosecutors before assigning them cases?
    Mr. Connolly. I did not, but I did have a trial attorney 
who was criticized by a conservative columnist on the basis 
that he believed he was a Democrat attacking Republicans.
    Mr. Cartwright. I have to make use of my time. Mr. Ivey, 
what about you? Did you ever check prosecutors' past political 
donations when you were the State's Attorney for Prince 
George's County?
    Mr. Ivey. No.
    Mr. Cartwright. No. In fact, quite the opposite. You made 
it very plain to them that you didn't care about their 
political donations, you wanted them to operate in a politics-
free environment, didn't you?
    Mr. Ivey. Absolutely.
    Mr. Cartwright. All right. In fact, doing so, asking about 
past political donations, I think Professor Painter has brought 
up, would raise some serious legal and ethical concerns under 
the Hatch Act, as well as under civil service laws.
    Professor Painter, is it appropriate for DOJ officials to 
look up career prosecutors' political donations in order to 
identify potential conflicts of interest before assigning 
cases?
    Mr. Painter. No. I wouldn't do that.
    Mr. Cartwright. Let me follow up.
    Professor Painter, what are some of the problems with DOJ, 
or any other prosecuting agency, searching the past political 
donations of career employees, such as line prosecutors?
    Mr. Painter. Well, once you get into that you get into a 
situation, where you could create the appearance of retaliation 
against someone because they donated to a political campaign, 
usually campaigns that opposed the President. That is not where 
you want to go. And that is why the applicable ethics code that 
I referred to puts the onus on the employee to identify those 
situations where they think there could be a question about 
impartiality.
    Mr. Cartwright. Thank you.
    Mr. Painter. It is the employee's job.
    Mr. Cartwright. Thank you, Professor Painter.
    I suppose I should call you Professor Ivey as well. Did you 
also teach trial advocacy at Harvard?
    Mr. Ivey. I do, yes.
    Mr. Cartwright. So you are in the Ivy League as well. You 
have anything to add to the discussion?
    Mr. Ivey. With respect to this issue, I do think that one 
concern should be the potential of a chilling effect. You know, 
so I get the point about Ms. Bosserman, and there is thoughts 
that, you know, maybe if you had it to do over again you 
wouldn't put her in place. But now that she is there, if you 
remove her, you really do send a message to all the other 
prosecutors out there that if you have given contributions, you 
better stop. And if you have been thinking about doing it, you 
better stop because you might not be able to be assigned to 
these types of cases.
    Mr. Cartwright. Dangerous precedent. Thank you, Mr. Ivey. I 
appreciate it.
    Mr. Jordan. Mr. Terwilliger, I just want to give you a 
chance to respond fully. You were going to say more. While you 
indicated it is not appropriate to examine political 
contributions prior to assigning cases, once you have 
discovered the facts, once you know she is a maxed out 
contributor to the President of the United States, who may be a 
potential target of the investigation, would it then be 
appropriate to look at saying, Hey, she should be removed after 
the fact? After you learn that fact? I agree with my colleague, 
no, you can't be looking that information up ahead of time. But 
once you know, particularly a case of this sensitive nature 
where your most fundamental First Amendment political rights, 
your right to speak out in a political nature is what was the 
issue at hand, then is it appropriate to say she should be 
removed from the case?
    Mr. Terwilliger. Of course, it is.
    Mr. Jordan. And not just from her, but from her superiors 
as well.
    Mr. Terwilliger. Absolutely.
    Mr. Jordan. Did you do that at your time at the Justice 
Department?
    Mr. Terwilliger. Of course. I will use an example to take 
it out of the political realm. I wouldn't bar a lawyer from 
being hired at the Justice Department because in that lawyer's 
career, he or she may have represented mafioso in the past. But 
I wouldn't necessarily put them in charge of a large organized 
crime case either. And it is--even if they were----
    Mr. Jordan. Or if they got assigned a large Mafia case and 
you found out after the fact in their past, they had 
represented people there, would you remove them?
    Mr. Terwilliger. Of course.
    Mr. Jordan. Of course.
    Mr. Terwilliger. And the reason you would do that, and the 
reason it is not only proper and not only an exercise in good 
judgment, but is required, because there is a duty to avoid 
even the appearance of impropriety. A duty that has been 
recognized by the Attorney General himself in recusing himself 
from other matters. It has been recognized by Preet Bharara, 
the United States attorney in New York, who is a highly 
reputable and accomplished attorney, who has removed himself 
from cases. I have removed myself from cases for that reason. 
And if the circumstances require, in order to assure the public 
of the integrity of the investigative process, no matter what 
kind of case it is, a superior has an obligation to do that.
    Mr. Jordan. So the way this really should have worked is 
Ms. Bosserman should have said you know what, Mr. Attorney 
General, or you know what, Mr. Tom Perez, who headed the Civil 
Rights Division, when she was assigned this case, you know 
what, I may have a conflict. We need to talk about this. They 
talk about it, and he says, Oh, for goodness sakes, you 
certainly do. We are going to have to let someone else head 
this investigation.
    Mr. Terwilliger. That is what one would hope would happen.
    Mr. Jordan. Ms. O'Connor, would you agree with that 
analysis we just went through with Mr. Terwilliger?
    Mr. Cartwright. Would the gentleman yield for one question?
    Ms. O'Connor. Absolutely.
    Mr. Jordan. Sure. Sure. I am letting Ms. O'Connor answer 
because you didn't give her a chance, and then I will come to 
you.
    Ms. O'Connor. I agree completely.
    Mr. Jordan. Okay.
    Mr. Cartwright?
    Mr. Cartwright. Okay. Again, one of the reasons I am here 
is to try to help protect the integrity of this outfit, the 
House Government and--Oversight and Government Reform 
Committee. And to protect the integrity of this committee, I 
say, again, we should stop referring to Barbara Bosserman as 
the lead investigator on this investigation. We have no 
evidence of that.
    Mr. Jordan. Does the gentleman from Pennsylvania know who 
the lead investigator is?
    Mr. Cartwright. I will read the testimony from Eric Holder.
    Mr. Jordan. No, no, no. I asked a specific question. Do you 
know who it is?
    Mr. Cartwright. It is the Criminal Division of the Public 
Integrity Section that has actually got the lead, quote-
unquote, from the Attorney General of the United States.
    Mr. Jordan. Do you know who the individual is?
    Mr. Cartwright. I do not. Not Barbara Bosserman. I ask that 
we stop referring to her as the lead if we want to preserve our 
own integrity.
    Mr. Jordan. Jay Sekulow under oath confirmed she is the 
highest ranking official at the Justice Department who he has 
interacted with. Again, we had a chance; we invited Barbara 
Bosserman to come here and testify. And you sent me a letter 
saying don't subpoena her. We gave the opportunity to the 
number two at the Justice Department to answer my question 3 
weeks ago, who is heading the investigation? He wouldn't answer 
me. So all we know is what we have heard from witnesses who say 
she is the highest ranking official, and from Jay Sekulow, who 
testified under oath saying she is the highest ranking 
official. Mr. von Spakovsky.
    Mr. Cartwright. All well and good, but you can't refer to 
her as the lead investigator.
    Mr. Jordan. The highest ranking official in this 
investigation is Barbara Bosserman, who gave $6,750 to the 
President of the United States. Reclaiming my time, reclaiming 
my time, Mr. von Spakovsky, do you agree with the analysis we 
went through with Mr. Terwilliger and Ms. O'Connor that under 
the circumstances, Mrs. Bosserman should have been recused from 
the case?
    Mr. von Spakovsky. Yes. And in fact, every lawyer at 
Justice knows, back to this question of whether the supervisor 
should be inquiring about their political donations, look, 
every lawyer there knows that if you are assigned to a case, 
you have an absolute professional duty to raise with your 
supervisor any potential conflicts that could bring this into 
question. And I would point out that in fact, prior to what the 
administration said currently, this administration certainly 
agrees with this because a couple of years ago, when evidence 
came out that a lawyer in the Office of Professional 
Responsibility at the Justice Department had given almost the 
same amount of money to the Obama campaign, she was removed by 
the administration from the IG OPR investigation of the 
dismissal of the New Black Panther Party case.
    Mr. Jordan. Thank you. That was supposed to be 1 minute, 
but it turned into 5, so I will have to go to the gentleman 
from Virginia, and then we will come to Mr. Meadows.
    The gentleman from Virginia is recognized for 5 minutes.
    Mr. Connolly. Thank you, Mr. Chairman.
    Mr. von Spakovsky, based on what I just heard you respond 
to the chairman, your view is that Ms. Bosserman, as an 
employee of the civil rights division, should be removed from 
the case because of her political activity. Is that correct?
    Mr. von Spakovsky. She should be removed because her 
involvement raises in the public a perception about the 
integrity of the investigation. And that is one of the 
regulations at the Justice Department.
    Mr. Connolly. But the nature of that taint is that she had 
partisan political activity of some sort. Is that correct?
    Mr. von Spakovsky. Specifically, she supported and gave a 
large number of donations to the administration, which itself 
is being accused of wrongdoing in this particular matter.
    Mr. Connolly. I understand. Now, you have some expertise in 
this field because you served as counsel to the Assistant 
Attorney General of the Civil Rights Division from 2002 to 
2005. Is that correct?
    Mr. von Spakovsky. That is correct.
    Mr. Connolly. And one of the Deputy Assistant Attorney 
Generals that you worked with a was a man named Bradley 
Schlozman. Is that correct?
    Mr. von Spakovsky. That is correct.
    Mr. Connolly. He was a political appointee under the Bush 
administration. Is that correct?
    Mr. von Spakovsky. That is correct.
    Mr. Connolly. Are you familiar with the Department of 
Justice's inspector general report on Mr. Schlozman?
    Mr. von Spakovsky. Oh, certainly I am aware of it.
    Mr. Connolly. And that it concluded he violated Federal law 
and department policy by considering political affiliations in 
hiring decisions and other personnel actions such as the 
assignment of cases for career attorneys. Are you aware of that 
finding by the inspector general?
    Mr. von Spakovsky. I am aware of the findings of that 
report. I wouldn't characterize them quite the way you have.
    Mr. Connolly. Well, let me quote. ``We concluded,'' meaning 
the IG, ``that Schlozman inappropriately used political and 
ideological affiliations in managing the assignment of cases to 
attorneys in the sections of the division he oversaw. According 
to Sections Chiefs Flynn, Cutler, and Palmer, Schlozman placed 
limitations on the assignment of cases to attorneys whom he 
described as libs or pinkos, and he requested that important 
cases be handled by conservative attorneys he had hired 
instead.'' Were you aware of those comments by Mr. Schlozman?
    Mr. von Spakovsky. Not all of them, no, I wasn't.
    Mr. Connolly. Any of them?
    Mr. von Spakovsky. I read the report.
    Mr. Connolly. Based on your sworn testimony here today, I 
would assume that you would conclude those were inappropriate 
remarks by Mr. Schlozman. And based on what you just said to 
Mr. Jordan, you would have reported them as inappropriate, and 
requiring his recusal from making such decisions because they 
are so blatantly partisan. Or are you not consistent when it 
comes to a Republican administration?
    Mr. von Spakovsky. No, I am consistent in saying that 
lawyers who are assigned to specific cases----
    Mr. Connolly. Could you answer my question, Mr. von 
Spakovsky?
    Mr. von Spakovsky. I am answering it.
    Mr. Connolly. No, sir, you are not. Did you or did you not 
find those comments--Mr. Chairman, I insist on reclaiming my 
time. I insist on reclaiming my time. We don't have filibusters 
here in the House, Mr. von Spakovsky.
    Mr. Jordan. He is trying to answer your question.
    Mr. Connolly. No, sir, he is trying to filibuster my 
question. Did you or did you not report those comments as 
inappropriate based on what you just said to Mr. Jordan?
    Mr. von Spakovsky. There is nothing in the IG report that 
says that I did anything wrong. In fact, you can----
    Mr. Connolly. I didn't ask that. I didn't ask that.
    Mr. von Spakovsky. You can go through the entire report. I 
was not accused of making any statements of any kind like that, 
and I was not--I was not accused of knowing about any 
statements like that.
    Mr. Connolly. Were you asked to be interviewed by the 
Attorney General, Mr. von Spakovsky?
    Mr. von Spakovsky. I was.
    Mr. Connolly. And did you agree to it?
    Mr. von Spakovsky. I set out and said I would be happy to 
speak with them if they told me what the questions were and if 
I was able to review my testimony. They refused to allow that 
to be done.
    Mr. Connolly. So you did not in fact allow yourself to be 
interviewed.
    Mr. von Spakovsky. Because they did not afford me the basic 
due process rights that are given to anyone who is interviewed 
in a case like that.
    Mr. Connolly. Mr. Schlozman sent you a number of emails, 
and one of which I will quote from. ``If I recall correctly, a 
certain Voting Section attorney is a crazy lib, Hans,'' meaning 
you, ``am I right? A detail would be a great way to get him out 
of our hair for 6 months.'' Were you aware of that email to you 
from Mr. Schlozman?
    Mr. von Spakovsky. I recall the email, yes.
    Mr. Connolly. Did you think it was appropriate?
    Mr. von Spakovsky. Well, appropriate is very different from 
whether or not a conflict of interest arises over assignments 
to a particular case. And that has nothing to do with what we 
are discussing here today.
    Mr. Connolly. Well, I will decide that Mr. von Spakovsky. 
You are a witness.
    Mr. von Spakovsky. Tell me, are you aware of the IG report 
from last year?
    Mr. Connolly. Did Mr. Schlozman not have a conflict, being 
a political appointee, in determining the assignment of cases 
based on someone else's perceived political affiliations? 
``Crazy lib,'' is that a professional epithet at the Department 
of Justice in the Bush administration?
    Mr. von Spakovsky. I am not going to characterize what the 
IG has said. The report speaks for itself. And if you want 
another one, you should look at the IG report from March of 
last year that talked about the harassment and intimidation of 
conservative employees that has occurred in this 
administration, including the fact that an employee within the 
Civil Rights Division lied and committed perjury to the IG, and 
that employee----
    Mr. Connolly. Mr. Chairman, I didn't ask about that. And 
the witness is answering questions that he was not asked.
    I will ask, however, Mr. Chairman, without objection, that 
a letter regarding the possible appointment of Mr. von 
Spakovsky to the FEC, opposing that nomination signed by the 
chief of the Voting Section, the deputy chief of the Voting 
Section, the senior trial attorney of the Voting Section, the 
senior trial attorney of the Voting Section, the senior trial 
attorney of the Voting Section, and the political geographer of 
the Voting Section, dated June 11th, 2007, and enumerating the 
reasons why Mr. von Spakovsky was not qualified because of his 
partisan political activities be entered into the record at 
this time.
    Mr. Jordan. Without objection.
    Mr. Connolly. I thank the chairman.
    Mr. von Spakovsky. Mr. Chairman, could I ask that it be 
entered into the record the report of the inspector general 
from March of last year about the Civil Rights Division?
    Mr. Jordan. We can get that report and have a committee 
member enter that into the record.
    To view the document, please visit www.justice.gov/oig/
reports/2013/S1303.pdf
    Mr. Connolly. Mr. Chairman, I have July 2008 inspector 
general report, and am happy to put that in the record as well.
    Mr. Jordan. Okay. Without objection.
    To view the document, please visit www.justice.gov/opr/oig-
opr-iaph-crd.pdf.
    Mr. Jordan. Now turn to the gentleman from North Carolina, 
Mr. Meadows.
    Mr. Meadows. Thank you, Mr. Chairman.
    Thank each of you for your appearance here today and for 
your testimony. I guess the American people want to trust their 
government again. And the true problem that we have right now 
is that many do not trust their government and specifically do 
not trust the IRS. And the only avenue to do that is truly to 
investigate, to make sure that justice prevails and that a 
thorough investigation happens. I would ask very quickly each 
of you, do you not find it surprising that over 40 different 
individuals that have supposedly been targeted have not been 
interviewed by an investigative body of this government? Do you 
not find that surprising?
    Mr. Terwilliger. I guess if we are going to go in order, 
Mr. Meadows, I mean, I think from at least from a distant 
perspective, yes, it is surprising. I think the public would be 
more reassured if the government were, and the Justice 
Department with the FBI, were able to at least say this is what 
we are doing generically, without being specific about it.
    That being said, however, and having been on the other side 
of some of these hearings over the years, the manner in which 
an investigation, a vigorous investigation, is conducted may be 
staged in such a way that there are valid reasons not to have 
known that.
    Mr. Meadows. Sure.
    Mr. Terwilliger. But I think what is missing here more than 
anything, and that your question goes to, is at least some 
reassurance of the public by disclosure to this committee and 
elsewhere that in fact a vigorous investigation is being 
conducted and that there is a strong effort that is appropriate 
to these what are really serious allegations, to get to the 
bottom of it.
    Mr. Meadows. Okay. Very good.
    Ms. O'Connor?
    Mr. Connolly. I agree. As I said earlier, justice must not 
only be done, it must also be seen to be done. And it would 
seem that actually contacting the victims--we know who the 
victims are--it would seem as though contacting the victims 
would not tip off anyone's hand about the direction that the 
investigation is taking, and would therefore not harm its 
integrity.
    Mr. Meadows. Okay. On down the line.
    Mr. von Spakovsky. I agree. Particularly in this case 
because, look, I coordinated investigations of probably 
hundreds of cases when I was at the Justice Department, and you 
talk to the victims first because you want their information, 
what they can tell you before you go and you confront the 
individuals who are accused of wrongdoing because you use that 
information to check what they are saying, to cross-examine 
them. And to not have talked to any of the victims after 9 
months, like I said, I just find that incredible.
    Mr. Meadows. Okay.
    Mr. Ivey, I can tell by your response that you have a 
different take on it. Mr. Ivey, go ahead.
    Mr. Ivey. Well, I would at least say I think I need more 
information along the lines of what Mr. Terwilliger suggested. 
You want to know what the investigative strategy is. Other 
things I would like to know is if these individuals have 
already given other statements, whether it is to this body or 
to the inspector general or whoever, because of the prosecutor.
    Mr. Meadows. Yeah, but in your testimony, you were talking 
about the fact that we shouldn't rush to a conclusion, that 
sometimes these investigations should take a long time and may 
very well take a long time and that we should keep them 
private. That is what you said in your opening testimony, I 
believe.
    Mr. Ivey. Yes.
    Mr. Meadows. So, would you say when the President on Super 
Bowl Sunday made a conclusion to what the investigation outcome 
already is, do you think that undermines the process?
    Mr. Ivey. I would hope not. I would hope that the Attorney 
General statement and beyond that----
    Mr. Meadows. So the President of the United States making a 
comment----
    Mr. Ivey. With the understanding within the Department of 
Justice----
    Mr. Meadows. I didn't mean to interrupt. I am sorry.
    Mr. Ivey. That they can go forward with the investigation 
but to still be protected.
    Mr. Meadows. So the President of the United States making a 
definitive statement, there is no corruption, wouldn't 
influence anybody. Is that your understanding?
    Mr. Ivey. We hope not. That is correct.
    Mr. Meadows. I know we hope not, but that is your 
testimony, you believe that it did not.
    Mr. Ivey. If that is not the case, and I know there is a 
call for a special prosecutor, then that wouldn't work either.
    Mr. Meadows. Right.
    Mr. Ivey. We are sort of left with the return of the 
independent counsel here, and I share Mr. Terwilliger's that 
that would be a bad idea.
    Mr. Meadows. So let me follow up with you, Mr. Ivey, one 
question, in terms of political contributions. Do you think it 
affects the way that people view other people, political 
contributions?
    For example, you have donated to the Obama and Victory 
campaign. You ran----
    Mr. Ivey. I am pretty sure I did.
    Mr. Meadows. I know you did.
    Mr. Ivey. Okay.
    Mr. Meadows. You donated to a Democrat that ran against me 
in North Carolina, and you ran----
    Mr. Ivey. Okay. Sorry.
    Mr. Meadows. So you think it would--so do you think it 
would affect the way that I would view you?
    Mr. Ivey. I hope not.
    Mr. Meadows. I would hope not, too.
    Mr. Ivey. Yeah.
    Mr. Meadows. All right.
    But in that, even if it gave the appearance that my 
questions were more directed toward you or more definitive 
because of that, do you not think that would be good to 
recuse--if you had a prosecutor that just, just the appearance 
that it might be a problem, don't you think it would be smart?
    Your clinical students there at Harvard, don't you tell 
them, wouldn't it be a good idea if it is just the appearance 
that you ought to recuse yourself? Now, be careful because you 
are going to have lots of students answering your question that 
may be following this.
    Mr. Ivey. I am sure this will be on the internet, but I 
mean, the scenario, for example, the U.S. attorney who is of 
one party in a State where the leadership is dominated by 
another party, I would never say that that U.S. attorney is 
incapable of leading an investigation against----
    Mr. Meadows. Right.
    Mr. Ivey. --the Governor or someone like that.
    Mr. Meadows. But this is different. This is the IRS. This 
is the very foundations of freedom. This is reaching in and 
actually taking--do you not think that this requires a higher 
standard?
    Mr. Ivey. Doesn't it sort of depend on the scenario? I 
mean, the Governor of Illinois----
    Mr. Meadows. I think it does. That is what I am saying. 
Even with the higher standard?
    Mr. Ivey. The Governor of Illinois, who was alleged to be 
selling Senate seats, I would say, goes to the heart of 
democracy, and nevertheless, you know, the automatic strategy 
of the people that represented him was to accuse the U.S. 
attorneys of----
    Mr. Meadows. I would conclude that the IRS reaching in on 
our liberties and our freedoms goes to the heart of what we are 
about, and there is no higher calling. I appreciate the 
patience of the chair. I yield back.
    Mr. Connolly. Would my colleague yield?
    Mr. Jordan. The gentleman is recognized briefly.
    Mr. Connolly. I just want to confess. I may have 
contributed to your opponent, too, I am sorry.
    Mr. Meadows. And I will forgive you there.
    Mr. Jordan. He expected it out of you but not Mr. Ivey.
    Let me just pick up real quickly before going to Mr. 
DesJarlais, and we have got votes coming, I think, in about 15 
minutes.
    Mr. Ivey, in your testimony, you talked--well, first of 
all, you talked about the concern about the length. I don't 
know anyone is concerned--at least, I know I have not expressed 
concern about the length of the investigation. My concern is 
about the quality. And later in your testimony, you said this, 
``It usually makes more sense to allow the criminal 
investigation to run its course before public disclosures are 
made that might undermine or even preclude a criminal 
prosecution.''
    Mr. Ivey. Yes.
    Mr. Jordan. I want to go right back to where Mr. Meadows--I 
mean, the President said there is no corruption. The FBI has 
leaked to the Wall Street Journal no one is going to be 
referred for prosecution. So do you think those public 
disclosures undermine the investigation at the Justice 
Department of targeting of political--targeting of groups for 
their political beliefs?
    Mr. Ivey. Well, I would honestly say I don't think so, and 
I think if we want to talk about sort of historical scenarios 
where a President says something----
    Mr. Jordan. Tell me what kind of public disclosures are you 
referencing here then if the head of the government, who is a 
potential target of the investigation, says----
    Mr. Ivey. What is the actual disclosure that the 
President's statement contains?
    Mr. Jordan. It was definitive. It was absolute. It was, 
There is not a smidgeon of corruption. I am head of the 
executive branch and----
    Mr. Ivey. As a defense lawyer, what I would be looking for 
for statements from the government, which we seek in every 
case, is information that I can use to try and figure out what 
is the scope of the investigation, where is it going, what 
questions are they asking about my client, what other--who 
are--which other individuals their investigating----
    Mr. Jordan. Let me see if people have a different opinion 
than you, Mr. Ivey.
    Mr. Terwilliger, do you think those public disclosures by 
the President of the United States and someone at the Justice 
Department who leaked to the Wall Street Journal that no one 
was going to be referred for prosecution, do you think those 
help?
    Mr. Terwilliger. Let me take those separately and address. 
The President's statement is most unfortunate. I really like to 
believe he didn't intend to have that effect, but even if he 
didn't intend to have the effect and even if it doesn't have 
the effect of changing one iota of how the investigation is 
conducted, that doesn't mean it doesn't affect public 
confidence in the investigation.
    Mr. Jordan. Sure.
    Mr. Terwilliger. And confidence in the government. When the 
President of the United States, can you imagine if Ronald 
Reagan in the middle of Iran Contra, an investigation going on, 
had come out publicly and said, Well, there is nothing to all 
this. Of course, it is going to shake public confident because 
it is telling the public that this is all a big waste of time, 
there is--there is nothing really here to look at.
    Mr. Jordan. Right.
    Mr. Terwilliger. In terms of the leak from the FBI, that--
that is particularly devastating because I think, you know, 
objectively, and I hope Mr. Cartwright would agree with this, 
that what we are really looking for here, we the public, that 
is, are really looking for here is confidence that a thorough 
investigation, a law enforcement investigation will be 
conducted. And when you have the principal law enforcement 
agency in the United States, if in fact that that is the real 
view, saying, well, nothing is going to result from this before 
the investigation is completed, that shakes public confidence 
in the integrity of that process.
    Mr. Jordan. Ms. O'Connor or Mr. Painter, would you, and Mr. 
von Spakovsky, would you agree with Mr. Ivey's statement, it 
makes more sense to allow criminal investigations to run their 
course before public disclosures are made that might undermine 
the prosecution, do you think that would make--do you agree 
with Mr. Ivey's statement in that what took place here is a 
direct contradiction to his statement?
    Ms. O'Connor. Investigations do need to be permitted to run 
their course with the appropriate confidentiality so that they 
can be run with integrity.
    I would like to address your point about the President's 
statement, if I might. President's statements carry a lot of 
weight. They do a lot of good or a lot of harm. Markets can 
rise and fall on the statement by the President, and not only 
did this President say that there was not a smidgeon of 
corruption, but back in 2010, he started bashing conservative 
groups and suggesting that they were shadowy and had 
questionable contributions. And the Internal Revenue Service 
started opening unprecedented audits of donors that contributed 
to conservative groups, so certainly the statements of a 
President have a tremendous impact on the people who work for 
the Federal Government.
    Mr. Jordan. Thank you.
    Allow you to go quickly, Mr. von Spakovsky and Mr. Painter, 
if you could.
    Mr. von Spakovsky. Of course, a criminal investigation 
should be allowed to run its course, but that does not prevent 
the Justice Department from providing general information on 
the status of the----
    Mr. Jordan. Sure.
    Mr. von Spakovsky. --investigation to you because of your 
oversight functions.
    Also, look, the President is the chief law enforcement 
officer, everybody else reports to him, and it is completely 
inappropriate for him to be telling the people working for him, 
here is what your conclusions----
    Mr. Jordan. But we got--you use that--we got the worse of 
everything here. We couldn't get the basics from the Justice 
Department: Who is heading the investigation? How many agents? 
Have you talked to any of the victims? We couldn't get the 
basics, but we get definitive public disclosures from the 
President of the United States and leaks to the Wall Street 
Journal saying, No harm, no foul here, no one is going to be 
prosecuted, not a smidgeon of corruption, so we got the worst 
of everything.
    We couldn't get the basics that when you all worked at 
Justice, you gave all the time, but we get definitive 
statements saying no one is going to be prosecuted, nothing is 
wrong here.
    So it was exactly backwards what we got from this Justice 
Department.
    With that, I went over time so I have to yield to the 
gentleman from Tennessee. I apologize. The gentleman is 
recognized for 5 minutes.
    Mr. DesJarlais. No problem. Thank you, Mr. Chairman.
    And thank you all for being here today.
    The title of today's hearing, ``Is the Obama Administration 
Conducting a Serious Investigation of IRS Targeting?'' Based on 
the testimony, what we have heard here today, let me just go 
down the line and say, just yes or no, do you feel like there 
is a serious investigation going on?
    Mr. Terwilliger. Honestly, sir, I can't tell, and the fact 
that I can't tell is exactly the problem, because the public 
needs to understand that in fact a serious investigation is 
going on.
    Mr. DesJarlais. Okay.
    Ms. O'Connor.
    Ms. O'Connor. That is exactly right. I have no basis on 
which to form an opinion, and the public does deserve to know 
that there is a serious investigation under way if there is.
    Mr. DesJarlais. Okay.
    Is everyone's opinion the same, we really can't tell.
    Mr. von Spakovsky. We really can't tell, and that in itself 
is a real problem.
    Mr. DesJarlais. Okay.
    Ms. O'Connor, do you think that there is any reason that 
this targeting took place other than to affect the political 
outcome?
    Ms. O'Connor. Well, I certainly can't speak to the 
motivations, but that was the result.
    Mr. DesJarlais. Okay. Do you think that--that rogue agents 
within an agency like the IRS would be capable of independently 
constructing a targeting scheme of this magnitude without 
direction from higher up?
    Ms. O'Connor. That is highly unlikely.
    Mr. DesJarlais. Okay. So, you know, the President was very 
upset when he learned of this. Well, everybody was, both sides 
of the aisle were extremely upset, but now as time has passed, 
it is turned into, you know, more of a joke, either that or 
this side of the aisle in this committee is the only one that 
doesn't have as much information as the President and everyone 
else because they seem to have already concluded that there is 
not going to be any criminal charges, that there is not a 
smidgeon of corruption, but yet a political election could have 
been impacted and probably was by the actions of these agents 
in the IRS. So, in your opinion, there had to be somebody 
giving direction, and therefore, this is something that should 
be investigated seriously.
    Ms. O'Connor. We have seen the consequences of the 
misconduct. We know that it happened. What needs to be found 
out is how and why did it happen.
    Mr. DesJarlais. Okay. Is there any--I mean, really, can 
anyone sit there and think that there is any other reason that 
it happened other than to prevent people from expressing their 
political opinions?
    Mr. Painter. I don't think we know. We are entitled. The 
American people are entitled to answers to this, but we just 
don't know.
    Mr. DesJarlais. But yet we are getting the attitude now 
that there is nothing to see here, we need to move on. I think 
there was a President a few years ago that claimed he was not a 
crook, and we all know how that turned out.
    Mr. Ivey, you know, I agree that an investigation should be 
thorough, but would you be the first one in line to say this 
President should be impeached if he was involved in this?
    Mr. Ivey. I have no reason to think that impeachment should 
be even part of the conversation with respect to this issue.
    Mr. DesJarlais. But this President is competent that there 
was not a smidgeon of corruption, yet he was outraged when this 
broke, and now all of a sudden he seems to have answers that we 
don't have. So, going back to President Nixon, who was not a 
crook, if President Obama knows what was going on here, should 
he be impeached?
    Mr. Ivey. I wouldn't think that impeachment is really a 
viable part of the discussion on this at this point.
    I did want to say quickly though with respect to President 
Reagan. I do recall him making a statement with respect to Iran 
Contra that he wasn't aware of any wrong--I believe it was a 
statement from the Oval Office because I remember watching it, 
and as we know, the investigation took its course. I think that 
is what is going to happen here, too.
    Mr. DesJarlais. Okay. Well, we hope that we get answers 
because that is why we are here today. We are trying to have a 
serious investigation, but yet, for some reason, we can't seem 
to get answers. We can't get Lois Lerner back here. Hopefully, 
that will change because there is certainly something that was 
going on. The IRS admitted that they wrongfully targeted these 
groups, and we know that these groups were probably going to be 
in opposition to this President, and we know that it went to a 
political appointee from the White House, so we have learned 
all these things through the process of the investigation, but 
yet we are sitting here today with basically the Attorney 
General and an anonymous source saying that there is not going 
to be any criminal charges, so it is hard to think that there 
is a serious investigation going on when this is the kind of 
runaround that we are getting here. It is getting to look like 
somebody really wants us to move on from this. It is not much 
unlike Benghazi. It seems to be there is a pattern going on 
here.
    So, at any rate, you know, we are going to continue to 
push. We are going to continue to look for answers, and you 
know, this is not going to go away so----
    Mr. Terwilliger. If I may.
    Mr. DesJarlais. Yes, sir.
    Mr. Terwilliger. Before you yield your time, sir, respond 
to Mr. Ivey's comment about President Reagan.
    If President Obama had come out and said, I was out of the 
loop, I didn't know what happened in any of this IRS business, 
that would be perfectly fine. He has a political base to cover 
and so forth, and that is what my recollection, as with Mr. 
Ivey's, is basically what President Reagan said.
    But that is not what President Obama said. What President 
Obama said was a definitive statement that there was no 
corruption, not his personal involvement but everybody else. 
And what kind of message does that send to the American people 
about a commitment to the kind of investigation that we all 
seem to agree is needed?
    Mr. DesJarlais. I appreciate that observation.
    Thanks to all the witnesses.
    I yield back.
    Mr. DeSantis. [Presiding.] The gentleman yields back.
    I recognize the ranking member.
    Mr. Cartwright. Thank you, Mr. Chair.
    So, Mr. Terwilliger, you are recommending the President 
say, I was out of the loop; is that what you are recommending?
    Mr. Terwilliger. Well, if he was going to say anything at 
all, all I am saying is that that kind of statement would not 
be--would not be inappropriate. The statement that he did make 
is ill advised, at best.
    Mr. Cartwright. Thank you, sir.
    Ms. O'Connor, you are now in the private sector, I take it?
    Ms. O'Connor. Yes, I am.
    Mr. Cartwright. And you are with a private firm providing 
tax advice and assistance?
    Ms. O'Connor. I wouldn't exactly call it tax advice, but 
yes, I----
    Mr. Cartwright. Tax law advice.
    Ms. O'Connor. I am in private practice.
    Mr. Cartwright. Very good. Do you represent any progressive 
or liberal groups that were applying for (c)(4) status?
    Ms. O'Connor. I do not, nor conservative.
    Mr. Cartwright. Well, the reason I ask you that is we were 
here--I am sorry Dr. DesJarlais has left, but we were here on 
this committee when the inspector general of the Treasury came, 
Mr. Russell George, and he had authored something like a 28-
page report which blew the lid off of the BOLOs, the ``be on 
the lookout'' for Tea Party and conservative groups, concerning 
liberty--groups with conservative sounding names, and the whole 
report detailed the discussion of the conservative groups, and 
there was a footnote that said, and some other groups were 
involved as well. But he never mentioned that--that progressive 
or liberal groups were also on the ``be on the lookout'' list, 
that the searches included progressive and liberal groups; in 
other words, the opposite end of the political spectrum. He 
never revealed that to us, so we were here in this full 
committee in a high state of outrage. In fact, Ranking Member 
Cummings went through the roof when he--when Russell George was 
first here testifying to that report. And I was outraged myself 
personally because it is fundamentally un-American the kinds of 
things he was talking about to say that one particular type of 
political group would be targeted by civil servants in the IRS. 
And it was only after that that we found out that both ends of 
the political spectrum were targeted, and that is why I ask you 
that question, Ms. O'Connor.
    Mr. Chairman, I thank you, and I yield back.
    Mr. DeSantis. I thank the gentleman.
    Ms. O'Connor. Might I comment?
    Mr. DeSantis. Sure.
    Ms. O'Connor. The--you said that Mr. George hid from you 
the fact that some progressive sounding groups had also been 
targeted, but you did have the report, and it was in the 
report.
    I might add that the number of conservative groups caught 
in that filter versus the number of progressive groups was 
something like 100 to 2.
    Mr. Cartwright. I am glad you mention that because when we 
start talking statistics and bandying about numbers, one of the 
things you wonder is, well, as a percentage, how many--how many 
of the progressive groups got targeted, how many of the 
conservative groups--is it a fact that there are just way more 
conservative groups who were applying for (c)(4) status? I 
think that is an appropriate inquiry at some time we ought to 
engage in. Thank you, Ms. Connor.
    Ms. O'Connor. Happy to.
    Mr. DeSantis. Mr. von Spakovsky, just--this is a little bit 
tangential, but you have time at the FEC?
    Mr. von Spakovsky. Yes.
    Mr. DeSantis. Is that correct?
    Mr. von Spakovsky. Two years.
    Mr. DeSantis. Okay. And I am curious because there is this 
issue that has come up recently where maybe the most vicious of 
the President's critics in terms of books and movies, Dinesh 
D'Souza was indicted for potentially illicit campaign 
contributions. And what caught my eye and actually some members 
of the Senate Judiciary Committee, Republicans have written to 
ask about what the process is because it just seemed weird that 
that would just be a routine review to see that there were 
$20,000 that I guess the allegation is he reimbursed those. So, 
how did it go? How would these reviews take place at the FEC, 
and would the FBI come in and do routine reviews? Can you just 
give us a brief snapshot on how you understood the process when 
you were there?
    Mr. von Spakovsky. Well, I don't recall the FBI coming in 
for routine reviews when I was there. The odd thing about that 
statement is, what--the accusation against Dinesh D'Souza is a 
conduit contribution; in other words, that he reimbursed other 
individuals for contributions they made. A routine review of 
donation records would not turn that up.
    Mr. DeSantis. Exactly.
    Mr. von Spakovsky. Because the donations that he supposedly 
reimbursed folks for would have been made by other individuals 
in their names, so just reviewing the records isn't going to 
show that. The only way you can discover that is if you get 
some kind of information, a witness or somebody, who calls you 
and says, I know that this person was reimbursing these 
contributions. So a routine review would not reveal that.
    Mr. DeSantis. Great. And so do you think that it is worth 
writing, as the Senators did, to ask about what the typical 
review consists of, and given that that was the explanation 
that we have gotten, which is not really sufficient?
    Mr. von Spakovsky. I think that is fully within the 
oversight responsibilities of Congress.
    Mr. DeSantis. Very good.
    And then, Ms. O'Connor, this is my final. I mean, you 
mentioned the auditing of donors, how that is kind of--and I 
just anecdotally, I have had people come up to me and just say, 
I have been in business 20, 30 years, started writing checks 
for Romney, and now I have gotten audited. Now, that is just--
you know, correlation does not equal causation, but I have 
heard it enough to where it is just--it is something that--so 
can you speak to that? Is that something that you have dealt 
with in your practice.
    Ms. O'Connor. It is not something that I have personally 
dealt with in my practice, but I was aware of the fact because 
I was getting calls about it, that whereas the Internal Revenue 
Service had never before audited contributors for 501(c)(4)s 
for gift tax obligations, they began doing that, and I think it 
was 2010, and again, it was after the President had made public 
statements in his weekly radio address, in speeches bashing 
contributors to conservative organizations, challenging that 
they were shadowy, that they were questionable, just making--
you know, encouraging the IRS, whose obligation it is to look 
into these things, to look into these things. And so it was 
unprecedented. There were letters from Congress to the 
Commissioner of the Internal Revenue saying why are you all of 
a sudden looking at the gift tax obligations arising from 
contributions to 501(c)(4)s. Steve Miller as deputy 
commissioner at the time wisely told everybody at the IRS to 
stand down on this issue, that before the IRS started enforcing 
laws in this fashion, it was going to have to have some notice 
and public comment.
    So this, again, is an outgrowth of public statements 
letting the Internal Revenue Service know what they ought to be 
doing.
    Mr. DeSantis. Well, thank you for that.
    And I thank the witnesses for your time and your thoughtful 
testimony.
    I thank the ranking member for your participation.
    And I would just say, I think, you know, we can disagree 
about--even amongst Republicans. Democrats, Republicans have 
different views on some of this stuff, but I think it is true 
that at this point, you know, there is at least an appearance 
that this investigation is not going the way that we would hope 
an investigation would go, and given the sensitivities 
involved, I think that we really do need to move in a different 
direction. And I would just agree with the witnesses who have 
said the Attorney General can appoint a special prosecutor, and 
let's just get to the bottom of this because, ultimately, 
whatever accountability is there, there has got to be a sense 
amongst the public that they have some confidence in what 
happened, given this situation.
    And so I thank the chairman, who had to leave, for holding 
this committee.
    And right now, we have votes, so I will excuse all the 
witnesses.
    Thanks, again, and we are adjourned.
    [Whereupon, at 4:02 p.m., the subcommittee was adjourned.]


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