[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
IRS TARGETING SCANDAL:
THE NEED FOR A SPECIAL COUNSEL
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HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
__________
JULY 30, 2014
__________
Serial No. 113-92
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Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin JERROLD NADLER, New York
HOWARD COBLE, North Carolina ROBERT C. ``BOBBY'' SCOTT,
LAMAR SMITH, Texas Virginia
STEVE CHABOT, Ohio ZOE LOFGREN, California
SPENCER BACHUS, Alabama SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California STEVE COHEN, Tennessee
J. RANDY FORBES, Virginia HENRY C. ``HANK'' JOHNSON, Jr.,
STEVE KING, Iowa Georgia
TRENT FRANKS, Arizona PEDRO R. PIERLUISI, Puerto Rico
LOUIE GOHMERT, Texas JUDY CHU, California
JIM JORDAN, Ohio TED DEUTCH, Florida
TED POE, Texas LUIS V. GUTIERREZ, Illinois
JASON CHAFFETZ, Utah KAREN BASS, California
TOM MARINO, Pennsylvania CEDRIC RICHMOND, Louisiana
TREY GOWDY, South Carolina SUZAN DelBENE, Washington
RAUL LABRADOR, Idaho JOE GARCIA, Florida
BLAKE FARENTHOLD, Texas HAKEEM JEFFRIES, New York
GEORGE HOLDING, North Carolina DAVID N. CICILLINE, Rhode Island
DOUG COLLINS, Georgia
RON DeSANTIS, Florida
JASON T. SMITH, Missouri
[Vacant]
Shelley Husband, Chief of Staff & General Counsel
Perry Apelbaum, Minority Staff Director & Chief Counsel
C O N T E N T S
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JULY 30, 2014
Page
OPENING STATEMENTS
The Honorable Bob Goodlatte, a Representative in Congress from
the State of Virginia, and Chairman, Committee on the Judiciary 1
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Ranking Member, Committee on
the Judiciary.................................................. 3
WITNESSES
Jay Alan Sekulow, J.D., Ph.D., Chief Counsel, American Center for
Law and Justice
Oral Testimony................................................. 6
Prepared Statement............................................. 9
Ronald D. Rotunda, Professor, Chapman University
Oral Testimony................................................. 21
Prepared Statement............................................. 23
Charles Tiefer, Professor, University of Baltimore School of Law
Oral Testimony................................................. 31
Prepared Statement............................................. 33
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Material submitted by the Honorable Robert C. ``Bobby'' Scott, a
Representative in Congress from the State of Virginia, and
Member, Committee on the Judiciary............................. 57
APPENDIX
Material Submitted for the Hearing Record
Letter from Ronald D. Rotunda, Professor, Chapman University..... 96
IRS TARGETING SCANDAL:
THE NEED FOR A SPECIAL COUNSEL
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WEDNESDAY, JULY 30, 2014
House of Representatives
Committee on the Judiciary
Washington, DC.
The Committee met, pursuant to call, at 10:15 a.m., in room
2141, Rayburn House Office Building, the Honorable Bob
Goodlatte (Chairman of the Committee) presiding.
Present: Representatives Goodlatte, Coble, Chabot, Bachus,
Issa, Forbes, King, Franks, Gohmert, Jordan, Poe, Chaffetz,
Gowdy, Labrador, Farenthold, Holding, Collins, Conyers, Nadler,
Scott, Jackson Lee, Johnson, Richmond, Garcia, Jeffries, and
Cicilline.
Staff Present: (Majority) Shelley Husband, Chief of Staff &
General Counsel; Branden Ritchie, Deputy Chief of Staff & Chief
Counsel; Allison Halataei, Parliamentarian & General Counsel;
Caroline Lynch, Counsel; Robert Parmiter, Counsel; Kelsey
Deterding, Clerk; (Minority) Perry Apelbaum, Staff Director &
Chief Counsel; Danielle Brown, Parliamentarian; and Aaron
Hiller, Counsel.
Mr. Goodlatte. Good morning. The Judiciary Committee will
come to order.
And without objection, the Chair is authorized to declare
recesses of the Committee at anytime. We welcome everyone to
this morning's hearing on the ``IRS Targeting Scandal: The Need
for a Special Counsel,'' and I will begin by recognizing myself
for an opening statement.
On May 10, 2013, the Internal Revenue Service admitted to
inappropriately targeting conservative groups for ``extra
scrutiny,'' in connection with their applications for tax-
exempt status. Following the revelation of the IRS targeting,
President Obama denounced the targeting as outrageous and
unacceptable and stated that the IRS as an independent agency
requires absolute integrity and people have to have confidence
that they're applying the laws in a nonpartisan way. He pledged
that the Administration would find out exactly what happened
and would make sure wrongdoers were held fully accountable.
In testimony before this Committee on May 15, 2013,
Attorney General Eric Holder promised me and everyone else on
this dais that the Justice Department would conduct a
dispassionate investigation into the IRS admitted targeting of
conservative groups. The Attorney General pledged that this
will not be about parties, this will not be about ideological
persuasions, and anyone who has broken the law will be held
accountable.
Last month, FBI Director Comey assured this Committee that
the FBI was conducting a very active investigation into the IRS
targeting matter, and not 2 weeks ago Deputy Attorney General
Cole stated that DOJ investigators will follow the facts
wherever they lead and apply the law to those facts.
Unfortunately, despite the Administration's stated commitment
to its investigation, the facts and recent events have
demonstrated repeatedly that the Administration's real
commitment is to slow walk this investigation and undermine
congressional efforts to uncover the truth.
Earlier this year, unnamed Justice Department officials
leaked information to the Wall Street Journal suggesting that
the Department does not plan to file criminal charges over the
IRS targeting of conservative groups. On Super Bowl Sunday,
President Obama stated that there was ``not even a smidgen of
corruption'' in connection with the IRS' admitted targeting of
conservative groups based upon their beliefs.
Finally, as we all know, the Justice Department appointed
an attorney in the notoriously politicized Civil Rights
Division to head the investigation. That individual donated
more than $6,000 to President Obama's campaigns in 2008 and
2012. In response to this, on May 7, 2014, the House passed H.
Res. 565, a bipartisan resolution calling on the Attorney
General to appoint a special counsel to investigate the IRS
targeting of conservative groups.
That resolution was supported by 26 Democrats, including
two Members of this Committee. Since passage of the House
Resolution, additional troubling facts have come to light that
solidify the need for a special counsel to investigate the IRS
matter.
On June 13, 2014, after agreeing to turn over to Congress
all emails belonging to Ms. Lerner, the IRS announced it had
lost an untold number of emails belonging to Ms. Lerner. The
lost emails covered the period between January 1, 2009, and
April 2011, a period when the IRS targeting of conservative
groups was occurring regularly.
In his testimony before the House Oversight Committee,
Deputy Attorney General Cole made the shocking admission that
the Justice Department did not learn until June of this year
that the Internal Revenue Service had lost the emails and, even
then, only learned of it via media reports. Both the Attorney
General and the FBI director have insisted that the Justice
Department is conducting a ``very active,'' and ``dispassionate
investigation.'' How, then, is it possible that investigators
pursuing this matter very actively and dispassionately were
unaware that a sizable, potentially key piece of evidence had
simply vanished?
On July 10, 2014, U.S. District Judge Emmet G. Sullivan
ordered the IRS to provide a full explanation of the notorious
computer crash and infamous missing emails within 30 days and
assigned a magistrate judge to ``assist the parties,'' in the
process. Not surprisingly, less than 2 weeks later, the IRS
announced that investigators looking into these missing emails
had located backup tapes which may contain the missing Lerner
emails.
The relevant special counsel regulations require
appointment when the Attorney General determines that three
circumstances exist: One, criminal investigation of a person or
matter is warranted; two, investigation or prosecution of that
person or matter by a United States Attorney's office or
litigating division of the Department of Justice would present
a conflict of interest for the Department or other
extraordinary circumstances; and, three, under the
circumstances, it would be in the public interest to appoint an
outside special counsel to assume responsibility for the
matter.
As I have said before, there can be little doubt to any
neutral, honest observer that these requirements exist. First,
further criminal investigation of this matter is clearly
warranted. The Administration, particularly the FBI, admits as
much. Second, there is clearly a conflict of interest between
the Justice Department investigators and this Administration.
The Administration's statements and actions have repeatedly
served to undermine the Department's investigation. The fact
that President Obama prejudged the investigation by saying
there was not a smidgen of corruption and the fact that unnamed
department officials leaked information to the media designed
to undermine the investigation has made it impossible for the
Department to conduct a fair, unbiased investigation. Even
assuming for the sake of argument that there is no conflict,
there clearly exists other extraordinary circumstances called
for in the regulations.
Finally, it is clear that appointing an outside special
counsel to investigate this matter would be in the public
interest. The American people are very concerned that their
government has targeted individual American citizens for
harassment solely on the basis of their political beliefs. The
Administration's delays, denials, and continued efforts to
obfuscate the truth have further eroded this trust.
As I've said repeatedly, the American people deserve to
know who ordered the targeting, when the targeting was ordered,
and why. I look forward to exploring these and other important
issues with our witnesses today.
And it is now my pleasure to recognize the Ranking Member
of the Judiciary Committee, the gentleman from Michigan, Mr.
Conyers, for his opening statement.
Mr. Conyers. Thank you, Mr. Chairman and Members of the
Committee.
Today is the last full working day before the August
recess, and I'm concerned and deeply disappointed by how we
have chosen to spend it. Under Federal regulations and
according to all available precedent, the appointment of
special counsel is reserved for extraordinary circumstances,
where a conflict of interest at the highest levels of
government requires the Department of Justice to abandon its
normal process of investigation and prosecution.
Two separate congressional Committees have sorted through
more than half a million pages of documents, conducted 40
transcribed interviews, and held more than three dozen hearings
and markups to examine the criteria used by the IRS to screen
applicants for tax-exempt status. The Committees have not
uncovered one shred of evidence to suggest that the involvement
of senior officials of the Department of Justice, the
Department of the Treasury or the White House itself. Without
that evidence, calls for a special counsel are simply
unwarranted.
The Chairman now has mentioned House Resolution 565, which
demands that the Attorney General appoint special counsel in
this matter. Of course, as a matter of law, the Attorney
General has absolute discretion to determine whether a special
counsel is necessary. Congress cannot compel him to do so. I
repeat: Congress cannot compel him to do so. Nor can this
Committee, of course. We might have explained this point had we
maintained regular order and discussed House Resolution 565 in
this Committee prior to consideration on the House floor.
What troubles me most about this resolution is its
preamble: Eight pages of unsubstantiated claims, carefully
tailored half-truths, and political innuendo. For example, the
resolution references two anonymous sources in a January 13
Wall Street Journal article who claimed that the Department has
concluded its investigation. That claim ignores the testimony
of both Attorney General Eric Holder and FBI Director James
Comey, who assured this Committee that the investigation is
ongoing. The resolution claims that the Department of Justice
and the FBI have refused to cooperate with congressional
oversight. Of course, as the Chairman knows, that under long-
standing policy applied consistently by Administrations of both
parties, Congress is not entitled to materials related to an
ongoing criminal investigation. Otherwise, the department's
attempt to accommodate our needs have been, in my mind,
extraordinary. The resolution's largest error is the same false
premise underlying this hearing. House Resolution 565 claims
that the IRS targeted conservative nonprofit groups for extra
scrutiny in connection with applications for tax-exempt status.
That is partly true, but it is a deliberate half truth and one
that leads to the wrong conclusion.
The record is clear. Overwhelmed with applications for tax-
exempt status after the Citizens United decision, the IRS
created a list of search terms in an attempt to sort legitimate
applicants from mere political shells. Those search terms
applied across the political spectrum to Tea Party groups but
also to groups with the words ``progressive'' and ``occupy'' in
their titles. We all agree that this approach was poorly
conceived, but not a single applicant was denied tax-exempt
status because of it. The majority knows or must know that this
is a case of bureaucratic ineptitude and not so-called
political targeting. They only frame it as such because it is
politically expedient to do so.
This underscores my final point. Given the long list of
urgent matters pending before us, this hearing is an
unacceptable misuse of our time and our resources. The 113th
Congress has spent more than 18 million taxpayer dollars
investigating the IRS. The House has held more than three dozen
hearings and markups on the topic. We've already voted on the
particular question of appointing special counsel, but we have
not held one hearing in the House Judiciary Committee on
comprehensive immigration reform, not one. We've not held one
hearing on legislation to update the Voting Rights Act, not
one. Not one hearing on much-needed reform of the Electronic
Communications Privacy Act. Not one hearing on stemming the
tide of gun violence in this country, a scourge that has
claimed nearly 20,000 lives since this Congress began. Not one
hearing on a range of local civil rights issues across the map,
including police practices in New York, due process rights for
minors at the Texas border, prison conditions in California,
access to the ballot box in Florida, and access to drinking
water and other basic utilities in Michigan. Any one of these
topics would be appropriate for consideration today, which I
repeat is our last full day of work before the break. Instead,
we will hold one more hearing in the line of dozens of hearings
on a so-called scandal in which one office in the IRS
bureaucracy denied zero applications for tax-exempt status.
In terms of actually compelling the Attorney General to
appoint a special counsel, this hearing stands about as much
chance of success as the Speaker's woefully misguided lawsuit
against the President of the United States.
I hope, Members of the Committee, that after the break,
cooler heads will prevail. There's still time to correct this
Committee's priorities before the Congress ends.
Mr. Chairman, that concludes my remarks, and I yield back.
Thank you.
Mr. Goodlatte. Thank the gentleman.
And we welcome our distinguished panel today.
If you would all rise, I'll begin by swearing in the
witnesses.
[Witnesses sworn.]
Mr. Goodlatte. Thank you, and let the record reflect that
all the witnesses responded in the affirmative.
I'll introduce our witnesses. Mr. Jay Sekulow is chief
counsel of the American Center for Law and Justice. He is an
accomplished Supreme Court advocate, renowned expert on
religious liberty, and a respected broadcaster. At the Supreme
Court of the United States, Mr. Sekulow has argued several
landmark cases which have become part of the legal landscape in
the area of religious liberty litigation.
Mr. Sekulow expanded the ACLJ's work globally, working to
protect religious liberty and religious freedom. He launched
the European Center for Law and Justice, where he serves as
chief counsel and has opened offices around the world. Prior to
joining ACLJ, Mr. Sekulow worked in the Office of Chief Counsel
for the Internal Revenue Service as a tax trial attorney. Mr.
Sekulow received his Ph.D. from Regent University with a
dissertation on American legal history, is an honors graduate
of Mercer Law School, where he served on the Mercer Law Review,
and an honors graduate of Mercer University. He was appointed a
visiting fellow of Oxford University at Harris Manchester
College, where he lectured on Middle East affairs and
international law. He also serves as a member of the Summer
Research Institute at Oxford from 2013 to 2016.
Professor Ronald D. Rotunda joined the faculty of Chapman
University in 2008. Prior to coming to Chapman, he was a
university professor and professor of law at George Mason
University School of Law. Before that, he was the Albert E.
Jenner, Jr., professor of Law at the University of Illinois. He
joined the University of Illinois faculty in 1974, after
clerking for Judge Walter R. Mansfield of the United States
Court of Appeals for the Second Circuit, practicing law in
Washington, D.C., and serving as assistant majority counsel for
the Watergate Committee. He has coauthored the most widely used
course book on legal ethics and is the author of a leading
course book on constitutional law, ``Modern Constitutional
Law.'' He has written several other books and more than 350
articles in various law reviews, journals, newspapers, and
books. These books and articles have been cited numerous times
by State and Federal courts at every level, from trial courts
to the United States Supreme Court. He has been interviewed on
radio and television on legal issues, both domestically and
abroad. In 1993, he was constitutional law adviser to the
Supreme National Council of Cambodia and assisted that country
in writing its first democratic Constitution. Professor Rotunda
received his bachelor of arts and juris doctor degrees from
Harvard University.
Professor Charles Tiefer joined the faculty of the
University of Baltimore Law School in 1995. Previously, he
served as solicitor and deputy general counsel of the U.S.
House of Representatives for 11 years. He also taught as a
visiting lecturer at Yale Law School and for a decade as an
adjunct at Georgetown University Law Center. He was an
associate editor of the Harvard Law Review, a court law clerk
for the D.C. Circuit, a trial attorney with the Civil Rights
Division of the U.S. Department of Justice, and an assistant
legal counsel for the U.S. Senate. Professor Tiefer wrote
``Congressional Practice and Procedure'' and the ``Semi-
Sovereign Presidency,'' a book on separation of powers. He has
published articles on legislation, separation of powers,
international law, and Federal Government operations in the
Harvard Journal on Legislation, Yale Journal on Regulation,
Texas International Law Journal and the Boston University Law
Review and numerous other law reviews. Professor Tiefer
received his bachelor's degree from Columbia College and his
juris doctor from Harvard University.
I would ask each witness to summarize their testimony in 5
minutes or less, and to help you stay within that time, there's
a timing light on your table. When the light switches from
green to yellow, you'll have 1 minute to conclude your
testimony. When the light turns red, that's it, you're done,
time is up. And we will start with Mr. Sekulow. Welcome.
TESTIMONY OF JAY ALAN SEKULOW, J.D., Ph.D.,
CHIEF COUNSEL, AMERICAN CENTER FOR LAW AND JUSTICE
Mr. Sekulow. Thank you, Mr. Chairman, Ranking Member
Conyers, distinguished Members of the Committee, and on behalf
of the American Center for Law and Justice, thank you for
allowing me to participate today.
I serve as counsel to 41 organizations that have filed
Federal litigation against the IRS and related officials
regarding the targeting. We were in cooperation with the
Department of Justice for a period of time with their
investigation, but when I chronicled the order in which things
have developed over the last several months, specifically the
missing emails, which is key evidence in this case, the faux
apology that Lois Lerner gave when this scandal broke over a
year ago, I have unfortunately had to conclude that the
investigation by the Department of Justice is also a faux
investigation. It is at surfaced at best, and we were compelled
in a situation where we were producing clients for these
investigators, for DOJ officials, for FBI agents, for Ms.
Bosserman to interview, with the assurance from the FBI that
our clients were not and have not been subject to criminal
investigations and were not targets of those investigations.
They made that clear.
Then an email surfaced in a batch of emails that were
delivered. This one was dated May 8 of 2013. Of course, it just
came out several weeks ago. It is from Lois Lerner. It is to
Nicole Flax, who was the chief of staff for the then
commissioner of Internal Revenue Service: I got a call today
from Richard Pilger, director, Election Crimes Branch at DOJ. I
know him from contacts from my days there. He wanted to know
who at the IRS the DOJ folks could talk to about Senator
Whitehouse's idea that a hearing that DOJ could piece together
false claim cases about applicants who ``lied''--this is her
email--on their 1024s, saying they weren't planning on doing
political activity and then turning around and making large
visible political expenditures. DOJ is feeling like it needs to
do something to respond, but they want to talk to the right
folks at the IRS to see whether there are impediments from our
side and what, if any, damage this might do to the IRS
programs. I told them we need to talk to several folks at IRS.
I'm out of town all of next week, so wanted to reach out and
see who you think might be right for such a meeting, all hands
on this--I'll hand this off to Nan as a contact person if
things need to happen while I'm gone.
Piece together false claim cases so that my clients, which,
by the way, and let me acknowledge no evidence, could be
subject to what, grand jury investigations? And at the very
same time--this comes, by the way, out 2 days before the
apology from Lois Lerner. So this was an ongoing systematic
scheme.
And Ranking Member Conyers, with due respect, there were a
couple of liberal groups that were picked up in this dragnet.
None of them were denied their tax-exempt status. I've got one
client, by the way, that has been held for 5 years, still does
not have that status resolved.
So we've got an email saying let's piece together or
attempt to piece together false statement cases.
Another email, March 27, just a few months before, this one
again Lois Lerner: As I mentioned yesterday, there are several
groups of folks from the FEC world that are pushing tax fraud
prosecution for (c)(4)s who report they are not conducting
political activity when they are or at least these folks think
they are. One is my ex-boss, Larry Noble, former general
counsel at the FEC, who is now president of Americans for
Campaign Reform. This is their latest push to shut these down.
One IRS prosecution would make an impact, and they wouldn't
feel so comfortable doing this stuff. By the way, the stuff
they're talking about is activity protected by the First
Amendment.
So I've got an email from the IRS referencing a Department
of Justice call while the Department of Justice is supposed to
be conducting this investigation. We know that there's the
missing emails, but what may not be known is that there was
actually a much earlier FOIA request. This has not been
discussed publicly. This FOIA request was made in May 27 of
2010, right when this whole issue started just getting some
attention. It came in from Lynn Walsh. She did this as an
independent journalist. She sent it to the Internal Revenue
Service disclosure office asking for, as she phrased it,
documents relating to any training, memos, letters, policies,
et cetera, that detail how the Tax-Exempt Government Entities
Division reviews application for nonprofits, 501(c)(3)s, and
other not-for-profit organizations specifically mentioning Tea
Party, the Tea Party, Tea Party or tea parties. The response
that came in to this request, of course, took until January 6,
2011. It's a quick response. We found no documents specifically
responsive to your request. Well, we know that's absolutely
false because there's been--take out the ones that are missing,
there are literally thousands, tens of thousands that were
responsive to this. This is the cavalier attitude upon which
the IRS was conducting itself. That's problematic. This is an
office I served in, my first job out of law school, 250 years
ago, was Chief Counsel's Office of the IRS. I have a lot of
respect for the office. I served on the legal faculty for the
Department of Justice. This isn't something that I'm pleasant
about this. This is damaging, it's troubling, and Mr. Chairman,
in all due respect, it could be solved so easily by appointing
a special counsel to get to the bottom of what is clearly a
significant problem, the last of which is the missing emails.
Thank you.
Mr. Jordan [presiding]. I thank the gentleman for his
testimony.
[The prepared statement of Mr. Sekulow follows:]*
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*Attachments to this prepared statement are not printed in this
hearing record but are on file with the Committee and can be accessed
at http://docs.house.gov/Committee/Calendar/By
Event.aspx?EventID=102569.
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Mr. Jordan. I would just point out that that very first
email you referenced, we had Mr. Cole in front of the Oversight
Committee--2 weeks ago asking about that very email, and
nothing happened, he said, afterwards, and the reason nothing
happened is because 2 days later, that email that you first
referenced, May 8--2 days later, May 10, Lois Lerner went
public and told the story. So, of course, nothing happened
after the fact, but we'll get to that in a second.
But professor, you are recognized for your 5 minutes.
TESTIMONY OF RONALD D. ROTUNDA, PROFESSOR,
CHAPMAN UNIVERSITY
Mr. Rotunda. Thank you very much.
We have an anniversary today actually, 40 years ago to the
day President Nixon released the White House tapes to comply
with the U.S. Supreme Court order. A day earlier, the House
Judiciary Committee approved articles of impeachment--one dealt
with abuse of power, and one of the counts was that the
President unsuccessfully tried to use the IRS to harass his
political opponents. Now any claim that Lois Lerner, any IRS
official tried to use the IRS to harass or attack political
opponents undercuts the people's faith in the IRS, which is
supposed to be nonpartisan; not bipartisan, but nonpartisan. So
we all should be very happy if the President is correct when he
solemnly assured us that there's not even a smidgen of
corruption regarding Lois Lerner and the IRS.
The problem is that there's a lot of evidence of a smidgen
of corruption, and I think a thorough investigation by a
special counsel would hopefully show how far this leads. Does
it go up within the IRS, above Lois Lerner? Does it go to the
Department of Justice? What was the basis for the President's
assurance that there's not a smidgen? Did somebody in the
Department of Justice mislead him, either intentionally or
unintentionally, either incompetently or with scienter? We all
know she pled the Fifth Amendment and refused to testify just
after assuring us under oath that she had committed no crimes.
The months after the President's assurances of not a
smidgen of corruption, the inspector general issued an audit
that said that the IRS systematically used inappropriate
criteria to identify the tax-exempt applications for review,
and the inspector general is also nonpartisan. Last month, the
IRS, represented by the DOJ, agreed to pay $50,000 for the
illegal disclosure of tax return information leaking the 2008
return and donor list of the National Organization for Marriage
to an activist who turned it over to NOM's adversary, the Human
Rights Campaign. That's a coincidence: the president of the
organization just happened to be the national cochair of the
President's reelection campaign.
The DOJ is defending the IRS and actually defending itself
against these charges. We really can't expect the DOJ to
competently and objectively investigate itself. By the way, the
DOJ refused to give immunity to this activist who could tell us
who gave him the information. He said he got it from a good
contact in the IRS, and there was more to be given. But we're
not going to find out.
Now, there's no longer a statute that provides for a
special prosecutor. However, we don't need a statute to have
one. There was a special prosecutor for Teapot Dome done by
regulation, not by statute. No statute for Watergate. That was
also by regulation. The regulation says the Attorney General
will appoint a special prosecutor of criminal investigation--he
will appoint if criminal investigation of a person or matter is
warranted, there's a conflict of interest, or in the public
interest to appoint the outside special counsel. We cannot
expect the DOJ to impartially investigate itself, and it will
not do this impartially.
The problem here, frankly, is not simply how far up in the
IRS did it go. It is the DOJ part of the cover-up? The
impartial investigation may undercut the President's assurance
that there's not a smidgen of corruption or maybe the
independent counsel will determine that, in fact, there's
nothing wrong or it didn't go past Lois Lerner, and then we
would all be much happier for that.
Now, the special counsel regulation is not a statute. It's
a regulation, but regulations are law, as the Supreme Court
explained in the United States v. Nixon, when referring to the
regulation that governed the Watergate special counsel, ``so
long as this regulation is extant, it has the force of law.''
Then it went on to say, the Supreme Court went on to say, As
long as the Attorney General's regulations remain operative he
denied himself the authority to exercise his discretion.
Now, that doesn't mean that a court will order him to
appoint a special prosecutor. There are a lot of laws that
people don't obey, and there's no way we can enforce them. The
President could have refused to turn over the tapes, and we
don't see a court putting him in contempt, jailing the
President, but the President complied, and the Department of
Justice, the Attorney General should recognize he's also under
the law.
The government officials require us to turn square corners
when dealing with them. They should turn square corners when
dealing with us. The Attorney General should follow the
regulations when he denied himself the authority to exercise
discretion. By the way, even discretion, the cases say, is not
abuse of discretion. You may not abuse your discretion.
Now, the Attorney General can restore America's faith in a
nonpartisan IRS and in the DOJ by appointing the special
counsel. It probably should be a Republican. During the
Watergate counsel, during the Watergate controversy, the
Attorney General appointed a prominent Democrat, first
Archibald Cox and then Leon Jaworski, to investigate the
President. In the Teapot Dome, the Attorney General appointed
two prosecutors, one Democrat, one Republican, to investigate.
If a Democrat had given Nixon a clean bill of health, we would
feel better for it, and if a special prosecutor gives the IRS a
clean bill of health, we would feel good about that, too, and
we hope that's what would happen. Thank you.
[The prepared statement of Mr. Rotunda follows:]
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__________
Mr. Jordan. Thank you, Professor.
Professor Tiefer.
TESTIMONY OF CHARLES TEIFER, PROFESSOR,
UNIVERSITY OF BALTIMORE SCHOOL OF LAW
Mr. Tiefer. I'm Charles Tiefer. I was in the Senate Legal
Counsel's Office from 1979 to 1984 and in the House General
Counsel's Office 1984 to 1995, rising to be acting general
counsel. I had more years than anyone else in the House of
Representatives looking at this issue, working with the Justice
Department special and independent counsels. I'm now a
professor at the University of Baltimore Law School.
The regulation at issue here gives the Attorney General
broad and total discretion. It says, ``the Attorney General
will appoint a special counsel when he or she determines that
investigation and prosecution would present a conflict of
interest for the department.'' And I think it has been agreed
by all the witnesses here today, certainly clearly by Mr.
Sekulow in his testimony, that the Attorney General has that
discretion.
Moreover, he's supposed to look at conflicts of interest in
the Department of Justice in exercising his discretion. It
doesn't matter what problems there are at Treasury, at the IRS,
at the White House. Their problems are their problems. His only
consideration is what's going on at the Department of Justice.
Now, since this 1999 regulation, we had the entire two
terms of the Bush administration to see what the experience is
under this regulation. There were very, very few special
counsels. Patrick Fitzgerald is one, and he is the only regular
special counsel I know of in the Bush administration. Even
though the applications, the quests from the Congress for
special counsels included two times where the person being
charged was Attorney General Gonzalez himself. Now, they didn't
have special counsels even though the person being charged for
perjury and in connection with authorizing alleged torture was
the Attorney General himself.
Now, if it doesn't do it to get a special counsel when the
Attorney General is the target, the effort here today is about
as realistic as a fishing expedition for the Loch Ness monster.
Now, the arguments that have been made as to why the
Department of Justice is conflicted, Professor Rotunda has
noted that the President said there was no corruption, but as
the Members here have already noted, Attorney General Holder
testified that they're investigating. Jim Comey, who is the
head of the FBI and was a Republican, was an appointee as
Deputy Attorney General of the Bush administration says they're
investigating. Within the Public Integrity Section, Jack Smith
and Mr. Pilger, who are respectively the head of the section
and the head of the Elections Branch that's doing this, both
submitted to questioning by staff, House Committee staff, which
is unheard of. I wish they had been willing to do it in my
time, but they did it, and they said they're investigating
seriously. So they're doing it. What more assurance do you want
that they're doing it?
And, finally, there's been some fuss made that Barbara
Bosserman, who was said in Mr. Sekulow's testimony to be the
leading attorney in this investigation, gave donations to a
political party. She's not the leading attorney. Even the
greatest, the most intense accusations have admitted in H. Res.
565, she's just an attorney from the Civil Rights Division.
This is a Criminal Division Public Integrity Section
investigation, and her role is, she's sort of visiting from the
Voting Rights Section I think of the Civil Rights Division. So
to believe that the Public Integrity Section, contrary to its
mission, its history, its very reason for existence, the pride
of its career prosecutors, and all my experience with them is
not doing its job, that we've caught them in a conflict of
interest here is like, we're like a hunter who catches a
squirrel and says, look, I've caught bigfoot here. I thank you
for allowing me to present this.
Mr. Jordan. I thank the gentleman for his testimony.
[The prepared statement of Mr. Tiefer follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Jordan. I would recognize the gentleman from North
Carolina, Mr. Coble, for his 5 minutes of questions.
Mr. Coble. I thank the Chairman, and it's good to have you
all with us today.
Mr. Sekulow, let me start with you.
Mr. Sekulow. Yes, sir.
Mr. Coble. Can you defend General Holder's decision not to
appoint a special counsel to the IRS matter by regarding the
investigations that took place under the Bush administration?
Can you compare the two?
Mr. Sekulow. Well, I think the difference here is, number
one, acknowledging the discretion. There were special counsels
under the Bush administration, Patrick Fitzgerald being one of
them. The situation you have here, and I think this is what's
significant in referring to the last witness, the comment, it's
not what the IRS has done. I don't think any of us have the
scope and understanding what the IRS has done. The problem is
the agency investigating the IRS also does not know the scope
of what the IRS has done--and it's not comforting to me as a
litigant, to answer the question, lawyer representing clients,
that the DOJ would come before Committees like this and say, we
learned of the missing emails in the press, when they had been
conducting a 1-year criminal investigation, and they learned in
the press.
Granted, the Attorney General has the discretion here, but
discretion is sometimes the better part of valor, and I think
that in a situation like this you want to assure the American
people and specifically those that have been targeted, that a
real investigation is taking place. We had clients that were
interviewed by the IRS. I will tell you the level of
questioning was at the line agent level. And that was while,
Congressman, I had the letters in my file from lawyers in
Washington, not just Lois Lerner and others, but they were
focusing on, did the agent keep you on hold too long, which is
not a crime. It's impolite, but not a crime. So I think it's
clearly within the discretion of the Attorney General. It was
the Attorney General of the United States that said there may
well be criminal violations here. He brought that up, talking
about the civil rights statute. But when you've got an email
from the IRS saying DOJ is basically colluding with us and
saying, could we piece together--this is what, I remind you,
piece together false claims statements for people that
``lied,'' and then what are we going to do, impanel a grand
jury? This is why I believe the special counsel would be
appropriate and would stop any of the serious questioning that
a lot of us have on whether this investigation is real or not.
By the way, it took them 9 months to get to us to even talk to
our client.
Mr. Coble. Let me elaborate on your conclusion that they
found out in the media. Does this cast a shadow over their
claim that they are engaged in an ongoing investigation, the
fact that they obtained it through the media?
Mr. Sekulow. Well, it certainly does, and how can they be
conducting a thorough criminal investigation, and due respect
to Professor Tiefer, I mean, and not any disrespect to Barbara
Bosserman, but they loan her over to a group. She was the one
that was in the meetings, but they did not know that the emails
that were the key years involved in the investigation were
missing? And that is a criminal investigation? They should be
fired then if that's what they did. If it wasn't criminal what
they were doing, it wasn't, they just made a mistake, those
agents should have been fired for that because that's not a
real investigation. How do you not have the 9 months or 12
months or 14 months of the key time and the emails are gone,
and that was not known by the FBI?
Mr. Coble. I thank you, sir.
Mr. Sekulow. Thank you.
Mr. Coble. Professor Rotunda, in your view, did the
President's statement about there not being a smidgen of
corruption by itself create a conflict of interest?
Mr. Rotunda. I think it's a real problem because the chief
law enforcement officer of the land has prejudged the
conclusion of the investigation. So you're asking the DOJ--I
mean, what are they supposed to do? If they find evidence of
corruption, like the inspector general did, they're
undercutting their boss. And I think what we're interested in
is not only the emails at the time, it's what's going on now.
There's a group called Z Street, they applied for tax-exempt
status. They're a group that has the views of Israeli policy
that they think are contrary to the Administration. They sued
the IRS, the Department of Justice is representing them, and as
we speak now, the Department of Justice is trying to stop all
discovery in the case. The Wall Street Journal said slow walk
the investigation. The Department of Justice seems to be
defending the IRS in court while they also claim they're
investigating the IRS. You can't serve two masters.
Mr. Coble. And the Justice Department's apparent lack of
interest in the investigation?
Mr. Rotunda. I'm sorry, the what?
Mr. Coble. The Department of Justice's apparent lack of
interest in the investigation?
Mr. Rotunda. Well, that's actually a polite term. In the Z
Street case, they're doing more than nothing, they're trying to
slow walk and prevent discovery. So think about it this way:
If, in fact, IRS officials higher than Lois Lerner were
involved and if, in fact, some DOJ officials were involved in
trying to gin up something to harass political opponents, the
DOJ, if that were the case, the DOJ would do exactly what it's
doing now, slow walking investigations, claiming they're doing
something without doing it, learning that there is a third
party who got, who says under oath, I got information from--
brags to people, I got information, I have a conduit in the IRS
but refuses to tell us who, and not give them immunity, not try
to find out. You would do exactly what you're doing now if you
wanted to slow walk the investigation. I think that's active;
more than lack of interest, it is the opposite, but it's not
good interest.
Mr. Coble. Mr. Chairman, I see that my red light is
illuminated, so I yield back.
Mr. Jordan. I thank the gentleman.
The gentleman from Michigan, the Ranking Member, Mr.
Conyers, is recognized for 5 minutes.
Mr. Conyers. Thank you, Mr. Chairman.
Professor Tiefer, I want to bring you in on this. As you
noted in your testimony, where the regulations for special
counsel are found, is it your opinion that these regulations
give the Attorney General sole discretion to appoint special
counsel if, in his judgment, it is appropriate to do so?
Mr. Tiefer. Yes, exactly. I think they give the Attorney
General sole discretion.
Mr. Conyers. May I ask our distinguished witness, do you
agree, sir?
Mr. Sekulow. Yes, it's the discretion of the Attorney
General.
Mr. Conyers. And do you agree, sir?
Mr. Rotunda. Well, to be precise, it is discretion.
Discretion can be abused. I don't think there's a way to
legally enforce the Attorney General, but there are a lot of
things that people have to do under the law that are difficult
to enforce legally. There's President Nixon turned over the
tapes, I don't know what we would have done if he just refused.
Mr. Conyers. Okay.
Mr. Rotunda. The regulation says shall appoint.
Mr. Conyers. I don't want to go into it. All I wanted to
know is do you agree that the Attorney General has sole
discretion to appoint special counsel.
Mr. Rotunda. No, I don't, because it doesn't use the word
``sole discretion,'' it just says, shall appoint if he
determines a criminal investigation is warranted and if there
is a conflict of interest.
Mr. Conyers. So your answer is no?
Mr. Rotunda. Yes, sir.
Mr. Conyers. Okay. Now let me ask you three this question,
starting with Professor Tiefer: Can the House compel the
Attorney General to appoint special counsel?
Mr. Tiefer. It absolutely can't. Not only is it not given
that power in the statute and it wouldn't be constitutional for
the House to interfere in law enforcement, but Mr. Conyers, you
and I go back to the old statute which had a role for the House
Judiciary Committee. At least the statute said it could make a
statement, and the old role that we used to have back then, we
don't even have that under the regulation.
Mr. Conyers. May I ask, Mr. Sekulow, your view?
Mr. Sekulow. Well, I would take a little bit of an issue
here. I think the House has the right to pass a resolution
requesting or sending a letter requesting the Attorney General
to exercise his authority.
Mr. Conyers. But compel? Can we compel?
Mr. Sekulow. No, not compel, but certainly allow him to--I
think the House has a role to play. This idea that the House is
inappropriate by moving this way I think is wrong. They do; the
House certainly can bring it and request it. It can't compel
it.
Mr. Conyers. All right, thank you very much.
May I ask you that same question, Professor Rotunda?
Mr. Rotunda. Sure. Basically, Mr. Sekulow has summarized my
position.
Mr. Conyers. You agree with him?
Mr. Rotunda. For example, Powell v. McCormack, the Supreme
Court ordered Congress to----
Mr. Conyers. Okay, I don't need----
Mr. Rotunda. But I don't think a court will issue an order
compelling the appointment of a special prosecutor, I agree
with that.
Mr. Sekulow. Correct.
Mr. Conyers. It's been suggested, witnesses, in statements
and testimony today that President Obama created a conflict of
interest for the entire Federal Government when he suggested in
a pre-Super Bowl interview on Fox News that he believed there
was no evidence of corruption in the Internal Revenue Service.
In your opinion, does the statement create a conflict of
interest at the Department of Justice?
And I'll begin with you again, Professor Tiefer.
Mr. Tiefer. Positively not. Mr. Pilger and Mr. Smith and
the others who actually as career prosecutors are the Justice
Department on this matter, I can just imagine how little they
care for what the President says in pre-Super Bowl hearings.
They just blow it off.
Mr. Conyers. All right. Let me just get to Professor
Rotunda. What is your view, does the statement create a
conflict of interest at the Department of Justice?
Mr. Rotunda. At the DOJ, yes, and I care what the President
says. I would be shocked if the DOJ lawyers, including the
people that serve at his pleasure, do not care. They should.
He's the President of the United States. He's our President.
Mr. Conyers. And Mr. Sekulow, I ask you finally.
Mr. Sekulow. It does raise the conflict of interest without
question, number one, and number two, the idea that the
President of the United States could prejudge a case or if he
did not prejudge it was given evidence that no one else has
seen that there was no ``smidgen of corruption'' certainly
presents a conflict of interest. He's the chief executive.
Mr. Conyers. All right. Thank you very much.
My time has expired. I yield back.
Mr. Jordan. I thank the gentleman.
Before yielding to the gentleman from Alabama, I would just
make one comment. I read Mr. Tiefer's testimony last night, and
he spent like five pages on discretion. No one up here on
either side of the aisle I think, save to the former Chairman,
thinks the Attorney General doesn't have discretion. Of course,
he has. Plain reading of the resolution, it's a sense of the
House Resolution. All we're saying is look at the fact pattern,
and we think that cries out for a special counsel. And not just
Republicans; 26 Democrats voted for that resolution. Recognize
the gentleman from Alabama for 5 minutes.
Mr. Bachus. Thank you.
Mr. Nadler. Mr. Chairman.
Mr. Jordan. The gentleman from New York.
Mr. Nadler. Just to reply to you, I, too, agree this
hearing is a total waste of time.
Mr. Jordan. No, I didn't say that. I said that----
Mr. Nadler. You implied it.
Mr. Jordan. I don't think I implied it at all, but the
gentleman can have his editorial comment there, and we will
move to the gentleman from Alabama.
Mr. Bachus. Thank you.
One email was read, Mr. Sekulow, you read one of the
emails, but another one I was just noting here is from Lois
Lerner on Wednesday, March 27, and said everyone is looking for
a magic bullet.
Mr. Sekulow. Right.
Mr. Bachus. To prosecute these people. And that traffic
included the DOJ.
Mr. Sekulow. Right, and also several of the others included
the FEC. I mean, there's no doubt that this is a multi-agency
engagement. The question is, in a situation like this, when you
have got a multi-agency engagement, has the DOJ's ability to
impartially investigate this been compromised? No one is
questioning that it is the authority of the Attorney General to
determine whether a special counsel can be appointed, but it's
certainly appropriate for this Committee to bring forward the
facts that show why it would be prudent, and again, in this
particular case, you're pointing to the March 27 email, there
are emails going back even further. You've got the statements
that Lois Lerner made at Duke University.
But it all started with the fake apology and a planted
question in the ABA. That should have been the focus of the
FBI's investigation, not questions to our clients about if they
were on the phone calls too long or treated rudely.
Mr. Bachus. Yeah, it's pretty clear here that they were
looking for a way to prosecute these people.
Mr. Sekulow. Oh, yeah. They say it.
Mr. Bachus. And the Justice Department was involved in
this. I mean, if that's not a conflict, to investigate
yourself----
Mr. Sekulow. Well, Congressman----
Mr. Bachus. And we're talking about, but if part of the
issue you're talking about to whether to have a special counsel
is to investigate wrongdoing, and the wrongdoing is in your
very department, how can you investigate yourself? That would
be my question, Professor Rotunda or Sekulow or maybe Tiefer.
Mr. Rotunda. Yeah, and of course you can't, at least not
objectively, and the problem is not only what happened a year
or two ago; it's what's happening as we speak today, that is
the Z Street group is in litigation, the DOJ is defending the
IRS and slow walking the discovery. The IRS, to settle
litigation against the IRS, the DOJ approves this $50,000
settlement. The IRS is not in the habit of handing out money.
They're there to collect money. And to say that there's not a
smidgen of corruption and then pay a $50,000 check to make the
case go away because of the corruption area, that's
inconsistent, and what I would like, I think the advantage of
the special counsel is if he tells us in fact it went no
further than Lois Lerner, maybe Lois Lerner and the IRS
commissioner, somebody else, we could believe that. When this
Administration, when the people are investigating themselves,
it's very hard to believe that.
Mr. Bachus. Well, and let me ask you this. Let's assume the
Justice Department is investigating Lois Lerner. They say they
are. And to investigate someone, the first thing you do is you
ask for all the documents. Emails now----
Mr. Rotunda. Right.
Mr. Bachus [continuing]. Are probably the central thing,
phone records. How is it, and I'll ask any of you, how is it
conceivable that if they're investigating or asking her for
emails, there could have been all these emails destroyed and
they didn't know it?
Mr. Rotunda. How can the IRS commissioner testify to the
House under oath that the emails have been destroyed and then
the inspector general says actually they're there? Why did the
IRS commissioner say that? Somebody lied to him? Somebody was
incompetent? Certainly somebody wasn't looking very hard
because the inspector general, the nonpartisan official, signed
it. There are a lot of things here that are, shall we say,
eyebrow raisers.
Mr. Bachus. Professor Tiefer, go ahead.
Mr. Tiefer. You may think they're too slow, okay? I won't
argue; I don't know enough to argue. It took them a while in
the investigation to find this out, point taken that they may
have been slow. The scale of what it takes to find that the
Justice Department has a conflict of interest such that they
can't do this investigation, that it's taken away from them, if
you did that every time they did a slow investigation, you
would have to build a new Main Justice building just for the
special counsels.
Mr. Bachus. Well, you realize, there's 70 percent of the
American people say they're covering up and they're guilty of
misconduct. Now, that's just their opinion. But isn't that
enough, when 70 percent of the people think their government is
lying to them and covering up and destroying evidence, isn't
that reason enough?
Mr. Sekulow. They didn't find it slow, Congressman.
With due respect, Professor, they didn't find it slow. They
didn't find it at all. It was only public after a Freedom of
Information Act request. That's the problem. The FBI
investigation did not uncover the missing emails from the key
period and, apparently, from people that also received them.
Mr. Rotunda. Yeah, third parties without a subpoena get
more information than the Department of Justice with a
subpoena.
Mr. Bachus. Another word you used, slow walking, if nothing
else, this is a case of slow walking.
Mr. Jordan. The gentleman from New York is recognized.
Mr. Nadler. Mr. Chairman, before I'm recognized, can
Professor Tiefer answer Mr. Bachus's question about the 70
percent?
Mr. Tiefer. I'll refer back, if the regulation said anytime
the public puts thumbs down about their government, now we have
twice as many special counsels as I was worried about before,
but I'll just note that the instances I talked about in the
Bush administration involving Attorney General Gonzalez, I
don't know the exact poll figures, but I know there were times
during the Bush administration that there was grave public
doubt about either Attorney General Ashcroft or Attorney
General Gonzalez, and we didn't get special counsels.
Mr. Bachus. But that doesn't make it right, does it?
Mr. Jordan. No, it doesn't make it right that the Justice
Department learned of the missing emails from the press
accounts when the IRS wrote the letter.
The gentleman from New York is recognized.
Mr. Nadler. Thank you, Mr. Chairman.
Mr. Bachus. I just don't think a defense that someone else
did something just as bad is a defense.
Mr. Jordan. I hear you.
The gentleman from New York is recognized.
Mr. Nadler. Thank you.
Professor Rotunda, in your written testimony, you state,
``We also know that the Department of Justice is in a conflict
of interest in continuing that investigation because the
President has compromised it.'' That occurred when the
President, the chief law enforcement officer of the United
States, announced last February that there has not been a
``smidgen of corruption.' '' You're referring, and I think you
did today earlier, to the President's comments in an interview
with Bill O'Reilly on February 2, are you not?
Mr. Rotunda. Yes, sir.
Mr. Nadler. Thank you. In your view, the President has
created a conflict of interest for the entire Federal
Government because he gave his opinion based on the facts of a
case as he understood that at the time?
Mr. Rotunda. Not for the entire Federal Government, but for
the Department of Justice, and he's never gone back on his
remarks.
Mr. Nadler. Well, whether he's gone back on his remarks or
not, that's not the question. By saying that he's created a
Federal conflict of interest for the entire Department of
Justice although not the Department of Agriculture is what
you're saying?
Mr. Rotunda. That's right. Command influence we call it in
the military.
Mr. Nadler. December 6, 2005, you wrote a column in The
Washington Post titled, ``A Shaky Ethics Charge.'' Reports show
that John Roberts then on the D.C. Circuit had interviewed with
senior White House officials, including Alberto Gonzalez, then
the Attorney General, Dick Cheney, then the Vice President,
Karl Rove, I presume then the politician in chief, while
sitting as a member of the three-judge panel considering Hamdan
v. Rumsfeld. A number of people called for his recusal from
that case. You argued that, ``Roberts had no obligation to
withdraw from the case'' and concluded that conflict of
interest charges should not be raised lightly.
There a sitting judge consulted with the White House,
presumably for appointment, possibility of appointment as the
chief justice while hearing a case that tested a central theory
of the White House's war on terror, but there was no conflict
of interest. Here the President gave his opinion on a case far
removed from the White House, but there is a conflict of
interest. How is that consistent?
Mr. Rotunda. Well, as I pointed out then, we had a lot of
case law that fit under Roberts. And Justice Breyer, for
example, was deciding cases as a First Circuit judge and then
appointed to the Supreme Court and talking to the Supreme
Court--or talking to the Department of Justice about positions.
There's a lot of case law on this. We have in the executive
branch----
Mr. Nadler. But that doesn't apply to an off-the-cuff
expression of opinion by the President.
Mr. Rotunda. The President's never said it was off-the-
cuff. I don't think it was off-the-cuff.
Mr. Nadler. Well----
Mr. Rotunda. I've never heard that one before.
Mr. Nadler. It was an expression of opinion on a TV show,
not in a legal brief or anything else.
Mr. Rotunda. He was command influence, he was telling us
what the investigation shows is there's not a smidgeon of
corruption. What was the basis for that? That somebody may have
misrepresented to him? Somebody may have been incompetent, but
it's little difficult for the Department of Justice to show----
Mr. Nadler. And yet----
Mr. Rotunda [continuing]. But argue the President was
incorrect.
Mr. Nadler. Well, that's a different question, whether he
was correct or incorrect. Yet you published an article in the
Hofstra Law Review, titled, ``Alleged Conflicts of Interest
Because of the Appearance of Impropriety.'' In it you discuss
the situation where a lawyer openly takes a position on a
controversial issue. You conclude, ``Those who claim that there
is some sort of conflict of interest in public statements about
policy matters do not refer to any rules, regulations, case law
or ethics opinions to support their charge; that is because the
law on this subject all points the other way.''
Can you point to any precedent, any rule, regulation, case
law or ethics opinion that suggests the President's unscripted
remarks from a pre-Super Bowl interview compelled the
Department of Justice to recuse itself from a criminal
investigation?
Mr. Rotunda. I referred to them briefly earlier. In the
military, it's called command influence. If the general says--
--
Mr. Nadler. Wait a minute. This is not the military.
Mr. Rotunda. I'd like to finish my sentence if I could. All
right? The President is not in the military, but he can't
prejudge that as well. I objected to that article talking about
the appearance of impropriety, because we never define what is
not an impropriety but appears to be. We ought to have stricter
rules.
Mr. Nadler. Can you point--and I'll repeat the question.
Can you point to any rule, regulation, case law or ethics
opinion to support the charge that the President sets up a
conflict of interest for the entire Justice Department by
expressing his opinion?
Mr. Rotunda. Yeah.
Mr. Nadler. Question mark.
Mr. Rotunda. All the cases on command influence that cover
even the President, who's not----
Mr. Nadler. Command influence----
Mr. Rotunda [continuing]. Military.
Mr. Nadler [continuing]. Is within the military structure,
which is a very different thing, where the President is on top
of the--not only the prosecution but the judicial chain.
Mr. Rotunda. Yeah. The President is the chief law
enforcement agent of the land.
Mr. Nadler. He's not the chief judge, as he is in the
military, in effect.
Mr. Rotunda. He's not the chief judge, no. That's why he
can't exercise command influence.
Mr. Nadler. Cannot exercise command influence. In the
military, he exercised command influence. That's what you were
saying, otherwise, why did you mention it?
Mr. Rotunda. I'm sorry. I guess I don't understand.
Mr. Nadler. I asked if there was any case, rule, regulation
or anything, and you cite the military because of command
influence. This is not the military. There is no command
influence.
Mr. Rotunda. Even though the case will be decided by a
military judge or prosecuted by the military attorneys and the
President has no direct rule, he's still not allowed to tell
people how the case is supposed to come out. And we'd like to
know, since I think part of the investigation here is whether
the DOJ is involved in the coverup, why did the President say
that? Was it about----
Mr. Nadler. The President----
Mr. Rotunda [continuing]. Off-the-cuff remark----
Mr. Nadler. The President----
Mr. Rotunda. Was it because the DOJ----
Mr. Nadler. Hold on.
Mr. Rotunda [continuing]. Gave him information?
Mr. Nadler. The President is not the subject of the
investigation. There is no evidence whatsoever to tie senior
Administration officials to the case, and yet it's your
position that the President's expression of opinion creates a
government-wide or at least a department-wide conflict of
interest. This seems to go against everything else you've ever
written on the subject.
Mr. Rotunda. I don't think so.
Mr. Goodlatte [presiding]. The time of the gentleman has
expired, but the gentleman will be allowed to answer the
question.
Mr. Rotunda. Yeah. I don't think so. That's why I got
footnotes. I cite the various authorities. Now, I will add----
Mr. Nadler. But you can't cite a single----
Mr. Goodlatte. The time of the gentleman has expired.
The Chair recognizes the gentleman from Virginia, Mr.
Forbes.
Mr. Nadler. A point of order, Mr. Chairman.
Mr. Goodlatte. The gentleman will state his point of order.
Mr. Nadler. Yeah. Before you came in, the gentleman who was
seated in the Chair was commenting after every question and
every witness, and took a minute or two or three to make his
comments. I think I can ask one more question of the professor.
Mr. Goodlatte. Without objection, the gentleman will have 1
more minute.
Mr. Nadler. Thank you.
And yet when I asked you whether you can cite any
regulation, rule, case law or ethics opinion to support the
charge, all you can come up with is military stuff, command
influence, nothing civilian. Is that correct?
Mr. Rotunda. Well, in my written testimony, that's correct.
Mr. Nadler. Thank you.
Mr. Rotunda. What I tried to point out today, because the
email just came out, we now learn that the Department of
Justice is slow walking the discovery in cases defending the
IRS, and that is also creating a conflict, much more serious,
because it is the Department of Justice officials defending the
IRS while they're supposed to be investigating the IRS.
Mr. Nadler. So nothing outside the military. Thank you.
Mr. Goodlatte. The Chair recognizes the gentleman from
Virginia, Mr. Forbes, for 5 minutes.
Mr. Forbes. Thank you, Mr. Chairman.
I want to try to get back to the essence of this hearing,
which is basically, it's not the credibility of one particular
individual, but would all of the witnesses, would any of you
disagree that currently the credibility of the Internal Revenue
Service is a major question now with a vast majority of the
American people? Would any of our witnesses disagree with that?
Mr. Tiefer would, I take it.
Mr. Tiefer. I would just say it's nothing new. The public
has always hated the IRS.
Mr. Forbes. Well, it's a difference between hating them.
Mr. Sekulow, have you seen any difference in actually with
the American public in terms of the credibility of the Internal
Revenue Service?
Mr. Sekulow. I can give you actual evidence of the concern,
and generally, the IRS doesn't win--when I used to get
introduced and you said you were chief counsel of the IRS, that
usually didn't get applause in the early days, but the reality
is now, I've been literally inundated with cases, requests for
assistance from people that are simply getting notices of
deficiency, wondering if they have been targeted for something,
because it's coming out of nowhere.
So there is this palpable general distrust, and what
counters that is the reality of it is it's not just one person,
this is happening time and time again. And then you had, which
has not been brought up, you know there were a series of audits
conducted by the IRS against adoptive parents because of the
adoption tax credit. They recovered less than 1 percent of the
revenue that was of the credit that was actually taken. These
kind of actions lead to an increased concern by the American
people.
Mr. Forbes. Would you not agree that the IRS is not just
any agency. It's a core agency in terms of both the
overreaching power that they have on the American people and
also the core of its capability of raising revenue for this
country, and then the other part of that is it depends on the
voluntary----
Mr. Sekulow. Right.
Mr. Forbes [continuing]. Compliance of the American people.
Now, having said that, I want to go back to this question
that most of you agree that this is a discretionary issue for
the Attorney General, but if you take Mr. Tiefer's response
that any time anybody comes in here and just says, we're doing
an investigation, then this Committee should just go home and
not do anything, then I will tell you, we wouldn't do any of
our oversight roles, because time and time again, this
Administration's come in and said, oh, yeah, we got into look
that, we're going to get back to you, we're doing an
investigation, and we don't hear anything.
And then when you look at the other comment, Mr. Tiefer,
that you said about the people in the Justice Department not
paying any attention to what the President of the United States
says, I know it's a different role, but look at the generals
and admirals who have lost their jobs at the Pentagon because
they disagree with this Administration. They've issued gag
orders on them. They've fired them because they disagree, and
you tell me if I'm in an agency and the President of the United
States, who's my boss and I serve at will, comes out and says
there's no evidence here, I'm sending that message, I'm not
going to pay attention to it?
Mr. Sekulow. I was just going to say, Congressman Forbes,
and this goes to what Congressman Nadler was talking about,
this was not just an off-the-cuff statement. It was a statement
by the President of the United States that there was not a
smidgeon of corruption on what was purportedly an ongoing
criminal investigation.
Now, if an attorney was involved in a case and made that
kind of statement, they would be reprimanded by the court. An
ongoing criminal investigation, and the President of the United
States has prejudged it, and there's an executive function
within the Department of Justice, that is very troubling.
Again, it's discretionary to the Attorney General what he wants
to do with that, but to say that doesn't raise an issue, I
think, is----
Mr. Forbes. Mr. Sekulow, let me come back to this question.
The essence of this case, to me, comes down to this, whether
you appoint this special counsel. Mr. Rotunda, you talked about
the Nixon tapes, and he probably didn't have to turn them over.
If you had it to go over now and it wasn't a worry about
impeachment, he wasn't worried about the politics of it, and
you had to advise him, and he had two questions to ask: Do you
want to make sure you're restoring the credibility of the
Internal Revenue Service, or do you want to make sure that your
agencies aren't held accountable for perhaps some misconduct
that took place there, what would you have advised him to do,
turn over that information or not turn it over?
Mr. Rotunda. Turn it over, that is, comply with the law,
even though it can't be enforced.
And by the way, this is not Super Bowl Monday. That is,
we're not talking about asking for a special prosecutor an hour
after the President issued his remark. We have that remark,
which raised my eyebrows, what does he know that we don't know,
and we've had a whole series of things after that, including
the DOJ attitude and actions in the lawsuit involving the Z
Street Corporation, the $50,000 settlement in the National
Organization of Marriage, the refusal of the DOJ to give
immunity to this individual who could tell us who gave him the
information from the IRS.
Mr. Forbes. Thank you.
My time's expired. I'm not going to take more time.
And, Mr. Chairman, with that, I yield back.
Mr. Goodlatte. I thank the gentleman.
The Chair recognizes the gentleman from Virginia, Mr.
Scott, for 5 minutes.
Mr. Scott. Thank you. Thank you, Mr. Chairman.
As the Ranking Member has indicated, this is the last full
working day before we go on a 5-week recess. We've still got
pending, and apparently not enough time to consider voting
rights legislation to improve voting rights generally or the
voting rights bill that would respond to the Shelby decision.
We haven't passed immigration reform or done anything about gun
violence and a host of other issues, but here we are with a
hearing, and you wonder about the purpose of the hearing
generally, but the House has already passed H. Res. 565,
demanding that the Attorney General appoint a counsel. This
hearing might have made sense before we considered that
resolution, but after we passed it, it wonders what this is all
about, but let me get to a--we've been talking about a lot of
regulations.
The code of the United States under 501(c)(4) says that
those organizations that could get that tax-exempt status are
civic league organizations not organized for profit but
operated exclusively for the promotion of social welfare.
The regulations say that to qualify as a social welfare
organization under 501(c)(4), an organization must be operated
exclusively for the promotion of social welfare. An
organization is considered to be operated exclusively for the
promotion of social welfare if it is primarily engaged in
activities which in some way promote the common good and
general welfare of the community. They say that political
activities are not considered to be activities for the
promotion of social welfare.
Then they go on to talk about attempts to influence
legislation are considered to be activities that further
Section 501(c)(4) social welfare purposes so long as such
legislation is germane to the accomplishment of its social
welfare purposes.
Promotion of social welfare does not include participation
or intervention in political campaigns, but 501(c)(4)
organizations may intervene in political campaigns without
jeopardizing its tax-exempt status provided it is primarily
engaged in other activities which further the promotion of
social welfare.
Those are the regulations. Let me get back to the code.
Organized not-for-profit but operated exclusively for the
promotion of social welfare. Aren't these regulations that
essentially changed the law? Isn't this the problem we're
confronted with?
Mr. Sekulow. Well, the issue under 501(c)(4), Congressman
Scott, is the test that the IRS has been applying for over 50
years was the primary test. It was primary. The word does say
``exclusive,'' and then the regulations define ``exclusive'' to
be primary.
However, there has been a 50-year history of how (c)(4)s
are allowed to operate, what they can and cannot do. And,
frankly, as someone that's been involved in tax work since
1980, there has not been a significant issue here. There's been
very few revocations of tax-exempt status of (c)(3)s or
(c)(4)s. There's been some, but it has been very rare. The
applications actually during the years in question here were
down from the previous year.
What you have is the regulations are not clear. You'll
remember, they were trying to do a quick fix to this problem.
The acting commissioner said, what we're going to do is if
you'll agree to expend no more than 40 percent of your activity
for political expenditures, we will automatically grant you--
which is different than the standard they even set in their
regulation. So it's fair to say that the rules and regulations
are complex. However, they've been administered for 50 years
pretty consistently.
Mr. Scott. They essentially amend the law by regulation
exclusively as meaning in the English language that would not
include significant political activities.
Mr. Sekulow. Unless that was social welfare. Social welfare
could include political engagement.
Mr. Rotunda. Yeah. I think we add something else, and that
is the inspector general said there was inappropriate criteria.
Lois Lerner in her full apology acknowledged it was
inappropriate criteria. So it's a little late for the IRS to
argue that what they did was appropriate, when the head of the
decision and the IRS independent inspector general says that it
is inappropriate. And the reason it was inappropriate is
because it focused on the political views of the people, of the
people involved.
Mr. Scott. Well, now, there's no evidence to that. There
are were liberal groups that were also--had their----
Mr. Rotunda. Well, actually----
Mr. Sekulow. None denied.
Mr. Rotunda [continuing]. There's lots of evidence to that.
Mr. Sekulow. None of those denied. There were seven groups
picked up, Congressman, but none denied their exempt status.
Mr. Scott. Well----
Mr. Tiefer. Mr. Scott, I think they were caught in the
problem you're talking about, but they had outdated criteria.
And the decisions on how to handle it, which were not to deny,
not to deny Tea Party applications, but just trying to figure
out what to do with them, were made at the lower level of the
bureaucracy, passed back and forth between the unit that gives
advice, technical unit, and the people who have the frontline
roles.
Mr. Sekulow. That is absolutely incorrect.
Mr. Rotunda. And it doesn't justify a $50,000 settlement,
because you don't act that way if you've got nothing to worry
about.
Mr. Goodlatte. The time of the gentleman has expired.
The Chair recognizes the gentleman from California, Mr.
Issa, for 5 minutes.
Mr. Issa. I thank the Chairman.
You know, I don't want to get too far into the weeds on the
last colloquy we just heard, but during those 50 years, more or
less, weren't we living with the decision in the NAACP v.
Alabama?
Mr. Sekulow. Yes.
Mr. Issa. Weren't we living with the recognition that a
state, Alabama, had tried to get the records of people who gave
to the NAACP, because the NAACP, a not-for-profit, on their
behalf was trying to do voter registration, was trying to do
political things as a social service, and the Supreme Court
held very much that they had an anonymous right. And wasn't one
of the situations in this targeting demanding that these
501(c)(4)s turn over their contributor list?
Mr. Sekulow. Their donor records, contributor lists. In
fact, in our response back, Congressman, to the IRS, we cited
all the--there's a lot of NAACP cases on this, and we cited----
Mr. Issa. There's a great history.
Mr. Sekulow. A really rich history, and it's a fascinating
study, but the end result is what the IRS was asking for was
outside of the scope of legitimate inquiry and was protected by
the First Amendment. Ultimately, they backed down, but,
Congressman, it took months for them back down.
Mr. Issa. But of course, it's a very powerful agency
against----
Mr. Sekulow. Yep.
Mr. Issa [continuing]. A small startup in the case of a Tea
Party group.
Aren't the other cases that you often see--hear about
anonymous free speech, union cases where time after time,
people wanted to identify the union element so they could be
targeted? It is amazing that we're relitigating something that
was so settled during the civil rights era.
Well, let me go to the special counsel, because that's
what----
Mr. Rotunda. The decision in the Social Workers Party v.
Ohio, it's not just civil rights cases. The court said if you
release the names of the political contributors in the Social
Workers Party, they're afraid of harassment of the donors.
That's what happened in the National Organization for Marriage.
Mr. Issa. I think you're exactly right. And so one of the
key tenets here is, in fact, your ability to take your after-
tax money, you've already paid your taxes, and give it to a
group that's considered ``tax exempt,'' but 501(c)(4)s, they
only pay tax on retained money. The reality is if they spend
all the money that people give them with their after-tax money,
there's no tax consequences anyway.
Mr. Sekulow. Right.
Mr. Issa. So the major part of the harassment, these
endless questions of delay, but a major part of it was asking
for information that the IRS clearly should have known was
inappropriate to ask for. So when we have an investigation into
this wrongful act, when we have a clear wrong act, Lois Lerner
went before the American Bar Association, planted a question so
she would be asked about a TIGTA investigation that was coming
out, and she could then spring it as a release, when in fact
what she was really doing was sending something out so she
could spin a false narrative. Now, that happens to be a crime.
So when you have that and then you have the President
following up with there's not a smidgeon of evidence, pre-
determining the case, does it fit any of these criteria, one,
conflict of interest, I'll set that aside, it has been talked
about a lot. The ``or'' in the first test is extraordinary
circumstances. Is, in fact, the series of events pretty
extraordinary for the American people to digest? Lastly, is
there a public interest?
So I'll ask the question, leaving the first one out for a
moment, even though the Attorney General sat before this
Committee and told us he wore two hats, one, the highest law
enforcement office and the other a political appointee, and he
said that sitting right in that middle chair, but leaving that
aside, the conflict of interest, isn't it pretty extraordinary
to have a President taint a jury pool, so to speak, by saying
there isn't a smidgeon of evidence while there is, in fact, an
ongoing investigation?
And isn't there a public interest in the American people
believing that anyone who was involved in this now known to be
wrongful activity at the IRS has been held accountable? And I
would take them in reverse order if possible, public interest,
extraordinary circumstances.
Mr. Sekulow. Well, the public interest is clear, because
the integrity of the IRS right now is in complete disarray,
and, in fact, there are some that question whether they're
institutionally capable of self-correcting this. That's one.
With regard to the nature of what's happened here and the
impact that that has on the conflict--not even the conflict,
but the standards or review for a special counsel, it's
unprecedented that you had the President pre-judge the case
while the evidence was lost, and the IRS lost it, allegedly,
and the FBI doesn't find out about that during the scope of
their investigation. They find that from media reports. When
you put all of that together, it would be an easy justification
for a special counsel, that is for sure.
Mr. Issa. Mr. Chairman, at this time, I'd like to ask
unanimous consent that the Oversight report authored that says,
``Debunking the Myth the IRS Targeted Progressives,'' be placed
in the record so that Members could resolve those conflicts
that seem to be unresolved by our panel.**
---------------------------------------------------------------------------
**The information referred to is not printed in this hearing record
but is on file with the Committee and can be accessed at http://
oversight.house.gov/wp-content/uploads/2014/04/4-7-2014-IRS-Staff-
Report-w-appendix.pdf.
---------------------------------------------------------------------------
Mr. Goodlatte. Without objection, it will be made a part of
the record.
Mr. Issa. I thank you, Mr. Chairman.
Yield back.
Mr. Scott. Mr. Chairman.
Mr. Goodlatte. For what purpose does the gentleman from
Virginia seek recognition?
Mr. Scott. Unanimous consent request.
Mr. Goodlatte. The gentleman will state his request.
Mr. Scott. Mr. Chairman, I ask unanimous consent that two
articles be admitted into the record, one entitled, ``Meet the
Group the IRS Actually Denied: Democrats,'' and the other, the
``IRS Sent Same Letter to Democrats That Fed Tea Party Row,''
and it outlines the fact that the Democratic-leaning group
actually saw its tax-exempt status denied, forcing it to
disclose its donors and pay some taxes.
Mr. Goodlatte. Without objection, the articles will be made
a part of the record.
[The information referred to follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Issa. Mr. Chairman, one more unanimous consent, since
we are on a roll. I'd also like to also put in, ``How Politics
Led the IRS to target Conservative Tax-Exempt Applications for
Their Political Beliefs.''***
---------------------------------------------------------------------------
***The information referred to is not printed in this hearing
record but is on file with the Committee and can be accessed at http://
oversight.house.gov/wp-content/uploads/2014/06/How-Politics-Led-to-the-
IRS-Targeting-Staff-Report-6.16.14.pdf.
---------------------------------------------------------------------------
Mr. Goodlatte. Without objection----
Mr. Issa. I thank the Chairman.
Mr. Goodlatte [continuing]. It'll be made part of the
record.
Mr. Tiefer. If I can respond to Mr. Issa's last question.
Mr. Goodlatte. Without objection, you may respond to the
question.
Mr. Tiefer. Okay. When we go back to look at the special
counsel's regulations in 1999, when it was adopted in the
Federal Register, it says that you have a special counsel when
the Attorney General concludes that extraordinary circumstances
exist. And here's what he has to decide--it isn't whether you
want to restore the IRS, it has nothing to do with anybody
outside the Department of Justice, as we were talking about on
both sides of the aisle, the questioning so far until now. When
the Attorney General would be served by removing a large degree
of responsibility for the matter from the Department of
Justice.
You don't get away from the criterion. Are you going to
say, Oh, Public Integrity Section, you're conflicted; oh, FBI,
you're conflicted. We've got to take it out of your hands?
Even if the head of the FBI is a Republican, I don't think
that this criterion is met here.
Mr. Goodlatte. Thank you.
Mr. Bachus. Mr. Chairman.
Mr. Goodlatte. For what purpose does the gentleman from
Alabama seek recognition?
Mr. Bachus. You know, I recall reading somewhere, and maybe
somebody can pursue this----
Mr. Goodlatte. If I may, I think the gentleman needs to get
someone else to yield time to him, and then he can make the
point at the appropriate time.
At this time, I----
Mr. Bachus. Ten seconds. Thank you.
Mr. Goodlatte. I will make sure you get that time yielded
to you, but now it's the time of the gentleman from Rhode
Island, Mr. Cicilline. He's recognized for 5 minutes for his
questions.
Mr. Cicilline. Thank you, Mr. Chairman.
Mr. Tiefer, are you aware of any serious argument that has
been made in the 15 years since this regulation existed, any
serious claim that disputes the Attorney General has discretion
for this appointment?
Mr. Sekulow. You're asking----
Mr. Cicilline. No. I'm asking the gentleman on the end.
Professor Tiefer, I believe.
Mr. Tiefer. I'm sorry.
Mr. Cicilline. Are you aware of any serious argument that
has been made in the last 15 years or any serious claim that
the Attorney General does not have discretion for the
appointment of a special counsel?
Mr. Tiefer. There has never been, I guess I just heard a
couple of words today, never been until now an argument that he
lacks discretion.
Mr. Cicilline. And in fact, in your written testimony, you
describe claims to the contrary as a, and I quote you, ``a
convenient, unheralded concoction of fanciful imagination.''
What do you mean by that?
Mr. Tiefer. I don't think there's a lot of reality to it.
Mr. Cicilline. And there is an ongoing investigation by
both the Department of Justice and the Federal Bureau of
Investigation on this matter, correct?
Mr. Tiefer. Correct.
Mr. Cicilline. And has it been the practice of the Congress
to engage in hearings, to sort of piggyback on ongoing criminal
investigations?
Mr. Tiefer. Absolutely not.
Mr. Cicilline. And why is that?
Mr. Tiefer. Because the Department has a very firm stance
that it will not provide material from open investigations. I
worked with not only with House Committees during my time as
general counsel; I testified in favor of Mr. Issa's
investigation of Fast and Furious. I was the lead witness at
his hearing. I said, as long as you're going after closed
stuff, you can get it; but open investigations, you can't.
Mr. Cicilline. Thank you. I think in light of that, as the
gentleman from Virginia just mentioned, with all of the work
that we have unfinished, the Voting Rights Act, immigration
reform, enacting responsible gun safety legislation, it's hard
to understand what we're doing here today.
But I'd like now to go to Mr. Sekulow. In your written
testimony accusing the Department of Justice and the IRS of
collusion, you cite Criminal Statute 18 USC 241, which makes it
illegal for two or more persons to conspire to injure, oppress,
threaten or intimidate any person in any State in the free
exercise or in enjoyment of any right or privilege secured to
them by the United States or laws of the United States.
You conclude that the targeting of any American based upon
their personal beliefs or freedom of association is repugnant
to the Constitution. And while you uphold principles of anti-
discrimination in the U.S. Code and constitution, Human Rights
Watch named the organization which you head, the American
Center for Law and Justice, to their LGBT Rights Hall of Shame
for their active support of discriminatory policies in Africa,
for example, the East African Center for Law and Justice, an
offshoot of your organization, and I quote, ``lobbied against
Kenya's progressive new constitution'' in 2010 solely on the
basis that the constitution's anti-discrimination clause would
eventually be used to advance LGBT equality, according to Human
Rights Watch.
You then opened a Zimbabwe chapter, and your organization's
chairman led a prayer march with President Mugabe, who is a
notorious homophobe dictator, who has referred to gays and
lesbians as dogs and pigs and said, and I quote, ``they should
rot in jail.'' A State Department spokesman, Victoria Nuland,
said, we are deeply concerned when security forces have become
an instrument of political violence used against citizens
exercising their democratic rights.
And so my question to you, sir, is how do you reconcile
your support for civil rights under the Constitution and U.S.
law while your organization is actively promoting
discriminatory policies abroad? And don't we have a right, as
Members of this Committee, to consider this hypocrisy in
evaluating what weight to give your testimony?
Mr. Sekulow. Well, you're conflating, Congressman, with due
respect, an issue where there is a discussion or a debate
within a culture about a constitutional referendum. You
certainly wouldn't deny, Congressman, that individual citizens
would have the right to object to a provision of a
constitution, at least vocally through free speech rights, to
engage in the process. That's what they were doing down there.
Mr. Cicilline. I----
Mr. Sekulow. Let me----
Mr. Cicilline. I would not agree with that. I do not----
Mr. Sekulow. Oh, you think if there's a discussion
between----
Mr. Cicilline. No. I don't think there is a discussion that
can be had in the context of recognizing basic human rights
that would authorize the discrimination, imprisonment and acts
of violence against people because of sexual orientation,
period. So my question really is----
Mr. Sekulow. Well, you're conflating the two again.
Mr. Cicilline [continuing]. Your organization is actively
engaged in promoting discriminatory policies, and you claim in
your written testimony that you're here trying to vindicate
free expression. The two seem to be in direct contradiction.
Mr. Sekulow. Well Congressman, you needed to do some more
reading, with due respect, because you'd find out I've
represented the ACLU before the Supreme Court of the United
States.
Mr. Cicilline. I'm asking you about your representation
promoting----
Mr. Sekulow. Why don't--we also have offices in Russia----
Mr. Cicilline [continuing]. Policies that----
Mr. Sekulow [continuing]. In Jerusalem, in Pakistan.
Mr. Cicilline [continuing]. And criminalize behavior of
people in the LGBT community and your claim today----
Mr. Sekulow. We've never taken that position in the United
States. And these are different issues----
Mr. Cicilline. Oh, not in the United States, but
internationally.
Mr. Sekulow. You're making a very serious accusation, but
you're conflating a group's ability to organize to say, we
don't like the direction of a law in a country: We think that
it should be X; you think it should be Y. The people have the
right to say that, and that's why you have free discourse.
Mr. Cicilline. Reclaiming my time.
Mr. Nadler. Would the gentleman yield?
Mr. Cicilline. Certainly.
Mr. Nadler. Thank you. Would it be more----
Mr. Goodlatte. The time of the gentleman has expired.
Mr. Nadler. Would it be more of a----
Mr. Goodlatte. The time of the gentleman has expired.
Mr. Nadler. I ask unanimous consent for one additional
minute.
Mr. Goodlatte. I object. This is not the appropriate time
for asking for unanimous consent, when I just denied the
gentleman from Alabama's request to speak out of order. We have
a number of people who wish to ask questions, and the time now
turns, as it happens, to me. And after that, I'll ask someone
else to take the chair, and if there is a unanimous consent
request or if another Member wishes to yield to you, that would
be the appropriate thing to do, but we are here to talk about
this issue, and I'd like to return to a focus on the issue of
whether or not the Attorney General should appoint a special
counsel.
So, first of all, let me ask Professor Rotunda, your
testimony highlights that in discussing the special counsel
regulations, the regulations call for appointment of a special
counsel when investigation or prosecution of that person or
matter by the United States Attorney's Office or litigating
division of the Justice Department would present a conflict of
interest.
Now, would you like to respond to Professor Tiefer's
argument that there is no conflict of interest within the
Justice Department on this issue?
Mr. Rotunda. Yeah. I think there is; that is, the Justice
Department is defending the IRS in court today opposing the
discovery of these documents. They're slow walking it, the
cases involving, what is it, the Z Street, their tax-exempt
status. They're supposed to be investigating the IRS at the
same time they're defending the IRS. Now, Professor Tiefer said
that the person in charge of this investigation is, what, on
loan, if I heard you right, it's on loan from Civil Rights to
Office of Public Integrity. Is that what you said?
Mr. Tiefer. Barbara Bosserman. I said she's not in charge,
but she is on loan.
Mr. Rotunda. Yeah. I find that bizarre, because the whole
idea of the Office of Public Integrity is they're supposed to
be nonpartisan and separate. So what do we do? We bring
somebody from another part of the Justice Department to be
involved, either in charge or involved with the investigation
in Public Integrity. That's like shifting it away from Public
Integrity. That's another part of the conflict.
Mr. Goodlatte. Would you say that the investigation was
being slow walked if over a year after the investigation
supposedly began, the Justice Department did not even know that
emails that would seem to me to be a core part of the
investigation were not even available, making it apparent that
they had not even asked for those documents?
Mr. Rotunda. ``Slow'' is an adverb that is not slow enough
to describe what they've been going. It's just very slow. And
when NOM, the National Organization for Marriage, finds
somebody who actually got information illegally from the IRS,
the Department of Justice reaction is let's pay the $50,000,
get rid of the lawsuit, and not put that person under oath,
give them immunity to find out who in the IRS violated the law.
So that ``slow'' is--if I had a thesaurus, I think maybe I'd
find a better word, but it is very slow.
Mr. Goodlatte. Professor Tiefer, you dismiss as absurd a
claim that the House of Representatives possess the authority
to appoint a special counsel; in fact, you say it is pure
fantasy for the House to deny that the Attorney General has
discretion to appoint a special counsel. Where was the claim
made that the House has this authority and who made it?
Mr. Tiefer. I was kind of stumped to understand what H.
Res. 565 was. I don't remember another time. I really don't
remember another time.
Mr. Goodlatte. Let me read you the specific language from
H. Res. 565. It says, ``it is the sense of the House of
Representatives that Attorney General Holder should appoint a
special counsel without further delay to investigate the IRS's
targeting of conservative nonprofit advocacy groups.''
Is it not within the authority of Congress to urge an
executive branch official to act on a matter, however
discretionary, that the House deems to be important?
Mr. Tiefer. Well, I am glad it was the sense of resolution,
I'll say that, instead of a----
Mr. Goodlatte. That would make a big difference, wouldn't
it? No one's denying that the Attorney General has the
discretion. What we're asking is, why hasn't he exercised that
discretion? That's the subject of this hearing today.
Mr. Tiefer. I am glad that there is agreement here that he
has the discretion, because I think after this, that will calm
people down who are wondering what's going on.
Mr. Goodlatte. Good. Thank you. I like that answer.
Mr. Sekulow, when the Justice Department first launched its
supposed investigation against the IRS, the groups you
represent were cooperating with that investigation, however,
you explain in your testimony that your clients are no longer
cooperating in that investigation. Can you tell us why?
Mr. Sekulow. Well, when the emails came out from Lois
Lerner that stated--and the one in particular is the one dated
May 9, 2013, which we just received this summer back in early
June, it's the email that says that the call took place between
the director of Election Crimes at DOJ, talked about ``piecing
together false claims statements about applicants who lied,''
saying they were planning on doing political activity and then
turning around and not doing it. DOJ feels like they need to
respond.
Well, we were assured initially that our clients were never
the subject to an ongoing criminal investigation, they were
just being produced as witness. Then I get this email that
says, in fact, they were looking at piecing together evidence
and cases against our client. Piecing together. No evidence of
anything.
And, by the way, that letter that we sent to J.P. Cooney,
the trial attorney at the United States Department of Justice,
it was the lawyer that the letter was addressed to, that letter
from the ACLJ, which is part of the record, was dated June 18,
2014, and has never been responded to.
Mr. Goodlatte. Thank you.
My time has expired. The Chair recognizes the gentlewoman
from Texas, Ms. Jackson Lee, for 5 minutes, and would advise
the gentlewoman that, while you were not present, the gentleman
from New York asked unanimous consent to speak out of order,
and I suggested to him, as I did the gentleman from Alabama,
that perhaps some time might be yielded to him.
And I would ask whoever takes the chair here in a moment,
since I need to leave for a few minutes, be generous in the
granting of the amount of time so people can yield.
Mr. Bachus. Mr. Chairman, I only would like that time after
every other Member has had----
Mr. Goodlatte. Well, I'll ask if other Members would have
the forbearance to yield the gentleman time.
At this time, the gentlewoman from Texas is recognized for
her time.
Ms. Jackson Lee. Just a point of clarification. I'm always
eager to be gracious to colleagues. Someone explain, what did
the Chairman say? Someone needing time? Okay.
Then Mr. Gowdy is taking the chair--pardon me? All right.
After Mr. Gowdy has taken the chair, if I can continue to a
period of time, I may be happy to have my extra time yielded to
Mr. Nadler if that be the case.
Let me thank the witnesses for their presence here today.
The title of this hearing is, ``The IRS Targeting Scandal: The
Need for a Special Counsel.'' I want to be very clear that as I
read the particular section in the Federal Register
articulating the provision, 600.1--600.2, clearly there is a
section, Professor Tiefer, that indicates alternatives, because
at least this particular hearing does say, ``the need for a
special counsel.''
Just a little background. I want to make it very clear,
what I understood when this first came forward, the President
had a very stern representation of wanting to get to the bottom
of it, speaking directly to the American people, as I am
suggesting, that no one wants to tolerate targeting, it is
abhorrent, and that whatever laws need to be applied should be
applied. As I understand, there have been a number of
investigatory hearings. There is certainly an individual in the
eye of the storm at this point, a Ms. Lerner, there are
suggestions of looking for additional emails and other
resources, but I think this hearing on the Judiciary Committee
should be very clear. We are not commenting on the issue of
whether there should be an investigation. There is one going
on. There is a question for the need for a special counsel.
Now, that's an interesting terminology, because maybe the
underbelly of that is, Mr. Attorney General, we are telling you
to appoint a special counsel.
So my question to you, as I look at 600.2, it says the
Attorney General may appoint a special counsel or direct that
an initial investigation consisting of such factual inquiry or
legal research as the Attorney General deemed appropriate be
conducted in order to better inform the decision.
How do you characterize the question ``need?'' And in the
backdrop of what I've just said, do you not see a framework
where the Attorney General can do many things?
Mr. Tiefer. I have not only read the regulation, as in the
way you read it, but I went to look at the background of the
regulation, and the background says very strongly that the
regulation is set up to give him many ways to go. And the
specific background, which we may remember is, under the old
statute, there hadn't been that kind of choice of ways and
alternatives, it was inflexible, and during the Reagan
administration, it drove people crazy that there had to be five
special counsels on Ed Meese, and then during the Clinton
administration, it drove people crazy that so much jurisdiction
had to get handed over again and again to Ken Starr. And the
regulation in contrast with the statute gave flexibility to
avoid that, and has avoided that. I read it the way you do, Ms.
Lee.
Ms. Jackson Lee. And can you just go into the regulation, I
think you've done it well, but the discretion that the Attorney
General has? And you said something very valuable. The burden
that the American people feel: how many more are we going to
have and pay for? I should have had the numbers for what Ken
Starr spent for an ultimate nonconviction. But this discretion
is an important element on behalf of the American people. It
takes into the seriousness of the question, or can, takes into
an elongated, expensive process with dollars being spent. Could
you comment on the word ``discretion''?
Mr. Tiefer. Exactly. That once you remove the Department of
Justice from the investigation, in effect, you have to set up a
parallel Department of Justice, pay all the salaries, pay all
the stuff, and then you end up--if I can answer--by the way,
one technical point that was said earlier: Oh, there are civil
suits that the Department of Justice is handling at the same
time it's doing this criminal investigation, so we have to
remove the criminal work from the Department of Justice, we
have to have a special counsel. The Department of Justice has
had many, many times where they're handling civil in the Civil
Division and criminal in the Criminal Division. You look at the
papers these days, and they're having the criminal trial from
Nisour Square of the guards for alleged homicide at the same
time they've had civil suits on the same matter. They do it all
the time. That's why they have different divisions.
Ms. Jackson Lee. Let me thank you.
Mr. Sekulow, are you--I'm sorry. Give me how to pronounce
your----
Mr. Sekulow. Sekulow.
Ms. Jackson Lee. Thank you so very much. Are you here
testifying that the AG must appoint a special counsel?
Mr. Sekulow. No. We clearly have stated in my written
testimony and in our testimony today, it's discretionary. What
we're asking is that the Attorney General utilize that
discretion to appoint a special prosecutor.
Ms. Jackson Lee. And your reasoning is?
Mr. Sekulow. That the Department of Justice has been
compromised in the investigation, particularly because they
were, in coordination with the IRS, in manufacturing, as they
said, piecing together criminal cases against clients like
mine. And that in and of itself raises a significant conflict,
in fact, puts the whole investigation in a taint, because the
Department of Justice is investigating itself for potentially
involving themselves in violation of criminal laws. And I'd
just like to add for the record that it was the Attorney
General of the United States, and it might have been in this
very room, who was the one who brought up the code sections,
242, of the criminal code that could well have been violated
if, in fact, the evidence showed it. And now we've got the
email saying his department----
Ms. Jackson Lee. Thank you. Mr. Gowdy, if the----
Mr. Gowdy [presiding]. The gentlelady----
Ms. Jackson Lee. I was asked a little general time here, if
Mr. Gowdy would just allow me to ask----
Mr. Gowdy. You mean----
Ms. Jackson Lee. [continuing]. Mr. Tiefer----
Mr. Gowdy [continuing]. In addition to the 53 seconds
already allotted for additional time?
Ms. Jackson Lee. Your kindness, Mr. Chairman, so I can have
Mr. Tiefer respond to that very quickly, and I would appreciate
your indulgence.
Mr. Tiefer, if an investigation by the DOJ is not yet
finished, can we cede the point that there is conflict and that
they're not fully investigating as professional staff members
of the DOJ? Can we make that judgment? I think we cannot. What
is your assessment?
Mr. Gowdy. Professor, you may answer the question with all
deliberate speed.
Ms. Jackson Lee. I thank you. So to avoid the $80 million
that have been spent on special counsels.
Thank you, Mr. Chairman.
Mr. Tiefer. There is an investigation going on. We can't
decide they're not doing their job, because they're doing their
job.
Mr. Gowdy. I thank the gentlelady----
Ms. Jackson Lee. Thank you.
I yield back.
Mr. Gowdy. Thank the gentlelady from Texas and now
recognize the gentleman from Arizona, Mr. Franks.
Mr. Franks. Well, thank you, Mr. Chairman.
Mr. Sekulow, a lot of the questions that we've had here
prepared, some other person on the Committee has stolen. I'm
thinking about filing some sort of deliberate inquiry as to how
that always happens to me. So I'm going to, if I can, just back
up and take a broad look at this.
We've heard the central talking point of our friends on the
left here is that this is the last full day before the break,
that we shouldn't be dealing with such a miniscule issue. And I
would just suggest to you that I think the issue that we deal
with here is one of profound significance, in that the entire
basis of a government that is essentially predicated on the
rule of law is that somehow we can trust our government to
treat us all equal under the law, and I think that's the
central point here.
And if indeed the IRS is guilty of using the power of the
Federal Government to discriminate against people on the basis
of political motivation, then the entire rule of law here is at
stake. And this Committee, being the Judiciary Committee,
should be first and foremost committed to protecting the
constitutional rights of the American citizens and to do
everything that we can to further this notion of the rule of
law. So I think it's a really big issue here that we're dealing
with, and I guess I'm going to ask you to put it in your own
words. Why do you think this is such a big deal?
Mr. Sekulow. Because fundamentally, when you look at the
tax code as it exists, it's a voluntary compliance. The idea
that if a conflict were to arise during the course of an
investigation, that you have to wait for the investigation to
be completed, is absurd. If the rule of law means anything, and
with due respect to the Congresswoman, if the rule of law means
anything, when you've got an agency with this amount of
authority, both the Department of Justice and the IRS, and
there is evidence in writing, not denied, that there was
activity going on between two agencies while there is a
criminal investigation going, if the rule of law means
anything, if that conflict becomes known, it should be
actionable.
Now, that action rests with the Attorney General, but to
say that we shouldn't be able to bring it up or discuss it or
that it's not as significant as these other issues that the
Congress is dealing with right now, I beg to differ. The
freedom of speech, the freedom of press, the freedom of
assembly, the freedom to petition your government for redress
of a grievance is at the very core of who we are. And when that
is tampered by two agencies, and one in particular that
controls the lives of every American citizen, I don't think
it's insignificant that this work is going on today. No
disrespect to any other piece of legislation you're dealing
with, but this is a very significant burden placed on American
people for simply exercising their free speech rights. And when
an agency has violated that trust and there is notification
that in fact there is a conflict, you do not have to wait for
the investigation to be completed. Because you want to talk
about a waste of money? Know about a conflict, don't react on
that conflict--in the law, if you do that, it's malpractice--
and you know what ends up happening? You've got to do the
investigation all over again, and, Congresswoman, that becomes
a lot more expensive.
Mr. Franks. Well, obviously, I couldn't agree with you
more. I would suggest to you that we're in violent agreement on
that subject.
The notion that we all pay our taxes voluntarily, is
something that you brought up in your response. It seems to me
that if people believe that the IRS will arbitrarily begin to
persecute particular groups, that people begin to wonder why do
we even pay taxes, and the entire process, the entire hope of
our government is based on a fundamental intrinsic trust of the
American people that somehow that this thing called law is
going to prevail, that everybody's going to be treated fairly
under it. And if it isn't, then it's time for us to go ahead
and give our apology to England for being so recalcitrant in
the revolutionary days, and to board this place up and go home
and wait for the end patiently. So this is not a small issue
that my friends on the left would try to suggest.
So my last question to you, Mr. Sekulow, is this: What do
you think is the most significant--I know we've got, you know,
the conflict of interest. I know we've got the President saying
that there's not a smidgeon of corruption here. All of those
things bear thought, but what do you think, in your opinion, is
the most significant legal or glaring piece of evidence that
shows that the IRS has deliberately used its power in an
untoward and an unfair and outside the rule of law?
Mr. Sekulow. Besides their own admission, Congressman, of
that----
Mr. Franks. That's a detail.
Mr. Sekulow. That's right.
Mr. Franks. Yeah.
Mr. Sekulow. If you look at the email exchange from Lois
Lerner to other officials within the IRS referencing her
conversation with the director of the Election Crimes Branch of
the Department of Justice and uses the words, piece together
false statement cases to see if they ``lied,'' to impanel a
grand jury--that would be the next thing. Of course, no
evidence of any criminal wrongdoing here. That is a government
that is out of control, out of check, and needs to be put back
in balance. And that's why a special counsel would be a good
move, not mandated, but a good move for the Department of
Justice to make here. They themselves are part of the problem,
and it's in emails right here.
Mr. Franks. Well, thank you, Mr. Chairman.
Mr. Gowdy. I thank the gentleman from Arizona and now
recognize my friend from Louisiana, Mr. Richmond.
Mr. Richmond. Thank you, Mr. Chairman.
Mr. Sekulow.
Mr. Sekulow. Yes, sir.
Mr. Richmond. I'll pick up right where you left off. And
you're mentioning this sentence where she--where it says, could
piece together false statements about applicants who lied on
their 1024s.
Mr. Sekulow. Uh-huh.
Mr. Richmond. And the ``piece together'' is whether you can
piece together a hearing, right, because----
Mr. Sekulow. No, no, no. The hearing already took place.
It's piece together false claim cases about applicants.
Mr. Richmond. Right. But it doesn't say manufacture false
claim statements. Wait. Does it say ``manufacture''? Does it
say ``create''?
Mr. Sekulow. No. It says piece together false cases. They
have no evidence of any wrongdoing.
Mr. Richmond. Well, wait, wait. I don't think----
Mr. Sekulow. I didn't write this. Lois Lerner did.
Mr. Richmond. Right. I don't think you know what they have
evidence of, but----
Mr. Sekulow. Right. Evidently none of is do.
Mr. Richmond. But they're not saying, let's manufacture,
let's create it, let's make it up. They're not saying that. So
I think we're taking small things to get to where we want to
go. But let me ask you another question. Part of what you said,
and I want to use your words, I didn't find it in your
testimony, part of what you said was part of the reason why we
need special prosecutor, the Department should appoint one, is
because the President said, and I want to use what you quoted,
and was it not even a smidgeon of evidence?
Mr. Sekulow. Of corruption.
Mr. Richmond. Oh. Not even a smidgeon of----
Mr. Sekulow. Corruption.
Mr. Richmond [continuing]. Corruption?
Mr. Sekulow. Right.
Mr. Richmond. Which would mean not a smidgeon of evidence
of corruption. Would you agree with that?
Mr. Sekulow. Sure.
Mr. Richmond. What if he said, I have evidence of whatever?
Would that make it just as a potential conflict?
Mr. Sekulow. No. I would want to get the President's
evidence, get him under oath, find out what he knows that the
Department of Justice haven't had. So you're conflating,
though, the issue of when you would have a pre-judgment of
guilt, not a smidgeon of corruption, so there's no guilt----
Mr. Richmond. Right.
Mr. Sekulow [continuing]. On an ongoing criminal
investigation by the Internal Revenue Service, and it's not
just----
Mr. Richmond. But wait. That's exactly what I'm asking. So
what if there's a pre-determination of guilt? Does it matter?
Mr. Sekulow. Well, sure it would matter if there was a
predetermination of no guilt on behalf of the IRS.
Mr. Richmond. The question is about whether the guy at the
top, the President or the AG, and their departments can be
impartial. You're saying they can't be impartial, because his
statement was there's not a smidgeon of corruption. And I'm
saying if he said, I have evidence of corruption, should he
still be this impartial guy that heads up the investigation?
Mr. Sekulow. Well, if he had evidence of corruption, he
would--if he had evidence, he shouldn't be talking about it on
a television show. Okay. Now, let's put this in the real
context of what happened here, Congressman.
Mr. Richmond. That's what I'm trying to do.
Mr. Sekulow. The President of the United States is asked a
question.
Mr. Richmond. And he said there was no evidence.
Mr. Sekulow. The question is, exactly from Bill O'Reilly,
let's talk about the IRS scandal.
Mr. Richmond. Yes.
Mr. Sekulow. You're concerned about that, and then he gets
into the dialogue of boneheaded decision, you know, not a
smidgeon of corruption. Now, there is an ongoing criminal
investigation, and who told the President there was not a
smidgeon of corruption? And this, of course, is before he
learned of----
Mr. Richmond. So----
Mr. Sekulow [continuing]. The IRS emails.
Mr. Richmond [continuing]. We're bothered because----
Mr. Sekulow. So the President----
Mr. Richmond. We're both---hold on. Wait. Stop.
We're bothered because the President is saying he has not
seen anything that suggests a smidgeon of corruption. Now,
let's switch over to the same parallel, because we now have
this select Benghazi committee where a very capable,
intelligent person is heading that Benghazi committee----
Mr. Sekulow. Right.
Mr. Richmond [continuing]. And his statement before we even
started is, I have evidence of guilt, that before I even start
the investigation, I know where I'm going to end. What's the
difference? I still think----
Mr. Sekulow. I don't believe the Chairman said he knows
where it's going to end.
Mr. Richmond. Well, I think----
Mr. Sekulow. You just said he said he knows where it's
going to end.
Mr. Richmond. Well, no. That was the conclusion. The words
was he has evidence of a systematic intentional effort to break
the law. So----
Mr. Sekulow. Okay. Well, I have evidence of a systematic
attempt----
Mr. Richmond. So I think----
Mr. Sekulow [continuing]. To break----
Mr. Richmond. Hold on. Wait.
Mr. Sekulow [continuing]. The law here, too, but, I mean--
--
Mr. Richmond. We're going to do this----
Mr. Sekulow. I don't think----
Mr. Richmond [continuing]. One of us is going to talk at a
time.
Mr. Sekulow. I'm sorry.
Mr. Richmond. And I promise you it's going to be me when
I'm talking and it'll be you----
Mr. Sekulow. Go ahead.
Mr. Richmond [continuing]. When you're talking.
Mr. Sekulow. Please.
Mr. Richmond. So in an effort to break the law. So that is
almost a conclusion, but----
Mr. Sekulow. That's the opposite.
Mr. Richmond. But let me just say this. I think that we are
trying too hard to get to where we want to go without listening
or looking at the process to get there. You just can't make it
up to get there.
And the frustration that I really have is that I just
defied the greatest advice I ever got from my grandmother, was
that if you see a circus going on, don't jump in the middle of
it and think people won't see you with a red nose and a wig and
big shoes and looking like a clown, and I have jumped right
into this circus. I think we're going on wasting time on
something when we can be doing more important things, because
there is an investigation going on, there are people looking at
this, and for some reason, because we're not in charge or
someone's not in charge of the White House, we decide that we
will have a full circus.
And with that, I'll yield back my time and try to heed the
advice that I already broke.
Mr. Gowdy. I thank the gentleman from Louisiana.
And the Chair would now recognize the gentleman from Texas,
Judge Gohmert.
Mr. Gohmert. Thank you, Mr. Chairman.
And thank each of the witnesses for being here.
I want to go to the comment about ``smidgeon,'' but before
that, just a comment. I'm going to go back, as I used to as a
judge and chief justice, and look at exactly what was said in
the record, but I think I heard a very amusing answer,
Professor Tiefer, when--if I understood correct, you said--you
said that we couldn't assess the investigation, but it's doing
a good job. But I'll go back and see exactly what you said. I'm
not asking for comment.
But let's go back to what the President said about there
not being a smidgeon of evidence. Now, if someone has influence
over an investigator and tells the world, where the
investigator can hear, that as your boss, I'm saying, I don't
see a smidgeon of evidence, then if that person were an
attorney, hypothetically, say, this was an attorney, then that
would be a potential breach of ethics. And, in fact, as a
judge, I have called lawyers in and warned them, one more
comment, and you're going to jail for contempt of court for
breaching our canon of ethics and commenting on an ongoing case
about the evidence.
There is no such citation available for a President, but
hypothetically, I think we've got to give this President a
pass, because to really be culpable in making a statement like
that, you'd have to be a lawyer, you'd have to be a professor
of constitutional law, maybe, to know the complexities of that
kind of comment, and so we've got to give this President a
pass.
But, Professor Rotunda, you were talking earlier about how
tough it is for the Department of Justice that's currently
defending the IRS to do a criminal investigation, and that
triggered in my mind a line of questions that I think needs to
be followed up. If you are defending a person or an entity in
court, the communications between you as the Attorney General
and your client, the defendant, the IRS in this case, they're
privileged, aren't they?
Mr. Rotunda. Yes.
Mr. Gohmert. And they have to be privileged in order for
you to do a decent job as their attorney.
Mr. Rotunda. Yes.
Mr. Gohmert. And they have to know, the client does, in
this case the IRS, that anything they say to their own attorney
will be used to help them and will not ever be used to
prosecute them. Isn't that right?
Mr. Rotunda. Yeah. That's the theory. That's what the----
Mr. Gohmert. Well, I hadn't really thought about it until
you brought this up, but it seems to bring to the forefront
just how critical it is that there be an independent look at
what the Department of Justice and the IRS has done. There is a
relationship established when DOJ represents the IRS in matters
that is an absolute conflict. Would you elaborate?
Mr. Rotunda. Yes. They get information from the IRS
official that they're defending. They're deciding whether or
not to approve a $50,000 settlement or whether or not to slow
up discovery, and then they discover things that look bad,
usually that's why you settle a case, but the DOJ is not
supposed to release that information to other DOJ attorneys
because of the privilege. I mean, you can't have it both ways.
You can't tell the client, the IRS, you can be candid with me,
because this is all protected by the privilege, and then say,
I'm going to use the information against you. Of course, if
they don't use the information against them, they're not doing
their job as a prosecutor.
Mr. Gohmert. Well, Mr. Sekulow, let me ask--my time I see
is running out, the light turned yellow, but with regard to
John Mitchell, he went to prison.
Mr. Rotunda. Yes.
Mr. Gohmert. Let's say hypothetically John Mitchell and
Richard Nixon decide, you know what, if we don't appoint a
special counsel, nobody can touch us. Wouldn't that have been
true?
Mr. Rotunda. I think that's right.
Mr. Gohmert. Mr. Sekulow, your thoughts.
Mr. Sekulow. Sure, I mean, I agree with Professor Rotunda
on that. I think that the need for a special counsel becomes
evident when the Department of Justice has been compromised.
It's the call of the Attorney General, but when the Department
of Justice is compromised, you put in a special counsel to
restore trust and the law.
Mr. Gohmert. So historically speaking, you could learn the
lesson that Richard Nixon----
Mr. Sekulow. I would think.
Mr. Gohmert [continuing]. Don't appoint a special counsel
and nobody in the Administration goes to jail.
Thank you, I yield back.
Mr. Gowdy. The gentleman from Texas yields back.
The Chair will now recognize the gentleman from New York,
Mr. Jeffries.
Mr. Jeffries. Thank the distinguished gentleman from the
Palmetto State for yielding.
And Professor Rotunda, let me try and get an understanding
of why you believe that a special prosecutor is merited in this
case, notwithstanding the fact that no senior Administration
official is even alleged to be part of the wrongdoing. And so I
just want to walk you through--I just want to walk you--I still
have the floor.
Mr. Rotunda. I mean, I don't know if there's a factual
precedent.
Mr. Jeffries. Sir, sir, sir.
Mr. Rotunda. Go on.
Mr. Jeffries. Sir, I still have the floor. I just want to
walk you through your testimony here. Now, on page 2, you
stated, we should all be happy if the President is correct when
he assured us that there is not even a smidgen of corruption
regarding Lois Lerner and the IRS targeting of Tea Party
groups, correct?
Mr. Rotunda. Uh-huh.
Mr. Jeffries. And then you stated that the problem is that
there are many suggestions of much more than a smidgen of
evidence, correct?
Mr. Rotunda. Yes, sir.
Mr. Jeffries. And then you make the point that because,
apparently, the information that exists out there has not been
forthcoming is the word that you use, we've got to have a
special prosecutor, right? That's the conclusion that you draw
on page 3 of your testimony, correct?
Mr. Rotunda. It's not just not forthcoming; I give examples
on pages 3 to 4.
Mr. Jeffries. I appreciate that because we're going----
Mr. Rotunda. To 5, what is the evidence.
Mr. Jeffries. I appreciate that because we're going to
get----
Mr. Rotunda. I'm in the middle of a sentence.
Mr. Jeffries. We're going to get into those examples, okay?
Mr. Rotunda. I'm sorry, what?
Mr. Jeffries. You answered the question. We're going to get
into those examples.
Mr. Rotunda. All right.
Mr. Jeffries. Now, you believe in the sanctity of the
United States Constitution, correct?
Mr. Rotunda. Yes.
Mr. Jeffries. And within the United States Constitution
there's a Bill of Rights incorporated in that document,
correct?
Mr. Rotunda. Yes.
Mr. Jeffries. And as part of that Bill of Rights there's a
Fifth Amendment, correct?
Mr. Rotunda. Yes.
Mr. Jeffries. Now, the Fifth Amendment of the United States
Constitution in part states no person shall be compelled in any
criminal case to be a witness against himself, and that's been
broadly interpreted to imply as well to a congressional
proceeding, correct?
Mr. Rotunda. Civil cases, too, sure.
Mr. Jeffries. Okay. So you just mentioned this whole list
of things that trouble you, that suggest that we take the
extraordinary step of a special prosecutor, and I just for the
life of me am flummoxed. I can't understand. At the top of that
list, presumably because you believe it's the most significant
piece of evidence, you say Ms. Lerner pled the Fifth Amendment
and refused to testify before Congress, oddly enough, after
assuring us under oath that she did nothing wrong. That's your
point, correct?
Mr. Rotunda. My list is chronological, but that's correct,
that's what I said.
Mr. Jeffries. Okay. So because she exercised her Fifth
Amendment right under the United States Constitution, a
document that you just said you believed in its sanctity, that
provides evidence, in your view--that's not my interpretation,
that's your testimony--that provides evidence of wrongdoing
here?
Mr. Rotunda. No, not at all, that's not what I said.
Mr. Jeffries. So why is that here?
Mr. Rotunda. Look, I think you're putting words in my
mouth, and that's not fair.
Mr. Jeffries. No, this is your testimony, sir.
Mr. Rotunda. No, what I said is that she pled, first of
all, she swears under oath that she did nothing wrong, and
then, 30 seconds later, she says she's taking the Fifth. That's
inconsistent. In fact, there's a lot of cases say you've waived
the Fifth Amendment----
Mr. Jeffries. Does she have a constitutional right to plead
the Fifth Amendment?
Mr. Rotunda. Absolutely----
Mr. Jeffries. Is that consistent with the great tradition
of our founders. Why would you possibly include that as
evidence, suggesting you're on a fishing expedition?
Mr. Rotunda. You're absolutely right, she has a right to
plead the Fifth Amendment, but you can't open the door a crack,
that's what the cases say. And this woman says under oath two
things: I've done nothing wrong; I plead the Fifth Amendment.
They're inconsistent, and that's a bit of a smidgen. We find
after that is that she interviewed for a long time with the DOJ
without immunity.
Mr. Jeffries. Right. Is she a high level government
official, sir?
Mr. Rotunda. Is she high level? She's head of the not-for-
profit section, yeah, I thought she was high----
Mr. Jeffries. Is she the commissioner of the IRS?
Mr. Rotunda. Was she commissioner? No.
Mr. Jeffries. The commissioner of the IRS at the time
actually was a Republican appointed by George Bush, correct?
Mr. Rotunda. Maybe. The IRS is supposed to be nonpartisan.
Mr. Jeffries. Okay. And now she's not the Secretary of the
Treasury, correct?
Mr. Rotunda. No.
Mr. Jeffries. She didn't have any high level position in
the White House, correct?
Mr. Rotunda. She was with the IRS.
Mr. Jeffries. Okay. Her position required congressional
approval in the Senate?
Mr. Rotunda. Was she subject to confirmation? I don't know.
Mr. Jeffries. Okay. So you have no real evidence, no basis
for making an argument that she was a high level official
subjected to this statute, do you, sir?
Mr. Rotunda. Actually, I thought I did. She's making
policy. She's making these decisions. I mean, she's not an
auditor. She's making policy as head of the not-for-profit
section, and it turned out, under her own words, they were
using inappropriate criteria, and she apologized.
Mr. Jeffries. You expressed respect for the sanctity of the
Constitution and presumably congressional statutes, but you
can't point to a single statute, you can't point to a single
case, you can't point to a single provision of the Constitution
that would subject Ms. Lerner to designation as a high-level
official in this Administration, and I yield back.
Mr. Rotunda. To the contrary. She's making policy for this
whole, for the whole section of not-for-profits. She's making
policy that overturns 50 years of tradition. I think she's
pretty high level.
Mr. Gowdy. The gentleman from New York's time has----
Mr. Rotunda. Senior Executive Service.
Mr. Gowdy. The gentleman from New York's time has expired.
The Chair will now recognize the gentleman from Ohio, Mr.
Jordan.
Mr. Jordan. I thank the Chairman.
There's the three key facts. There's the fact that on
January 13 of this year, Justice Department leaks to the Wall
Street Journal, no one is going to be prosecuted. There is the
now famous statement from the President of the United States
where he prejudges the outcome of the case and says there's no
corruption, not even a smidgen. And then, of course, there's
the fact that the lead attorney, and let's be clear, she's the
lead attorney because she's the one asking all the questions
when they interview the witnesses. We talked to some of the
same witnesses when we do our congressional investigation,
congressional interviews and depositions, and it's Barbara
Bosserman who is doing it, the lead attorney, the maxed-out
contributor to the President's campaign. She's got a financial
stake and a beneficial outcome to the President and his
administration; that's the lead attorney. So you've got those
three key facts, but the one that gets me is the one that's
been cited already, it's when James Cole, the number two guy at
the Justice Department, sat at a table just like this in the
room next door in the Oversight Committee and told us he
learned of the lost emails from the press. Now, it's not just
that fact that he learned from the press; it's the fact that he
learned from the press but when also the IRS knew that they had
lost the emails. So the IRS knew, according to John Koskinen's
testimony, he knew that they were lost in April, his Chief
Counsel's Office knew they were, the hard drive had crashed and
was unrecoverable in February, so 4 months before the Deputy
Attorney General in the Justice Department learns, the Chief
Counsel's Office in the IRS office know. So it's those four key
facts that underscore and warrant and cry out for a special
prosecutor. And that's why you had a resolution with every
single Republican House Member supporting and, more
importantly, 26 Democrats supporting, including two Members
from the Judiciary Committee.
Now, what I want to ask about is this, and I'll start with
Mr. Sekulow. I think there's one other key fact. I think but
for outside organizations doing FOIA requests, but for that
fact, I'm not sure the IRS would have told us yet, and let me
walk you through it. So we learn from a FOIA request from
Judicial Watch that Richard Pilger and the Public Integrity
Section Elections Division in the Justice Department is meeting
with Lois Lerner, and it's an email that Mr. Sekulow started
off today's hearing referencing, they met in 2013. So we say,
wow, we probably should talk to Mr. Pilger. So we bring him in.
Mr. Tiefer references in his opening statement; we bring him
in, and we interview him, our staff at the Oversight Committee.
We interview him, and we learn in that interview, frankly in
his opening statement, where he says, you know what I didn't
just talk to Ms. Lerner in 2013 looking for ways to make false
claims, which, by the way, is unbelievable, this is the
blindfolded lady equals the balanced scale, and they're trying
to look at false claims at the tax--he says, I not only talked
to her in 2013 just days before this thing went public, but we
also met in 2010. And we were, like, wow, the Justice
Department was interacting with Lois Lerner in 2010?
So you know what we did? We subpoenaed the Justice
Department. We said, we want all the correspondence between the
Justice Department, Lois Lerner, and the IRS, and we got a
bunch of emails, talked about 1.1 million pieces of pages of
information, 21 disks, 21 files, donor information, including
in that confidential 6103 that the FBI had for 4 years that
they got from the IRS. So we get those emails. We say, wow,
we've had a subpoena at the IRS for over a year; why didn't the
IRS give us these emails? So we sent a letter to the Internal
Revenue Service and said, you know what, we got these emails
from the Justice Department, why didn't you get them to us? And
that was on June 9, and suddenly 4 days later they tell us, oh,
you know what, we've lost Lois Lerner's emails.
Mr. Sekulow. Right.
Mr. Jordan. Mr. Sekulow, they may have waited, we still
might not know that those emails had been lost because the
investigation seems that they're doing at the Justice
Department sure isn't digging--and I'll quit giving a speech
and let you guys respond, but let me say this: Why in the world
when May 10, when Lois Lerner uses the planted question and
makes the statement or, more importantly, May 24, the day after
she came in front of our Committee and pled the Fifth, why
didn't the Justice Department then go to her office with a
warrant, with a court order, seize all the documents, and grab
the computer then?
Mr. Sekulow. Because it's a faux investigation. This isn't
real. There was a Freedom of Information request from 2010 from
an organization regarding documents related to the Tea Party,
Tea Party's, training memos, emails, anything. You know what
the response of the IRS was? The response of the Internal
Revenue Service is, a year later, by the way, I found no
documents specifically responsive to your request. Those
documents would have never been produced. It's questionable
whether we will ever see them, and the fact is that you go back
to 2010, and there's a discussion between the Internal Revenue
Service and a prosecutorial arm of the IRS, of the Department
of Justice, and how can anybody with a straight face say this
doesn't rise to the level of a situation where the Attorney
General should exercise his discretion? It really is that
simple. That in and of itself should end the inquiry.
Mr. Jordan. Yeah, Mr. Tiefer, I would be curious your, with
that fact pattern, obviously, you're still on the other side,
but is there anything in that fact pattern which would cause
you concern?
Mr. Tiefer. Well, a lot of this--I mean, you did your job
in the other Committee and you've been writing reports and so
forth, and I feel like I'm hearing an echo chamber, it's what I
was reading about what you used to do and now we're hearing the
same thing here now. Barbara Bosserman is not the head of this
investigation.
Mr. Jordan. Let me ask you a question. Did you represent
one of the IRS employees in front of a congressional
transcribed interview?
Mr. Tiefer. I was the pro bono person for him, yes.
Mr. Jordan. So you represent one of the people who could
potentially be targeted in a criminal investigation, and yet
you're here telling us we don't need a special prosecutor
because we like just the way this criminal investigation is
going on?
Mr. Johnson. Mr. Chairman----
Mr. Tiefer. He was----
Mr. Gowdy. You may answer the gentleman's question. The
gentleman is out of time, but you may answer the gentleman's
question.
Mr. Tiefer. He was a witness. He was never considered a
target. He was a low level guy, and I did pro bono for him,
yes.
Mr. Gowdy. The gentleman from Ohio yields back.
The Chair will now recognize the gentleman from Georgia,
Mr. Johnson.
Mr. Johnson. Thank you.
Dr. Sekulow----
Mr. Sekulow. Yes, sir.
Mr. Johnson. Your name will live in infamy as a litigator
extraordinaire. Whether or not you agree with your positions or
not, you have to tip your hat to a litigator, a man who uses
the courts as the courts should be used, and that is to rectify
and redress harms that afflict his clients and so I take my hat
off to you for that, sir.
Mr. Sekulow. Thank you.
Mr. Johnson. And you're also from Georgia, are you not?
Mr. Sekulow. Yes, sir.
Mr. Johnson. Yes, sir. I remember.
Mr. Sekulow. Decatur.
Mr. Johnson. Decatur, Georgia, which is where I started
practicing law back in 1980.
Mr. Sekulow. Same here.
Mr. Johnson. Is that right?
Mr. Sekulow. I did.
Mr. Johnson. Did you take the bar exam in 1979? February?
Mr. Sekulow. I did. Probably sitting right there with you,
wherever we took it in downtown.
Mr. Johnson. Is that so? We have more in common than I
thought.
Mr. Sekulow. There you go.
Mr. Johnson. But I'm going to tell you, Dr. Sekulow, you
are aware that we've got a broken immigration system in this
country, are you not?
Mr. Sekulow. I am.
Mr. Johnson. And you are aware, are you not, of how many
hearings that this Committee has held on that issue?
Mr. Sekulow. I don't think immigration has been before the
Judiciary Committee. I'm not sure.
Mr. Johnson. Isn't that a shame?
Mr. Sekulow. Well, I think the immigration situation--to be
honest, I worked on the immigration reform when President Bush
was trying to get it through many years ago.
Mr. Johnson. It's a shame that this Congress has not had
one hearing on comprehensive immigration reform.
Do you agree with that, Professor Rotunda?
Mr. Rotunda. I don't know about the hearings or even if
this was the Committee to bring it before, I just didn't know
about that, but I'll take your word for it.
Mr. Johnson. Well, you are aware of the gun violence that
we've had in this country, you are certainly aware that over
the last 18 months, there have been 74 school shootings in our
country?
Mr. Rotunda. I didn't know the numbers.
Mr. Johnson. You did not know that?
Mr. Rotunda. But I lived south of Chicago.
Mr. Johnson. Is that because you do nothing but pay
attention to a purported IRS scandal, and that's it? You've got
blinders on?
Mr. Rotunda. Don't have blinders. I just think the IRS is a
really big stage scandal, something Congress could do about.
Mr. Johnson. It's a big scandal.
Mr. Rotunda. Whereas a problem in Chicago is something that
Chicago can work on.
Mr. Johnson. What about all of those gun deaths in Chicago?
Mr. Rotunda. Gun thefts?
Mr. Johnson. Gun deaths.
Mr. Rotunda. Deaths, yeah. Well, I think they ought to work
on that. It's a problem.
Mr. Johnson. We've got a lot of things we could be working
on in this Congress, I'm sure that you would agree.
Mr. Rotunda. What do I----
Mr. Johnson. We have a lot of things that we could be
working on in this Congress, I'm sure that you would agree.
Mr. Rotunda. Well, I mean, we----
Mr. Johnson. Such as Section 5 of the Voting Rights Act
invalidated by the U.S. Supreme Court last year. Do you know
how many Judiciary Committee hearings have been held on the
Voting Rights Act, the legislation that would protect people
from discrimination at the polls? Do you know how many hearings
we've held in this Committee on that issue?
Mr. Sekulow. I don't know how many hearings you've held on
the Voting Rights Act.
Mr. Johnson. I'll tell you.
Mr. Sekulow. I'll assume it's zero.
Mr. Johnson. I'll tell you. It's zero.
Mr. Sekulow. Having said that, though.
Mr. Johnson. Attorney Sekulow----
Mr. Sekulow. I don't think that takes away from the
significance of this. This is a constitutional issue, also.
Mr. Johnson. Attorney Sekulow----
Mr. Sekulow. Yes.
Mr. Johnson. I mean, how many hearings are we going to have
on this? We've had over three dozen hearings, and still no
smoking gun.
Mr. Sekulow. Well----
Mr. Johnson. No nothing.
Mr. Sekulow. Can I give you one that just came out? Let me
give you one that just came out.
Mr. Johnson. Please.
Mr. Sekulow. Maybe this is a smoking gun.
Mr. Johnson. I know that we are trying----
Mr. Sekulow. So we don't need to worry about alien
terrorists; it's our own crazies that will take us down. Lois
Lerner email just came out.
Mr. Johnson. I know we are trying to get everything on the
record.
Mr. Bachus. Mr. Sekulow, is that the one where she called
conservatives assholes?
Mr. Sekulow. Uh-huh, that's the one.
Mr. Bachus. Okay.
Mr. Johnson. We are scraping the bottom of the barrel when
it comes----
Mr. Sekulow. A Senior Executive Service member of the IRS,
by the way. I don't think you would say this either,
Congressman, when you're talking about people's fundamental
constitutional rights, even if you disagree with their
politics, this is not insignificant, this Committee is not
wasting its time. The American people have the right to be
protected in those rights, and they have the right not to be
targeted, and they have the right to a real investigation.
Mr. Johnson. Well, I know----
Mr. Sekulow. So I think we agree on this.
Mr. Johnson. I know, Dr. Sekulow, that you take your work
very seriously, and I respect that.
Mr. Sekulow. I appreciate that.
Mr. Johnson. And we see things differently, but as a
legislature, we have a job to do, and we haven't been doing it.
That's why we will go down in history as being the most do-
nothing Congress in the history of this great Nation, and we're
doing ourselves a disservice by continuing to focus on what
some call scandal but which, actually, when you look at it
closely, errors were made, but it's not the kind of scandal
that should replace the hard work on other issues that are
before this Committee.
Mr. Bachus. Would the gentleman yield?
Mr. Johnson. And with that----
Mr. Bachus. Would the gentleman yield?
Mr. Johnson. Yes, I'll yield.
Mr. Bachus. Do you----
Mr. Gowdy. The gentleman is out of time, but the gentleman
from Alabama may have 30 seconds.
Mr. Bachus. Do you consider Lois Lerner, head of the IRS
investigating conservative groups and saying on her official
email account with the IRS that conservatives are assholes who
are crazies, who are going to take this country down, is that
not a scandal?
Mr. Johnson. Well, some would say that she made a truthful
comment, and others would say that in addition to making a
truthful comment, she also erred in investigating groups other
than Tea Party groups.
Mr. Gowdy. And I think everyone would say she lacks the
objectivity that you should have if you're in a position like
that.
And with that, I would now recognize the gentleman from
Texas, Judge Poe.
Mr. Bachus. All these groups they're investigating.
Mr. Poe. Thank you, Mr. Chairman.
It concerns me that it appears that some even not in the
Committee regard all of this with a flippant attitude, as no
big deal. I agree, this is a constitutional issue. It involves
real people. One of those is Kathryn Engelbrecht, a friend of
mine in Texas, who, because she had the nerve to make sure that
the voting booth was sacred and there weren't dead people
voting and there wasn't other corruption, starts an
organization called True the Vote. And immediately thereafter,
here come the government officials. She was audited by the IRS,
visited by the FBI terrorist squad. She was audited by the
equivalent of EPA in Texas. OSHA investigated her, constantly
under the surveillance of the IRS, questions after questions
after questions. It's real people. Her constitutional rights
were violated because she was persecuted, because she took a
stand different than government. The Constitution protects that
absolute right for all Americans.
And then here's a timetable. I'm sure you have it all
memorized. Eric Holder hides information, misleads Congress in
2011. So, in June 2012, over 2 years ago, the House in a
bipartisan vote holds him in contempt. April 2013, the D.C.
District Court rejected the government's motion to dismiss.
October 2013, the D.C. District Court judge who is handling
this case rejected the DOJ's claim that there was no standing.
May 2014, the district judge took the DOJ motion for summary
judgment under advisement. Two hearings since then. In July
25th, all the parties met with a mediator and still no
resolution to the Attorney General of the United States being
held in contempt.
Now, I look at a contempt of Congress similar to an
indictment. Would you agree with that, Mr. Sekulow?
Mr. Sekulow. The repercussions are very serious, yes.
Mr. Poe. It's an indictment and then tried by the Senate if
it ever gets that far.
Mr. Sekulow. Right.
Mr. Poe. We have a situation that is similar to a district
attorney down in Texas or Louisiana or Chicago, wherever, pick
one, getting indicted by a grand jury for corruption, but yet
the DA decides whether or not there will be someone not in his
office or her office to prosecute him. Isn't that the same
situation we're in?
Mr. Sekulow. It is, and that's why the discretion and the
better part of discretion here would be for the Attorney
General to appoint a special counsel.
Mr. Poe. No kidding.
Mr. Sekulow. Also, talking about judges.
Mr. Poe. Just a second, Mr. Sekulow, I only have 5 minutes.
Mr. Sekulow. Please, please.
Mr. Poe. I'll let you talk when I'm through.
Mr. Sekulow. No, no, no, your floor.
Mr. Poe. Not only that, you've got the Justice Department,
Eric Holder, representing Lois Lerner in court.
Mr. Sekulow. That's what I was going to hold up.
Mr. Poe. Where I come from, you cannot have lawyers for one
law firm and the same lawyers on the other law firm
representing opposing individuals. It's a violation of ethics.
Is that not generally true, Mr. Sekulow?
Mr. Sekulow. It is. Their argument is, Congressman, that
it's different departments handling it.
Mr. Poe. It's still the Justice Department.
Mr. Sekulow. Of course, it is. It's still within the
Justice Department.
Mr. Poe. Just a second, just a second. I know you're
talking. I'm like Mr. Johnson, I admire your passion.
Mr. Sekulow. No, go, please.
Mr. Poe. But Eric Holder is defended by the Justice
Department----
Mr. Sekulow. Right.
Mr. Poe [continuing]. In the District Court here whether or
not to uphold the contempt, so he's in court as a defendant,
taxpayers are paying for his lawyer. I personally think he
ought to get his own lawyer. Taxpayers shouldn't pay for his
lawyer. He should get his own criminal defense lawyer. And yet
they're on the other side as well or we have private lawyers on
the other side trying to get the district judge to make a
decision. Doesn't this seem a little bizarre, that you've got
the government representing the accused individuals on one side
and the prosecution on the other? My question is, maybe we
should step back eventually and pass legislation that the
District or Circuit Court, like in D.C., should have
jurisdiction to pick a special prosecutor when it's the
Attorney General that is in trouble with Congress. What do you
think about that?
Mr. Sekulow. I think it's an interesting proposal. You
would have to look at the ramifications and how it would affect
the working of the Department of Justice, but you raise the
right issue, and that is, I'm holding up the lawsuit. So, in
this particular case, this is our amended complaint, you've got
the Department of Justice representing the IRS and all the
government officials, also the individuals, and the individuals
also have outside counsel, which I believe are being paid for
by taxpayer dollars. I'm not a hundred percent sure of that.
Mr. Poe. With my analogy, if I might have one more
question, with my analogy of the district attorney being
indicted for corruption, it's like having the district
attorney's office represent the district attorney in court?
Mr. Sekulow. Right.
Mr. Poe. Yet the district attorney has got to pick the
prosecutor to prosecute him or her for corruption. That seems a
little bizarre.
Mr. Sekulow. Lack of incentive to get to the bottom line of
the issue, that's the problem, yes.
Mr. Poe. I yield back.
Thank you.
Mr. Gowdy. The gentleman from Texas yields back.
The Chair will now recognize himself for questioning.
Professor Tiefer, would you seat a juror who referred to
your client as an obscene body part?
Mr. Tiefer. I'm sorry?
Mr. Gowdy. Would you seat a juror in a trial who referred
to your client as an obscene body part?
Mr. Tiefer. I really have trouble giving you an answer,
except it sounds like it's bad.
Mr. Gowdy. Well, then you would starve to death as a lawyer
if you can't answer that question, Professor. You would
seriously consider seating a juror in a trial, a criminal
trial, where your client was accused of a crime if that juror
had referred to your client as an obscene body part, you would
struggle with whether or not to strike that juror?
Mr. Tiefer. Well, it doesn't sound too good.
Mr. Gowdy. No, it's not, and I'll give you some free
litigation advice, you'll want to use one of your strikes on
that juror.
How about if you were a prosecutor, and one of the
potential jurors referred to the police as terrorists who were
going to bring the country down, would you seat that juror in a
criminal prosecution if you were the prosecutor?
Mr. Tiefer. I wish I saw the connection here, but----
Mr. Gowdy. I'll give you the connection. Lois Lerner just
referred to conservatives as an obscene body part, and she said
we were crazies and likened us to terrorists.
Mr. Johnson. Well, Mr. Chairman, if I----
Mr. Gowdy. You are not recognized. The gentleman from
Georgia is not recognized.
Mr. Johnson. Well, would the gentleman yield?
Mr. Gowdy. No, sir, I will not.
Let's go to the regulation, Professor. Conflict of interest
for the Department. People like standards, they like bright
lines, so I thought it would be interesting to go find out what
the Attorney General's standard is for recusal, and you know
when he recuses himself? I'll quote him: ``When there's the
potential appearance of a conflict. He recused himself from a
criminal prosecution when there's the potential appearance of a
conflict.'' Those are his words, not mine.
So that's the standard for when there should be a conflict.
I want us to analyze whether or not there could possibly be the
potential appearance of a conflict. You have the President of
the United States--when I ask a question, it will be very
clear, Professor. The President of the United States in the
most widely viewed television show in our country said there's
not a smidgen of corruption. You don't think that is the
potential appearance of a conflict?
Mr. Tiefer. For the issue of a special counsel, which is
what I'm here for, I think----
Mr. Gowdy. How about giving me a yes or no, and then you
can explain your answer.
Mr. Tiefer. I think it's irrelevant what the President says
to whether there is a conflict of interest.
Mr. Gowdy. Well, what if a judge says let's go give this
guilty bastard a trial, is that irrelevant? Would you want that
judge? If he prejudged the outcome of a prosecution, said let's
go give this guilty guy a fair trial.
Mr. Tiefer. Given the independence of the public integrity
section for the last 30 years, I don't think it matters what
the President says.
Mr. Gowdy. So you don't think it matters that the chief law
enforcement officer for this country before there is an
investigation, while there are emails missing, before he has
analyzed one scintilla of evidence prejudges and says there's
not a scintilla of corruption, you don't think that matters?
You don't even think it creates the potential appearance of a
conflict?
Mr. Tiefer. I absolutely reject that the standard here is
the standard you're naming for recusal. If he recuses himself,
it's still the same Justice Department without a special
counsel who--I'm sorry.
Mr. Gowdy. How about when the Department of Justice trades
emails with Lois Lerner seeking to implement an idea from a
Democrat Senator? Do you know Senator Whitehouse?
Mr. Tiefer. My understanding is the idea was rejected after
the meeting in question, that the idea was----
Mr. Gowdy. I'm simply saying, do you really want the
Department of Justice and the IRS taking their prosecutorial
advice from a Democrat Senator? I thought the Department of
Justice was blindfolded.
Mr. Tiefer. I'm glad they rejected the idea.
Mr. Gowdy. I'm sad that they even discussed it. I'm sad
that they even discussed pursuing because when the AG sits
where Professor Rotunda is, all we hear about is how he doesn't
have the resources to actually do his job, and now they're
going to contemplate manufacturing false statement cases?
Mr. Tiefer. The standard is not a potential----
Mr. Gowdy. So you do no think there is even the potential
appearance of a conflict?
Mr. Tiefer. That's not the standard. You're talking about
recusal, which is whether it's the AG or the deputy AG who
deals with the matter, that's recusal.
Mr. Gowdy. All right. Just so the record is clear, you
don't----
Mr. Tiefer. This is special counsel, which is whether----
Mr. Gowdy. So you don't think there's even a potential
appearance of a conflict?
We're not even going to get into Ms. Bosserman.
How about extraordinary circumstances? Do you think it is
extraordinary when a government agency targets people based on
their political ideology, do you think that that is
extraordinary?
Mr. Tiefer. I think it's an issue with the Department of
Justice, not the IRS. The IRS is much criticized, and I assume
rightly so, but the Department of Justice under the special
counsel regulation is the one we're talking about here.
Mr. Gowdy. Well, I'll tell you what, let's go to the third
element. How about whether it would be in the public interest
to do so? Would you agree to let our fellow citizens decide
whether or not they think a special prosecutor is warranted in
this case? That's the third element.
And, by the way, the Attorney General drafted this
regulation, this CFR. So I assume he put in there it would be
in the public interest to do so. Would you agree to let our
fellow citizens decide whether or not there should be a special
prosecutor?
Mr. Tiefer. You mean by poll?
Mr. Gowdy. However. We elect Presidents that way.
Mr. Tiefer. No, I don't think polls should tell the
Department of Justice what laws to enforce. No, I don't.
Mr. Gowdy. So you see no potential conflict of interest,
you don't think this is an extraordinary fact pattern, and you
don't trust your fellow citizens to make the call?
Mr. Tiefer. It's not a matter of trusting. You can't run
the Department of Justice and decide extraordinary questions of
the law by poll numbers. No, I would not.
Mr. Gowdy. Neither can you prejudge the outcome of an
investigation that hasn't even started. You can't do that when
you are the chief law enforcement officer for this country, and
it wasn't a hot mike situation where he's whispering to Eric
Holder. It's on the most watched television show in our
culture, and he prejudges an investigation, and you want us to
expect that the outcome of this is going to have any validity
or credibility? It's not going to happen.
And with that, I would recognize the gentleman from Idaho.
Mr. Labrador. Thank you, Mr. Chairman.
I just have a couple questions.
Professor, you say in your testimony that Democrats
requested special counsels to investigate accusations of
torture by the Bush administration and possible perjury by the
Attorney General Gonzalez. You also said that you didn't think
in those cases there should be an appointment of a special
counsel; is that correct?
Mr. Tiefer. I thought that it was within the discretion of
the Attorney General. I'm not sure I said that it shouldn't be
done.
Mr. Labrador. So do you think there should ever be a
special counsel appointed?
Mr. Tiefer. I think that the one in the Bush
administration, the one regular one we know of in the Bush
administration, Patrick Fitzgerald, on the Libby Scooter
matter, I think that was a good choice.
Mr. Labrador. So you're okay with special counsels being
appointed, yes or no?
Mr. Tiefer. Yes.
Mr. Labrador. Yes, okay. Now, you also seem to think that
the Congress has its authority in the future to stop whatever
abuses of the executive authority. So what other tools do we
have to stop any abuse of the executive authority?
Mr. Tiefer. Every year, the money has to be appropriated
for them. You put on riders, and they don't have the money to
do whatever it is you're saying is wrong.
Mr. Labrador. Okay, so just through the appropriations
process?
Mr. Tiefer. Well, you also have the authorizing process
here. That is, if you pass a statute and say the Department of
Justice should no longer do this, that, and the other thing,
this is the Committee on the Judiciary.
Mr. Labrador. Now, there seems to be some evidence
suggesting that the DOJ colluded with the IRS regarding
prosecution of conservative groups. If the DOJ colluded with
the IRS to target organizations on the basis of their political
beliefs, wouldn't that be a conflict of interest and require a
special prosecutor?
Mr. Tiefer. Oh, I think that I'm a little unsure about the
discussion here, but in any event, factually, the idea was
rejected, and the question is from rejecting an idea, should
there be a special counsel on it, do they have a conflict of
interest?
Mr. Labrador. If they actually colluded and if they were
actually working together to go after conservative groups,
don't you think that's enough evidence of a conflict of
interest? I'm not asking you to determine whether there was a
collusion, but if there is an actual collusion, don't you think
that's enough evidence?
Mr. Tiefer. It's one of those hypotheticals that I can't
get my mind around because the Public Integrity Section I've
known for 30 years wouldn't do such things.
Mr. Labrador. Okay. So your testimony today is that you
trust the Public Integrity Section, that you think that they
can make these decisions. But many of us trusted the IRS that
they wouldn't make these kind of decisions. So at what point do
we start thinking that there's an Administration that has just
gone above and beyond what we have thought in the past? Most of
us didn't like the IRS before because we don't like paying
taxes, but we never assumed that they would go after different
groups just because the leader of their group was somebody not
to their liking.
Mr. Tiefer. I won't quarrel with you. I understand the
parallel you're making.
Mr. Labrador. Okay.
Mr. Sekulow, can you tell me at what point--I'm having a
hard time understanding from my friends on the other side if
they have a bright line rule of when we actually need to have
special counsel because the professor seems to be arguing that
it's the Attorney General who decides, and I agree with that.
Mr. Sekulow. Right.
Mr. Labrador. I don't think we need to decide. I think the
Attorney General decides. But at what point should we decide or
should there be a bright line that that automatically goes to a
special counsel, or should we even have that bright line?
Mr. Sekulow. Well, there's been a continuing debate about
the whole reinstatement of an independent counsel statute, and
I think probably it's pretty overwhelming people don't want it.
The integrity of the system rests on the ability of the
Attorney General to make the decision, but it needs to be made
on a decision where there is evidence being presented, which I
think is what your House Resolution did, urging, which is the
appropriate response, to take action. The inaction here is
palpable. I mean, my team has been in these meetings with these
FBI agents. This is a faux investigation, this is not a real
investigation. I mean, they're talking about, you know, how
long were you placed on hold in talking to a revenue agent
instead of asking where in the world are Lois Lerner's emails,
and how in the world did she write that my clients were A-
holes, her words, okay, and worse than foreign terrorists. And
she's a member of the Senior Executive Service at the IRS,
which is a very high ranking position.
Mr. Labrador. That's outrageous.
Mr. Sekulow. Yeah, outrageous, and what's the response?
Well, the Department of Justice is investigating it. That's the
problem. The Attorney General could end this himself. He's the
one who raised the specter of criminality, I believe it was in
this room or next door, he raised the specter when he said it
could be violations of 242. He should now realize he's been
compromised or his agency has been compromised, appoint
somebody that will get to the bottom of this quickly.
Mr. Labrador. All right. Thank you.
I yield back my time.
Mr. King [presiding]. The gentleman yields back.
The Chair would now recognize himself for his 5 minutes,
and I turn first to Mr. Sekulow, and I would say that, you
know, as I have listened to the dialogue that exchanged back
and forth, it has been as rapid fire and fiery as anything I've
heard in here in a while. I appreciate the intensity of that
matter, and I think this has been sliced and diced with a
significant focus, but to bring it back to the larger focus, I
would pose this from the hypothetical part of this, and that is
that let's just suppose that we had a President of the United
States and inside the operation, he had a network of Cabinet
members that were utilizing the assets and resources of the
executive branch to advance the political interests of his
political party and punish the political interests of the
opposing political party and to whatever level of potential
criminality that might be and however that network might lead
its way up through the chain from, let's say, perhaps, an
office out somewhere in the Midwest working its way up through
the chain and to the White House itself, and if the Attorney
General was part of that understanding, and if the Cabinet
members were part of that understanding that they were going to
lock together and resist, then what would be the alternative
for the United States Congress, and what would be the
alternative for the American people to try to get justice if a
relentless suppression of their liberty was being enacted in
such a fashion?
Mr. Sekulow. If a fortress mentality were to be utilized by
the executive to protect itself and its team, and the
Department of Justice becomes part of that, which is the
situation here, nothing. There's nothing the American people
other--short of the next election cycle, but a lot could happen
to the country between that point--that's the reality. That's
the problem. I'm not saying let's get an independent counsel
statute back on the books, but I'm saying you're the Attorney
General of the United States. This is a mess. You know it's a
mess. We know it's a mess.Put somebody in charge to restore
confidence of an agency, don't get into a fortress mentality,
which is what they're in right now.
Mr. King. Well, let me suggest that we've seen a response
from the American people, and I draw the comparison of
Obamacare, when tens of thousands of people came to this
Capitol, surrounded the Capitol building for the first time in
the history of America, and rose up in objection to their God-
given liberty, the risk, the threat that it would be usurped by
Obamacare itself. And the response of the American people was,
as you mentioned the election, Mr. Sekulow, 87 freshmen
Republicans came to the United States Congress as a result of
that overreach, and all 87 pledged to repeal Obamacare. And
every Republican since then has voted to repeal Obamacare, and
still we have Obamacare, and still we're stuck in this place,
so the quick response of the hot cup of coffee in the House of
Representatives isn't adequate. Could you take that another
step?
Mr. Sekulow. Well, in a situation like that, which is the
reality in the world we live in, the problem is, how do people
seek recourse and redress? I mean, that's really what's at the
bottom here, and where I think this is significant, and not to
diminish in any way, Congressman Johnson, any other issues that
you are compelled or you are passionate about in dealing with,
but this isn't insignificant. This is really significant. This
is the core of our freedom, this is the core of the republic,
the ability to engage your government for a redress of a
grievance, for freedom of speech and freedom of association,
and when you get targeted by an agency and their answer,
Congressman, is, we apologize for that, we have a serious
problem, and that's when the Attorney General needs to take
serious action, which he's refusing to do right now.
Mr. King. Let me take another step. Another round of
elections and perhaps then you see the same kind of fury that
came about in 2010, and that's reflected within a change in the
majority in the United States Senate.
Mr. Sekulow. Yeah.
Mr. King. Is that enough then to fix this problem with the
IRS having software that targets people that say, I'm a
patriot?
Mr. Sekulow. No, because the bureaucracies are running the
government.
Mr. King. And so when I get criticism from my constituents
that say, Why don't you do something about the IRS abuse of me
and my neighbors and my friends, how do I respond to them?
Mr. Sekulow. This is the real situation we live in, and I
said this, and it could get you in a little bit of trouble.
It's almost as if the Presidency doesn't matter. The government
is being run by the bureaucrats. The bureaucrats have no
accountability. You pass laws, they're signed by the President,
and then the regulations overtake the law. That's the
bureaucratic nonsense we're living in, and that's why they're
able to put out emails with these kind of nasty--who even would
think about writing an email like that on a government
computer? And yet they do it with impunity, and that's the
problem.
Mr. King. And then if we continue with this, if there was a
process to remove the obstructing bureaucrat, do you think that
would change anything?
Mr. Sekulow. I think that would--if there was a process to
remove the obstructing bureaucrat, if there was a price to be
paid by bureaucrats that do this, I think that would go a long
way. Right now, the defense of the Department of Justice to our
lawsuit is, sorry, you don't get to touch them because they're
acting in their official capacity.
Mr. King. And they will drag this out until this
Administration leaves the White House, and I believe that
there's a calculation that's been made, even if we have to sit
under oath and lie to the United States Congress, the price for
that is less than the price for admitting the truth. Would you
agree with that?
Mr. Sekulow. Well, I think that there is a serious argument
to be made that the American people are not getting truthful
answers, period.
Mr. King. No question. I thank all the witnesses for your
testimony here, and I appreciate the panel for the intensity
you brought to this.
Mr. Bachus. Mr. Chairman?
Mr. King. This concludes today's hearing.
Mr. Bachus. Mr. Chairman?
Mr. King. Thank you to all of our witnesses, and I adjourn
this hearing.
Mr. Bachus. Mr. Chairman?
Mr. King. Oh, excuse me, I would yield to the gentleman
from Alabama.
Mr. Bachus. Mr. Chairman, I would like to have an
opportunity to follow up on some questions before he left.
Mr. King. I temporarily recognize the gentleman from
Alabama to follow up.
Mr. Bachus. Professor Rotunda----
Mr. Rotunda. Uh-huh.
Mr. Bachus [continuing]. You actually served, I note, as
assistant majority counsel of the Senate Watergate Select
Committee?
Mr. Rotunda. Yes.
Mr. Bachus. This really has the makings of a Watergate.
There the President was accused of basically taking down,
attempting to take down his political opponents by using the
IRS. The IRS resisted. In this case the IRS, it wasn't an
attempt, the IRS is actually taking down their, you know,
they're bringing action against their political enemies. So in
the second count in the impeachment was that they attempted,
that the President or the Administration attempted to take down
their opponents, but in this case, we have evidence that the
IRS was being used for political purposes.
Mr. Rotunda. We hope it would not come to that, and that's
why the advantage of an independent counsel is that we can rely
on that, and if he tells us it doesn't go much further or maybe
goes to Lois Lerner or the person just above her, we would be
happier.
Mr. Bachus. As opposed to the Attorney General, who is the
chief political officer for the President, among other--he has
political interests. He has personal interests, and he probably
has financial interests, which are three of the definitions of
conflict of interest. I looked at the statute, I think one
thing that we really need to do is look at the statute, and all
of a sudden, I'm wondering where it is.
Mr. Rotunda. Is this the special counsel regulation?
Mr. Bachus. The special counsel.
Mr. Rotunda. Oh, yeah.
Mr. Bachus. And we've talked about presenting a conflict of
interest, but we also, what we didn't talk as much about is
extraordinary circumstances. Now, when you have an email that
says we are looking for a magic bullet to take down our
political opponents, that's extraordinary.
Mr. Rotunda. It's scary.
Mr. Bachus. It is.
Mr. King. Could the gentleman expedite his inquiry?
Mr. Bachus. Yes. Well, I'm just going to say it. It also
says when it would be in the public interest, and you know,
there was a bipartisan resolution, not a partisan, a bipartisan
resolution of this Congress, including that was voted on by
both Republicans and Democrats, and two Democrats on this
Committee voted for a resolution urging the Attorney General,
but and then, of course, we have George Will, and I'm going to
close with this. This will be it.
Mr. King. Okay.
Mr. Bachus. He said he wished the Justice Department was
interested in this investigation, but the trouble is that
instead, the Justice Department is uninterested in this
investigation, and I think we need to ask ourselves, why aren't
they doing this? They have a duty under Section 3 of the
special counsel thing to conduct an ably expeditious and
thorough investigation. Now, that is part of the----
Mr. King. The gentleman's time has expired.
Mr. Bachus. And they're not doing any of those things.
Mr. King. And----
Mr. Johnson. Mr. Chairman----
Mr. King [continuing]. This concludes today's hearing. I
want to thank all the witnesses for attending.
Mr. Johnson. Mr. Chairman.
Mr. King. Without objection, all Members will have 5
legislative days----
Mr. Johnson. Mr. Chairman?
Mr. King [continuing]. To submit additional written
questions for the witnesses or additional materials----
Mr. Johnson. Mr. Chairman, I just have----
Mr. King [continuing]. For the record, and I would point
out to the gentleman from Georgia that there's a hearing
upstairs that must commence exactly at 1.
Mr. Johnson. Just one statement.
Mr. King. Thirty seconds.
Mr. Johnson. Thirty seconds?
Mr. King. Yes.
Mr. King. And I'm ready to adjourn.
Mr. Johnson. I just want everybody to know that should I
ever have an issue with the First Amendment and my case needs
to go all the way up to the U.S. Supreme Court, I'm going to
call Jay Sekulow and the American Center for Law and Justice,
regardless of whether or not it's a progressive or conservative
issue. I just wanted to state that for the record.
Mr. King. I thank the counsel, my friend from Georgia----
Mr. Johnson. Thank the Chairman.
Mr. King. And this hearing is adjourned.
[Whereupon, at 1:01 p.m., the Committee was adjourned.]
A P P E N D I X
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