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







                        IRS TARGETING SCANDAL: 
                     THE NEED FOR A SPECIAL COUNSEL

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

                                HEARING

                               BEFORE THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED THIRTEENTH CONGRESS

                             SECOND SESSION

                               __________

                             JULY 30, 2014

                               __________

                           Serial No. 113-92

                               __________

         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

                              ----------                              

                             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

                              ----------                              


                        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:]


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                               __________

    Mr. Jordan. I would recognize the gentleman from North 
Carolina, Mr. Coble, for his 5 minutes of questions.
    Mr. Coble. I thank the Chairman, and 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.]











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