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

    .
                    EXAMINING THE JUSTICE DEPARTMENT'S
                    RESPONSE TO THE IRS TARGETING SCANDAL

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

                                    HEARING

                                   BEFORE THE

                        SUBCOMMITTEE ON ECONOMIC GROWTH,
                      JOB CREATION AND REGULATORY AFFAIRS

                                     OF THE

                             COMMITTEE ON OVERSIGHT
                             AND GOVERNMENT REFORM

                            HOUSE OF REPRESENTATIVES

                        ONE HUNDRED THIRTEENTH CONGRESS

                                 SECOND SESSION

                                   __________

                                 JULY 17, 2014

                                   __________

                               Serial No. 113-160

                                   __________

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

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

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                  COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

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

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

      Subcommittee on Economic Growth, Job Creation and Regulatory Affairs

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

                                  ----------
                                                                       Page
    Hearing held on July 17, 2014....................................     1

                                   WITNESSES

    The Hon. James M. Cole, Deputy Attorney General, U.S. Department
      of Justice
        Oral Statement...............................................     6
        Written Statement............................................     9

                                    APPENDIX

    Memo from Democratic staff regarding the hearing, submitted by
      Mr. Cummings...................................................    66
    E-mails from 2010 to Lois Lerner, submitted by Mr. Jordan........    98
    Legal Opinion from 1984, submitted by Mr. Cummings...............   100
    Questions for the record, submitted by Mr. Jordan................   132

       EXAMINING THE JUSTICE DEPARTMENT'S RESPONSE TO THE IRS TARGETING
                                    SCANDAL

                                  ----------

                            Thursday, July 17, 2014

                      House of Representatives,
    Subcommittee on Economic Growth, Job Creation, and
                                    Regulatory Affairs,
                  Committee on Oversight and Government Reform,
                                                        Washington, DC.
        The subcommittee met, pursuant to notice, at 9:04 a.m., in
    room 2154, Rayburn House Office Building, Hon. Jim Jordan
    (chairman of the subcommittee) presiding.
        Present: Representatives Jordan, DeSantis, Duncan, Gosar,
    Meadows, Bentivolio, Issa, Gowdy, Cartwright, Duckworth,
    Connolly, Kelly, Horsford, and Cummings.
        Staff present: Melissa Beaumont, Assistant Clerk; Molly
    Boyl, Deputy General Counsel and Parliamentarian; Lawrence J.
    Brady, Staff Director; David Brewer, Senior Counsel; Steve
    Castor, General Counsel; Drew Colliatie, Professional Staff
    Member; John Cuaderes, Deputy Staff Director; Tyler Grimm,
    Senior Professional Staff Member; Christopher Hixon, Chief
    Counsel for Oversight; Laura L. Rush, Deputy Chief Clerk;
    Jessica Seale, Digital Director; Andrew Shult, Deputy Digital
    Director; Katy Summerlin, Press Assistant, Sarah Vance,
    Assistant Clerk; Tamara Alexander, Minority Counsel; Meghan
    Berroya, Minority Chief Counsel; Aryele Bradford, Minority
    Press Secretary; Jennifer Hoffman, Minority Communications
    Director; Juan McCullum, Minority Clerk; Donald Sherman,
    Minority Chief Oversight Counsel; and Katie Teleky, Minority
    Staff Assistant.
        Mr. Jordan. The committee will come to order. I want to
    welcome our guests, and we will get to our witness here in just
    a few minutes. The subcommittee's hearing today continues the
    committee's ongoing oversight of the IRS and its targeting of
    conservative tax-exempt groups.
        On May 10, 2013, Lois Lerner apologized for the Internal
    Revenue Service targeting and responding to a planted question
    at an obscure tax law event. Four days later, Attorney General,
    Eric Holder, called the targeting outrageous and unacceptable.
    He vowed that the Justice Department would begin a criminal
    investigation. That was May of last year. Here we are now, 14
    months later and we have heard virtually nothing from the
    administration about its criminal investigation. What we have
    heard gives members on both sides of the aisle cause for
    concern.
        We have learned that Barbara Bosserman, an attorney in the
    civil rights division, is playing a leading role in the
    investigation. Ms. Bosserman is a substantial contributor to
    the President and the Democrat National Committee, and now it
    is her job to investigate the targeting of people who opposed
    the President's policies.
        The Attorney General then comes out and says Ms. Bosserman
    is not alone. She is working with the public integrity section
    and, of course, the Federal Bureau of Investigation. Then we
    learn that the public integrity section and the FBI actually
    met with Lois Lerner in 2010 to discuss how to bring
    prosecution against these groups; the very same groups that
    were targeted by the IRS.
        These are serious apparent conflicts of interests, but the
    Justice Department just wants us to look the other way. No big
    deal, they say. Then we have unnamed law enforcement sources
    who leaked to the Wall Street Journal that no criminal charges
    were gonna be filed in the IRS targeting investigation. And
    then you have the President of the United States go on national
    television and say there is not a smidgen of corruption in the
    Internal Revenue Service. Well, if that is not prejudging the
    investigation I don't know what is.
        The House has passed a resolution calling on the attorney
    general to appoint a special prosecutor. Twenty-six Democrats--
    and I stress that, 26 Democrats--joined every single Republican
    in the House of Representatives in approving this measure. But
    the administration still won't do anything. They still won't
    appoint a special prosecutor. My question is this: what more
    will it take for the administration to appoint a special
    counsel? And then we find out just last month that the IRS lost
    2 years of emails from Lois Lerner due to a hard drive crash.
        Mr. Cole's testimony says that the Justice Department is
    investigating. That, of course, is good. Someone in the
    administration recognizes that there is something rotten with
    missing emails. But more must be done. We have serious concerns
    about the administration's investigation and serious questions
    for our witness today. We need to hold all wrongdoers
    accountable for the targeting of Americans for exercising their
    First Amendment rights to speak out in a political fashion. And
    that is why this hearing is so important.
        And with that, I would yield to Mr. Cummings----
        Mr. Cummings. Thank you very much, Mr. Chairman----
        Mr. Jordan [continuing]. For an opening Statement. The
    gentleman is recognized.
        Mr. Cummings. Chairman Jordan, and I welcome to this
    hearing Deputy Attorney General Cole. For more than a year,
    Republicans have claimed that the White House directed the IRS
    to target conservative groups. But now that we have conducted
    our investigation, we know the truth. There is no evidence to
    suggest that the White House played any role in directing or
    developing the search terms identified by the inspector general
    as, ``inappropriate,'' or any other aspect of how IRS employees
    processed these applications.
        We have now conducted, ladies and gentlemen, 42 interviews.
    These were witnesses that were called by the Republicans, and
    they make it very clear that an IRS screening agent in
    Cincinnati developed these inappropriate criteria on his own.
    We also know, from his supervisor--who described himself as a
    conservative Republican, that is his quote--that he did this
    not for political reasons but because he was trying to treat
    similar cases consistently. Not one of the witnesses we
    interviewed, including senior officials at the IRS, the
    Treasury Department and the Justice Department identified any
    White House role in this process.
        Our investigation also confirmed the findings of the
    inspector general, who was appointed by Republicans, whose
    audit Stated that the IRS employees reported that they were,
    ``not influenced by any individual or organization outside the
    IRS.'' The inspector general has testified repeatedly before
    Congress that he has identified no evidence of any White House
    role or political motivation.
        So now, the Republicans have a different argument, although
    they are still trying to somehow link this to the White House.
    Now they claim that the targeting of the conservative groups is
    a massive governmentwide conspiracy involving the President,
    the IRS, the Securities and Exchange Commission, the Federal
    Election Commission and numerous other agencies, all
    coordinated in response to the Supreme Court's decision in
    Citizens United.
        They claim that the Justice Department is a key player in
    the conspiracy. They accuse the department of engaging in
    criminal--they accuse the Justice Department of the United
    States of America of engaging in criminal activity by
    obstructing the committee. They claim the department is
    delaying or even closing down its own investigation for
    political reasons. And they claim that the appointment of a
    special counsel is needed.
        Mr. Chairman, our staff prepared a detailed, 32-page memo
    that sets forth the top 10 most egregious accusations against
    the Department of Justice as well as specific responses showing
    why each one is unsubstantiated. And I ask unanimous consent
    that this memo be entered into the official hearing record.
        Mr. Jordan. Without objection.
        Mr. Cummings. Let me address just one of these allegations.
    Last month, Chairman Issa and Chairman Jordan sent a letter to
    the attorney general claiming that their department conspired
    with the IRS to compile an illicit registry with more than a
    million pages of confidential taxpayer information in order to
    criminally prosecute conservative groups for their political
    speech. Here is what that letter said.
        ``The IRS transmitted 21 disks containing over 1.1 million
    pages of non-profit tax return information, including
    confidential taxpayer information protected by Federal law to
    the Federal Bureau of Investigation in October 2010.''
        Their letter then accused the department of working with
    the IRS to ``assemble a massive data base of non-profit
    groups,'' which they called, ``an illicit and comprehensive
    registry.'' These accusations are complete nonsense. There is
    no illicit registry, there is no singling out of conservative
    groups. The vast majority of information was available to the
    general public. And this information was never used for any
    investigation or prosecution. In 2010, the IRS provided form
    990's not only from conservative groups, but from all groups
    regardless of political affiliation.
        And it wasn't until earlier this year, more than 3 years
    later, that the department discovered that a very limited
    amount of confidential taxpayer information was stored on those
    disks. This was an inadvertent error that affected only 33 of
    12,000 forms on those disks; less than half of 1 percent.
        The bottom line, as I close, is that these disks were never
    even reviewed by the FBI or used as part of any investigation
    or prosecution. On May 29, the department wrote a letter to the
    committee, stating as follows, ``FBI advises that upon receipt
    of the disks an analyst imported the index which is set forth
    in one of the disks into a spreadsheet, but did nothing further
    with the disks. And to the best of our knowledge, the
    information contained on the disks was never utilized for any
    investigative purpose.''
        That is from the FBI. Where is the so-called illicit
    registry. The fact is that it simply does not exist. This is
    not the basis of a White House scandal. This is the latest
    example of Republicans desperately searching for one and then
    using any excuse they can to manipulate the facts until they no
    longer have any resemblance to the truth. Our committee has now
    held 10 hearings on the issue, and the IRS has spent more than
    $18 million responding to congressional investigations. It is
    time to stop wasting millions of taxpayer dollars and start
    focusing on reforms to help our government work more
    effectively and efficiently for the American people.
        And with that, I yield back.
        Mr. Jordan. I thank the gentleman. I would just also ask
    for unanimous consent to enter into the record a couple of
    emails from 2010 from Mr. Pilger, a lawyer in the public
    integrity section of the Justice Department. Emails to Lois
    Lerner, and I will just quote--``Thanks, Lois. The FBI says raw
    format is best because they can put this into their systems.''
    Again, the point that the ranking member was just talking
    about: 1.1 million pages, 21 disks of information. The FBI got
    it in exact format they wanted. Had this information for 4
    years. And I am aware of the testimony from the Justice
    Department that they did not use this information.
        But what I also know is they had it for 4 years and it did
    contain 6103 confidential taxpayer information.
        Mr. Cummings. Would the gentleman yield for just----
        Mr. Jordan. I would ask unanimous consent, I would ask that
    we enter this into the record, as well.
        Mr. Cummings [continuing]. The gentleman yield just 15
    seconds?
        Mr. Jordan. I recognize the ranking member.
        Mr. Cummings. And I would ask that Mr. Cole--since we want
    to be effective and efficient and not be caught up in
    distraction and dysfunction--that when he answers his questions
    that he be allowed to answer what you just Stated. Because I
    want to hear the answer to that, too. All right?
        Mr. Jordan. But I do, too, because we are gonna ask him
    about it.
        Mr. Cummings. All right.
        Mr. Jordan. I hope he does answer and doesn't say it is an
    ongoing investigation. I hope he does answer our questions
    today.
        Mr. Cummings. Very well.
        Mr. Jordan. That is why we got him here.
        Mr. Cummings. Very well.
        Mr. Jordan. Thank you. Anyone else wish to make an opening
    Statement? For Mr. Cartwright, Ms. Duckworth?
        The gentlelady is recognized.
        Ms. Duckworth. Thank you, Mr. Chairman. I am reading the
    opening Statement on behalf of Ranking Member Cartwright. And
    also, thank you, Deputy General Cole, for testifying today.
        On May 14, 2013, Inspector General Russell George released
    a report stating that IRS employees had used inappropriate
    criteria to screen applicants for tax-exempt status. Republican
    and Democratic members, including myself, condemned the IRS
    mismanagement identified in the inspector general's report.
    Despite legitimate concerns expressed by some members before
    this committee had even begun to investigate, Chairman Issa
    went on national television and declared the IRS was involved
    in the targeting of the President's political enemies.
        The inspector general has repeatedly refuted this baseless
    allegation. He reported that senior leaders at the IRS said the
    criteria were not influenced by any individual or organization
    outside the IRS. Then, on May 17, 2013, the inspector general
    was asked before a Ways and Means Committee, ``Did you find any
    evidence of political motivation in the selection of tax
    exemption applicants?'' He responded, ``We did not, sir.''
        After interviewing 42 employees in the IRS, Treasury
    Department and DOJ, and receiving more than 680,000 pages of
    documents, the committee has not found any evidence of White
    House involvement or political bias.
        Despite these facts, Republicans continue to invent
    partisan election season conspiracy theories. One of the latest
    allegations is that the Supreme Court's decision in the
    Citizens United prompted President Obama, Democratic Members of
    Congress and the IRS, DOJ and other agencies to launch a
    governmentwide effort targeting conservative groups. While I
    firmly believe that the Citizens United decision severely
    undermines our campaign finance laws--allowing special interest
    dollars to drown out the voices of average Americans--
    Republican attempts to characterize these concerns as evidence
    of political pressure for agencies to target conservative
    groups lack merit.
        These preposterous accusations have also been contradicted
    by the committee's own investigation. We already know that the
    inappropriate criteria started with IRS employees in
    Cincinnati. The inspector general's report said, ``that they
    developed and implemented inappropriate criteria.'' The IRS
    screening group manager in Cincinnati confirmed this fact in a
    committee interview. He explained that his employees first came
    up with inappropriate search terms not for political reasons,
    but to promote consistency. And he proved his point by telling
    us that he is a conservative Republican.
        Former IRS commissioner, Doug Shulman, a 2008 President
    Bush appointee, was asked, ``Did the Citizens United case in
    any way affect the IRS process by handling tax-exempt
    applications.'' And his answer? ``No. You know, to the best of
    my knowledge, it did not.''
        Likewise, the head of the election crimes branch at DOJ
    said, ``Citizens United is a not a problem. It is the law, and
    so no, I am not aware of any effort or part of any effort to
    fix a problem from Citizens United.''
        While Republicans continue to promote their unfounded
    allegations, they conveniently overlook the funneling of dark
    money into elections; 501(c)(4) organizations are not barred
    from participating in political campaigns. But the regulations
    are clear. They State that political activity must be an
    insubstantial amount of the group's overall activity, less than
    50 percent. These groups can already gain tax-exemption as a
    section 527 organization, but that would require them to
    disclose their donors rather than keeping the American people
    in the dark about where they are getting their money. As I have
    repeatedly Stated, as I have repeatedly said, anonymous money
    in politics disrupts the democratic process.
        That is why Ranking Member Cartwright introduced the Open
    Act, which would require corporations and unions to disclose
    their political spending to shareholders and members. This
    legislation will shine a light on the dark money funding
    political activities. I commend Chairman Leahy and Senator
    Udall of the Senate Judiciary Committee for advancing SJ
    Resolution 19, a joint resolution proposing an amendment to the
    Constitution restoring reasonable limits on financial
    contributions and expenditures in elections.
        Thank you, Mr. Chairman, and I yield back.
        Mr. Jordan. I thank the gentlelady.
        Members will have 7 days to submit opening Statements for
    the record.
        We now welcome our witness. The Honorable James M. Cole is
    the deputy attorney general of the United States. Mr. Cole, you
    know how this works. If you would stand up and raise your right
    hand.
        [Witness sworn.]
        Thank you. Pleased to have you with us, Mr. Cole. Again,
    you have done this a few times. You got 5 minutes, more or
    less, but around 5 and you get to go. And then you get to
    answer our questions.
        Fire away.

       STATEMENT OF HON. JAMES M. COLE, DEPUTY ATTORNEY GENERAL,
                  UNITED STATES DEPARTMENT OF JUSTICE

        Mr. Cole. I will take less than that, Mr. Chairman. And
    before I start, I want to thank the chairman for accommodating
    the request I made to have a rescheduling of the date of this
    hearing. When it was first scheduled, I was already scheduled
    to be down at the Southwest border looking at the McAllen
    Station and dealing with the issues down, and meeting with the
    United States attorneys on the southwest border to try and deal
    with the issues we have there, as well. So thank you for
    accommodating that.
        Mr. Jordan. You bet.
        Mr. Cole. I am here today to testify in response to the
    committee's oversight interest in allegations that the Internal
    Revenue Service targeting conservative groups seeking tax-
    exempt status. When the allegations of IRS targeting surfaced
    in May 2013, the attorney general immediately ordered a
    thorough investigation of them. That criminal investigation is
    being conducted by career attorneys and agents of the
    department's criminal and civil rights division, the Federal
    Bureau of Investigation, and the Treasury inspector general for
    tax administration. That is known as TIGTA.
        I have the utmost confidence in the career professionals in
    the department and in TIGTA. And I know that they will follow
    the facts wherever they lead and apply the law to those facts.
    While I understand that you are interested in learning about
    the results of the investigation, in order to protect the
    integrity and independence of this investigation we cannot
    disclose non-public information about the investigation while
    it remains pending. This is consistent with the long-standing
    department policy across both Democratic and Republican
    administrations, which is intended to protect the effectiveness
    and independence of the criminal justice process as well as the
    privacy interests of third parties.
        I can, however, tell you that the investigation includes
    investigating the circumstances of the lost emails from Ms.
    Lerner's computer. In response to your requests, we have
    undertaken substantial efforts to cooperate with the committee
    in a manner that is also consistent with our law enforcement
    obligations. We have produced documents relating to the limited
    communications regarding 501(c) organizations by criminal
    division attorneys with Lois Lerner, who is the head of the
    exempt organizations division at the IRS. We have also taken
    the extraordinary step of making available, as fact witnesses,
    two career prosecutors from the department's public integrity
    section who explained these contacts with Ms. Lerner.
        In 2010, for the purpose of understanding what potential
    criminal violations related to campaign finance activity might
    evolve following the Supreme Court's decision in Citizens
    United versus the FEC, a public integrity section attorney
    reached out to the IRS for a meeting, and was directed to Ms.
    Lerner. In the course of that meeting, it became clear that it
    would be difficult to bring criminal prosecutions in this area,
    and, in fact, no criminal investigations were referred to the
    Department of Justice by the IRS, and no investigations were
    opened by the public integrity section as a result of the
    meeting.
        A separate contact between the public integrity section and
    Ms. Lerner occurred in May 2013, when the Department of Justice
    had been asked both in a Senate hearing and in a subsequent
    letter from Senator Sheldon Whitehouse whether the department
    and the Treasury Department had an effective mechanism for
    communicating about potential false Statements submitted to the
    IRS by organizations seeking tax-exempt status. An attorney in
    the public integrity section reached out to Ms. Lerner to
    discuss the issue. Ms. Lerner indicated that someone else from
    the IRS would followup with the section, but that followup did
    not occur.
        In sum, these two instances show that attorneys in the
    public integrity section were merely fulfilling their
    responsibilities as law enforcement officials. They were
    educating themselves on the ramifications of changes in the
    area of campaign finance laws and ensuring that the department
    remained vigilant in its enforcement of those laws.
        As we have explained to the committee previously, in 2010,
    in conjunction with the meeting I previously described, the IRS
    provided the FBI with disks that we understood at the time to
    contain only public portions of filed returns of tax-exempt
    organizations. As we have indicated in letters to the
    committee, the FBI has advised us that upon their receipt of
    those disks an FBI analyst reviewed only the index of the disks
    and did nothing further with them.
        To the best of our knowledge, they were never used for any
    investigative purpose. Pursuant to the committee's subpoena, we
    provided you with copies of the disks on June 2, 2014, when it
    remained our understanding that the disks contained only
    publicly available information. Shortly thereafter, the IRS
    notified the department that the disks appeared to
    inadvertently include a small amount of information protected
    by Internal Revenue Code Section 6103, and we promptly notified
    the committee of this fact, by letter, on June 4, 2014. We
    promptly provided our copies of the disks to the IRS and
    suggested that the committee do the same.
        In order to provide you with our best information regarding
    the disks, including the fact that they were not used by the
    FBI for any investigative purpose, we have now written the
    committee several letters regarding the disks, and the director
    of the FBI answered questions about them from Chairman Jordan
    in a House Judiciary Committee hearing on June 11 of this year.
        We recognize the committee's interest in this matter. We
    share that interest, and are conducting a thorough and complete
    investigation and analysis of the allegations of targeting by
    the IRS. While I know you are frustrated by the fact that I
    cannot, at this time, disclose any specifics about the
    investigation, I do pledge to you that when our investigation
    is completed we will provide Congress with detailed information
    about the facts we uncovered and the conclusions we reached in
    this matter.
        Thank you, Mr. Chairman. I will now be happy to answer the
    questions.
        [Prepared Statement of Mr. Cole follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Mr. Jordan. Thank you.
        The gentleman from Florida, Mr. DeSantis, the vice-chair,
    is recognized.
        Mr. DeSantis. Thank you, Mr. Chairman. Good morning, Mr.
    Cole.
        Mr. Cole. Good morning.
        Mr. DeSantis. Mr. Cole, when we learned in Congress, on
    June 13, 2014, that 2 years' worth of Lois Lerner's emails were
    missing, the IRS would not produce those. When did the Justice
    Department learn of that fact?
        Mr. Cole. I think we learned about it after that, from the
    press accounts that were in the paper following the IRS'
    notification to the Congress.
        Mr. DeSantis. OK. So you actually read about it in the
    press. So nobody in the IRS ever went to the Justice Department
    to give you a heads up, knowing that you were conducting the
    investigation and that some evidence may be been destroyed?
        Mr. Cole. Not before the 13th of June.
        Mr. DeSantis. OK. Now, let me ask you this. You said in
    your testimony that you share the committee's interest and you
    are conducting a thorough and complete investigation and
    analysis of the allegations of targeting by the IRS. If that is
    the case, then I guess my question is why wouldn't you have
    known that these emails were missing? Did you just simply not
    seek to obtain those in the course of the investigation, or did
    the IRS not provide documents that the Justice Department
    requested?
        Mr. Cole. Well, again, it is difficult to get into the
    details of the investigation, but there are a number of
    different sources of emails in the IRS. There are lots of
    recipients and senders, and we were looking at many different
    forms and sources of those emails. And it didn't become
    apparent, based on that, that there were any missing emails
    before that.
        Mr. DeSantis. Now, let me ask you this. If somebody--you
    are investigating an entity, government agency, whatever, you
    know, that agency has a duty, once they know they are under
    investigation, to preserve evidence, correct?
        Mr. Cole. That is correct.
        Mr. DeSantis. And they have a duty to produce the relevant
    documents that are requested in the course of that, correct?
        Mr. Cole. That is correct.
        Mr. DeSantis. And that would fall--I guess, ultimately, the
    agency head is responsible for ensuring that the agency
    complies with the Justice Department, right?
        Mr. Cole. I would imagine the agency head ultimately bears
    responsibility. But there are people further down who actually
    do the work.
        Mr. DeSantis. Now, in the course of investigating a case,
    if you are investigating an agency, an entity, and there is
    evidence that is destroyed, and that agency knows that they are
    under investigation, don't they have a duty to report that to
    the Justice Department so that you know that the evidence has
    gone missing?
        Mr. Cole. We would like to know that information. It
    depends on when they learn of it. And it is certainly
    information that we would like to have.
        Mr. DeSantis. Let me ask you this. If you are in court and
    you make a representation to a judge, even if it is in good
    faith, and you later find out that the representation you made
    is factually incorrect, you have a duty as an attorney and a
    member of the bar to go back to the court and follow a duty of
    candor to inform the tribunal of the mistake and correct the
    record. Is that right?
        Mr. Cole. That is correct.
        Mr. DeSantis. So do you think that as you and the Justice
    Department look--in a congressional investigation, if we have
    somebody heading an agency or who is involved with an agency,
    and they provide information to us and that information later
    they determine to be incorrect, do they have a duty of candor
    to the Congress to correct the record?
        Mr. Cole. Yes.
        Mr. DeSantis. Very well. Let me ask you this, Mr. Cole.
    There was a letter, we had sent a subpoena for documents, and
    we received a response on May 28, 2014. It was signed by Peter
    Kadzik. And in that, the department's position is the same.
    There are certain items that we requested that the department
    is not gonna produce. Is that accurate?
        Mr. Cole. That is correct.
        Mr. DeSantis. OK. And there were--the reason for that,
    cited, was substantial confidentiality interests. And I just
    wanted to clarify. Is not producing the documents--is the
    reason for that is the President actually asserting executive
    privilege in this matter?
        Mr. Cole. I don't believe there was an assertion of
    executive privilege. There are law enforcement-sensitive
    documents and documents involving ongoing investigations that
    traditionally, over decades, the accommodation with the
    department and the Congress is that those are not produced
    because they are law enforcement-sensitive items.
        Mr. DeSantis. My final question would be, this Congress
    held Lois Lerner in contempt, jeez, almost 9 weeks ago. Federal
    law requires, when that happens, that the U.S. attorney for the
    District of Columbia take that to a grand jury. Is it your
    understanding of that law that that is an obligatory duty that
    the U.S. attorney must take that before a grand jury?
        Mr. Cole. My understanding of the law is that they are--it
    does not strip the U.S. attorney of the normal discretion that
    the U.S. attorney has. He proceeds with the case as he believes
    it is appropriate to do so.
        Mr. DeSantis. So 2-USC-194 says it shall be the duty to
    bring the matter before the grand jury. So you are saying that
    actually, even though Congress mandated a duty, a prosecutor
    would essentially be able to trump that language by exercising
    discretion?
        Mr. Cole. I believe that there are aspects of it that give
    any prosecutor prosecutorial discretion on how to run a case
    and how to review a matter. I understand this matter is under
    review. And as far as whether or not it has been presented to
    the grand jury, that is information that you can't disclose
    because grand jury proceedings----
        Mr. DeSantis. I understand that entirely. OK, my time is
    up. Maybe we will followup on that.
        And I yield back.
        Mr. Jordan. The gentleman from Maryland is recognized.
        Mr. Cummings. Attorney General Cole, I want to thank you
    very much for being here, and I wish it were under a more
    constructive circumstance. Unfortunately, the Republicans on
    this committee has accused your department, the Justice
    Department, of engaging in criminal conduct, of obstructing the
    committee and of conspiring with the IRS to criminally
    prosecute conservative groups for their political speech. So
    let me ask you directly, are any of those accusations true?
        Mr. Cole. No, they are not.
        Mr. Cummings. OK, let me focus on one specific accusation.
    Chairman Issa and Chairman Jordan have accused the Department
    of Justice of conspiring with the IRS to create what they call
    in, ``illicit registry,'' of confidential taxpayer information
    to prosecute conserve organizations. Their claim is based on
    the fact that back in 2010 the IRS provided to the FBI 21
    computer disks with annual tax returns, or form 990's, from
    organizations with tax-exempt status. According to your letter,
    these disks contain the forms of all groups that were filed
    between January 1, 2007 and October 1, 2010, ``regardless of
    political affiliation.'' Is that correct?
        Mr. Cole. That is my understanding, Representative
    Cummings, but I have not seen the list myself. My understanding
    is, it was presented to us as public record information and not
    selected on the basis of any sort of political affiliation.
        Mr. Cummings. So based upon your knowledge, there were--so
    they were not just conservative organizations.
        Mr. Cole. No, not--that is not my understanding.
        Mr. Cummings. As I understand it, the vast majority of this
    information is accessible to the public. It is public
    information, it is the same as what the IRS provides to the
    non-profit organizations, guidestar.org. Is that right, to your
    knowledge?
        Mr. Cole. My understanding, when we received the disks, is
    that it was represented to us that it was all public
    information.
        Mr. Cummings. So these forms were provided in 2010. But
    earlier this year, more than 3 years later, you discovered that
    a very limited amount of confidential taxpayer information was
    stored on those disks. Is that correct?
        Mr. Cole. That is correct.
        Mr. Cummings. This error affected only 33 of 12,000 forms
    on those disks. That is less than 1 percent. Is that your
    understanding?
        Mr. Cole. I don't know how much specifically it was. I knew
    it was a small amount.
        Mr. Cummings. Do you have any reason to believe that this
    error was intentional or that these redactions were done
    incorrectly or on purpose?
        Mr. Cole. I have no basis to be able to conclude anything
    on that, other than it is just a small amount, and what was
    represented to us when we received them.
        Mr. Cummings. OK. Well, finally, to me, the most important
    point here is these disks were never reviewed. Is that right,
    to your knowledge?
        Mr. Cole. That is correct. Other than the index, the
    basically first page of it, they were never reviewed and never
    used.
        Mr. Cummings. And so Deputy Attorney General Cole, to
    conclude, when you hear claims--you know, and here, having
    dealt with the Justice--having practiced law for so many years,
    and dealt with the Justice Department in so many times, and--I
    mean, some of the very best and brightest citizens go into that
    department. Many of them could make a lot more money doing
    other things, but they decide that they are going to give their
    life to what I call ``feed their souls'' and make a difference
    for people. And then to--just the idea to hear that the Justice
    Department is accused of criminal activity--the very department
    that has done so much to make sure that our laws are upheld--I
    mean, I am just--it just--it is very upsetting to me.
        And I would just like to give you an opportunity, since you
    represent so many of these wonderful people who have decided to
    give their careers to us--and the idea that they would--they
    are working hard, but then they hear these accusations. I just
    want to know your reaction to that.
        Mr. Cole. Well, Ranking Member Cummings, I represent all of
    them. And the career people we have at the Department of
    Justice are really some of the best and most honest lawyers I
    have ever seen. The amount of integrity that is there is really
    quite astounding. You are right, they do sacrifice a great deal
    of money to work there. But they work there because they feel
    that it is important to go after the pursuit of justice. They
    work to try and find out what the facts are, what the law is,
    apply the facts to the law and let the chips fall where they
    may.
        There is no politics that is involved with all of these
    career people, and it is really impressive to see the work that
    they do and the results that the Justice Department is able to
    bring about and the credibility that the Justice Department has
    because of the wonderful work of the career lawyers that we
    have.
        Mr. Cummings. And is it my understanding that if you all
    find that this crash of Ms. Lerner's computer had any criminal
    elements in it you would be looking into that and addressing it
    as you would any other criminal case. Is that correct?
        Mr. Cole. That is what we do in everything. We look to
    determine whether there is any facts of any criminal violations
    of any Federal laws. And if there are, we act appropriately.
    That is the whole purpose of the Justice Department is to find
    out what is going on, what the truth is, and then take
    appropriate action.
        Mr. Cummings. Thank you very much, Mr. Chairman.
        Mr. Jordan. I thank the gentleman.
        Mr. Cole, isn't it true that Richard Pilger met with Lois
    Lerner back in 2010?
        Mr. Cole. Yes, it is .
        Mr. Jordan. All right. And isn't it true that he got the
    information--this 1.1 million pages of information--in the
    format that he asked for it, the FBI wanted it in?
        Mr. Cole. I think there was a request of several different
    forms it could come in, as I understand it. And we were asked
    to pick which one the FBI would prefer.
        Mr. Jordan. Lois Lerner said we are checking with my folks.
    I am getting you the disk we spoke about. Incoming data
    regarding 501(c)(4) issues. Does the FBI had a format
    preference? Mr. Pilger says the FBI says raw format is best
    because they can put it into their systems like Excel. So you
    got it--so Pilger meets with Lois Lerner. You guys ask for
    specific information. That is right? You guys asked for this
    data?
        Mr. Cole. I am not sure. I haven't seen an email
    specifically asking for it. I think all of that proceeded----
        Mr. Jordan. Well, it sure implies when you get it in the
    format you want--when you say we would like it in the Excel
    format, we would like--regarding 501(c)(4). So sure looks you
    asked for it. And then you got the data, right?
        Mr. Cole. My understanding is, we did get the data. That
    the requests were made before the meeting, and that----
        Mr. Jordan. Well, here is the question.
        Mr. Cole [continuing]. And that the data was delivered----
        Mr. Jordan. Here is the question. If it is publicly
    available information, why did you ask the IRS for it and why
    did you have to meet with Lois Lerner to get it?
        Mr. Cole. I don't have an answer to that right now, other
    than maybe----
        Mr. Jordan. Well, that is an important point. We would like
    an answer to that.
        Mr. Cole. I can take that back and try and find it.
        Mr. Jordan. No, you are the one who said, several times
    already, it is public information. Yet you had to go to Lois
    Lerner and the IRS and get it in the format you wanted? And Mr.
    Cummings says that is no big deal? And you had it for 4 years?
    You had this for 4 years, correct?
        Mr. Cole. The information--the disks were in the possession
    of the FBI for----
        Mr. Jordan. Twenty-one disks?
        Mr. Cole. Twenty-one disks.
        Mr. Jordan. One-point-one million pages?
        Mr. Cole. I think that is correct.
        Mr. Jordan. And most importantly, it did contain 6103
    information, correct?
        Mr. Cole. We learned that on about the second----
        Mr. Jordan. I didn't ask when you learn it. I said it
    contained it. Correct?
        Mr. Cole. We learned it late that it contained it, yes.
        Mr. Jordan. So Mr. Cummings just made this big, big, big
    deal about this is no big deal. Well, in fact, it is. The
    Justice Department asked for information that you said is
    publicly available, but you go to Lois Lerner to get it. You
    get it in 2010 in the format you want it. It is 21 disks, 1.1
    million pages. You say it is available publicly, but you don't
    get it publicly. You go get it from the IRS. And it contains
    confidential taxpayer donor information. All those are facts,
    correct?
        Mr. Cole. They are not necessarily facts that are all
    linked together, though, Mr. Chairman.
        Mr. Jordan. They are all in the data base.
        Mr. Cole. They are facts that exist.
        Mr. Jordan. They are all in the data base, correct? The IRS
    told us it was confidential tax--I didn't make that up,
    Chairman Issa didn't make that up. The IRS told us it was
    confidential information in there.
        Mr. Cole. There was no request at the time. I am not even
    sure if the Justice Department----
        Mr. Jordan. Now let's----
        Mr. Cole [continuing]. Requested the information, or if the
    IRS offered it. I am not sure how the idea----
        Mr. Jordan. When you get it in the format you ask for----
        Mr. Cole. If I can finish.
        Mr. Jordan. It sure looks like you asked for it.
        Mr. Cole. If I can finish, Mr. Chairman.
        Mr. Jordan. OK.
        Mr. Cole. I am not sure how the actual idea of providing
    that information to the Justice Department came up----
        Mr. Jordan. Let's go to your----
        Mr. Cole. --4 years ago. But it was provided after the
    meeting.
        Mr. Jordan. Let's go to your testimony, your written
    testimony. You say in page two of the written testimony I got
    that there was a separate contact between this same lawyer, Mr.
    Pilger, and Ms. Lerner in 2013 in response to Senator
    Whitehouse comments in a Senate hearing, looking at ways to
    bring a false Statement action against the very groups who
    wound up being targeted by the IRS, right? You follow where I
    am at in your testimony?
        Mr. Cole. No, it has nothing to do with the groups targeted
    by the IRS. That is not correct.
        Mr. Jordan. Regarding false----
        Mr. Cole. Whether or not false Statement cases could be
    brought.
        Mr. Jordan. They are the same groups, trust me. And an
    attorney in the public's integrity section reached out to Ms.
    Lerner to discuss the issue. Correct? I am just reading your
    testimony.
        Mr. Cole. That is correct.
        Mr. Jordan. Ms. Lerner indicated that someone else from the
    IRS would followup with the section, but that followup did not
    occur. Why didn't the followup occur?
        Mr. Cole. I don't know.
        Mr. Jordan. You don't know?
        Mr. Cole. I don't know. That would be----
        Mr. Jordan. Let me give you a reason why I think it might
    not have occurred. Because this correspondence, this meeting,
    took place on May 8, 2013. You know what happened 2 days later,
    Mr. Cole?
        Mr. Cole. Yes, I do.
        Mr. Jordan. What happened 2 days later?
        Mr. Cole. Ms. Lerner talked to--gave a speech at an ABA
    conference and talked about this issue.
        Mr. Jordan. Yes. Where she explained to the whole world
    that the IRS was caught with their hand in the cookie jar and
    they, in fact, were targeting conservative groups. That is why
    the followup didn't occur. So 2 days before, 2 days before the
    very lawyer who met with Lois Lerner in 2010 got the data base
    in the format they wanted, 2 days before--jump ahead 3 years
    later. Two days before Ms. Lerner goes public, he was meeting
    with Ms. Lerner again and saying followup will take place.
        But the followup doesn't take place because Ms. Lerner goes
    public and says, you know what--targeting did, in fact, happen.
    She tried to put the planted question in a bar association
    speech, spin this in a way that blames good public servants in
    Cincinnati, which you know is false. And we are--and Mr.
    Cummings says that is no big deal that you had all this
    information--give me a break.
        One last question I have, right, before I go to the next
    member. So John Koskinen told this committee just a week ago
    that he knew in April of this year that a substantial portion
    of Lois Lerner's emails were lost, and he waited 2 months to
    tell us. And he waited even longer to tell you. If a private
    citizen does something like that, under investigation, finds
    out they have lost important documents and doesn't tell
    someone, that is a problem.
        So is--is it a big deal to you, Mr. Cole, and a big deal to
    the Justice Department that the head of the Internal Revenue
    Service waited 2 months to tell the U.S. Congress, 2 months to
    tell the American people and, most importantly, 2 months to
    tell the FBI and the Justice Department that they had lost Lois
    Lerner's emails?
        Mr. Cole. This is a matter, obviously, we would like to
    know about the loss of the emails.
        Mr. Jordan. I am asking is it a big deal that he waited 2
    months?
        Mr. Cole. It depends on what the circumstances were behind
    it.
        Mr. Jordan. The circumstances were he knew in April. He
    said that--when I asked him questions just last week, he said
    he knew in April. And I asked him why didn't you tell us. And
    he--but he waited 2 months.
        Mr. Cole. I would like to know all the circumstances from
    him as to why there was the 2-month wait----
        Mr. Jordan. I would have liked to known right away, as
    well.
        Mr. Cole. Before I answer the question whether it is a big
    deal.
        Mr. Jordan. All right.
        Yield to the gentlelady from Illinois.
        Ms. Duckworth. Thank you, Mr. Chairman. I believe that in
    his testimony he actually--the response to why there was a 2-
    month wait was that he was informed, and then for the next 2
    months they were attempting to recover the lost emails from
    other host computers where those emails were located. So that
    just because you lose the emails from Ms. Lerner's hard drive,
    where she was the ``from'' sender, that they would exist in the
    ``to'' recipients. Computers never--I believe over 80 other
    host computers where they were looking. So that is part of the
    delay.
        But I would like to know, also, the full extent of what was
    going on, as well.
        Deputy General Cole, as I am sure you are aware the nature
    of the Justice Department's investigation into the IRS
    practices regarding the tax-exempt applications has been such a
    lengthy, lengthy discussion before various congressional
    committees. Despite unsubstantiated allegations that the
    Justice Department has prematurely closed its investigation for
    political reasons, Attorney General Holder has repeatedly
    confirmed before both the House and Senate Judiciary Committees
    that the Justice Department and FBI are still actively
    investigating this matter.
        On January 29, 2014, the attorney general testified before
    the Senate Judiciary Committee that the matter, and I quote:
    ``is presently being investigated. Into the use of being done,
    an analysis is being conducted.''
        Several months later, in April--on April 8 of 2014--the
    Attorney General further testified before the House Judiciary
    Committee and confirmed that the department's investigation was
    still an ongoing matter that the Justice Department is actively
    pursuing.
        Deputy Attorney General Cole, can your please confirm that
    the department is still actively investigating IRS practices
    surrounding tax-exempt applications?
        Mr. Cole. This is still an ongoing investigation, that is
    correct.
        Ms. Duckworth. Thank you. So accusations that the
    department has prematurely closed its investigations are false.
    Is that correct?
        Mr. Cole. That is correct.
        Ms. Duckworth. Thank you. Some have also lamented the
    length of time this investigation has spanned. In your
    experience, is it uncommon for complex investigations such as
    this one to take a substantial amount of time to complete?
        Mr. Cole. Both as a prosecutor and a defense attorney, this
    is not an unusual amount of time for an investigation like
    this.
        Ms. Duckworth. Thank you. In your opinion, is there
    anything unusual or troublesome about the length of time the
    department's IRS investigation is taking?
        Mr. Cole. Not that I have seen, no.
        Ms. Duckworth. So this is standard. This is--other
    investigations of this complexity you would expect would take a
    similarly lengthy amount of time.
        Mr. Cole. This is normal, yes.
        Ms. Duckworth. OK. Can you comment on reports that the
    Justice Department has decided not to bring charges against IRS
    officials?
        Mr. Cole. No decisions have been made in this case.
        Ms. Duckworth. OK. Can your confirm that no decision has
    been made yet about whether to criminally charge anyone in
    DOJ's ongoing investigation? I know you said that, but
    because--in reference to the fact that the investigation is
    still ongoing.
        Mr. Cole. There have been no decisions made about this case
    as of right now.
        Ms. Duckworth. So there is still potential for criminal
    charges if you were to discover in the investigation some
    cause.
        Mr. Cole. The whole range of options are still open.
        Ms. Duckworth. Thank you. I thank you for your cooperation
    today. And I want to give you a chance to respond to some of
    the allegations whether the Justice Department worked with the
    IRS to compile the massive data base for illicit and
    comprehensive--sorry, an illicit and comprehensive registry for
    law enforcement officials. Was this something that was a
    collusion between the Justice Department and the IRS?
        Mr. Cole. No, it was not.
        Ms. Duckworth. Did the DOJ or the IRS use this registry for
    the potential prosecution of non-profits?
        Mr. Cole. We didn't. As a matter of fact, we didn't use it
    for any purpose.
        Ms. Duckworth. OK. And both Chairman Issa and Chairman
    Jordan have said that in a letter on June 10, 2014 that a
    special prosecutor is needed for a truly independent criminal
    investigation of the IRS targeting. Do you support that?
        Mr. Cole. I do not. I don't think one is necessary here.
        Ms. Duckworth. OK. Now, I am gonna give you a little time
    to respond to the accusations on how the DOJ is conducting this
    investigation and these allegations that you are colluding,
    that you are delaying, that you are lying. And I only have 30
    seconds. That is just not a lot of time, but go ahead.
        Mr. Cole. Well, short of saying we are not doing that, this
    is the same thing. We are not talking about what we are doing
    in investigations either way. If my answers would help us or
    would hurt us, we are not talking about what we do in
    investigations. That is just how we proceed with
    investigations, for a lot of very good reasons.
        Ms. Duckworth. Why--why would that--could you name some of
    the good reasons why you would do that, in general?
        Mr. Cole. You don't want--first of all, you don't want
    people to prejudge when not all the facts are in. You want to
    make sure that you gather all the facts that are available so
    that you have a complete and full record on which to make the
    determinations. You want to protect people's privacy because
    many times people will provide us information and you don't
    want to start going out and telling everybody who is talking to
    us, who is not talking to us. You don't want to have some
    witnesses infected by what other witnesses have said so that
    you can get the pure Statements from each type of witness.
        Some people, you may just want to make sure they are
    protected because there are allegations about them that turn
    out not to be true. And it is not fair for those to be
    published. You also just want to make sure that everything is
    done with fairness and thoroughness. And you want to make sure
    that you have the ability to do that without the interference
    and the glare of a public spotlight. That is not the way
    investigations are done well.
        Ms. Duckworth. Thank you.
        I am out of time, Mr. Chairman.
        Mr. Jordan. Mr. Cole, would that include the President of
    the United States prejudging the outcome of the case, when he
    said there is not a smidgen of corruption? You just talked
    about how you didn't want anyone saying anything, you can't
    know who is--who you are talking to, what is going on. But yet
    the head of the executive branch prejudges the entire
    investigation on a nationally televised interview?
        Mr. Cole. Mr. Chairman, I am talking about what the
    Department of Justice does. Lots of people----
        Mr. Jordan. You are talking about getting to--doing a good
    investigation, getting to the truth. And you don't want certain
    witnesses and certain people talking about it. I would think
    that would include the highest-ranking official in the country.
        Mr. Cole. Mr. Chairman, if I may, we don't want--the
    Justice Department doesn't talk about the investigation. We are
    the ones who know what the facts are and what the facts are
    that we are gathering. Lots of people have talked about this
    investigation on both sides of it. They are free to do that.
    That is part of the First Amendment rights. We do not do that
    because we are the ones with the actual facts.
        Mr. Jordan. Well--but the President is different. Your boss
    is Eric Holder, his boss is the President of the United States.
    That is a--that is a completely different category than Members
    of Congress or a private citizen talking about it. All I am
    saying is, you just went through a whole list of why you can't
    talk about certain things, you can't tell us what you are
    doing. You can't even tell us who is all involved in the case,
    but somehow we bring up the President, no big deal. I just fail
    to get that one.
        The gentleman from Arizona, Mr. Gosar, is recognized.
        Mr. Gosar. Given the topic of this hearing, I assume you
    are familiar with the portion of the code of Federal
    regulations dealing with the prohibitions on disqualification
    arising from personal or political relationship with regard to
    criminal investigations, correct?
        Mr. Cole. Yes.
        Mr. Gosar. That is Title 28, Section 45.2 of the Code of
    Regulations, correct?
        Mr. Cole. That is correct.
        Mr. Gosar. So you surely understand that it explicitly
    States, ``No employee shall participate in a criminal
    investigation or prosecution if he has a personal or political
    relationship with any person or organization substantially
    involved in the conduct that is the subject of the
    investigation or prosecution, or any person or organization
    which he knows has a specific and substantial interest that
    could be directly affected by the outcome of the investigation
    or prosecution.''
        Do you understand that?
        Mr. Cole. Yes, that is what it says.
        Mr. Gosar. You probably also understand that there is a
    carve-out Section B that States, ``An employee assigned to or
    otherwise participating in a criminal investigation or
    prosecution who believes that his participation may be
    prohibited by paragraph A of this section shall report the
    matter and all attendant facts and circumstances to a
    supervisor at the level of the section chief or the equivalent,
    or higher. If the supervisor determines that a person or
    political relationship exists, he shall relieve that employee
    from participation unless he determines further in writing,
    after full consideration of all the facts and circumstances,
    that the relationship will not have the effect of rendering the
    employee's services less than fully impartial, professional,
    and the employee's participation would not create an appearance
    of a conflict of interest likely to affect the public
    perception of integrity of the investigation or prosecution.''
        You understand all this applies to the Department of
    Justice, correct?
        Mr. Cole. Yes, it does.
        Mr. Gosar. Do you dispute that this is the regulation and
    guidance under the Code of Federal Regulations?
        Mr. Cole. This is the regulation and the guidance, yes,
    sir.
        Mr. Gosar. Do you believe that Barbara Bosserman, attorney
    of the department of civil rights division and a major
    contributor to the--President Obama's campaign and the
    Democratic National Committee meets those standards set forth
    in the code?
        Mr. Cole. You have to look at Section C of that regulation,
    which defines those terms. And it defines a political
    relationship means a close identification with an elected
    official, a candidate whether or not successful for elective
    public office, or a political party or a campaign organization
    arising from service as a principal advisor thereto or a
    principal official thereof.
        Mr. Gosar. But wouldn't you say a principal advisor is
    somebody that contributes to that party?
        Mr. Cole. No.
        Mr. Gosar. Or candidate?
        Mr. Cole. An advisor would not be a person who makes a
    contribution.
        Mr. Gosar. Really. Do you also believe that she should also
    have brought this forward as a conflict of interest?
        Mr. Cole. I believe that, as the definition States, she
    didn't fall within the political relationship under the
    definition.
        Mr. Gosar. Well, let me ask you a question. Are you
    familiar with the impeachment of Richard Nixon?
        Mr. Cole. I am.
        Mr. Gosar. Article two, exhibit one was the IRS. So this is
    very, very poignant in the public's mindset, is the power to
    tax is the power to destroy. So, I mean, even more scrutiny
    should be applied to this. Would you not agree?
        Mr. Cole. We are applying a great deal of scrutiny----
        Mr. Gosar. So, I mean, once again the same type of code
    should be very explicit, though, to Ms. Bosserman in regards to
    making sure that it is squeaky, squeaky clean in regards to the
    perception to the public.
        Mr. Cole. I agree. And she did not meet the definition.
        Mr. Gosar. Sidestepping, I would say. I mean, I----
        Mr. Cole. I would respectfully disagree.
        Mr. Gosar. I am not--I am not an attorney, but I am a
    dentist and just the implication of that aspect in the public
    light, mainstream America would show that there was a conflict
    of interest. And I think from that standpoint, the public is
    the one that we should be, I think, adhering to, their
    perception of making sure it is a fair and equitable
    evaluation. And I think that goes not only to you, but also Ms.
    Bosserman in regards to their concept to the public. And I
    think they owe that further detail. Would you not agree?
        Mr. Cole. Well, I think you have to go through the
    regulations. You have to apply the law to the matter. And the
    law in this matter has a very clear definition of what is meant
    by the terms, and those terms did not encompass Ms. Bosserman.
        Mr. Gosar. I see. All right, so I want to go back to some
    of the comments you made here. The President made a comment
    that there is not a smidgen of opportunity there is corruption
    in this case. Would you agree with that terminology?
        Mr. Cole. Congressman, this investigation is open, and----
        Mr. Gosar. Well, I mean,--I am gonna cut you off there.
    Because how would you define a smidgen? Small?
        Mr. Cole. Congressman, I----
        Mr. Gosar. Smidgen, small. Is it big, it is small? What is
    a smidgen?
        Mr. Cole. I am not sure the context and the meaning the
    President----
        Mr. Gosar. So you weren't watching the Super Bowl?
        Mr. Cole. I was.
        Mr. Gosar. So you actually did--actually hear that. So, I
    mean, you are a literate person. So a smidgen is--would be
    what?
        Mr. Cole. A smidgen is small.
        Mr. Gosar. So in this case, there is not an opportunity for
    something to be wrong and corrupted in this aspect, from your
    professional judgment?
        Mr. Cole. Congressman, I am not gonna comment on the
    findings that we have made so far and the facts that we have
    gathered in this investigation. We don't do that. If somebody
    else wants to render an opinion----
        Mr. Gosar. Let me ask you a question. I am gonna cut you
    off right there. You made a comment--the ranking member that
    these individuals that work as career attorneys are fantastic
    people. Are they human?
        Mr. Cole. Of course they are.
        Mr. Gosar. So they do make mistakes.
        Mr. Cole. Of course they do.
        Mr. Gosar. Well, thank you very much.
        Mr. Jordan. The gentleman from Pennsylvania is recognized.
        Mr. Cartwright. Thank you, Mr. Chairman. Deputy Attorney
    General Cole, thank you for being here today. I do hope we can
    use this opportunity to lay to rest some of the more outrageous
    allegations that have been circulating about the Department of
    Justice.
        Chairman Issa and Chairman Jordan's May 22, 2014 letter to
    Attorney General Holder noted they were, ``shocked to learn
    that the Justice Department and the IRS had a meeting attended
    by Lois Lerner in early October, 2010 to discuss the criminal
    enforcement of campaign finance laws.'' In that letter,
    Chairman Issa and Chairman Jordan claimed that testimony about
    the October 2010 meeting, ``reveals that the Justice Department
    contributed to the political pressure on the IRS to,'' ``fix
    the problem,'' posed by the Citizens United decision???????
        Question. Deputy Attorney General Cole, do you have any
    reason to believe that the October 2010 meeting between IRS and
    DOJ representatives was improper in some fashion?
        Mr. Cole. No, I do not.
        Mr. Cartwright. OK. And I also wanted to say, during the
    transcribed interviews of the DOJ witnesses, committee staff
    asked about that October 2010 meeting. The chief of DOJ's
    public integrity section had the following exchange with
    committee staff. Question. At the October 8, 2010 meeting, did
    you or anyone else from the Department of Justice suggest to
    IRS employees that they should, ``fix the problem posed by
    Citizens United decision.'' Answer: No. And the question was,
    in your opinion does the Citizens United decision pose a
    problem.
        And the answer was, It is not my role to comment on the law
    of the land. It is the law of the land. My job is to enforce
    the law. Citizens United is the law of the land. That was the
    answer that was given. Deputy Attorney General Cole, do you
    agree that Citizens United is the law of the land and that it
    is DOJ's role and responsibility to enforce that law?
        Mr. Cole. Yes, it is. And to enforce all the other laws
    that are involved in that area.
        Mr. Cartwright. All right. Now, the director of the
    election crimes branch of the DOJ's public integrity section
    was asked about Citizens United during his interview. In
    response, he said the following, ``So Citizens United is not a
    problem. It is the law. And so no, I am not aware of any effort
    or part of any effort to fix a problem from Citizens United. I
    am aware that it changed the law, though, and that law
    enforcement, in reaction to such changes, must be vigilant
    about the opportunities they present for lawbreaking.''
        So my question for you, Deputy Attorney General Cole. Are
    you aware of any attempt by the Justice Department to, ``fix a
    problem posed by Citizens United''?
        Mr. Cole. I am aware of no such effort. There was no
    problem, particularly. That was the law.
        Mr. Cartwright. Well, now that Statements from DOJ
    witnesses and Deputy Attorney General himself have directly
    refuted the chairman's allegation that DOJ, ``contributed to
    the political pressure on the IRS to fix the problem posed by
    the Citizens United decision,'' I want to say I hope this claim
    is put to rest once and for all. It is time to stop creating
    fake scandals and start focusing on conducting real oversight,
    which is the charge of this committee.
        And I yield back.
        Mr. Jordan. I would just ask to consent to enter into a
    record a Statement made my Ms. Lerner at a speech 8 days after
    the meeting that Mr. Cartwright just referenced. This is a
    speech at Duke University October 19, 2010, where Ms. Lerner
    said, ``Everybody is screaming at us right now. Fix it now,
    before the election.'' I forgot what Mr. Cartwright said, but
    what we do know is that Ms. Lerner gave a speech 8 days after
    that meeting and said everybody is asking me to fix it.
        Mr. Connolly. Mr. Chairman?
        Mr. Jordan. I would yield to----
        Mr. Connolly. Mr. Chairman, a unanimous consent request?
        Mr. Jordan. Unanimous consent request.
        Mr. Connolly. I thank the chair. Since we are putting stuff
    on the record, I would ask unanimous consent that the full
    transcript of the staff interview with the director of the
    elections crimes branch at DOJ----
        Chairman Issa. I object. It is not the--Mr. Chairman, it is
    not the policy of this committee to put transcripts in the
    entirety out. I respect the gentleman's right to take any and
    all pertinent areas, but putting the questions and answers of
    transcripts has proven to be used to coach witnesses. And the
    coaching of witnesses later on, I am sure Mr. Cole would tell
    you, is not productive in an investigation.
        Mr. Jordan. Gentleman from California.
        Mr. Connolly. I would just--Mr. Chairman, I have a second
    unanimous consent request.
        Mr. Jordan. Gentleman is recognized.
        Mr. Connolly. I would further ask, since, you know, we
    don't want to cherry pick around here. I was simply trying to
    avoid that because I know that the committee chair frowns on
    that. That the May 29, 2014 interview with the chief of DOJ's
    public integrity section also be entered into the record.
        Chairman Issa. Again, I object unless the gentleman can
    cite appropriate items. He is certainly welcome to, but the
    policy of this chair is that it is destructive to ongoing
    investigations to do entire transcripts. And, for the most
    part, it has been avoided.
        Mr. Connolly. Well, Mr. Chairman, at the invitation of the
    chairman then I will cite two--two sections of those interview
    I hope the chairman would not object to be entered into the
    record at this time. I----
        Mr. Jordan. That is fine.
        Mr. Connolly. But I am afraid I am gonna have to read them
    because otherwise you won't know.
        Chairman Issa. All right.
        Mr. Connolly. So the director of election crimes branch, on
    May 6, 2014, said, ``Since I joined the public integrity
    section in 1992, I have never encountered politically motivated
    decisions. To the contrary, it has been my consistent
    experience this section is active without exception on a
    strictly nonpartisan basis in all of its decisions and actions.
    In my experience, politics plays no role in our work as
    prosecutors, period.''
        That was part of his interview, and I would ask without
    objection it be put in the record.
        Mr. Jordan. Without objection.
        Mr. Connolly. And then the second one, Mr. Chairman, and
    then I will cease. On May 29, John Kennedy's birthday, of this
    year he told--the chief of DOJ's public integrity section
    explained to our staff, ``Since I have been chief of this
    section''--of the public integrity section--``I have never
    encountered, nor will I tolerate, any politically motivated
    decisions. Politics does not and cannot play a role in our work
    as prosecutors.''
        And I thank the chair.
        Mr. Jordan. All right, thank the gentleman. We are gonna
    try to get to two more before we have a couple votes on the
    floor.
        So the chairman of the committee is recognized.
        Chairman Issa. Thank you, Mr. Chairman.
        General Cole, a couple of areas. Would you agree that it
    would be wrong to continue an investigation for any length of
    time if there isn't a smidgen of evidence of wrongdoing?
        Mr. Cole. If you have completed the investigation and you
    have satisfied yourself that there is no wrongdoing in the
    investigation, then the investigation is done.
        Chairman Issa. That wasn't my question, General Cole. My
    question was, if you begin an investigation, and you go through
    weeks, months, now basically a year and you do not have a
    smidgen of evidence of a crime, is it appropriate to continue
    spending taxpayer dollars?
        Mr. Cole. It depends on whether you think there is a chance
    that you may find additional evidence of crime----
        Chairman Issa. Mr. Cole, Mr. Cole----
        Mr. Cole [continuing]. That you have considered all the
    avenues that you need to----
        Chairman Issa. Mr. Cole, General Cole, you have an ongoing
    investigation. It has been going on now for a year.
        Mr. Cole. That is correct.
        Chairman Issa. You have confirmed that ongoing
    investigation. So it is appropriate to say that your answer is
    that there either has to be evidence of a crime or a belief by
    your investigators that there is, in fact, a crime that has
    been committed that you are investigating. Isn't that correct?
        Mr. Cole. There has to be a belief that there is still
    evidence that is necessary to be looked at to determine whether
    or not a criminal statute has been violated.
        Chairman Issa. Mr. Cole----
        Mr. Cole. That is the purpose----
        Chairman Issa. Mr. Cole, I really appreciate your dodging
    on behalf of decorum, but----
        Mr. Cole. I am not dodging.
        Chairman Issa. My question needs to be answered.
        Mr. Cole. The purpose of----
        Chairman Issa. You cannot spend taxpayer dollars if you do
    not have a belief that it is going to lead to a crime. That
    would be a frivolous investigation, at some point, wouldn't it?
        Mr. Cole. You----
        Chairman Issa. Do you continue looking for crimes for years
    on innocent people when, in fact, there isn't a smidgen of
    evidence? Do you continue looking at somebody for criminal
    investigation for months or years without any evidence just
    because you, in the long run, think it might happen?
        Mr. Cole. You start investigations based on----
        Chairman Issa. No, no. That was a yes or no, General Cole.
    It really is. Do you do that? I outlined a rather repugnant
    accusation that the minority has made about this chair and this
    committee that we are continuing to investigate wrongdoing by
    the IRS, both in Cincinnati and particularly in Washington, led
    by Lois Lerner. We continue to investigate it because we
    believe and Ways and Means has referred to you criminal
    allegations. Do you continue to investigate if--not--we are not
    talking about whether or not you are gonna get a successful
    prosecution, a conviction.
        We understand that all of that--sometimes you go for years
    and you never get--like organized crime, you don't necessarily
    get a conviction, you don't get what you need. But would you
    continue investigating, as you have, if you did not have--if
    your investigators did not have--a belief that a wrongdoing had
    occurred for which you were trying to build a case? And please,
    that is a yes or no.
        Mr. Cole. Mr. Chairman, unfortunately it is not quite a yes
    or no.
        Chairman Issa. Oh, yes it is.
        Mr. Cole. Oh no it is not..
        Chairman Issa. And we are gonna have this conversation.
    Would you continue to take people's time, money, force them to
    get attorneys, investigate, subpoena, grab information,
    interview people? Would you do that if you did not have a
    belief that there was a possibility of a crime, and one that
    you thought worth investigating? Would you do that?
        Mr. Cole. Can I give you my answer, and then you can always
    followup.
        Chairman Issa. You could give me a yes or no, and then you
    could further explain. That is how--that is--your boss, the
    attorney general is a bad witness. Please don't be a bad
    witness.
        Mr. Cole. I am trying not to be a bad witness----
        Chairman Issa. OK, that was a----
        Mr. Cole. But not every question has a yes or a no----
        Chairman Issa. Mr. Cole, that was a question that you could
    answer yes or no. Would you continue to investigate people
    without a smidgen of evidence? Would you continue to spend the
    taxpayer dollars when, in fact, there was no reasonable belief
    that a crime had been committed?
        Mr. Cole. Sometimes you investigate to ensure that you have
    evidence that one wasn't committed.
        Chairman Issa. So you could be----
        Mr. Cole. Or to find out whether one was committed.
        Chairman Issa. You could be--Mr. Cole, that means that you
    could be spending the time and money trying to prove that Lois
    Lerner is innocent and that this committee was wrong in
    accusing her. You could be doing that.
        Mr. Cole. We are not trying to prove anything.
        Chairman Issa. I didn't ask what you were trying to do. I
    asked----
        Mr. Cole. We are trying to find out what the facts are and
    determine whether or not there is----
        Chairman Issa. OK. Well, let me get to my obligation to try
    to get to the facts. I issued you a lawful, constitutionally
    mandated subpoena. I issued a subpoena to the attorney general.
    And in it, we asked for all documents and communications
    between Lois Lerner and employees at the Department of Justice.
    You responded, and said, ``We also have not included documents
    reflecting the department's internal deliberations about law
    enforcement matters''--fine--``in which we have substantial
    confidential interest because we believe that disclosures would
    chill candid exchange of interviews that are important to sound
    decisionmaking.''
        Do you recognize those words? Mr. Peter Kadzik sitting
    behind you could shake his head yes. He signed the letter.
        Mr. Cole. That is a standard policy of the Justice
    Department.
        Chairman Issa. OK. So I just want to make it clear. The
    standard policy of the Department of Justice is, you don't give
    us the Q&A of your interviews because it could have a chilling
    effect on, or adversely affect, your ongoing investigations. Is
    that correct?
        Mr. Cole. That is correct.
        Chairman Issa. Great. I just wanted to make sure we
    understood that was what good investigations do. However, when
    we subpoenaed the documents between the Department of Justice
    and Lois Lerner we got one tranche. That tranche shows that, in
    fact, either Justice wanted the goods on lots of people--
    including information that wasn't publicly available, taxpayer
    ID information--or Lois Lerner sent that information and the
    Department of Justice didn't want it. It is only one or the
    two, because it did get sent.
        When we subpoenaed all the communications, was there any
    reason that you would not and have not delivered to us all of
    those documents, since that is not your investigation of Lois
    Lerner but, in fact, our investigation of you being the
    Department of Justice in addition to Lois Lerner, since there
    obviously was a relationship there in which documents
    inappropriate to be sent were sent.
        Mr. Cole. Right. I would have to go back and look. There is
    a difference between the documents that were created at the
    time and documents that have been created in determining how to
    respond, as is described in the letter. I don't know which
    documents are being withheld at this point, Mr. Chairman, so we
    would have to look at those to see which ones they are.
        Chairman Issa. Will you commit today, in the case of
    documents that would have been exchanges between Lois Lerner or
    documents that Lois Lerner may have asked to be sent back and
    forth, communications at--in those periods of time? This is
    before--obviously, before you were debating whether to give us
    information or not. But the documents related to her activities
    and her--and the IRS' activities.
        Will you agree either to give us all the documents related
    to correspondence back and forth between the IRS and anyone at
    Department of Justice in this time period that may have been
    related to the ongoing investigation--501(c)(3)'s and (c)(4)'s
    and so on--or give us a privileged log? Understanding that as
    an attorney one or the other is due us. Will you commit to do
    that?
        Mr. Cole. We will commit to give you the documents, or we
    will give you an indication of what types of documents we are
    not providing you, as we have done in the past, so that you
    will understand.
        Chairman Issa. Will you do it in the form of a privileged
    log so that the documents have sufficient specificity to
    individually make the claim of why there is a specific
    privilege, not a blanket--we are giving you some, we are not
    giving you others--if you don't mind?
        Mr. Cole. My understanding, Mr. Chairman, is we have not
    given privileged logs in the past, and we see no reason to
    start that now. But we will give you information that will
    allow you to understand the nature of the documents that are
    not being provided.
        Chairman Issa. My understanding is that your boss has been
    held in contempt because he refused to give us documents
    related to the laws being broken by lying to Congress and the
    people who knew about it for 10 months. And those internal
    documents have yet to be produced, in spite of the fact that it
    is before the court and 2 years later. So understand, I don't
    care about your history. I don't care about anything except the
    Constitution. And when the discussion was going on about
    Citizens United, I almost interrupted for one reason. It is not
    about the law.
        Citizens United is a constitutional decision. It is not a
    law that can be fixed. You cannot fix a constitutional
    decision. The Constitution was a decision that the President
    objected to. The Constitution was the one that he truly failed
    to have decorum in the well of the U.S. House of
    Representatives, when he reprimanded the Supreme Court for
    their decision in Citizens United. And Lois Lerner thought
    publicly and said publicly they want us to fix it. And Lois
    Lerner went about trying to fix it by going after conservative
    groups for what they believed.
        And working with the Department of Justice to try to get
    audits and further prosecution of people who essentially were
    conservatives and asserting their constitutional free speech.
        So, Mr. Cole, I hope that you would never investigate Lois
    Lerner or the crimes related to this if there wasn't a smidgen
    of evidence. I would hope that you were doing it because, in
    fact, as we know on this committee crimes were committed,
    regulations were violated, rules were broken and Americans'
    constitutional rights were violated by Lois Lerner and perhaps
    others around her.
        And I would hope that is the reason your investigation is
    ongoing. And I look forward to those privileged logs.
        Thank you, Mr. Chairman. I yield back.
        Mr. Jordan. The gentleman from Nevada is recognized if--
    or--we can come--we are gonna come back. We are gonna recess.
    But if you want to go now, we got 3 minutes and 40 seconds left
    in the vote.
        Mr. Horsford. Mr. Chairman, I actually ask for unanimous
    consent under Rule 9 that the minority be given equal time,
    based on the fact that the chairman went over additional 5
    minutes.
        Mr. Jordan. I have been very lenient with the time, and I
    have let the ranking member go over. And we will be happy to
    let you go over if you want. But that may mean we miss votes--
    but go right ahead.
        Mr. Horsford. Thank you. Thank you, Mr. General, for being
    here today. And I want to start by again just reiterating the
    fact that the chairman asked at the beginning of this hearing
    for you to swear, under oath, that you were telling the truth,
    the whole truth and nothing but the truth before this
    committee. And so throughout the questioning, you have
    indicated that this investigation is ongoing by the Department
    of Justice. Is that correct?
        Mr. Cole. That is correct.
        Mr. Horsford. Is there any reason for members of this
    committee or for millions of Americans to believe that that is
    not the case, or to believe otherwise?
        Mr. Cole. There is no reason, no.
        Mr. Horsford. After the press report was released in
    January 2014, has Attorney General Holder explicitly Stated to
    the public that the investigation is ongoing?
        Mr. Cole. I believe he has.
        Mr. Horsford. Thank you.
        I want to bring to the committee's attention the fact,
    again, that many of us agree that there was absolutely
    wrongdoing by the IRS on the handling of the tax-exempt status,
    and the process was unacceptable, and that people do need to be
    held accountable. I believe that the President famously
    referred to the IRS mishandling of these applications on Super
    Bowl Sunday as consisting of ``bonehead decisions.'' The
    President went further and commented that there was ``not even
    a smidgen of corruption.''
        Now, much has been made of the President's Statements.
    Chairman Goodlatte asked, during a June 11, 2014 judiciary
    hearing, ``How can we trust that a dispassionate investigation
    is being carried out when the President claimed no corruption
    occurred?'' During the same hearing, Chairman Goodlatte asked
    FBI Director, James Comey, ``Can you explain why there is an
    investigation, given that the President said that there was not
    even a smidgen of corruption?''
        Director Comey responded, ``I mean no disrespect to the
    President or anybody else who has expressed a point of view
    about the matter, but I don't care about anyone's
    characterization of it. I care, and my troops care, only about
    the facts. There is an investigation because there was a
    reasonable basis to believe that crimes may have been
    committed, and so we are conducting that investigation.''
        So Deputy Attorney General Cole, do you agree with the
    assessment that outside characterizations, even by the
    President, have no bearing on a particular investigation?
        Mr. Cole. That is correct. People don't know what it is we
    know, and they have--we do our job, and try to block out
    whatever people say on the outside.
        Mr. Horsford. Is it accurate to say that the department
    does not take direction from the President on how to conduct
    ongoing investigations?
        Mr. Cole. We do not. And that is a very specific line that
    is drawn.
        Mr. Cummings. Will the gentleman yield?
        Mr. Horsford. Yes.
        Mr. Cummings. Just for a second? Mr. Chairman, I understand
    we have less than a minute--Mr. Chairman. I don't know whether
    you were coming back. Were you coming back?
        Mr. Jordan. Yes.
        Mr. Cummings. Can he resume his questioning when he comes
    back? I mean, if you don't mind. I want us to be able to vote.
        Mr. Jordan. [Off mic.]
        Mr. Cummings. Yes, yes. Does that make sense? I just want
    to make sure we get answers--we are out of time. We got to get
    to vote.
        Mr. Jordan. But there are 300 people haven't voted, so----
        Mr. Cummings. Yes, well, I am not gonna be one of them.
        Mr. Jordan. All right. It is you up to--I was gonna let him
    finish all 5 minutes.
        Mr. Cummings. Yes, I would----
        Mr. Jordan. Recess? All right? Let me--I am gonna ask one
    more question. I won't take your time. I am gonna have one
    quick question before I go.
        Mr. Horsford. So I reserve my time, Mr. Chairman, until we
    return.
        Mr. Jordan. All right. You will get--you will be given your
    full 2-1/2, 3 minutes, whatever you had left.
        Mr. Cole, we are gonna recess. But before we do, is the
    Department of Justice investigating why the IRS waited 2 months
    to disclose the loss of Lois Lerner's emails?
        Mr. Cole. I don't know if that is specifically what we are
    investigating We are looking at the loss of the emails, but----
        Mr. Jordan. I am asking your specifically. Are you gonna
    look at the fact that the head of the agency that targeted
    conservative groups knew, in April, and didn't tell us and
    didn't tell you for 2 months? Are you gonna look at that fact?
        Mr. Cole. I think that depends on whether or not the IRS
    refers or the inspector general refers that to us. This is an
    area that we will probably want to satisfy ourselves----
        Mr. Jordan. Why should--what should the inspector general
    have to do with it? If you think that is a problem, I certainly
    think it is a problem, the American people think it is a
    problem. I would hope the Justice Department would think it is
    a problem. So why wouldn't you look into the 2-month lag?
        Mr. Cole. We would have to determine if there is a
    potential criminal violation before we would look at that. We
    don't just investigate for no reason. There has to be some sort
    of basis or some sort of thought that it might implicate a
    Federal criminal statute. So we would have to look at that
    first.
        Mr. Jordan. All right. We will resume. We are gonna take a
    recess. You can--obviously, we will be back in probably 30
    minutes. So thank you.
        Mr. Cole. OK.
        Mr. Jordan. We stand in recess.
        [Recess.]
        Mr. Jordan. The committee will be in order.
        The gentleman from Nevada is recognized for the remainder
    of his time.
        I believe it was--approximately 3 minutes or so still. I
    will give you a couple extra minutes. How is that? Put on 3
    minutes, if we can. The gentleman is recognized.
        Mr. Horsford. Thank you. Mr. Attorney General, thank you
    for continuing to be with us this afternoon.
        So as I was concluding my questions before we recessed, I
    was asking about the fact that regardless of Statements made by
    outside groups or characterizations that the Department of
    Justice approaches its investigations in fair, impartial and
    uninfluenced ways. So if you could just answer, for the record,
    that--whether it is the case to say that the department does
    not take direction from the President on how to conduct ongoing
    investigations.
        Mr. Cole. We do not take any direction from the President.
    Matter of fact, that is a time-honored restriction and barrier
    that is put in between the Department of Justice and the White
    House. It is independent in its investigations, and that is
    honored very scrupulously.
        The Department of Justice--I think Director Comey put it
    very well. When we find allegations that are worthy of
    investigation, for whatever reason, we investigate them to find
    out what the true facts are, then apply those facts to the law
    and make a determination about what the appropriate resolution
    should be. That is what we do; no more and no less.
        Mr. Horsford. So has the President's Statement in any way--
    the Statement that there was ``not a smidgen of corruption''
    influence the department's investigation in any way?
        Mr. Cole. No, it has not.
        Mr. Horsford. Mr. Chairman, what I would like to say is
    actually the fact that I wish that this committee would
    approach our oversight function in the way that the Department
    of Justice is approaching its investigation, which is to do so
    fairly, impartially and without prejudging the facts.
        And the attorney general here today has indicated that that
    is definitely the approach that they take. And we want the
    facts, as well. There are those of us who believe that there
    was wrongdoing and that there should be accountability.
        We just don't think that we should prejudge the
    circumstances before all of the facts get out, despite the
    approach by others. I would like to ask unanimous consent, Mr.
    Chairman, to enter into the record opening Statements of the
    two Department of Justice employees who were interviewed in the
    course of this committee--IRS investigation.
        Mr. Jordan. Without objection. Wait, wait, wait, wait.
    Opening Statements, you said?
        Mr. Horsford. The chief of the public integrity section,
    Jack Smith, and the director of the elections crimes branch.
        Mr. Jordan. And what are you asking to enter?
        Mr. Horsford. I am asking to enter their Statements from
    their----
        Mr. Jordan. Well, is it the full transcript? We had this
    debate just a little bit ago. If it is the full transcript, I
    would object. If it is a Statement they----
        Mr. Horsford. It is not. However, I want to say for the
    record, Mr. Chairman, the Republican Armed Services Chairman,
    Buck McKeon, just released 100 percent of the transcripts from
    Benghazi. So I am not clear on the standard being used by this
    chair.
        Mr. Jordan. We are gonna try to move on. I think I am gonna
    object. I will take a look it, and I am gonna object now. We
    will take a look at it afterwards.
        Mr. Horsford. You are gonna object----
        Mr. Jordan. The gentleman from----
        Mr. Horsford. Can I ask the point of order as to the reason
    for----
        Mr. Jordan. You need unanimous consent to enter----
        Mr. Cartwright. What would be the rule that----
        Mr. Jordan. I am gonna recognize--I want to try to move and
    get to as many of our colleagues as I can. So----
        Mr. Horsford. Mr. Chairman, under rule nine----
        Mr. Jordan [continuing]. For the next vote.
        Mr. Horsford. I have not finished my time that was allotted
    to me. No, we were----
        Mr. Jordan. I think you are 42 seconds over.
        Mr. Horsford. No, the chair was over 5 minutes. I had
    additional time, we recessed, I have not finished----
        Mr. Jordan. I gave you--I gave you more than the time you
    had left.
        Mr. Horsford. No, you--under rule nine----
        Mr. Jordan. And I have given Mr. Cummings more time than 5
    minutes. I have given--I think it--talk to Mr. Carver, talk to
    anyone. I have been pretty generous with the time and I will
    continue to be generous with the time. But I do want to get to
    everyone who is here, and Mr. Meadows has been waiting a long
    time.
        Mr. Horsford. Under rule nine, I am asking for a
    parliamentary inquiry----
        Mr. Jordan. The gentleman is--the gentleman from North
    Carolina is recognized for his 5 minutes.
        Mr. Horsford. Will you--so the chairman will not recognize
    my parliamentary----
        Mr. Jordan. I am recognizing the gentleman from North
    Carolina because you are now a minute 16, plus the additional
    minute I gave you. You are 2-1/2 minutes over time right now.
        Mr. Horsford. Because you will not recognize my point of
    order under rule nine.
        Mr. Jordan. I said I object to your point of order.
        You don't have a valid point of order on----
        Mr. Horsford. There is a valid point of order.
        Mr. Jordan. You need unanimous--you asked for unanimous
    consent, I objected to that.
        Mr. Horsford. Has the minority been given equal time?
        Mr. Jordan. Yes, they have. You won't----
        Mr. Horsford. For the majority.
        Mr. Jordan. Now, in absolute time you won't get as much
    because you are the minority, you don't have as many members of
    the committee.
        Mr. Horsford. That----
        Mr. Jordan. But you are going to be--get equal time for the
    number of members you have.
        The gentleman from North Carolina is recognized.
        Mr. Meadows. I----
        Mr. Cartwright. Mr. Chair, I would like to be recognized.
        Mr. Jordan. The gentleman from North Carolina has already
    been recognized. If he will yield you can be recognized. But
    right now, the gentleman from North Carolina is recognized for
    5 minutes.
        Mr. Cartwright. Will the gentleman yield for 30 seconds?
        Mr. Meadows. Well, yes. I will be glad to yield for 30
    seconds.
        Mr. Cartwright. Thank you. Mr. Chairman, I would like to
    point out that the chairman of the full committee, Mr. Issa,
    was given a full 10 minutes prior to Mr. Horsford's line of
    questioning. And it was represented by you to Mr. Horsford that
    he would be given an extra 5 minutes.
        Mr. Jordan. It was not represented I would give him an
    extra 5 minutes.
        It was represented I would give him extra time, and I
    gave----
        Mr. Meadows. I am reclaiming my time.
        Mr. Jordan [continuing]. To ther committee members----
        Mr. Meadows. I am reclaiming my time.
        Mr. Jordan. And I have done.
        Mr. Meadows. I thank the chair. And let me go ahead, Mr.
    Cole, with a few questions. One, in your testimony, your verbal
    testimony here today, to give you a quote, you say you have
    ``the utmost confidence in TIGTA,'' in their investigation. Is
    that--do you stand by that? I mean, that is a direct quote of
    you.
        Mr. Cole. Yes, I do. And the entire team that is
    investigating this.
        Mr. Meadows. All right. So let me ask you, is it normal
    procedure, when TIGTA investigates somebody, to have a member
    of management in on personal interrogatory discussions with
    other employees? Why would you--would you normally do that in
    your investigative mode? To have members of management in the
    majority of those interviews?
        Mr. Cole. A lot of those take place before we----
        Mr. Meadows. Would you--the question is----
        Mr. Cole. I just want to put it in context, Congressman.
    Because the idea----
        Mr. Meadows. So were you there when the interviews were
    happening back in 2011, with TIGTA? How would you put it in
    context?
        Mr. Cole. I am trying--if you will let me explain, I think
    you will understand. Inspectors general have different types of
    investigations that they do other than just criminal
    investigations.
        Mr. Meadows. Right.
        Mr. Cole. This is--we are working with TIGTA on a criminal
    investigation----
        Mr. Meadows. I understand that.
        Mr. Cole. Prior to this, they were doing an investigation
    on their own, without us----
        Mr. Meadows. So your utmost confidence is really about the
    investigation now, not what happened before.
        Mr. Cole. It is the different types of rules that may
    apply. Sometimes different agencies have union rules that apply
    and control the way that an inspector general may talk to
    people. I am not sure what the rules are at the IRS, and they
    cover TIGTA's----
        Mr. Meadows. Since you weren't there, we will go on. May
    2013 you started an investigation. Is that correct?
        Mr. Cole. The Justice Department.
        Mr. Meadows. The Justice Department started an
    investigation. And that continues today.
        Mr. Cole. Yes, it does.
        Mr. Meadows. OK. Missing emails that we have now
    discovered, does it not concern you that your exhaustive
    investigation did not uncover the fact that there were missing
    emails and that you had to read about it in the press? Should
    we be concerned that your investigation is not exhaustive if it
    took you more than 13 months and you had to read about it in
    the press that there were missing emails? Does that concern
    you? It concerns me.
        Mr. Cole. I understand it concerns you.
        Mr. Meadows. Would that concern you?
        Mr. Cole. Depends on the reason. And as the--as I have
    explained, as we have looked through the records in this case
    there was not a gaping hole. Because these emails come from a
    lot of different sources.
        Mr. Meadows. OK.
        Mr. Cole. And as a result----
        Mr. Meadows. And that is reasonable. But the individual
    with TIGTA that knew about the fact that there were missing
    emails in October 2012, did you not talk to him? Because he
    apparently didn't tell you, and he knew about it. Why would he
    not have told you if you had this ongoing, exhaustive
    investigation with somebody from TIGTA of which your have the
    utmost confidence? And they wouldn't tell you that there were
    missing emails, when he knew about it?
        Mr. Cole. If I am--if I understand your question, the
    person who I believe knew about it earlier on was in a much
    different context. And I don't know how much they knew about
    what related to our investigation at the time.
        Mr. Meadows. Listen, to----
        Mr. Cole. I just don't know. I am not----
        Mr. Meadows [continuing]. You are--you are insulting the
    American people.
        Mr. Cole. I don't believe----
        Mr. Meadows. And if you are indicating that someone that
    was involved in the TIGTA investigation didn't know that there
    was all that is going on, and that the American people are
    concerned. Are you--is that what you are saying?
        Mr. Cole. I don't know if that person was involved in this
    TIGTA investigation.
        Mr. Meadows. Yes. I mean, they wrote notes. That is how we
    found out about it in October 2012. Actually, the way we found
    out about it is, you gave us emails and we all of a sudden said
    why did the IRS not give us these emails. And then it was,
    Shazam. Here, we found out that these missing emails--when
    actually someone with TIGTA already knew about it.
        Mr. Cole. I would have preferred that the dots get
    connected earlier, but I think that TIGTA agent, in October
    2012, was investigating something quite different. And not this
    investigation, this matter that TIGTA was in, is my
    understanding.
        Mr. Meadows. Oh, really?
        Mr. Cole. That is my----
        Mr. Meadows. Because according--he went back and found
    notes that there may be a problem. So let's go on a little bit
    further. The IRS commissioner knew in February that there was a
    problem, and he says he didn't tell you. Are you concerned
    about that?
        Mr. Cole. Would have liked to have known.
        Mr. Meadows. Yes, would have liked to have known. We would
    have, too. And so you found out about it in a newspaper.
        Mr. Cole. That is correct.
        Mr. Meadows. All right. So how exhaustive is your
    investigation, then, Mr. Cole, if you would have liked to have
    known about it? How can the American people have confidence in
    your investigation if the things that you would like to know
    about aren't getting asked? Are you not having interviews back
    and forth? Has anybody interviewed the IRS commissioner?
        Mr. Cole. As I have said, we don't talk about who we
    interview and who we don't interview.
        Mr. Meadows. Well, he says you haven't. So would you think
    that he was being truthful with Congress?
        Mr. Cole. I am not gonna comment on what we do in our
    investigations. But certainly, as part of looking into the
    emails, we will look into all of that, as well.
        Mr. Meadows. Well, when? If 13 or 14 months is not enough,
    when is enough?
        Mr. Cole. We just found about this last month, Congressman,
    and we are starting to look into it.
        Mr. Meadows. I will yield back. Thank----
        Mr. Jordan. Mr. Cole, are you asserting that you are going
    to interview Mr. Koskinen?
        Mr. Cole. I didn't say what we were going to do, Mr.
    Chairman. As you know, we don't talk about the steps we take in
    investigations, but we will certainly look into, as part of the
    emails, all of the issues surrounding it.
        Mr. Jordan. The gentleman from South Carolina is
    recognized.
        Mr. Gowdy. Thank you, Mr. Chairman. Deputy Attorney General
    Cole, you have been done a tremendous disservice when the
    President prejudged this investigation. It is not fair to the
    people at the Department of Justice, it is not fair to the
    people who are investigating, and it is not to the complaining
    witnesses, the potential victims. It is really unheard of for
    somebody who purports to be an expert in constitutional law to
    prejudge an investigation. So I am gonna start with that.
        And I know that you cannot provide names and I know that
    you cannot provide details. But you have, on a number of
    different occasions this morning, sought to reaffirm that there
    is an ongoing investigation. So I am gonna ask you about some
    of the traditional investigatory tools and make sure that those
    are at play. And again, I am not asking you for names and I am
    not asking you for specifics. But when you say a matter is
    being investigated, I think it--and by the way, back in the old
    days you couldn't even confirm that there was an ongoing
    investigation. That was the policy back in the old days.
        I don't know if the policy has been waived or this
    particular fact pattern is such that you are willing to confirm
    an ongoing investigation. But that is policy, that is not law.
    There is no law that prevents you from answering these
    questions. Have witnesses been brought before a grand jury?
        Mr. Cole. As you well know, Representative Gowdy, we can't
    talk about anything that takes place before a grand jury. That
    is not prohibit--that is not permitted under rule 6E.
        Mr. Gowdy. Have subpoenas been issued?
        Mr. Cole. That is also a grand jury----
        Mr. Gowdy. Have administrative subpoenas been issued? Not
    grand jury subpoenas, but administrative subpoenas been issued?
        Mr. Cole. With all due respect, Congressman, we don't talk
    about the steps we take in our investigations. They are
    thorough, and----
        Mr. Gowdy. Mr. Deputy Attorney General, I understand that.
    But when the chief law enforcement officer for this country,
    the chief executive, prejudges an investigation, and you are
    seeking to assure us that that investigation is ongoing and
    vibrant and being professionally done, I think it is OK, in
    this instance, for you to reaffirm us that all the traditional
    tools available to prosecutors are being used. Administrative
    subpoenas aren't covered by rule 6E, so you can answer that
    question.
        Mr. Cole. We are using every tool that is appropriate to be
    used, we are using every facility we can to find out what the
    facts are in this matter as thoroughly and as completely as we
    can.
        Mr. Gowdy. How many witnesses have been interviewed?
        Mr. Cole. I cannot tell you that.
        Mr. Gowdy. You cannot because you don't know, or you cannot
    because you choose not to answer the question?
        Mr. Cole. It would be both.
        Mr. Gowdy. More than 20?
        Mr. Cole. I am not gonna go into a guessing game with you,
    Congressman.
        Mr. Gowdy. Have any proffers been----
        Mr. Cole. I am not gonna go into the details of the
    investigation, I am sorry. I know that is frustrating. But when
    this is over, we will be providing you with details.
        Mr. Gowdy. Well, how would we know when it is over? I mean,
    obviously if there is an indictment it is over for that person
    until the prosecution. But how are we--look, you have a
    constitutional responsibility to do your job. With all due
    respect, so do we. It is different. Our job is not to prosecute
    criminal code violations, but it is our job to set policy and
    to determine whether or not an agency is worthy of the same
    level of appropriation that it received the year before.
        And we can't do our jobs if we are constantly told, not
    because of the law but because of policy, that we are not gonna
    answer any of the questions related to the investigation. So
    how will we know when this investigation is over?
        Mr. Cole. We will let you know, either through an
    indictment that comes out and you will see that, or through us
    telling you that it is over and providing you with information.
        Mr. Gowdy. You don't know how many witnesses have been
    interviewed.
        Mr. Cole. I don't know an exact number, no. But I wouldn't
    tell you if I did, with all due respect.
        Mr. Gowdy. Do you know what percentage of witnesses have
    been interviewed. Out of the full universe of witnesses that
    have been--that you have identified, how many have been
    interviewed?
        Mr. Cole. I am not gonna go down that road, Congressman,
    sorry.
        Mr. Gowdy. Are there any plea agreements been signed?
        Mr. Cole. I am not gonna go down that road.
        Mr. Gowdy. Deputy Attorney General, I asked you the last
    time you were before a committee that I had the privilege of
    serving on if you would please, in the quietness of your own
    conscience, consider whether or not this fact pattern is
    appropriate for a special prosecutor. And I am sure that you
    did, but this morning you said you have reached the conclusion
    that it would not be appropriate. Can you give me the fact
    pattern where it would be appropriate? If prejudging an
    investigation that has political overtones and undertones, and
    the selection of--and I am not prejudging Ms. Bosserman. She, I
    am sure, is capable of doing a very fine job.
        I just find it stunning that she would be picked. Out of
    the full universe of available Federal prosecutors, to pick a
    maxed-out donor I just think was very short-sighted. So if it
    is not this fact pattern, what fact pattern would it be
    appropriate to ever use a special prosecutor, given the fact
    that your boss drafted the regulation?
        Mr. Cole. It is very, very rare in the history of the
    Justice Department to use a special prosecutor.
        Mr. Gowdy. Give me a fact pattern where it would trigger to
    you, in your mind, the appropriateness of a special prosecutor.
        Mr. Cole. I can't go down and dream up a fact pattern, Mr.
    Gowdy. But I know the one time we have appointed a special
    counsel was in the Waco investigation, where Senator Danforth
    was appointed.
        Mr. Gowdy. Well, the regulation is in place. It is pretty
    plainly written. The interests of justice, potential conflict.
    You have politics infecting this investigation. You have a
    prejudgment by the commander in chief that there is not a
    smidgen--and I will substitute the word ``scintilla'' because
    smidgen is not a legal term--there is no evidence of
    wrongdoing. It has already been determined. You talk about
    jeopardizing investigation, you talk about compromising a jury
    pool, I mean, again, I--out of fairness to you, I am not gonna
    ask you to comment because he is your boss.
        But I--really, that was a tremendous disservice to be done
    to people who dedicate their lives to law enforcement to
    prejudge an investigation and to do it for a cheap political
    score during the Super Bowl. So if not here, when? If not this
    fact pattern, when?
        Mr. Cole. Each individual matter is gonna have to be judged
    on its own individual and unique facts. I can't set out a
    prescription for when one would be appropriate. All I can tell
    you is we have analyzed this one, we have looked at the
    applicable regulations, and this does not meet any standard
    that would come to the point of warranting a special counsel.
        Mr. Gowdy. When you say it has been analyzed, this is a
    determination that is ultimately made by the attorney general
    himself?
        Mr. Cole. Along with myself.
        Mr. Gowdy. Did you seek outside opinions? Did you consult
    anyone else whose legal opinion you value, and ask, hey, this
    is an interesting fact pattern. Maybe this is appropriate. To
    go find a career prosecutor who hasn't maxed out to the RNC or
    the DNC. I mean, did you seek other people's opinions?
        Mr. Cole. The internal deliberations, as you well know,
    Representative Gowdy, are not things we talk about in public.
    But we made a thorough review of this matter and determined it
    didn't meet any sort of standard to warrant a special counsel.
        Mr. Gowdy. My time is up, Mr. Cole. I am gonna end the same
    way I ended last time. This is bigger than politics, it is
    bigger than election cycles. The one entity in our culture that
    is universally respected and represented by a woman wearing a
    blindfold is the Department of Justice. And when we start
    playing games with that we are in trouble.
        Mr. Jordan. I thank the gentleman.
        Mr. Cole, when a criminal investigation is started, isn't
    usually one of the first things that happens is you go gather
    and protect and get ahold of the evidence?
        Mr. Cole. That usually happens fairly early on, yes.
        Mr. Jordan. OK. So when this investigation was started, did
    you guys go--well, let's--let's back up. May 22 of last year
    Lois Lerner came in front of this committee and exercised her
    Fifth Amendment rights, would not answer our questions. She has
    been a central figure in this whole thing. Has--so back May 23,
    the day after that, did the FBI and the Justice Department look
    at going to Ms. Lerner's office and seizing and getting ahold
    of all the documents, her computer, her files? Did you attempt
    to do that in May of last year?
        Mr. Cole. Don't mean to sound like a broken record, Mr.
    Chairman, but we are not at liberty to talk about non-public
    information about what we did in this investigation.
        Mr. Jordan. Well, if you--it would seem to me if you had
    done that--let me ask it this way. If you had done that maybe
    we would have learned about the lost emails a lot sooner. Let
    me ask you this. So how do you--how are you getting the
    evidence in this case? You were just waiting for the IRS to
    give it to you like we have to wait for them to give them--give
    us the documents and the emails?
        Mr. Cole. We are doing what we need to do to get the
    evidence, Mr. Chairman, and we are getting the evidence that we
    need in this matter.
        Mr. Jordan. So you can't tell me whether you went and got a
    search warrant, a court order to go and get those documents
    from Ms. Lerner's office or from the IRS?
        Mr. Cole. As I have told you before, and I know it is
    frustrating to you, but we can't talk about the non-public
    aspects of the investigation.
        Mr. Jordan. All right. I am gonna go back to this point
    that I--again, several members have talked about it. If there
    is a private citizen who was under investigation by the Justice
    Department and they withheld information, willfully withheld
    information, about the loss of evidence, the loss of documents,
    for 2 months would that be a crime?
        Mr. Cole. Depends on if they had a legal duty to disclose
    that, as--when you are dealing with somebody withholding
    something as opposed to affirmatively making a false Statement,
    you have to find some sort of legal duty for them to make the
    disclosure to have that be criminal.
        Mr. Jordan. OK. So it would depend if they had a duty. But
    that would be something you would look into. You would
    investigate whether, in fact, they had a duty to disclose to
    you in an appropriate time fashion that they had, in fact, lost
    those documents.
        Mr. Cole. We would.
        Mr. Jordan. That would be something you would investigate.
        Mr. Cole. Yes.
        Mr. Jordan. You said earlier that, relative to Mr.
    Koskinen, it depends on whether there is a problem with the
    fact that the commissioner at the IRS knew in April and waited
    2 months to tell us, the American people and, more importantly,
    you. So you are going to investigate that aspect, as well, just
    like you would for a private citizen?
        Mr. Cole. All the issues related to those emails will be
    wrapped up in the investigation that we do.
        Mr. Jordan. Including the delay?
        Mr. Cole. Including the delay.
        Mr. Jordan. So the delay in--the fact that the commissioner
    at the Internal Revenue Service delayed telling the Congress,
    the American people, the FBI and the Justice Department is a
    matter that you are going to investigate.
        Mr. Cole. We are gonna look into what the circumstances
    were around that, yes.
        Mr. Jordan. Well, that is--that is important.
        I would recognize the ranking member for his questions.
        Mr. Cummings. Thank you, Mr. Chairman.
        Mr. Jordan. I will go with whoever wants to go. If Mr.
    Cummings is ready to go----
        Mr. Cummings. Thank you very much, Mr. Chairman. All right,
    Chairman Issa and Chairman Jordan have alleged that prominent
    Democrats, Mr. Cole, pressured the Department of Justice and
    the IRS to single out conservative groups for potential
    prosecution. Both chairmen allege in a May 22 letter to the
    attorney general that a hearing held in April of last year by a
    Democratic Senator, ``led to the Justice Department reengaging
    with the IRS on possible criminal enforcement relating to
    political speech by non-profits.''
        A press release accompanying the letter alleged that the
    department officials and Lois Lerner ``discussed singling out
    and prosecuting tax-exempt applicants at the urging of a
    Democratic senator.'' General Cole, I would like to give you an
    opportunity to address this allegation. And did the department
    discuss singling out and prosecuting tax-exempt applicants at
    the urging of a Democratic senator?
        Mr. Cole. No. What happened in that regard was just trying
    to answer a question of whether we had a mechanism for whether
    applicants for tax-exempt status, if they had lied on their
    application for that status--if there was a mechanism for the
    IRS to refer those types of false Statements to the Justice
    Department for consideration for prosecution. That is all that
    was.
        Mr. Cummings. And so in other words, if someone--we have
    been sitting here talking about crime here quite a bit. If
    someone allegedly committed a crime, would they--or, again, I
    said ``alleged.'' Would there be a mechanism by which to get
    that information to the Justice Department? Is that what you
    are trying to tell me?
        Mr. Cole. That is correct. There was no targeting or
    anything like that. It was just whether or not we had the
    proper communications and mechanisms that if it was discovered
    by the IRS that false Statements had been made were those going
    to the Justice Department for its consideration.
        Mr. Cummings. Does the department typically take direction
    about prosecution decisions from Members of Congress?
        Mr. Cole. No, we do not.
        Mr. Cummings. Your testimony today is consistent with
    Statements made by the Department of Justice officials
    interviewed by the committee. On May 29, committee staff asked
    the public integrity section chief the following question,
    ``Did you ever receive any instruction from any Member of
    Congress to target Tea Party or conservative groups for
    prosecution?'' He responded, ``No.'' Similarly, on May 6
    committee staff asked the director of the election crimes
    branch--if a letter from a Democratic senator directed him to
    ``target conservative organizations for prosecution.'' And he
    responded no, it did not.
        Mr. Deputy Attorney General, are you aware of the
    department receiving direction from Democratic Members of
    Congress to target or prosecute a conservative organization, or
    have you--or any Member of Congress trying to get you to target
    any organizations? I am just curious.
        Mr. Cole. I am not aware of it. But to the extent any such
    request was made, we would not honor that. We would ignore it.
        Mr. Cummings. And so you--when you say you would ignore it,
    certainly a lot of investigations are started by newspaper
    articles, I guess. I mean, you see something in an article, and
    the FBI may see it and certain allegations are made like that.
    But isn't it a fact that sometimes things that may appear in
    the newspaper may start a ball to rolling with regard to an
    investigation? And I was just wondering, just taking a natural
    extension of that, if someone were to say something that seemed
    to indicate that perhaps some criminal activity had taken
    place, or alleged, would you not pursue that?
        Mr. Cole. If somebody brought to our attention evidence of
    a crime we would of course look into it. But if somebody wanted
    us to target somebody because of their political beliefs we
    would not go down that road.
        Mr. Cummings. And so I am hoping that those accusations we
    can put to rest. You know, going back to some questions
    Chairman Issa asked you a moment ago, with regard to the
    investigation of Ms. Lerner, when you look at the facts that
    you have got--and I am not asking you to get into that. Let me
    talk just generally. And you pursue those facts, whatever they
    may be. And what happens? Does the--does a group of attorneys
    get together and say, you know what, we move forward with a
    case. Again, I am taking away from Ms. Lerner, just talking in
    general I mean, what usually happens there? At what point do
    you determine that you are gonna proceed, and how does that
    come about?
        Mr. Cole. Generally the way it works is the line attorneys
    involved in and learn the facts of the investigation. The
    investigation is conducted largely by the law enforcement
    agents, many times the FBI. They may be working with the line
    attorneys in helping figure out what the information is that is
    needed. When they have gathered all the facts, they take a look
    at what those facts are in light of the applicable law. Then
    recommendations are made to their supervisors as to what the
    resolution should be of the case, and it could be any number of
    resolutions.
        And the supervisors then review those recommendations. They
    may ask for more information to be gathered because certain
    facts may not have been developed sufficiently. They may decide
    that they disagree with the recommendation or agree with the
    recommendation. Any number of things can happen in that
    process. But these are all done by the career people, usually
    with input from the investigators and through the line and
    division and section chiefs in the divisions that we have in
    the department by career people.
        Mr. Cummings. So that the record is clear. So all of this--
    now going to Ms. Lerner--there is no decisions that have been
    made. I assume you can answer that question.
        Mr. Cole. No decisions have been made.
        Mr. Cummings. No decisions have been made. Everything is
    wide open, is that right?
        Mr. Cole. That is correct.
        Mr. Cummings. All right.
        I have nothing else. Thank you.
        Mr. Jordan. Thank the gentleman.
        Recognize the chairman of the full committee.
        Chairman Issa. Thank you. I can understand that no decision
    has been made. But let's just go through this because I think
    it is important. The Ways and Means Committee did do a criminal
    referral. You have--you are in receipt of that, isn't that
    correct?
        Mr. Cole. That is correct.
        Chairman Issa. And that, in fact, does give you a basis of
    a number of allegations to investigate. Is that correct?
        Mr. Cole. That is correct.
        Chairman Issa. You took those allegations seriously. Is
    that correct?
        Mr. Cole. We do.
        Chairman Issa. So you have serious allegations, referred--
    based on actual evidence produced from the Ways and Means
    Committee, voted on by that committee and referred to you, on
    which you are continuing to consider wrongdoing by Lois Lerner
    and have not made a final decision.
        Mr. Cole. Yes.
        Chairman Issa. Additionally, this committee and the U.S.
    House of Representatives, as an entire body on a bipartisan
    basis, referred contempt to the U.S. attorney. Isn't that
    correct?
        Mr. Cole. That is correct.
        Chairman Issa. And the statute says the U.S. attorney shall
    prosecute that. Is that correct?
        Mr. Cole. That, I believe, is the wording of the statute.
        Chairman Issa. At the current time, the U.S. attorney has
    not prosecuted that. Isn't that correct?
        Mr. Cole. No charges have been brought, to my knowledge.
        Chairman Issa. And under the statute, that criminal
    referral--that referral for contempt--is, in fact, a separate
    event from any other allegations and is not, in fact, subject
    to double jeopardy. Isn't that true?
        Mr. Cole. I am not sure what you mean by subject to double
    jeopardy.
        Chairman Issa. That all charges need to be brought, often
    in a related manner--need to be brought at one time. Otherwise,
    there is a question of piling them on sequentially. Contempt
    was, in fact, and is in fact, a separate event that can be--you
    can go forward with separate from the ongoing criminal
    investigation of Lois Lerner. Isn't that true?
        Mr. Cole. I am not sure I agree with the first part, but
    contempt is separate.
        Chairman Issa. Contempt is separate. So it is not a charge
    that has to wait for the other charges and investigation. So
    today, can you explain to us why the U.S. attorney would not go
    forward with a contempt that has already been evaluated, voted
    out of the U.S. House on a bipartisan basis, and bring it?
    There is not a lot of discovery, and she came, she talked, then
    she decided to lawyer up, if you will, with taking the Fifth.
    And then turned around, talked some more, answered some
    questions, and then reasserted the Fifth Amendment. The
    contempt information is available to you on video, online.
        Why, in fact, is the U.S. attorney not bringing it? What
    purpose--what lawful right does he have not to obey ``shall
    bring the case''?
        Mr. Cole. I don't believe it says ``shall bring the case,''
    No. 1. But----
        Chairman Issa. Well, ``shall prosecute.''
        Mr. Cole. I don't think it even says shall prosecute.
        Chairman Issa. It is not a ``may,'' it is a ``shall.'' Yes,
    there we go. ``Shall have a duty to bring the matter before
    us.'' So OK, he has got to bring it before--look, I am not a
    lawyer, I don't try to play one. There are good lawyers here on
    both on the dais and behind the dais. It is very clear this is
    not a statute where he gets to think about it and decide if he
    is gonna do it. This should be brought forward for
    consideration.
        The only question would be what is a reasonable timeline.
    Now, would you please answer. Do you believe there is a
    reasonable timeline, and if so would you name that for us?
        Mr. Cole. Every case has its own time and it needs its own
    review. There has been----
        Chairman Issa. This didn't say you can review it and look
    at it and think about it. It says we have already made our
    decision, he has been held in--she has been held in contempt.
    It is a question of when ``shall'' applies to bringing the
    case.
        Mr. Cole. Well, ``shall'' doesn't say he shall bring a
    case. That is not there. The prosecutor retains discretion
    about whether or not a case should be brought.
        Chairman Issa. Let me read this verbatim to you. Because
    apparently, only verbatim matters here. ``To the appropriate
    United States attorney,''--the U.S. attorney in the District--
    ``whose duty it 'shall be' to bring the matter before the grand
    jury for its action''--shall bring it before the grand jury.
    There is no discretion there, is there?
        Mr. Cole. I believe that the Office of Legal Counsel, when
    Ted Olson was in that position, rendered an opinion that said
    there is discretion, in fact.
        Chairman Issa. Then would you please grant us a yes or no?
    You know, an absence of justice because you may think that you
    may not have to enforce the Constitution, you may not have to
    obey Congress, you may not have to deliver information pursuant
    to crimes committed by the Justice Department in bringing
    fraudulent Statements before the Congress, and then covering it
    up for 10 months, the only thing we ask for--that Mr. Cummings,
    I am sure, would join me is--if you don't think ``shall
    bring''--shall--I will keep reading it appropriately--shall be
    to bring the matter before the grand jury for its actions.
        If you don't think that means that in a period of time that
    would be reasonable to do it, that he shall do it. If you think
    it is discretionary, would you please give that back to us in a
    legal opinion so that we can change the law to make it clear
    you are wrong.
        Mr. Cole. We can provide you with that.
        Chairman Issa. I would appreciate having a legal opinion.
    Now I have one last question. Do you know a person named
    Virginia Seitz, S-E-I-T-Z?
        Mr. Cole. Yes, I do.
        Chairman Issa. Did she work for the Department of Justice
    for approximately 90 days?
        Mr. Cole. She worked for more than 90 days.
        Chairman Issa. How long?
        Mr. Cole. I don't know the exact amount.
        Chairman Issa. At that time, was she working on criminal
    areas, including wire fraud?
        Mr. Cole. She was the--Virginia Seitz, I believe, was the
    assistant attorney general in charge of the Office of Legal
    Counsel.
        Chairman Issa. OK. So is there any chance that during her
    tenure policy changed as to the enforcement of Internet online
    gaming, illegal activities, or any chance that any policy
    changed under her?
        Mr. Cole. I would have to go back and look. I don't know
    off-hand.
        Chairman Issa. This committee is interested in knowing,
    during her relatively short tenure apparently, what role she
    played in evaluating any policy change related to the--going
    after online gaming. We can followup with appropriate demands
    if that is necessary. But we would hope that you would inform
    us as to any policy change, as to going after Internet and
    online--essentially, online gaming. And any role she may have
    played in it.
        Mr. Cole. If you communicate your request to us, Mr.
    Chairman----
        Chairman Issa. We will do so.
        Mr. Cummings. Will the gentleman yield?
        Chairman Issa. Of course I would yield.
        Mr. Cummings. Thank you very much. The only reason I am
    asking for a yielding is to--I want to join the gentleman. I,
    too, would--you mention my name, and I am interested in seeing
    the Olson opinion. But there is something else that I want you
    to do, too. I want you to provide us with a history of how
    contempt has been dealt with through Republican and Democratic
    prosecutors, U.S. attorneys. And any information that you may
    have with regard to this ``shall.''
        Because I understand the gentleman's concern. You have got
    the word ``shall'' there, but I just want to know what the
    history has been, the history. And the Olson opinion is just
    one part of that history. And the question of whether the
    statute usurps prosecutional discretion. I hope your people can
    get something back to us so that we have that entire body of
    law of whatever you have been doing, your tradition, so that we
    will know what Republicans and Democrats have been doing.
        Chairman Issa. And I would--I would only amend that ever so
    slightly to say please leave out of it, or put separately, the
    questions in which executive privilege has been claimed. Since
    in the case of Lois Lerner, the case in point, we are talking
    about what we believe to be a criminal, based on referrals from
    the Ways and Means Committee, who made Statements before this
    committee under oath, asserted her Fifth Amendment rights, and
    made more Statements under oath. And then reasserted and was
    held in contempt by the U.S. House of Representatives.
        So we are talking narrowly about somebody who came, quite
    frankly, not in any particular role. She is a former employee
    of the government, but she came and was held in contempt. Not
    someone in which the President claims any executive or, you
    know, similar privileges.
        Mr. Cole. I understand.
        Chairman Issa. Mr. Chairman, thank you for your indulgence.
    This has been very informative, and we will followup with a
    letter on Ms. Seitz.
        Mr. Jordan. Mr. Cole, we know that emails Lois Lerner sent
    outside the IRS are missing. We know that she had
    communications with the Justice Department on several occasions
    in emails. And we know that you are withholding certain
    documents from the committee. Is it fair to assume that some of
    those documents you are withholding actually are emails that
    Ms. Lerner has--emails from Ms. Lerner to people in the Justice
    Department?
        Mr. Cole. I don't know if it is fair to assume it. I don't
    know exactly which documents are being withheld. But I don't
    know if it is fair to assume that it would include----
        Mr. Jordan. Well, let me ask it this way. Can you guarantee
    us that none of the documents the Justice Department is
    withholding from Congress are Lois Lerner emails?
        Mr. Cole. I can't guarantee. I haven't seen all the
    documents we are withholding. But we will take a look at them.
        Mr. Jordan. We would like to see the documents, is frankly
    what we would like to see.
        Mr. Cole. I understand, but we are gonna give you the ones
    that we can give you.
        Mr. Jordan. So you very well could have. I mean, we have
    all kinds of emails where it is Lois, can you send it to us in
    the format the FBI wants? We have the pretty extensive
    correspondence back and forth you are withholding documents.
    The only emails that are missing--frankly, this is why I raised
    the question earlier. It would have been nice if you would have
    went in--and maybe you have, but you won't tell us--got a
    search warrant, got a court order, went in and seized her files
    right at the get-go maybe we would have known that all these
    emails were missing a year ago.
        But the fact that emails she has sent outside the IRS are
    missing, she had direct correspondence with people in the
    Justice Department, you are now withholding documents from this
    committee and from the Congress and, more importantly, the
    American people. Seems to me there are probably some Lois
    Lerner emails in the documents you are withholding.
        Mr. Cole. I am not sure there is a valid assumption that
    there are probably Lois Lerner's emails that we are
    withholding. I don't think that is a fair assumption.
        Mr. Jordan. Yes, but what is fair to say is, you cannot
    guarantee that there aren't.
        Mr. Cole. I haven't looked at all the documents, Mr.
    Chairman, so----
        Mr. Jordan. Well, that would be important for--well----
        Mr. Cole. I can't answer that question----
        Mr. Jordan. First of all, it would be important for you to
    look at it, as the guy who is coming here testifying to say
    maybe you could give us more information about it. Because
    second of all, it would be nice if we could get them.
        With that, I will recognize the gentleman from
    Pennsylvania.
        Mr. Cartwright. First off, General Cole, would you like to
    respond to that last Statement?
        Mr. Cole. I am not sure I heard completely the last
    Statement.
        Mr. Cartwright. All right, fair enough.
        A couple issues I want to touch on, on the prejudging and
    the screaming issues. First of all, I share something with Mr.
    Gowdy of South Carolina. I prefer technical, legal terms. And
    when we talk about--you know, when we talk about smidgens,
    ``scintilla'' might be better. And when we talk about
    prejudging, ``prejudicing'' might be better. And I want to talk
    about whether anything has been done to prejudice the
    investigation of the Justice Department. My colleague, Mr.
    Horsford, touched on this earlier.
        Last month, the Judiciary Committee held a hearing, and
    they brought in FBI Director, James Comey, and went over this.
    And Chairman Goodlatte asked him can you explain why there is
    an investigation, given that the President said there was not
    even a smidgen, or a scintilla, of corruption. And Director
    Comey, the director of the FBI, said, ``I mean no disrespect to
    the President or anybody else who has expressed a view about
    the matter, but I don't care about anyone's characterization of
    it. I care, and my troops care, only about the facts. There is
    an investigation because there was a reasonable basis to
    believe that crimes may have been committed, and so we are
    conducting that investigation.''
        Now, Deputy Attorney General Cole, do you agree with the
    FBI director's assessment that outside characterizations, even
    by the President of the United States, have no bearing on a
    particular investigation?
        Mr. Cole. That is correct. Outside characterizations by
    anybody have no bearing on our investigation.
        Mr. Cartwright. And when you talk about career prosecutors,
    line prosecutors, career investigators, does that apply to
    these people?
        Mr. Cole. It does. These are all career Justice Department
    investigators, attorneys. None of them are political
    appointees.
        Mr. Cartwright. Is it accurate to say that the Department
    of Justice does not take direction from the President on how to
    conduct ongoing investigations?
        Mr. Cole. We do not and we would not.
        Mr. Cartwright. All right. There was also an allegation of
    screaming going on by the DOJ screaming at the IRS. And I am
    gonna invite your attention to the testimony of Jack Smith who,
    as you know, is the chief of the DOJ public integrity section.
    This was testimony taken on May 29, 2014. Representative Jordan
    was present. And I am gonna read to you a brief quote from
    that.
        Question--and this was a question to Mr. Smith. ``If you
    direct your attention to the second sentence of the second
    paragraph below the block quote, it reads, 'By encouraging the
    IRS to be vigilant in possible campaign finance crimes by
    501(c)(4) groups the department was certainly among the
    entities, 'screaming,' at the IRS to do something in the wake
    of Citizens United before the 2010 election.'' And the question
    was, ``Are you aware of the department, ``screaming at the IRS
    to do something in the wake of Citizens United before the 2010
    election?''
        And the chief of the DOJ public integrity section said no.
    The next question was, ``At the October 8, 2010 meeting, did
    anyone at the department raise their voice at the IRS, speak in
    strident tones, make demands on the IRS?'' The answer was no,
    by Jack Smith. And then the question was, ``Are you aware of
    anyone at the Department of Justice placing pressure on the IRS
    to influence the outcome of the 2010 elections?'' And the
    answer was no. And I am gonna put that same question in front
    of you, Mr. Cole. Are you aware of anybody at the Department of
    Justice screaming at anybody at the IRS to fix Citizens United
    or put any kind of pressure on the IRS?
        Mr. Cole. No, Mr. Cartwright, not at all. This is not
    something we would be doing. We are just looking for whether or
    not there are criminal cases to be made or not, and that is it.
        Mr. Cartwright. Not aware of any screaming.
        Mr. Cole. No screaming.
        Mr. Cartwright. And you didn't do any screaming yourself, I
    take it.
        Mr. Cole. I did not.
        Mr. Cartwright. Thank you, Mr. Cole.
        I yield back.
        Mr. Jordan. Mr. Cole, when the President of the United
    States makes a speech or makes a Statement, does that have
    meaning? Does that have bearing, does that have influence?
        Mr. Cole. On a criminal investigation by the department----
        Mr. Jordan. I am just saying when the President talks, he
    does an interview, he goes and--he gives speeches all the time.
    Sometimes he will talk in a way that is designed to send a
    message to even foreign heads of State. So when the President
    talks, does that have meaning and influence?
        Mr. Cole. As a basic matter, it can, certainly.
        Mr. Jordan. So when the President gives an interview--where
    he is not telling some story, he is not telling some joke--he
    is commenting on a serious subject matter, that has influence,
    that has impact, that has significance. Correct?
        Mr. Cole. Not on a criminal investigation.
        Mr. Jordan. I am not--I am just saying in general. I am
    asking you--you are a smart guy, a lawyer, you have done very
    well in life. You are at an important position in the U.S.
    Government and the Justice Department. When the President
    talks, it has impact.
        Mr. Cole. It can.
        Mr. Jordan. It should. He is the President of the United
    States, President of the greatest country in the world.
        Mr. Cole. I understand that.
        Mr. Jordan. The leading--it should have impact.
        Mr. Cole. He has asked Congress to do a lot of things. It
    seems not have had much impact.
        Mr. Jordan. It has impact. It had impact. We heard him. But
    we think he is--we think he is wrong. Here is my point, then.
    And I respect--I am like everyone else on this panel, I respect
    the good professionals who work in the Department of Justice.
    But don't you think it is possible, maybe even likely, that in
    the back of even the best professional--in the back of their
    mind, they know that the President has said in a public way, in
    a very public way--a nationally televised interview--that there
    is nothing there, there is nothing there.
        Don't you think that just somewhere deep back in there it
    may have a--just to use the term my colleague uses, a
    ``scintilla'' of impact, just a smidgen of impact, on the
    decisions of these great professionals who work in your agency?
        Mr. Cole. I am gonna echo Director Comey's Statement in
    that regard. No, it doesn't. These people put out--what other
    people say, they put it out of their minds, and they go after
    the facts. That is what they care about. And particularly in
    high profile cases like this, that happens quite a bit. And
    they are very expert at putting out of their minds anything but
    the facts in the law in the case.
        Mr. Jordan. So the--so Barbara Bosserman doesn't take this
    into account. That the guy she gave a max-out contribution to
    his campaign goes on national television and says there is
    nothing there, it is not anywhere--not anywhere in the back of
    her mind that this thing has already been prejudiced.
        Mr. Cole. Her job is to not do that, and she does her job--
    --
        Barbara Bosserman, who gave $6,750 to the President's
    campaign and the Democrat National Committee. Here is the
    President who could be a potential target of the investigation,
    when she hears that, it doesn't impact her at all.
        Mr. Cole. It does not. She does her job professionally.
        Mr. Jordan. You can say that for sure. You can speak for
    Barbara Bosserman here today.
        Mr. Cole. Yes, I can.
        Mr. Jordan. That does not impact her.
        Mr. Cole. I have confidence in the career prosecutors and
    career people----
        Mr. Jordan. That is amazing.
        Mr. Cole [continuing]. In the Department of Justice.
        Mr. Jordan. That is amazing. OK, thank you.
        I will recognize the gentleman from Florida.
        Mr. DeSantis. Thank you, Mr. Chairman. Deputy Attorney
    General Cole, if the DOJ is investigating an individual or an
    entity, when is it ever acceptable, if it is acceptable at all,
    to conceal the fact that the--that evidence sought by law
    enforcement has been destroyed? I mean, I can see a civil case
    where you are asking for specific things, a criminal case where
    a search warrant is issued. Is it acceptable to not disclose
    that to law enforcement?
        Mr. Cole. Again, as I have said with Mr. Jordan and--
    Chairman Jordan, it depends on the circumstances. They
    shouldn't conceal it, they shouldn't lie about it. There may or
    may not be, depending on the circumstances, a duty to tell
    about it. But those are all gonna depend on the circumstances
    of----
        Mr. DeSantis. So if you were--the DOJ was prosecuting a
    civil matter against, say, a company, issues subpoenas asking
    for emails over a specific period of time, and then that
    company responded saying, yep, we will comply with it. But if
    they had reason to believe that they wouldn't be able to
    fulfill that request, then that would be a problem if they had
    represented that to you, correct?
        Mr. Cole. Yes. If, at the time they represented that to us,
    they knew that they weren't complying that would be a problem.
        Mr. DeSantis. And then if they didn't know at the time, but
    then after sending you the response they figured out that they
    were wrong, they do have a duty to come back to you and amend
    that response, correct?
        Mr. Cole. Yes, they should come back and tell us.
        Mr. DeSantis. OK. Here is an issue that I just--I was
    confused about. The DOJ was not informed that emails had been
    lost or destroyed. Congress obviously wasn't until June. But
    according to IRS Commissioner Koskinen the Treasury Department
    and the White House were informed in April. So what would be
    the reason to disclose that to the Treasury and the White House
    but not disclose it to either the DOJ or Congress, who are both
    conducting investigations into the matter?
        Mr. Cole. I don't know. That is a question you should
    probably give to the IRS.
        Mr. DeSantis. Does it bother you, though, that they would
    have told the Treasury Department without telling the Justice
    Department?
        Mr. Cole. They are part of the Treasury Department so,
    again, you would have to ask them as to their reasons for doing
    this.
        Mr. DeSantis. How about the White House? Does it concern
    you that they would let the White House know, but not tell the
    Department of Justice?
        Mr. Cole. Again, I would want to know what the
    circumstances were and who at the White House and what was
    told. I just don't know enough information to answer.
        Mr. DeSantis. So is it gonna be something, though--those
    circumstances, is that something that you think is appropriate
    to investigate?
        Mr. Cole. This will all be part of our looking into the
    emails, yes.
        Mr. DeSantis. Recently, two Federal judges have greeted the
    IRS' claim of lost emails with suspicion. And they have
    actually--are forcing the IRS to come in and substantiate their
    claim that these things are somehow lost and not recoverable.
    And we have people who have advised us, that say, yes, you know
    we got data from the Challenger explosion, 9-11, all this
    stuff. And a lot of people in the data community, IT, say,
    well, come on you are gonna be able to get these emails.
        So how would you characterize the Department of Justice? Do
    your greet the IRS' claim that these emails are simply lost
    because the hard drive crashed with skepticism?
        Mr. Cole. We are trying to find out if there is any way to
    recover them and do what we can to do that.
        Mr. DeSantis. Is it safe to say that if you were
    investigating a private entity, and you wanted specific
    documents, if they simply said, sorry, the hard drive crashed,
    that would be not--that probably would not be something you
    would simply just accept at face value?
        Mr. Cole. Generally, we would ask what the circumstances
    were and the facts were behind a Statement that they couldn't
    be recovered.
        Mr. DeSantis. Let me just followup with this whole thing
    about the U.S. attorney, whether they shall bring it. Because I
    think we are kind of--people are using different terms.
    Bringing something before a grand jury is not the same as
    prosecuting at the trial, correct?
        Mr. Cole. That is correct.
        Mr. DeSantis. So the statute does not impose a duty on the
    U.S. attorney to actually bring the case to trial, right?
        Mr. Cole. That is correct.
        Mr. DeSantis. It imposes a duty on the U.S. attorney to
    bring it to a grand jury. Is that accurate?
        Mr. Cole. The language of the statute, and I don't mean to
    be just kind of fine-point lawyerly on your, but there is this
    Ted Olson opinion from----
        Mr. DeSantis. Well, what--I think what Olson is saying is--
    --
        Mr. Cole [continuing]. From another----
        Mr. DeSantis [continuing]. He is basically--the statute, to
    me, is crystal clear. An obligation to bring it before a grand
    jury. I think what Olson is saying is, look, article two, we
    are the executive, you guys are the executive branch. You can't
    force someone, necessarily, to prosecute a case. I think
    generally that is true. I mean, if we told you just to
    prosecute every money laundering case you may get a lot of
    cases that aren't meritorious and so would be a waste of
    resources. And it would impinge on your discretion.
        Mr. Cole. Right.
        Mr. DeSantis. But this, I think, is a little bit different.
    Because we in Congress have found reason for contempt. It was
    voted on behalf of the American people. So us imposing a duty
    simply to bring it to a grand jury and allow them to make a
    decision, I think is a little bit different.
        Let me ask you this. The fact that we impose the duty to
    bring it to a grand jury, let's just say you accept that. Do
    you think that imposes a duty on the prosecutor to ask that a
    true bill be returned? Or could you, as a prosecutor,
    consistent with that statute go into a grand jury proceeding?
        And I don't necessarily think this is what should happen.
    But could you actually go in your judgment, if you didn't think
    the contempt was meritorious, and ask the jury not to return a
    true bill?
        Mr. Cole. Well, obviously there is an assumption in your
    question that it has to be brought before a grand jury. And
    this Ted Olson opinion does----
        Mr. DeSantis. Assume that, for me, for just a second.
        Mr. Cole [continuing]. Does address that, and say that is
    not necessarily the case. Bringing a matter before the grand
    jury for action which is, I believe, the wording of the
    statute, leaves open any number of different resolutions that
    the grand jury could be asked to bring.
        Mr. DeSantis. Thank you.
        I yield back.
        Mr. Jordan. The gentlelady, Ms. Kelly, is recognized.
        Ms. Kelly. Thank you, Mr. Speaker--Mr. Chairman.
        Republicans allege that efforts to target conservative
    groups in the screening of applicants' tax-exempt status is the
    result of an overarching government conspiracy involving the
    White House, the IRS, the Justice Department, Securities and
    Exchange Commission, the Federal Election Commission as well as
    other agencies. According to the Republicans, this vast
    conspiracy originated after the Supreme Court's 2010 Citizens
    United decision.
        Chairman Issa, in my opinion, issued a partisan staff
    report on June 16, 2014 concluding that the Justice Department
    and the IRS had ``internalized the President's political
    rhetoric lambasting Citizens United and non-profit speech.''
    Deputy Attorney General Cole, to the best of your knowledge did
    the President's political rhetoric about Citizens United cause
    the department to conspire against non-profit political speech?
        Mr. Cole. It did not.
        Ms. Kelly. Do you have----
        Mr. Jordan. Would the gentlelady, are you asking about the
    IRS or the Justice Department?
        Ms. Kelly. I haven't yielded.
        Mr. Jordan. I thought the question was did the IRS
    conspire. Of course they did.
        Ms. Kelly. I haven't yielded.
        But do you have any reason to believe that the Citizens
    United has prompted the unwarranted prosecution of political
    organizations?
        Mr. Cole. No, I have no reason to believe that.
        Ms. Kelly. Your answer does not surprise me. Because
    despite conducting 10 hearings, receiving hundreds of thousands
    of pages of documents, and conducting over 40 transcribed
    interviews, the committee has been unable to gather any actual
    evidence of this vast conspiracy my Republican colleagues claim
    exist.
        In fact, the evidence gathered by the committee and the IG
    show that the inappropriate search terms that were first used
    by an employee in the Cincinnati determinations unit, and the
    inspector general's May 14, 2013 report concluded, that the
    inappropriate criteria, ``were not influenced by any individual
    or organization outside the IRS.''
        Deputy Attorney General Cole, in the written testimony that
    you submitted to the committee, you wrote, ``I have the utmost
    confidence in the career professionals in the department and
    the TIGTA, and I know that they will follow the facts wherever
    they lead and apply to the law to those facts,'' which you have
    said here. Is that the guiding principle that the department
    uses in conducting all of its investigations?
        Mr. Cole. Yes, it is.
        Ms. Kelly. I think that this committee should follow these
    same principles to its investigation of the IRS. It is quite
    clear that the facts do not lead to the conclusion that
    Citizens United prompted a governmentwide conspiracy.
        And thank you for your testimony.
        Mr. Cummings. Will the gentlelady yield?
        Ms. Kelly. Yes.
        Mr. Jordan. The gentleman from----
        Mr. Cummings. I want to go to what Mr. DeSantis was just
    asking you. You referred to the Olson case, and I have the
    Olson case in front of me, the Olson opinion rather. And what
    it says is we believe that Congress may not direct the
    executive to prosecute a particular individual without leaving
    any discretion to the executive to determine whether a
    violation of the law has occurred. That is what the opinion
    says. It is a 1984 opinion, dated May 30. And this was a
    contempt citation coming from the Congress that he was talking
    about.
        So I guess this is consistent with what you were saying. I
    mean, is this a--so this Olson case in the U.S. attorney's
    office--I mean, it is well-known. Is that right? In a certain--
    I mean, this Olson opinion, is this something that is well-
    known, it is something that you all, you know----
        Mr. Cole. It is known, I don't know if it is well-known.
    But if you are dealing with----
        Mr. Meadows. Will the gentleman yield?
        Mr. Cole [continuing]. A citation----
        Mr. Meadows. Will the gentleman yield?
        Mr. Cummings. Of course.
        Mr. Meadows. I am confused. Is Mr. Olson--is he a judge? I
    mean, what opinion are we talking about here? I thought he was
    a career employee.
        Mr. Cummings. I am sorry.
        Mr. Meadows. I yield back.
        Mr. Cummings. Mr. Olson was a----
        Mr. Meadows. I thank the gentleman from Maryland for
    yielding.
        Mr. Cole. If I may answer, Mr. Olson was not a career
    employee, but a political employee, political appointee, as the
    assistant attorney general for the Office of Legal Counsel back
    in 1984 in the Reagan Administration. The Office of Legal
    Counsel is asked many times, and is authorized, for the
    executive branch of government to provide legal opinions which
    are binding upon the executive branch of government, to
    interpret various aspects of law that the government has to
    abide by.
        Mr. Cummings. Thank you very much. So you said he was a
    Reagan employee--appointee?
        Mr. Cole. Yes.
        Mr. Cummings. Very well. I would like to--since we have
    talked about this opinion, Mr. Chairman, I would like to enter
    into the record----
        Mr. Jordan. Without objection.
        Mr. Cummings. Very well.
        That is all I have.
        Mr. Jordan. The gentleman from North Carolina is
    recognized.
        Mr. Meadows. Thank you, Mr. Chairman.
        Mr. Cole, let me come back to, really, what I guess I am a
    little concerned. The public integrity section, you said,
    reached out to the IRS. Is that correct--in 2010?
        Mr. Cole. In 2010, yes. My understanding is they made
    contact with the IRS.
        Mr. Meadows. All right. So what was the nexus of why they
    reached out?
        Mr. Cole. I just look at the account that I have heard from
    Jack Smith and from Richard Pilger, who have testified--given
    transcribed interviews to the committee about what they were
    doing at the time.
        Mr. Meadows. All right. Do you..
        Mr. Cole. So I take their purpose as what it was. I think
    Mr. Smith had seen an article in the newspaper about what
    appeared to be perhaps a misuse of the tax-exempt organization
    laws and wanted to find out if there----
        Mr. Meadows. So that is your opinion.
        Mr. Cole. No, that is not my opinion. That is just my
    understanding of what----
        Mr. Meadows. OK. But as part of this investigation,
    wouldn't it be important for us to understand the nexus of them
    reaching out to the IRS; emails, I mean, motivations. Wouldn't
    that be important to understand?
        Mr. Cole. Right. I think we are in the process of providing
    that to you. When you talk to both of them about what their
    motivations were----
        Mr. Meadows. But I mean, isn't it important for DOJ to look
    at that? Wouldn't that be part of the investigation?
        Mr. Cole. That is not necessarily part of the IRS
    investigation.
        Mr. Meadows. Why wouldn't it be? Because, I mean, motives
    back and forth, wouldn't that be part of it?
        Mr. Cole. Nothing happened. That was a brief meeting. There
    was a discussion about how it would be very, very difficult, if
    not impossible, to bring cases. There were no investigations
    started, there were no referrals made. Nothing happened after
    that. This was a very, very brief----
        Mr. Meadows. So you say nothing happened.
        Mr. Cole [continuing]. And unproductive----
        Mr. Meadows. How can you give me that kind of specificity
    with regards to what happened and what didn't happen if you are
    really not familiar with what went on? Because you just said
    that prior to that. How can you be so precise in nothing
    happening. I don't----
        Mr. Cole. Because we have had people look at whether or not
    the public integrity section got any referrals from the IRS as
    a result of that.
        Mr. Meadows. So part of your investigation, you have looked
    at that.
        Mr. Cole. We asked about whether that happened.
        Mr. Meadows. OK, all right. So do you have an open
    investigation right now on April Sands, who used to be with the
    FEC?
        Mr. Cole. I am not aware one way or another. April Sands?
        Mr. Meadows. Yes. I mean, maybe you need to read the
    newspapers about this, when she was the one that actually
    violated the Hatch Act, worked with the FEC, used to work with
    Lois Lerner. You are not aware of that?
        Mr. Cole. Not off-hand.
        Mr. Meadows. OK. Well, I would encourage you to become
    aware of that. Because she admitted that she violated the Hatch
    Act and that, quite frankly, some of the Twitters asking for
    donations while at work, or have been alleged, wouldn't that be
    important that you look at that, from the Department of
    Justice?
        Mr. Cole. You said she worked at the FEC?
        Mr. Meadows. Yes.
        Mr. Cole. I am not sure that is part of the IRS
    investigation. It may be----
        Mr. Meadows. Well, let me just tell you. There was--Ms.
    Lois Lerner, it has been reported that Lois Lerner and April
    Sands actually worked together when they were with the FEC.
    Would part of your investigation--wouldn't----
        Mr. Cole. I am not gonna go into all the details, as I have
    said before, of our investigation. But----
        Mr. Meadows. But I find it interesting. So you have never
    heard of April Sands.
        Mr. Cole. Not sitting here today. I don't know about every
    single case that the Justice Department is investigating. We
    have 112,000 employees.
        Mr. Meadows. Well, I am--I have been led to believe that
    you guys are not gonna look at it. And that is troubling
    because this gets to the very heart of what we have been
    talking about. And so would you commit here today to take a
    look at April Sands and the FEC, and what violations of the
    Hatch Act may or may not have occurred?
        Mr. Cole. I will commit here today to find out what the
    story is and see if it is a matter that is worthy of looking
    into.
        Mr. Meadows. All right. So let me close with this. You have
    done an exhaustive--I think, according to your words--
    exhaustive research in terms of these missing emails. Is that
    correct?
        Mr. Cole. I don't know if I would use the word
    ``exhaustive.''
        Mr. Meadows. Investigation.
        Mr. Cole. We have been very thorough in trying to find
    emails.
        Mr. Meadows. OK. So if you have been that thorough, does it
    not trouble you that it is very slow in forthcoming, and that
    you have to read the Washington Post to figure out what is
    going on in terms of IRS employees telling you what may or may
    not have happened over the last 4 or 5 months?
        Mr. Cole. I would have preferred to have learned earlier.
        Mr. Meadows. OK. So would that be something that would be
    subject to investigation by the DOJ?
        Mr. Cole. As I have said, that will be part of our looking
    at the emails, all the things that surround it.
        Mr. Meadows. So the fact that Mr. Koskinen, the
    commissioner--the IRS commissioner--didn't tell you until
    months later, that troubles you.
        Mr. Cole. We are gonna be finding out what happened----
        Mr. Meadows. Does that trouble you?
        Mr. Cole. Not until I find out all the facts, Congressman.
        Mr. Meadows. If it is true, does that trouble you?
        Mr. Cole. I need to find out all the facts----
        Mr. Meadows. So you are afraid to say it troubles you.
        Mr. Cole. I am not afraid to say anything. I just don't
    deal with hypotheticals.
        Mr. Meadows. All right.
        I yield back, thank you.
        Mr. Jordan. Thank the gentleman.
        The gentleman from Nevada is recognized.
        Mr. Horsford. Thank you, Mr. Chairman. Let me just say on
    the outset, I still find it astonishing the lack of courtesy
    that the chairman continues to show to members of this
    committee. The fact that members continue to not receive equal
    time, that the chair interrupts members during our time, the
    fact that you badger witnesses and make judgments upon
    employees and their motivations without any evidence.
        I think all of this does a disservice to the role of the
    oversight function which is very serious and has a very clear
    responsibility to the American people for providing an
    oversight to Federal agencies; and in this particular case,
    because there is so much concern about the wrongdoing that
    occurred at the IRS.
        I am also, you know, alarmed by the ongoing efforts by some
    members of the committee to treat this process like a
    courtroom. We have three branches of government for a reason.
    And I know while some members may be versed in the law and may
    have previous careers in that arena, this is not a courtroom.
    And yet there are those who continue to try to treat it as
    such.
        I want to speak to the issue of the special prosecutor, and
    to ask you, Mr. Cole, for your response. The attorney general,
    in a January 8, 2014 letter, responded--excuse me, Chairman
    Issa and Chairman Jordan in a letter to the attorney general
    claimed that Ms. Bosserman, a career attorney in the civil
    rights division at the Department of Justice, is leading the
    DOJ-FBI investigation.
        However, this allegation was directly refuted by the
    attorney general in his testimony before the Senate Judiciary
    Committee on January 29, 2014. I won't read his full testimony.
    But so that there is no stone left unturned, Deputy Attorney
    Cole, I would like to ask you the same question that was asked
    of Mr. Holder. Is Barbara Bosserman the lead attorney in the
    Department of Justice's investigation or the member of a larger
    team?
        Mr. Cole. She is a member of a larger team. She is not the
    leader of the investigation.
        Mr. Horsford. Despite assurances from the department that
    Ms. Bosserman is not the lead investigator, Chairman Issa and
    Chairman Jordan continue to assert that her political donations
    have created a ``startling conflict of interest.'' This
    supposed conflict of interest is a key justification for some
    Republican members' request that the special prosecutor be
    appointed to conduct the criminal investigation.
        On May 2, 2014, days before introducing a resolution
    requesting a special counsel, Chairman Jordan said we need a
    special counsel to help us get to the truth because the so-
    called investigation by the Justice Department has been a joke;
    the current investigation has no credibility because it is
    being headed by a max donor who is financially invested in the
    President's success.
        Mr. Cole, is there any merit to allegations that Ms.
    Bosserman's involvement destroys the credibility of the
    Department of Justice investigation?
        Mr. Cole. No, I don't believe there is any merit at all.
        Mr. Horsford. On June 26, the Department of Justice sent a
    letter concluding that the appointment of a special counsel is
    not warranted. Can your explain the determination as to why the
    special counsel is not needed?
        Mr. Cole. We look at the regulations, we go by law in these
    matters, and we look at what the regulation is that is
    applicable here. And we have talked about it already in this
    hearing. Regulation at 45.2, and Ms. Bosserman's activities
    don't come anywhere near the ambit of that regulation for her
    disqualification. There is no reason to take it away from the
    normal regular order of career prosecutors doing their job,
    with lots of other people involved: FBI, TIGTA, other people in
    other divisions and sections in the department.
        She is part of a much larger team, and there is no reason
    to take anything out of the normal course and the normal order.
    That is usually the best way to do an investigation.
        Mr. Horsford. Thank you. Well, then, I would assert, rather
    than wasting more taxpayer money on a special prosecutor,
    Congress should be focused on addressing some other pressing
    issues facing our constituents.
        And again, Mr. Chairman, I deplore you to please provide a
    level of decorum and civility so that those of us on this
    committee who do want to get to the truth and have a fair and
    impartial process can do so without having an abusive setting
    in which to operate.
        Mr. Jordan. I thank the gentleman.
        Mr. Cole, does Barbara Bosserman have a financial interest
    in the President's success?
        Mr. Cole. I don't believe she does, no.
        Mr. Jordan. So when you give a campaign contribution, you
    are not invested in--in hoping good things happen to the person
    you made that investment in?
        Mr. Cole. You do not have a financial interest. I know
    several leading ethics attorneys in the United States have been
    asked to opine on that and have said it is not even close that
    there is a conflict of interest just from----
        Mr. Jordan. Of the 112,000 employees that you have at the
    Justice Department, you couldn't find someone, though, who
    didn't have this perceived financial interest. You couldn't
    find someone else to be a part of this team?
        Mr. Cole. There is no perceived financial interest, Mr.
    Chairman.
        Mr. Jordan. There is by the American people. There may not
    be by you, but there is by the American people.
        Mr. Cole. I am not sure I agree with that, but----
        Mr. Jordan. Then you are welcome to come to my district any
    time you want and talk to all kinds of folks. Because they sure
    think there is.
        The gentleman from Arizona is recognized.
        Mr. Gosar. Thank you, Deputy General Cole. Once again, I am
    a dentist and so these little minutia things I can go smaller;
    micromillimeters, millimeters, you got my point. Can you tell
    me a little bit more about this statute of 6103? Can you tell
    me the privileged information, and who gets that 6103?
        Mr. Cole. I am not an expert in 6103. It is part of the tax
    code, and it deals with protecting taxpayer information from
    disclosure except in certain circumstances.
        Mr. Gosar. OK. So I am gonna make a comparison, I guess.
    Being a dentist, I have to know HIPAA regulations and OSHA. I
    am not excused from that, right?
        Mr. Cole. That is correct.
        Mr. Gosar. So when we are talking about 6103 within the IRS
    or DOJ or executive branch, or anybody working within the
    Federal Government, they are pretty astute to who gets 6103,
    right?
        Mr. Cole. They should be.
        Mr. Gosar. Oh? Does it give them an excuse if they violate
    that? I mean, when I am under a malpractice case, I don't get
    an excuse from HIPAA or OSHA, do I?
        Mr. Cole. Not that I know of. Depending on the
    circumstances.
        Mr. Gosar. OK, so--and that is where I want to go here.
    Because I am talking from America, America wants to make sense
    of this jargon, this legal jargon. OK, does anybody get away
    with 6103?
        Mr. Cole. If you violate 6103, if you violate the
    provisions, you should not get away with it. But it depends on
    the facts and circumstances, as with any case.
        Mr. Gosar. Well, wait a minute. I mean, you just told me,
    as a regular citizen, I can't get away with HIPAA and OSHA
    violations. But I can get away with a 6103?
        Mr. Cole. No, that is not what I am saying. I am sure----
        Mr. Gosar. OK, I just----
        Mr. Cole [continuing]. I am sure that not every single
    HIPAA or OSHA violation is prosecuted, or dealt with.
        Mr. Gosar. No, I am sure they are not.
        Mr. Cole. Serious ones are.
        Mr. Gosar. I know. I understand that. OK.
        Mr. Cole. That is what I am saying.
        Mr. Gosar. But, when we share 6103 there has to be an
    implicit to ask, right, from DOJ?
        Mr. Cole. There has to be an approval from the IRS, as I
    understand it----
        Mr. Gosar. Approval from the DOJ.
        Mr. Cole. No, from the IRS to share 6103 information. They
    have to authorize that.
        Mr. Gosar. Do you have that in your possession from Ms.
    Lois Lerner?
        Mr. Cole. I am sorry?
        Mr. Gosar. Do you have that in your possession from Ms.
    Lois Lerner?
        Mr. Cole. Have what?
        Mr. Gosar. A permission to share 6103. She sent you a disk
    with 1.1 million applications on there, with some 30
    individuals have privileged information, for 6103. And the
    reason I bring that up is I am hampered as a Member of Congress
    with pertinent information, or 6103. And this is a willy nilly,
    just flippant aspect of sharing a disk. She knew it was on
    there.
        Mr. Cole. I don't know that she knew that there was 6103
    information on that.
        Mr. Gosar. Well, wait. But the emails----
        Mr. Cole. It was represented to us at the time it came that
    there was not. And I don't know if she is the one who sent it,
    or if someone else in the IRS----
        Mr. Gosar. She is the one who sent--whoa, whoa. She--she is
    the one. Thanks, Lois, FBI says they are all formatted best.
    She is the one that has the correspondence with the FBI in
    regards to the format of the disk.
        Mr. Cole. Right. But that doesn't necessarily mean she
    prepared the disk, or sent it.
        Mr. Gosar. She is the one that--she has oversight of that,
    right?
        Mr. Cole. I don't know if that is within her control or
    not. I just don't know. But the question is whether or not
    whoever sent it knew there was 6103 information on it.
        Mr. Gosar. Well, she is--she has been involved in this
    regards of the leak of--this formatted aspect because she is
    the one talking to the FBI. Where I am going with this is, it
    gives me lenient--more pertinent information if I am learned in
    person that there was a violation of 6103. Wouldn't that--if I
    am a learned person?
        Mr. Cole. Generally, there has to be an intentional
    violation. The question is whether this was--the information
    that was included, whether it was inadvertent or whether it was
    intentional. At the time it was provided, we were told that
    there was no non-public information.
        Mr. Gosar. Then, once again, you were told that there was
    non-pertinent information, and there was.
        Mr. Cole. Non-public.
        Mr. Gosar. Non-public information. So once again, to me,
    this brings--this issue up of this being pertinent information.
    And that when Congress says that we are doing contempt charges,
    when we are looking at the criminal or civil violation of an
    oath of office, doesn't that give us some aspect of hedging our
    bet?
        Mr. Cole. I am not sure what you mean by hedging our bet.
        Mr. Gosar. Well, wouldn't this kind of go in the mindset of
    a U.S. attorney that they would actually bring forth the
    contempt charges issue by the--by Congress?
        Mr. Cole. I believe the U.S. attorney for the District of
    Columbia has the contempt citation and is reviewing it, and has
    assigned it to somebody. And the memo is being reviewed and
    worded.
        Mr. Gosar. Let me ask you a question. You keep bringing up
    this Olson ruling. Isn't that a subjective and an interpretive
    ruling, when the statute is very specific?
        Mr. Cole. The opinions by the Office of Legal Counsel, when
    they issue formal opinions, are binding on the executive
    branch.
        Mr. Gosar. But isn't it also the--when there is a conflict
    between the legislative intent of the language and the
    executive branch that we have to have a better review. So just
    one interpretive aspect would not be good enough. We should
    look----
        Mr. Cole. That can--I am sure somebody could probably
    challenge that in the right forum in court if they don't agree
    with an OLC opinion. But generally, the way the structure is
    set up for OLC is, they are the source of legal advice for the
    executive branch.
        Mr. Gosar. Well, thank you, General Cole.
        Mr. Jordan. The gentleman from California, the chairman is,
    recognized.
        Mr. Horsford. Mr. Chairman, my----
        Chairman Issa. Thank you, Mr. Cole. Are you interrupting
    me? Isn't there decorum?
        Mr. Horsford. I was asking the chairman----
        Chairman Issa. I guess I will yield. Please----
        Mr. Jordan. The gentleman from Nevada is recognized.
        Mr. Horsford. I was asking whether the chairman had made a
    determination on my request for unanimous consent to enter the
    document----
        Mr. Jordan. My apologies. I forgot to look at that. If
    you--if we can take a look at--the staff can look at the
    documents, then we will look at it.
        The gentleman from California.
        Chairman Issa. General Cole--would you put up on the board
    the org chart, please? I am glad you brought up this whole
    question. This is a little small, a little complex. But that
    org chart up on the board shows the attorney general, followed
    by you, followed by a whole group of associates, followed by
    all the division chiefs. Virtually all of those people are
    political appointees, aren't they?
        Mr. Cole. Many of them are. The----
        Chairman Issa. Virtually all. I mean, you and the attorney
    general and your----
        Mr. Cole. Just the attorney----
        Chairman Issa [continuing]. Direct reports are political
    appointees.
        Mr. Cole. By and large, most of them are. Some are career,
    but the vast majority are political appointees.
        Chairman Issa. Well, even if they are career--even if they
    are career, they are career people who serve at the pleasure. I
    mean, you can move them around.
        Mr. Cole. Some. They are in the SES service, and there are
    rules on that. But the vast majority of the assistant attorneys
    general and the associate attorney general are political
    appointees.
        Chairman Issa. And the head of the civil rights division?
        Mr. Cole. Right now, that person is an acting person and is
    a career employee.
        Chairman Issa. But they serve at the pleasure of you.
        Mr. Cole. That is correct, although there are certain civil
    service requirements----
        Chairman Issa. But you can move them, right?, to some other
    position.
        Mr. Cole. That would probably----
        Chairman Issa. OK. I mean, they keep their pay but they
    lose their job. And the criminal division?
        Mr. Cole. Same thing. That person is a political appointee,
    approved by the Senate.
        Chairman Issa. So when we talk about Ms. Bosserman and the
    team she is on, everybody practically--from her team all the
    way up to your boss--you are all political appointees who
    control their lives and so on. So when the question was asked--
    and the gentleman from Nevada has left, but I think fairly--he
    was saying, well--he was asking you, and you answered, ``Oh, of
    course. We don't need a special prosecutor.'' Don't you
    understand the American people see you as a political
    appointee. They see your boss, who has been held in contempt by
    the House for failure to comply.
        They see the Supreme Court finding that those legal
    opinions you seem to have get nine to zero against you. Now, I
    am gonna go to one quick one. Your legal opinions included your
    brief in Fast & Furious, didn't they? Before Amy Berman
    Jackson, right?
        Mr. Cole. I am sorry, our legal opinion?
        Chairman Issa. Your legal opinions led to those briefs in
    the Fast & Furious case that is currently in the district court
    in Washington.
        Mr. Cole. We have our lawyers in the civil division who
    draft those----
        Chairman Issa. OK, so your legal opinions were that you
    didn't have to provide them, and that you were immune from
    having to provide them. And that it could--and specifically,
    your opinion was that she didn't have the right to adjudicate
    that. Wasn't that so?
        Mr. Cole. I believe that was the position we took.
        Chairman Issa. And didn't Judge Jackson say just the
    opposite? That she did have the authority, and that she found
    the same as Judge Bates did in an earlier case? That your
    premise was wrong? And weren't you relitigating the exact same
    thing that President Bush had lost in the Conyers case?
        Mr. Cole. We were stating--everybody litigates positions
    constantly in----
        Chairman Issa. OK. So you are part of an administration
    that can relitigate that which has been decided. Just
    yesterday, you decided that there was an inherent--your
    administration decided there was an inherent right not to
    deliver a Federal employee, even though in the Harriet Miers-
    Bolton case it was made clear that depositions and witness
    subpoenas were, in fact, binding. So the strange thing is, is
    when you talk about legal opinions--and I appreciate the former
    solicitor general and how well he is held in regard.
        But what you are--what you are saying is, is you pick an
    opinion. And the opinion can be wrong, but your opinion is that
    you don't fall under us. That, in fact, our oversight is
    irrelevant, that you don't have to answer our questions, you
    don't have to produce documents, and you can withhold. That has
    been a consistent pattern in this administration.
        And just yesterday, the President of the United States
    asserted a brand-new right, an inherent right, not to deliver a
    political appointee who serves, and interfaces with, the DNC
    and the D-triple-C--that is the Democratic National Committee
    and the Democratic National congressional Committee--works
    directly with those heads to plan the President's targeting of
    races to support Democrats for their reelection on a partisan
    basis, and we are not even allowed to hear from that person
    because there is an inherent right not to produce that.
        So when you ask--you say here that you stand--and the
    attorney general's letter is well thought out, that you don't
    need a special prosecutor, do you know how absurd it sounds to
    the American people--absurd it sounds to the American people
    that you don't need a special prosecutor because all your
    political appointees overseeing a team of people who may, at
    the lowest level, actually be career people hoping to move up.
    That you political people aren't influencing it, that there is
    no influence. I just find it amazing, and I know that Mr.
    Horsford has left and I am sorry he has left because he would
    get an opportunity, once again, to take the party line.
        You are not prosecuting a contempt of Congress because you
    have got this new opinion that ``shall'' doesn't mean ``shall
    present to the''--``to the court'' or, in this case to the
    grand jury. But you haven't given it to us, and today is the
    first time we hear about it.
        So I join with the chairman in reiterating that we need a
    special prosecutor because you are a political appointee, your
    boss is a political appointee held in contempt by Congress, the
    people that work for you work for you at your pleasure, and you
    are controlling an investigation that is slowly reaching no
    decision. When, in fact, Lois Lerner has been found by a
    committee of this Congress to have violated laws as she
    targeted conservatives for their views.
        This committee has produced a massive document showing that
    Lois Lerner targeted them and not liberal groups. And yet you
    sit here today implying that you are relying on some well-
    known, more conservative individual's decision as though we are
    supposed to believe that.
        I have got to tell you, when the gentleman from Nevada
    talks about contempt, yes, we have contempt for the man you
    work for. Because, in fact, Congress has, as a matter of
    record, held him in contempt for failure to deliver documents.
    Your office has implied that a Federal judge had no right to
    even consider a case that was directly on point a Nixon-era
    point of lying to Congress and then refusing to deliver
    documents related to those false Statements.
        I am ashamed that you sit here day after day implying that
    there is no reason for a special prosecutor. The whole reason
    you want an independent prosecutor is not to be independent of
    somebody down low, but to be independent of you.
        Mr. Chairman, I thank you for your indulgence, and I yield
    back.
        Mr. Jordan. I thank the gentleman.
        And I was just--well, let me do this. One other line of
    questioning here, Mr. Cole. And I know you have been here
    awhile, and we are almost done because we have votes on the
    floor. August 27, 2010, chairman--then-chairman of the White
    House Counsel of Economic Advisors, Austan Goolsbee, revealed
    private taxpayer information about Koch Industries in order to
    imply that they somehow didn't pay their full amount of taxes.
    How Goolsbee knew this information and whether or not he
    inappropriately viewed Koch's 6103 protected tax information
    remains unknown.
        My question to you is this. If a White House employee
    without 6103 authority viewed 6103-protected information, and
    made that public, would he or she--what they learned, what he
    or she learned, from that information, would that be a crime?
        Mr. Cole. You know, I would have to have all the facts and
    circumstances. What generally happens when there is disclosure
    of 6103 information is TIGTA, the IG for the tax department,
    for the IRS, investigates the matter, determines whether or not
    they believe there has been a criminal violation of 6103. And
    if they do believe there has been one, they present it to the
    Justice Department for our consideration.
        Mr. Jordan. Have you guys investigated this matter?
        Mr. Cole. This is----
        Mr. Jordan. Or have you, or are you going to investigate
    this matter?
        Mr. Cole. This is--it depends on whether TIGTA has
    deteriorated whether or not this matter presents itself with
    evidence that there was criminal activity. So that is up to
    TIGTA to decide in the first instance.
        Mr. Jordan. OK, finally, and then I will let the ranking
    member have some time, too, before we conclude. I just want to
    go back to what the chairman--just to reiterate this because it
    is so frustrating to me and it is so frustrating to so many of
    the good folks I get the privilege of representing in the 4th
    district of Ohio.
        When, in fact, you have the fact pattern we do, the FBI
    leaking to the Wall Street Journal and no one is gonna be
    prosecuted. The President prejudicing the case with his
    comments about no corruption, not even a smidgen. The fact that
    Barbara Bosserman is the lead investigator, part of the team,
    and is a max-out contributor to the President's campaign.
        The fact that Richard Pilger and Jack Smith had interaction
    with Lois Lerner in 2010 and 2013. That you had a data base of
    1.1 million pages of taxpayer information, donor (c)(4)
    information, you had it for 4 years, and some of that
    information was confidential.
        All that fact, all that cries out for a special prosecutor.
    And I would think you would want it just so you can say,
    ``Look, we are gonna get to the--we are gonna be as unbiased
    as--we are gonna.'' That would be a welcome thing to do to find
    someone Republicans, Democrats, everyone could agree on. Oh,
    fine, let them--let them do the investigation.
        That would be something seems like you would want. So if,
    as Mr. Gowdy pointed out and I think others have pointed out,
    if that doesn't warrant a special prosecutor I don't know what
    does. I do not know what--and when I look at the elements
    contained in the statute, I don't--if that doesn't meet it, I
    don't know if you ever could meet it. And with that, I will
    end. And I do thank you for being here today, Mr. Cole.
        And I will yield to the ranking member.
        Mr. Cartwright. Thank you, Mr. Chairman. And just a few
    points I want to cover at the end of this hearing. No. 1, I
    want to note that the chairman of the full committee was highly
    critical of our fellow member, Mr. Horsford, noting that Mr.
    Horsford had left the room. The fact of the matter is that we
    have been called to vote, and we have less than, I think, 7
    minutes on the clock to go vote. That is why Mr. Horsford was
    not here and was not here to defend himself against the charges
    made by the chairman of the full committee.
        Second, before we let you go, Mr. Cole, I want to--I think
    I speak on behalf of the full committee. That we all really
    want to know what happened to those missing emails, all of us.
    Now, we are all somewhat skeptical that they can't be recovered
    in some fashion, all of us. And we urge you to do your utmost,
    and urge your colleagues to find those missing emails. Because
    when there are emails missing and it makes people suspicious,
    and then it leads to unfounded charges and reckless
    allegations. And this is an arena where reckless allegations
    find a home. And so I think it would make a lot of sense to
    redouble your efforts to find those emails.
        I also want to mention, a lot has been made in this hearing
    today about improper influence on the IRS having to do with
    Citizens United and the way that the IRS folks were targeting
    certain 501(c)(4) groups. I want to mention here that the
    inspector general's report, Mr. George, found that Lois Lerner,
    the former director of exempt organizations at the IRS, did not
    discover the use of these inappropriate criteria that we are
    all talking about until a year later, in June 2011. After which
    she immediately ordered the practice to stop. This is something
    found by the inspector general.
        Mr. Meadows. Will the gentleman yield for just one point of
    clarification?
        Mr. Cartwright. Certainly.
        Mr. Meadows. We have been going back to this TIGTA report
    that says that she didn't know until June 2011, when the
    majority of the TIGTA report were based on emails. Now that we
    know that emails are missing, to make that conclusion is hard.
    And I just wanted to point that out.
        I yield back.
        Mr. Cartwright. That is a fair point. I want to go on. I
    also want to point out that the inspector general's report
    found that employees subsequently began using different
    inappropriate criteria without management knowledge.
        The inspector general's report, Mr. George, Stated, ``The
    criteria were not influenced by any individual or organization
    outside the IRS.'' In other words, Russell George, the
    inspector general, whose report brought here before this
    committee, started the firestorm that has been raging for more
    than a year-and-a-half. His report said flat out that these IRS
    people were not influenced by any organization or individual
    outside the IRS.
        Mr. Jordan. Will the gentleman yield for----
        Mr. Cartwright. I yield.
        Mr. Jordan. Well, one of the reason is because we didn't
    have the emails from the Justice Department and Lois Lerner. We
    got those because Judicial Watch did a FOIA request. But for
    that, we would have never had Mr. Pilger and Mr. Smith from the
    Justice Department in for a deposition. So Mr. George didn't
    have that information in his hand.
        Mr. Cartwright. And I--let's let the witness answer a
    question here. Mr. Cole, are you aware of any information to
    the effect that the inspector general's Statement there is
    incorrect?
        Mr. Cole. No. The understanding I have of the interactions
    between the Justice Department and the IRS on those two
    meetings was that the IRS, in the first one, said there is
    really nothing we can do here. And nothing came of it. And on
    the second meeting, there was never really any substance
    discussed. It never was followed up on.
        Mr. Cartwright. Well, I thank you for that.
        And I yield back, Mr. Chairman.
        Mr. Jordan. The point I am making is, that is the timeframe
    that are the--is that the timeframe where the emails are lost.
    The only--I am not even sure the IRS was gonna tell us they
    lost the emails, but for the Judicial Watch FOIA request which
    uncovered the Richard Pilger-Lois Lerner correspondence, Lois
    Lerner email. Once they knew we got something from Justice,
    then the IRS says, ``Wait a minute. We better let them know we
    lost all the emails from that time period who went outside the
    agency.'' And Mr. Cole has told us today that maybe some of the
    documents they are withholding from the committee are more of
    that correspondence.
        Mr. Cole. I didn't say that.
        Mr. Jordan. You said you can't guarantee it is not.
        Mr. Cole. That is correct.
        Mr. Jordan. That is correct, so----
        Mr. Cole. Beause is just--because I haven't seen them. I
    just can't answer your question.
        Mr. Jordan. Well, it would been nice if you had looked at
    them before you came here to testify today and you could have
    been able to answer that question, right? I wish you would of
    done your homework there, know what documents--you would think
    you would know what documents you are withholding from the
    committee.
        Mr. Cole. I know we are in the process of gathering and
    collecting them, and that that process is not done yet. So I--
    --
        Mr. Jordan. We have been trying to get you here a couple
    weeks. We accommodated your schedule. You knew we were gonna
    ask about the stuff you are withholding from us, and you didn't
    even review it?
        Mr. Cole. Not the specific documents. I knew what the
    status was of the review, but I don't review----
        Mr. Jordan. And because you didn't review it, you cannot
    guarantee that some of those documents you are withholding
    aren't Lois Lerner emails.
        Mr. Cole. And I can't tell you that they are either. That
    they are or they aren't.
        Mr. Jordan. I know you can't tell us either way because you
    didn't look at them.
        Mr. Cole. That is correct.
        Mr. Jordan. Well, for goodness sake, when you come in front
    of the Oversight Committee--we have been investigating this
    thing for 14 months--you would think you would have reviewed
    the documents you are not gonna let us see. You think. I think
    my ranking member would--the ranking member would agree with
    that. You should have reviewed this stuff and you didn't do it.
    And that is the whole point. We would have not known Lois
    Lerner's emails were lost but for Judicial Watch doing the FOIA
    request and we getting that one email which showed, wait a
    minute, Richard Pilger was talking with Lois Lerner in 2010
    when the targeting started. We would have never know that.
        And now you tell us you are not even--we got to vote. Votes
    are out of time. I want to thank the deputy attorney general
    for being here, and the committee is adjourned.
        [Whereupon, at 12:26 p.m., the subcommittee was adjourned.]

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