[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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              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.]

                                APPENDIX

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