[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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