[Congressional Record Volume 160, Number 101 (Thursday, June 26, 2014)]
[Senate]
[Pages S4163-S4164]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




SENATE RESOLUTION 487--EXPRESSING THE SENSE OF THE SENATE THAT ATTORNEY 
    GENERAL ERIC H. HOLDER, JR. SHOULD APPOINT A SPECIAL COUNSEL OR 
   PROSECUTOR TO INVESTIGATE THE TARGETING OF CONSERVATIVE NONPROFIT 
                 GROUPS BY THE INTERNAL REVENUE SERVICE

  Mr. CRUZ submitted the following resolution; which was referred to 
the Committee on the Judiciary:

                              S. Res. 487

       Whereas, in February 2010, the Internal Revenue Service 
     (IRS) began targeting conservative nonprofit groups for extra 
     scrutiny in connection with applications for tax-exempt 
     status;
       Whereas, on May 14, 2013, the Treasury Inspector General 
     for Tax Administration (TIGTA) issued an audit report 
     entitled, ``Inappropriate Criteria Were Used to Identify Tax-
     Exempt Applications for Review'';
       Whereas the TIGTA audit report found that from 2010 until 
     2012, the IRS systematically subjected tax-exempt applicants 
     to extra scrutiny based on inappropriate criteria, including 
     use of the phrases ``Tea Party'', ``Patriots'', and ``9/12'';
       Whereas the TIGTA audit report found that the groups 
     selected for extra scrutiny based on inappropriate criteria 
     were subjected without cause to delays lasting years;
       Whereas the TIGTA audit report found that the groups 
     selected for extra scrutiny based on inappropriate criteria 
     were subjected to unreasonable and burdensome information 
     requests, including requests for information about donors and 
     political beliefs;
       Whereas the Exempt Organizations Division within the Tax-
     Exempt and Government Entities Division of the IRS has 
     jurisdiction over the processing and determination of tax-
     exempt applications;
       Whereas, on September 15, 2010, Lois G. Lerner, former 
     Director of the Exempt Organizations Division, initiated a 
     project to examine political activity of organizations 
     described in section 501(c)(4) of the Internal Revenue Code 
     of 1986, writing to her colleagues, ``[w]e need to be 
     cautious so it isn't a per se political project'';
       Whereas, on February 1, 2011, Lois Lerner wrote that the 
     ``Tea Party matter [was] very dangerous'' and ``[t]his could 
     be the vehicle to go to court on the issue of whether 
     Citizen's [sic] United overturning the ban on corporate 
     spending applies to tax exempt rules'';
       Whereas Lois Lerner ordered the Tea Party tax-exempt 
     applications to proceed through a ``multi-tier review'' 
     involving her senior technical advisor and the IRS Office of 
     Chief Counsel;
       Whereas Carter Hull, an IRS lawyer and a 48-year veteran of 
     the United States Government, testified that the ``multi-tier 
     review'' was unprecedented in his experience;
       Whereas, on June 1, 2011, Holly Paz, Director of Rulings 
     and Agreements within the Exempt Organizations Division, 
     requested the tax-exempt application filed by Crossroads 
     Grassroots Policy Strategies for review by Lois Lerner's 
     senior technical advisor;
       Whereas, on March 22, 2012, Commissioner of Internal 
     Revenue Douglas Shulman was specifically asked about the 
     targeting of Tea Party groups applying for tax-exempt status 
     during a hearing before the Committee on Ways and Means of 
     the House of Representatives, to which he replied, ``I can 
     give you assurances . . . [t]here is absolutely no 
     targeting'';
       Whereas, on April 26, 2012, Lois Lerner informed the 
     Committee on Oversight and Government Reform of the House of 
     Representatives that information requests were done in ``the 
     ordinary course of the application process'';
       Whereas prior to the November 2012 election, the IRS 
     provided 31 applications for tax-exempt status to the 
     investigative website ProPublica, all of which were from 
     conservative groups and 9 of which had not yet been approved 
     by the IRS, in spite of a prohibition under Federal law 
     against public disclosure of application materials until 
     after the application has been approved;
       Whereas the IRS determined, by way of informal, internal 
     review, that 75 percent of the applications for designation 
     as an organization described in section 501(c)(4) of the 
     Internal Revenue Code of 1986 that were set aside for further 
     review were filed by conservative-oriented organizations;
       Whereas, on January 24, 2013, Lois Lerner wrote, in an 
     email to colleagues, regarding Organizing for Action, a tax-
     exempt organization formed as an offshoot of the election 
     campaign of President Barack Obama: ``Maybe I can get the DC 
     office job!'';
       Whereas, on May 8, 2013, Richard Pilger, Director of the 
     Election Crimes Branch of the Public Integrity Section of the 
     Department of Justice, spoke to Lois Lerner about potential 
     prosecution for false statements about political campaign 
     intervention made by tax-exempt applicants;
       Whereas, on May 10, 2013, in response to a pre-arranged 
     question, Lois Lerner apologized for the targeting of 
     conservative tax-exempt applicants by the IRS during a speech 
     at an event organized by the American Bar Association;
       Whereas the Committee on Ways and Means of the House of 
     Representatives determined that, of the 298 applications 
     delayed and set aside for additional scrutiny by the IRS, 83 
     percent were from right-leaning organizations;
       Whereas the Committee on Ways and Means of the House of 
     Representatives determined that, as of the May 10, 2013, 
     apology from Lois Lerner, only 45 percent of the right-
     leaning groups set aside for extra scrutiny had been 
     approved, while 70 percent of left-leaning groups and 100 
     percent of the groups with ``progressive'' names had been 
     approved;
       Whereas the Committee on Ways and Means of the House of 
     Representatives determined that, of the groups that were 
     inappropriately subject to demands to divulge confidential 
     donors, 89 percent were right-leaning;
       Whereas, on May 15, 2013, Attorney General Eric H. Holder, 
     Jr. testified before the Committee on the Judiciary of the 
     House of Representatives that the Department of Justice would 
     conduct a ``dispassionate'' investigation into the IRS 
     matter, and ``[t]his will not be about parties . . . this 
     will not be about ideological persuasions . . . anybody who 
     has broken the law will be held accountable'';
       Whereas, on May 15, 2013, President Barack Obama called the 
     targeting of conservative tax-exempt applicants by the IRS 
     ``inexcusable'' and promised that he would ``not tolerate 
     this kind of behavior in any agency, but especially in the 
     IRS, given the power that it has and the reach that it has 
     into all of our lives'';
       Whereas Barbara Bosserman, a trial attorney at the 
     Department of Justice who in the past several years has 
     contributed nearly $7,000 to the Democratic National 
     Committee and political campaigns of President Obama, is 
     playing a leading role in the investigation by the Department 
     of Justice;
       Whereas the Public Integrity Section of the Department of 
     Justice communicated

[[Page S4164]]

     with the IRS about the potential prosecution of tax-exempt 
     applicants;
       Whereas, on December 5, 2013, President Obama declared in a 
     national television interview that the targeting of 
     conservative tax-exempt applicants by the IRS was caused by a 
     ``bureaucratic'' ``list'' by employees in ``an office in 
     Cincinnati'';
       Whereas, on April 9, 2014, the Committee on Ways and Means 
     of the House of Representatives referred Lois Lerner to the 
     Department of Justice for criminal prosecution;
       Whereas the Committee on Ways and Means of the House of 
     Representatives found that Lois Lerner used her position to 
     improperly influence agency action against conservative tax-
     exempt organizations, denying these groups due process and 
     equal protection rights as guaranteed by the United States 
     Constitution, in apparent violation of section 242 of title 
     18, United States Code;
       Whereas the Committee on Ways and Means of the House of 
     Representatives found that Lois Lerner targeted Crossroads 
     Grassroots Policy Strategies while ignoring similar liberal-
     leaning tax-exempt applicants;
       Whereas the Committee on Ways and Means of the House of 
     Representatives found that Lois Lerner impeded official 
     investigations by knowingly providing misleading statements 
     to TIGTA, in apparent violation of section 1001 of title 18, 
     United States Code;
       Whereas the Committee on Ways and Means of the House of 
     Representatives found that Lois Lerner may have disclosed 
     confidential taxpayer information, in apparent violation of 
     section 6103 of the Internal Revenue Code of 1986;
       Whereas former Department of Justice officials have 
     testified before a subcommittee of the Committee on Oversight 
     and Government Reform of the House of Representatives that 
     the circumstances of the investigation by the administration 
     of the targeting of conservative tax-exempt applicants by the 
     IRS warrant the appointment of a special counsel;
       Whereas Department of Justice regulations counsel attorneys 
     to avoid the ``appearance of a conflict of interest likely to 
     affect the public perception of the integrity of the 
     investigation or prosecution'';
       Whereas, on January 13, 2014, unnamed officials in the 
     Department of Justice leaked to the media that no criminal 
     charges would be appropriate for IRS officials who engaged in 
     the targeting activity, which undermined the integrity of the 
     investigation by the Department of Justice;
       Whereas, on January 29, 2014, Attorney General Holder told 
     the Senate Committee on the Judiciary, ``I don't think that 
     there is a basis for us to conclude on the information as it 
     presently exists that there is any reason for the appointment 
     of the independent counsel . . . . The notion that somehow 
     this has caused a loss of faith in this Justice Department is 
     inconsistent with the facts'';
       Whereas, on February 2, 2014, President Obama stated 
     publicly that there was ``not even a smidgen of corruption'' 
     in connection with the IRS targeting activity;
       Whereas, on April 16, 2014, e-mails between the Department 
     of Justice and the IRS were released showing that the 
     Department of Justice considered prosecuting conservative 
     nonprofit groups for engaging in political activity that is 
     legal under Federal law, which damaged the integrity of the 
     Department of Justice and undermined its investigation;
       Whereas, on May 8, 2014, the IRS agreed to provide all of 
     Lois Lerner's e-mails to investigators of the Committee on 
     Ways and Means of the House of Representatives;
       Whereas, on May 14, 2014, e-mails obtained through a 
     request under section 552 of title 5, United States Code 
     (commonly known as the ``Freedom of Information Act'') by the 
     nonprofit group Judicial Watch indicate that the Washington 
     office of the IRS was examining applications for tax-exempt 
     status by Tea Party organizations, which is contrary to 
     claims that the cases were being handled by lower-level 
     workers in Cincinnati;
       Whereas, on June 11, 2014, James Comey, Director of the 
     Federal Bureau of Investigation (FBI), testified to the 
     Committee on the Judiciary of the House of Representatives 
     that FBI investigators did not examine the IRS database with 
     taxpayer information, which included private taxpayer 
     information that is prohibited from being shared without an 
     order from a judge, and only looked at the table of contents;
       Whereas, on June 13, 2014, IRS Office of Legislative 
     Affairs Director Leonard Ourlser informed the Committee on 
     Finance of the Senate that the IRS could not produce e-mails 
     from January 2009 through April 2011 from Lois Lerner due to 
     a computer crash;
       Whereas, on June 17, 2014, the IRS stated that it could not 
     produce e-mails from 6 other IRS employees;
       Whereas, on June 23, 2014, it was reported that 
     Commissioner of Internal Revenue John Koskinen has 
     contributed approximately $100,000 to Democratic candidates 
     and organizations, including $7,300 to President Obama;
       Whereas, on June 24, 2014, it was reported that the IRS 
     agreed to pay $50,000 in damages to one of the conservative 
     groups, the National Organization for Marriage, as a result 
     of the unlawful release of confidential information to a 
     political rival of that group;
       Whereas, on June 25, 2014, according to the Committee on 
     Ways and Means of the House of Representatives, Lois Lerner 
     sought to have Senator Chuck Grassley, a sitting United 
     States Senator and ranking Republican member of the Committee 
     on the Judiciary of the Senate, referred for IRS examination; 
     and
       Whereas section 600.1 of title 28, Code of Federal 
     Regulations, promulgated under section 515 of title 28, 
     United States Code, requires the Attorney General to appoint 
     a special counsel or prosecutor when it is determined that--
       (1) a criminal investigation of a person or matter is 
     warranted;
       (2) investigation or prosecution of that person or matter 
     by a United States Attorney's Office or litigating Division 
     of the Department of Justice would present a conflict of 
     interest for the Department or other extraordinary 
     circumstances; and
       (3) under the circumstances, it would be in the public 
     interest to appoint an outside special counsel or prosecutor 
     to assume responsibility for the matter: Now, therefore, be 
     it
       Resolved, That it is the sense of the Senate that--
       (1) the statements and actions of the Internal Revenue 
     Service (IRS), the Department of Justice, and the 
     administration of President Barack Obama in connection with 
     the targeting of conservative tax-exempt applicants by the 
     IRS have served to undermine the investigation by the 
     Department of Justice;
       (2) the efforts of the administration to undermine the 
     investigation by the Department of Justice, and the 
     appointment of Barbara Bosserman, who has donated almost 
     $7,000 to President Obama and the Democratic National 
     Committee, to a lead investigative role, have created a 
     conflict of interest that warrants removal of the 
     investigation from the normal processes of the Department of 
     Justice;
       (3) further investigation of the matter is warranted due to 
     the apparent criminal activity by Lois Lerner, former 
     Director of the Exempt Organizations Division within the Tax-
     Exempt and Government Entities Division of the IRS, and the 
     ongoing disclosure of internal communications showing 
     potentially unlawful conduct by executive branch personnel;
       (4) appointment of a special counsel or prosecutor would be 
     in the public interest, given the conflict of interest for 
     the Department of Justice and the strong public interest in 
     ensuring that public officials who inappropriately target 
     individuals for exercising their right to free expression are 
     held accountable; and
       (5) Attorney General Eric H. Holder, Jr. should appoint a 
     special counsel or prosecutor, with meaningful independence, 
     to investigate the targeting of conservative nonprofit 
     advocacy groups by the IRS.

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