DOJ: We Have No ‘Conflict of Interest’ in Investigating IRS Targeting of Tea Party

Terence P. Jeffrey | March 24, 2014 | 3:34pm EDT
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(AP Photo/Pablo Martinez Monsivais)

( - The Department of Justice said in a letter sent this month to Sen. Ted Cruz (R.-Texas) that Attorney General Eric Holder has determined that his department has no “conflict of interest” in investigating the Internal Revenue Service’s targeting of Tea Party and conservative groups and that Holder, therefore, will not name a special prosecutor in the case.

The department’s letter responded to one Cruz sent Holder on January 22. In that letter, Cruz cited a report in The Washington Post indicating that the department lawyer overseeing the IRS investigation had made political contributions to President Obama and the Democratic National Committee.

“It strains credulity to say that, out of the over 114,000 employees at the Department of Justice, the only possible choice to lead the investigation was a major political donor to President Obama,” Cruz wrote Holder. “This, on its face, is a significant conflict of interest.”

Cruz concluded his letter to Holder: “Specifically, I would ask you to immediately appoint a special prosecutor, with meaningful independence, to investigate the IRS’s illegal targeting of conservative groups.”

“This special prosecutor should be someone whose integrity is beyond reproach,” Cruz wrote. “And, at a minimum, he or she should not be a major financial backer of President Obama.”

House Oversight Chairman Darrell Issa (AP Photo/Evan Vucci)

The Justice Department responded to Cruz in a letter dated March 10 that was signed by Principal Deputy Assistant Attorney General Peter J. Kadzik. Kadzik informed Cruz that Holder had rejected his call for the appointment of a special counsel.

“The Special Counsel regulations, designed as a replacement for the former Independent Counsel Act, provide that, in the discretion of the Attorney General, a Special Counsel may be appointed when an investigation or prosecution by the Department of Justice would present a conflict of interest, or in other extraordinary circumstances, such that the public interest would be served by such an appointment,” Kadzik wrote.

“After consideration of your request, in light of the regulatory standard set forth above, we have concluded that such an appointment is not warranted,” said Kadzik.

The current framework and criteria for naming a federal "special counsel" are set up by a regulation that was issued by the attorney general in 1999. This regulation vests the authority for naming such a counsel in the attorney general himself--unless he is recused from the matter.

(J. Scott Applewhite)

"The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted," says the regulation, "and (a) That 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 (b) That under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.''

The fact that the IRS had targeted Tea Party and conservative groups was first revealed by the Treasury Inspector General for Tax Administration in an audit report released on May 14, 2013. “The IRS used inappropriate criteria that identified for review Tea Party and other organizations applying for tax-exempt status based upon their names or policy positions instead of indications of potential political campaign intervention,” the report said.

The same day TIGTA released its report, a reporter asked Attorney General Holder about it at a press conference.

“I have ordered an investigation to be begun,” Holder responded. “The FBI is coordinating with the Justice Department to see if any laws were broken in connection with those matters related to the IRS. Those were, I think as everyone can agree, if not criminal, they were certainly outrageous and unacceptable. But we are examining the facts to see if there were criminal violations.”

(White House photo/Pete Souza)

The next day, President Obama made a statement about the TIGTA’s audit report. “I've reviewed the Treasury Department watchdog's report, and the misconduct that it uncovered is inexcusable,” said Obama. “It's inexcusable, and Americans are right to be angry about it, and I am angry about it.

“I will 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,” Obama said.

Obama pledged that his administration would work closely with Congress to repair the problem of IRS abuse. “Our administration has to make sure that we are working hand in hand with Congress to get this thing fixed,” he said.

On May 22, Lois Lerner, then the director of the IRS’s Exempt Organizations unit which is responsible for determining whether groups such as Tea Party organizations get tax-exempt status, appeared in the House Oversight and Government Reform Committee.

“I have not done anything wrong. I have not broken any laws, I have not violated any IRS rules or regulations, and I have not provided false information to this or any other congressional committee,” Lerner told the committee in an opening statement.

“After very careful consideration, I've decided to follow my counsel's advice and not testify or answer any of the questions today,” Lerner said. “Because I'm asserting my right not to testify, I know that some people will assume that I've done something wrong. I have not. One of the basic functions of the Fifth Amendment is to protect innocent individuals, and that is the protection I'm invoking today.”

(AP Photo/Carolyn Kaster)

On January 8, 2014, House Oversight Chairman Darrell Issa and Rep. Jim Jordan, chairman of the Oversight Subcommittee on Regulatory Affairs, sent a letter to Holder stating their belief that the FBI’s lack of cooperation with the committee up to that point “may rise to the level of criminal obstruction of a congressional investigation.”

The letter also stated that Barbara Bosserman, a DOJ lawyer assigned to investigate the IRS case, was a contributor to the Democratic National Committee and President Obama’s campaigns.

“In light of indications that the Bureau was not taking the investigation seriously, we have written to FBI Director James Comey on September 6, 2013, seeking information about the status of this matter,” Issa and Jordan told Holder. “The FBI has failed to provide the requested information, and after Department officials apparently interfered, the Bureau rescinded an offer to meet with Mr. Jordan to discuss the investigation. As we pointed out in our most recent letter to Director Comey on December 2, 2013, the FBI’s blatant lack of cooperation with the committee may rise to the level of criminal obstruction of a congressional investigation.”

Jordan and Issa then said in their letter to Holder that they had been told that campaign-contributor Bosserman was leading the investigation.

“According to several current and former IRS officials whom both the Committee and the Department have interviewed, Barbara Bosserman, a trial attorney in the Department’s Civil Rights Division, is leading the DOJ/FBI investigation,” Issa and Jordan wrote.

“For example,” they said, “according to Carter Hull, former Tax Law Specialist at IRS headquarters in Washington, D.C., his interview with DOJ/FBI ‘was led by Barbara Bosserman, who is an attorney in the Civil Rights division of the Department of Justice. See e-mail from Counsel to Carter Hull to Committee Staff.”

Rep. Jim Jordan (R.-Ohio) (AP Photo/J. Scott Applewhite)

“In addition,” Issa and Jordan informed Holder, “according to Steve Grodnitzky, former acting manager of the Exempt Organizations Technical Unit in Washington. D.C., his ‘interview was conducted by DOJ attorney Barbara Bosserman. See e-mail from Counsel to Steve Grodnitzky to Committee Staff.”

Issa and Jordan also told Holder that Federal Election Commission records showed that Bosserman had contributed “significant money” to President Obama’s campaigns.

“Ms. Bosserman is also a long-time financial backer of the Democratic National Committee,” they said. “At a minimum, Ms. Bosserman has donated nearly $7,000 to President Obama’s political campaigns and the Democratic National Committee in the past several years.”

The letter then itemized $6750.00 in contributions Issa and Jordan said FEC records indicated Bosserman had made to Obama and the DNC. These included $650.00 in contributions she made to the DNC; $500.00 she made to the Obama Victory Fund 2012; and $5,600 she had made to Obama for America.

“By selecting a significant donor to President Obama to lead an investigation into inappropriate targeting of conservative groups, the Department has created a startling conflict of interest,” Issa and Jordan told Holder. “It is unbelievable that the Department could choose such an individual to examine the federal government’s systematic targeting and harassment of organizations opposed to the President’s policies. At the very least, Ms. Bosserman’s involvement is highly inappropriate and has compromised the Administration’s investigation of the IRS.

“We request that you immediately remove Ms. Bosserman from the ongoing investigation,” said Issa and Holder.

Issa and Jordan asked Holder to explain the Justice Department’s decision to assign Bosserman to the case, and tell the committee how DOJ “intends to remedy the damage created by Ms. Bosserman’s leadership of and participation in the investigation.”

Two days later, the Justice Department told the Washington Post that it was impermissible as a matter of DOJ policy to consider Bosserman’s “political affiliation in making personnel decision about her, and that it might violate the equal opportunity law to remove her from the case.

"It is contrary to department policy and a prohibited personnel practice under federal law to consider the political affiliation of career employees or other non-merit factors in making personnel decisions," Justice Spokeswoman Dena Iverson was quoted as saying in the Post. "Removing a career employee from an investigation or case due to political affiliation, as chairmen Issa and Jordan have requested, could also violate the equal opportunity policy and the law."

(AP Photo/J. Scott Applewhite)

On January 22, Sen. Cruz sent his letter to Holder asking that the attorney general name a special counsel to investigate the case.

On March 5, Lois Lerner, now the former director of the IRS’s Exempt Organizations unit, appeared again in the Oversight Committee. Since her first appearance the previous May, the committee had approved a resolution rejecting Lerner’s claim to the Fifth Amendment based on the fact that she had voluntarily given a statement at her first appearance in the committee saying she had “not broken any laws."

Lerner, however, pleaded the Fifth again. “My counsel has advised me that I have not waived my constitutional rights under the Fifth Amendment, and on his advice, I will decline to answer any question on the subject matter of this hearing,” she said.

According to reports by The Hill and The Wall Street Journal, Lerner’s lawyer told reporters on the same day she invoked the Fifth for a second time in the Oversight Committee that she had in fact given an interview to the Department of Justice.

“Lerner has sat for a wide-ranging interview with the Justice Department, he added, but said dealing with those federal investigators was different,” reported the Hill.

“The difference is whether she has to sit there and be accused of being a criminal in public,” the lawyer, Bill Taylor, was quoted as saying by The Hill “You’ve seen those hearings. If you think those are fact-finding, then I’ve got some oceanfront property in Arizona for you.”

Last Thursday, Issa and Jordan wrote again to Attorney General Holder, decrying the Justice Department’s lack of cooperation and non-responsiveness to the committee’s inquiries.

This letter specifically indicated that a January 24 letter from Principal Deputy Assistant Attorney General Kadzik, sent in response to Issa and Jordan’s January 8 letter about the investigation of the IRS and campaign-contributor Barbara Bosserman role in it. Kadzik's letter, the congressmen said, provided “no useful information.”

“At every stage, the Department has outright refused to fully cooperate with the Committee,” Issa and Jordan told Holder in this new letter.

“Troubled by the manner in which the investigation appears to be conducted, we wrote to you on January 8, 2014, requesting information about the Administration’s investigation,” the lawmakers wrote. “Your Principal Deputy Assistant Attorney General for Legislative Affairs, Peter Kadzik, replied on your behalf, providing no useful information and instead equating our inquiry to the targeting of tax-exempt applicants.”

Issa and Jordan then asked Holder to provide some basic facts about the department’s interview of Lois Lerner, including all documents and communications relating to the scope, timing and scheduling of the interview.

They also request any documents and communications between the department, federal law enforcement officers and Lerner’s attorneys relating to question of immunity for Lerner. Additionally, they asked if Lerner invoked the Fifth Amendment or refused to answer any questions in her interview with department.

On Friday and again on Monday, emailed questions about the investigation of the IRS to the Public Affairs Office at the Department of Justice. also called the Public Affairs Office on Friday and Monday and was told on Monday afternoon that the questions had been forwarded to Public Affairs Specialist Dena Iverson. By late Monday afternoon, Iverson had not responded

Among the questions from that DOJ has not answered: “Does Barbara Bosserman continue to work on the investigation of the IRS targeting of Tea Party and conservative groups?”

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