Twenty months after the IRS scandal broke, there are still many unanswered questions about who was spearheading the agency’s scrutiny of conservative-leaning organizations. The Hill sought access to government documents that might provide a glimpse of the decision-making through a Freedom of Information Act (FOIA) request.
The Hill asked for 2013 emails and other correspondence between the IRS and the Treasury Inspector General for Tax Administration (TIGTA). The request specifically sought emails from former IRS official Lois Lerner and Treasury officials, including Secretary Jack Lew, while the inspector general was working on its explosive May 2013 report that the IRS used “inappropriate criteria” to review the political activities of tax-exempt groups.
TIGTA opted not to release any of the 512 documents covered by the request, citing various exemptions in the law. The Hill recently appealed the FOIA decision, but TIGTA denied the appeal. TIGTA also declined to comment for this article.
Will anyone be charged?
In its written response to The Hill, TIGTA cited FOIA exemptions ranging from interagency communication to personal privacy. It also claimed it cannot release relevant documents “when interference with the law enforcement proceedings can be reasonably expected.”
Yet, congressional Republicans say there is no evidence of any prosecution in the works, and media outlets have indicated that the Department of Justice and the FBI have already determined that no charges will be filed.
Rep. Jim Jordan (R-Ohio) notes that eight months after Lerner was held in contempt of Congress for not testifying at two hearings, the matter has not yet been referred to a grand jury. The contempt citation is in the hands of Ronald Machen, the U.S. attorney for the District of Columbia who was appointed by President Obama.
Asked for comment on the administration’s FOIA response to The Hill, Jordan said, “It’s par for the course. We’ve had a difficult time getting information from the IRS and the Department of Justice.” Jordan, a senior member of the House Oversight and Government Reform Committee, has held numerous hearings on the IRS scandal.
Last week, Senate Finance Committee Chairman Orrin Hatch (R-Utah) said the IRS recently delivered 86,000 pages of new documents to the panel. Hatch added, “These documents … were given to us without notice or explanation roughly twenty months after we made our initial document request [on the targeting].”
Republicans in both the House and Senate are stepping up their investigations of the IRS. They have criticized the IRS and TIGTA for not informing Congress about the Tea Party targeting before the 2012 presidential election. GOP lawmakers say the administration has largely stonewalled them, while Democrats have called the probes “a witch hunt.”
Who knew what when?
The crux of the GOP’s IRS targeting investigations is: Who knew what when?
On Friday, May 10, 2013, Lerner famously planted a question at an American Bar Association (ABA) conference where she acknowledged “inappropriate” handling of tax-exempt applications in 2012. Lerner, who has since said she did nothing wrong, released the news before the TIGTA report came out the following week.
The Obama administration considered several other options on how to release the information, including an April conference at Georgetown University and an April 25, 2013, Ways and Means subcommittee hearing. Then-Treasury chief of staff Mark Patterson told Republican investigators that he informed the White House about the IRS plan to disclose the targeting “so that the White House wouldn’t be surprised by the news.”
Soon after Lerner’s comments attracted national attention, White House officials acknowledged they knew about the report but didn’t tell Obama about it.
Lew told Congress he first heard about the IRS matter at a “getting to know you” meeting with TIGTA chief J. Russell George in March 2013. But he said he didn’t learn the full extent of the findings until the media reported Lerner’s remarks at the ABA meeting.
Lew served as White House chief of staff before succeeding Treasury Secretary Timothy Geithner in 2013. Republicans on Capitol Hill are considering asking Geithner questions later this year on what he knew about the IRS’s targeting.
Weekly activity reports
TIGTA sends the Treasury secretary “weekly activity reports” on what it is working on. These reports, which are common in the executive branch and obtained through a FOIA request, serve as a “heads up” to Cabinet heads from inspectors general. They include categories such as “potential or expected press stories,” “upcoming hearings” and TIGTA reports that are awaiting public release.
From January through early May 2013, TIGTA referenced 25 reports that were subsequently issued in the weekly activity reports to Lew. But the agency’s most explosive report was not included in any of these weekly memos. It is unclear why, though a government official pointed out that Lerner spoke about the targeting at the ABA conference before TIGTA released its report. Her comments likely accelerated the Treasury Department’s clearance process.
Regardless, TIGTA officials briefed IRS and Treasury officials in 2012 and 2013, according to TIGTA memos provided to Congress. On May 30, 2012, TIGTA informed then-IRS Commissioner Doug Shulman and his deputies that criteria targeting Tea Party groups “were being used. …”
Jordan said neither the IRS nor TIGTA informed the Congress at that time — less than six months before the 2012 elections. He also pointed out Shulman didn’t correct his March 22, 2012, testimony to the Ways and Means oversight subcommittee where he said “there is absolutely no targeting” of Tea Party groups.
TIGTA’s FOIA practices have come under criticism before. In the fall of last year, the U.S. District Court for the District of Columbia admonished the agency for its use of FOIA exemptions. Cause of Action, a nonprofit group that has sued TIGTA, announced in December that the agency declined to fork over more than 2,000 documents related to a FOIA request.
Judicial Watch, another group that has sued the Obama administration on FOIA, said in December that the DOJ withheld 832 documents pertaining to meetings between the IRS and the Justice Department’s Public Integrity Section and Election Crimes Division.
Some of the documents that The Hill requested were released to Judicial Watch last year after a judge ruled in favor of the conservative group’s lawsuit.
Attorney General Eric Holder said last week that the DOJ will soon release a report on the IRS targeting that will include “some final recommendations.”
Lerner, who pleaded the Fifth Amendment before Congress, has given a lengthy interview to DOJ officials.
*** Let’s go deeper. DOJ Emails Suggest IRS Counsel’s Office Slowed Investigation
WASHINGTON, DC, Feb 05, 2015 (Marketwired via COMTEX) — Judicial Watch today released new internal Department of Justice (DOJ) documents revealing that the Internal Revenue Service Office of Chief Counsel’s office delayed approval of an IRS employee’s meeting with DOJ and FBI investigators into the Obama IRS targeting scandal. The emails also detail the involvement the Public Integrity Section of the Justice Department’s Criminal Division with the investigation. The documents show the Public Integrity Section was investigating the IRS scandal only a month after it reached out to Lois Lerner about prosecuting targeted tax-exempt entities. This is the first window into the criminal investigation of the alleged IRS abuses.
The Public Integrity Section previously has been tied to an effort to work with the Obama IRS in an effort to prosecute the very groups and individuals critical of the Obama administration and the president’s reelection that the IRS has admitted to illicitly targeting.
The new documents were released by the DOJ as result of a court order in Judicial Watch Freedom of Information Act (FOIA) lawsuit (Judicial Watch v. U.S. Department of Justice (No. 14-cv-01239)). The lawsuit was filed after the DOJ failed to respond to a FOIA request seeking:
Any and all records concerning meetings and/or communications between the Department of Justice Criminal Division Public Integrity Section and the Internal Revenue Service Tax Exempt and Government Entities Division, the White House, Members of Congress and/or congressional staff, and any non-government entity, regarding 501(c)(4) or other tax-exempt organizations.
The emails show that, on June 12, 2013, the lawyer for a cooperating IRS employee in Cincinnati complained to a DOJ prosecutor about the IRS Counsel’s office delaying approval of a meeting between the IRS employee and Justice Department prosecutors: “[W]e find it amazing that they didn’t immediately respond giving us the green light to meet with you.”
The DOJ prosecutor wanted to know who the contact in the IRS Counsel’s office was and wrote back: “Let’s talk in am if they don’t get back to you. Thanks.” The new emails suggest that investigators had wanted to meet quickly but it was nearly a month before the unnamed IRS employee met to proffer evidence to two Justice Department prosecutors, two FBI officials, and an investigator from the Treasury Inspector General for Tax Administration. The proffer session seems to have taken place in the IRS’ Cincinnati office on July 11, 2013, and included the IRS employee’s attorney, who the documents suggest works at the Cincinnati area law firm Adams, Stepner, Woltermann & Dusing PLLC. The documents detail that the proffer took place after a Garrity immunity waiver was secured for the IRS witness. Garrity immunity assures the right of public employees not to be compelled to incriminate themselves.
The email exchanges show that a trial attorney from the Public Integrity Section was partnered with an unnamed attorney from the Civil Rights Division of the Justice Department.
Barbara Bosserman, an attorney at the Civil Rights Division, has been reported to be leading the IRS investigation at Justice. The DOJ, in court filings in another Judicial Watch lawsuit about Bosserman’s role in the case, confirmed that she is one of the attorneys investigating the IRS matter. According to Federal Election Commission records, Bosserman contributed $6,750 to Obama’s campaigns and the DNC from 2004 to 2012, including 12 separate contributions to Obama for America between 2008 and 2012.
William J. Wilkins, the Chief Counsel for the IRS, is a political appointee of President Obama’s. Wilkins was a former Democratic staffer the U.S Senate, a donor to Democratic candidates and committees, and was a lobbyist for several years. The May 14, 2013, Treasury Inspector General report that revealed that the IRS had singled out groups with conservative-sounding terms such as “patriot” and “Tea Party” in their titles when applying for tax-exempt status details that the “Chief Counsel” was involved in the IRS’s Tea Party and conservative targeting.
In this second “rolling production,” the Justice Department released 34 pages of heavily redacted emails, while admitting that it had reviewed 938 pages of responsive records related to its contacts with the IRS concerning the criminal prosecution of targeted tax exempt entities. As of today’s date, the DOJ has reviewed 1,772 pages of records in this case, but only produced 36 heavily redacted pages. Held in their entirety are 1,736 pages.
The new documents also provide detail on what the investigators were examining and the nature of the documents it wanted from the IRS witness. On July 12, 2013, the DOJ attorney (whose name is blacked out) emails:
First, we would appreciate receiving the time line related to the “TAG spreadsheet” and “BOLO” that [REDACTED] prepared. As we stated, that timeline will be covered by the proffer agreement she executed yesterday. Second, we would also appreciate obtaining the email communications that you obtained from [REDACTED-BLACKED OUT] pertaining to the 501(c)-application issues we discussed yesterday, i.e., the public allegations that the IRS “targeted” certain groups based on their political viewpoints, in particular groups associated with the ‘Tea Party.” As I explained yesterday, due to the filter procedures we have in place, could you please divide the communications into two groups, those dated before and those dated on or after March 1, 2012? To the extent practical, the emails dated on or after March 1, 2012, should be placed in a sealed envelope or otherwise clearly separated from the first batch (i.e., if they are scanned and emailed, please do so in separate files). To the extent any of these applications contain taxpayer information, return information, and/or taxpayer return information, the Department of Justice and the FBI have referral authority under 18 U.S.C. 6103(h) to view this information by virtue of our participation in a joint investigation with TIGTA.
The documents do not detail why the emails needed to be “filtered” according to the March 1, 2012, date, though there is a reference to Justice Department “filter team” elsewhere in the material.
“The IRS scandal is getting worse. These documents show that the Obama IRS Counsel’s office, run by an Obama political appointee, was stonewalling a federal criminal investigation. And only in the Holder Justice Department would it be deemed appropriate that the offices implicated in the IRS abuses should investigate the IRS abuses,” said Judicial Watch President Tom Fitton. “And one might wonder why the Justice Department was so quick to offer an immunity deal to an IRS employee. This is an ugly mess and it is no surprise that, after nearly two years, the criminal investigation of the Obama IRS by its co-conspirators at the Obama Justice Department is widely acknowledged as a farce.”
In early December 2014, Judicial Watch released the first batch of internal DOJ documents revealing that former IRS official Lois Lerner had been in contact with DOJ officials about the possible criminal prosecution of tax-exempt entities two full years before what the IRS conceded was its “absolutely inappropriate” 2012 targeting of the organizations. According to the documents, Lerner met with top Obama DOJ Criminal Division officials as early as October 2010.
In April 2014, Judicial Watch forced, through a federal court order, the release of IRS documents revealing that the Department of Justice’s Public Integrity Section reached out to former IRS official Lois Lerner on May 8, 2013, about whether it was possible to criminally prosecute targeted tax-exempt entities. The documents were obtained as a result of an October 2013 Judicial Watch FOIA lawsuit filed against the IRS.
