According to new IRS emails obtained through a Freedom of Information Act request from Judicial Watch, former head of tax exempt groups at the IRS Lois Lerner was in contact with the Department of Justice in May 2013 about whether tax exempt groups could be criminally prosecuted for "lying" about political activity.
"I got a call today from Richard Pilger Director Elections Crimes Branch at DOJ ... He wanted to know who at IRS the DOJ folk s [sic] could talk to about Sen. Whitehouse idea at the hearing that DOJ could piece together false statement cases about applicants who "lied" on their 1024s --saying they weren't planning on doing political activity, and then turning around and making large visible political expenditures. DOJ is feeling like it needs to respond, but want to talk to the right folks at IRS to see whether there are impediments from our side and what, if any damage this might do to IRS programs. I told him that sounded like we might need several folks from IRS," Lerner wrote in a May 8, 2013 email to former Nikole C. Flax, who was former-Acting IRS Commissioner Steven T. Miller's chief of staff.
"I think we should do it – also need to include CI [Criminal Investigation Division], which we can help coordinate. Also, we need to reach out to FEC. Does it make sense to consider including them in this or keep it separate?" Flax responded on May 9, 2013.
After this email exchange, Lerner handed things off to Senior Technical Adviser and Attorney Nancy Marks, who was in charge of setting up a meeting with DOJ.
Just a few short days later on May 10, 2013, Lerner admitted and apologized for the inappropriate targeting of conservative tea party groups during an American Bar Association Conference after answering a planted question. Further according to Judicial Watch, "In an email to an aide responding to a request for information from a Washington Post reporter, Lerner admits that she “can’t confirm that there was anyone on the other side of the political spectrum” who had been targeted by the IRS. She then adds that “The one with the names used were only know [sic] because they have been very loud in the press.”
In other words, only conservative groups were being looked at for criminal prosecution.
Last week news broke that Democratic Rep. Elijah Cummings' staff was in contact with Lerner about the conservative group True the Vote, despite denying any contact occurred. In this specific instance of Lerner discussing possible criminal prosecution of tax-exempt groups through DOJ, Democratic Senator Sheldon Whitehouse seems to have been the person to get the ball rolling.
On April 9, 2013 during a Senate Judiciary Hearing, just one month before the targeting scandal broke, Whitehouse asked witnesses from DOJ and the IRS why groups that had possibly "made false statements" about their political activities had not been prosecuted. On March 27, 2013, just days before the hearing took place, Lerner described the purpose for the hearing to IRS staff in an email.
"As I mentioned yesterday -- there are several groups of folks from the FEC world that are pushing tax fraud prosecution for c4s who report they are not conducting political activity when they are (or these folks think they are). One is my ex-boss Larry Noble (former General Counsel at the FEC), who is now president of Americans for Campaign Reform. This is their latest push to shut these down. One IRS prosecution would make an impact and they wouldn't feel so comfortable doing the stuff," she wrote. "So, don't be fooled about how this is being articulated – it is ALL about 501(c)(4) orgs and political activity."
Lerner later acknowledged pursuing prosecutions of these groups would not fit well with the law.
“These new emails show that the day before she broke the news of the IRS scandal, Lois Lerner was talking to a top Obama Justice Department official about whether the DOJ could prosecute the very same organizations that the IRS had already improperly targeted,” Judicial Watch President Tom Fitton said in a statement. “The IRS emails show Eric Holder’s Department of Justice is now implicated and conflicted in the IRS scandal. No wonder we had to sue in federal court to get these documents.”
This post has been updated.
Editors note/correction: A previous version of this post stated and implied Lois Lerner contacted the DOJ about criminal prosecution when the emails state she in fact got a phone call from DOJ about the issue. While she was clearly in contact with DOJ about criminal prosecution for tax exempt groups, DOJ initiated the contact in this specific instance. Emails also show Lerner and Flax responded to both recommendations by Senator Whitehouse and DOJ to look into criminal prosecution. The headline to this post has also been updated.