Judicial Watch today released new Department of Justice (DOJ) and Internal Revenue Service (IRS) documents that include an official “DOJ Recap” report detailing an October 2010 meeting between Lois Lerner, DOJ officials and the FBI to plan for the possible criminal prosecution of targeted nonprofit organizations for alleged illegal political activity.
The newly obtained records also reveal that the Obama DOJ wanted IRS employees who were going to testify to Congress to turn over documents to the DOJ before giving them to Congress. Records also detail how the Obama IRS gave the FBI 21 computer disks, containing 1.25 million pages of confidential IRS returns from 113,000 nonprofit social 501(c)(4) welfare groups – or nearly every 501(c)(4) in the United States – as part of its prosecution effort. According to a letter from then-House Oversight Committee Chairman Darrell Issa (R-CA) to IRS Commissioner John Koskinen, “This revelation likely means that the IRS – including possibly Lois Lerner – violated federal tax law by transmitting this information to the Justice Department.”
The documents were produced subsequent to court orders in two Judicial Watch Freedom of Information Act (FOIA) lawsuits: Judicial Watch v. Internal Revenue Service (No. 1:14-cv-1956) and Judicial Watch v. Department of Justice (No. 1:14-cv-1239).
The new IRS documents include a October 11, 2010 “DOJ Recap” memo sent by IRS Exempt Organizations Tax Law Specialist Siri Buller to Lerner and other top IRS officials explaining an October 8 meeting with representatives from the Department of Justice Criminal Division’s Public Integrity Section and “one representative from the FBI” to discuss the possible criminal prosecution of nonprofit organizations for alleged political activity:
On October 8, 2010, Lois Lerner, Joe Urban [IRS Technical Advisor, TEGE], Judy Kindell [top aide to Lerner], Justin Lowe [Technical Advisor to the Commissioner of Tax-Exempt and Government Entities], and Siri Buller met with the section chief and other attorneys from the Department of Justice Criminal Division’s Public Integrity Section, and one representative from the FBI, to discuss recent attention to the political activity of exempt organizations.
The section’s attorneys expressed concern that certain section 501(c) organizations are actually political committees “posing” as if they are not subject to FEC law, and therefore may be subject to criminal liability. The attorneys mentioned several possible theories to bring criminal charges under FEC law. In response, Lois and Judy eloquently explained the following points:
- Under section 7805(b), we may only revoke or modify an organization’s exemption retroactively if it omitted or misstated a material fact or operated in a manner materially different from that originally represented.
- If we do not have these misrepresentations, the organization may rely on our determination it is exempt. However, the likelihood of revocation is diminished by the fact that section 501(c)(4)-(c)(6) organizations are not required to apply for recognition of exemption.
- We discussed the hypothetical situation of a section 501(c)(4) organization that declares itself exempt as a social welfare organization, but at the end of the taxable year has in fact functioned as a political organization. Judy explained that such an organization, in order to be in compliance, would simply file Form 1120-POL and paying tax at the highest corporate rate.
Lois stated that although we do not believe that organizations which are subject to a civil audit subsequently receive any type of immunity from a criminal investigation, she will refer them to individuals from CI who can better answer that question. She explained that we are legally required to separate the civil and criminal aspects of any examination and that while we do not have EO law experts in CI, our FIU agents are experienced in coordinating with CI.
The attorneys asked whether a change in the law is necessary, and whether a three-way partnership among DOJ, the FEC, and the IRS is possible to prevent prohibited activity by these organizations. Lois listed a number of obstacles to the attorneys’ theories:
She pointed to Revenue Ruling 2004-6, which was drafted in light of the electioneering communication rules before they were litigated.
Just prior this meeting, the IRS began the process of providing the FBI confidential taxpayer information on nonprofit groups. An IRS document confirms the IRS supplied the FBI with 21 disks containing 1.25 million pages of taxpayer records:
FROM: Hamilton David K
SENT: Tuesday, October 5, 2010 2:49 PM
TO: Whittaker Sherry [Director, GE Program Management], Blackwell Robert M
SUBJECT: RE: Question
There are 113,000 C4 returns from January 1, 2007 to now. Assuming they want all pages including redacted ones, that’s 1.25 million pages … If we get started on it right away, before the 10th when the monthly extracts start, we can probably get it done in a week or so….
The DOJ documents also include a July 16, 2013, email from an undisclosed Justice Department official to a lawyer for IRS employees asking that the Obama administration get information from congressional witnesses before Congress does:
One last issue. If any of your clients have documents they are providing to Congress that you can (or would like to) provide to us before their testimony, we would be pleased to receive them. We are 6103 authorized and I can connect you with TIGTA to confirm; we would like the unredacted documents.
“These new documents show that the Obama IRS scandal is also an Obama DOJ and FBI scandal,” said Judicial Watch President Tom Fitton. “The FBI and Justice Department worked with Lois Lerner and the IRS to concoct some reason to put President Obama’s opponents in jail before his reelection. And this abuse resulted in the FBI’s illegally obtaining confidential taxpayer information. How can the Justice Department and FBI investigate the very scandal in which they are implicated?”
On April 16, 2014, Judicial Watch forced the IRS to release documents revealing for the first time that Lerner communicated with the DOJ in May 2013 about whether it was possible to launch criminal prosecutions against targeted tax-exempt entities. The documents were obtained due to court order in an October 2013 Judicial Watch FOIA lawsuit filed against the IRS.
Those documents contained an email exchange between Lerner and Nikole C. Flax, then-chief of staff to then-Acting IRS Commissioner Steven T. Miller discussing plans to work with the DOJ to prosecute nonprofit groups that “lied” (Lerner’s quotation marks) about political activities. The exchange included a May 8, 2013, email by Lerner:
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…
Democratic Rhode Island Senator Sheldon Whitehouse held a hearing on April 9, 2013, during which, “in questioning the witnesses from the DOJ and IRS, Whitehouse asked why they have not prosecuted 501(c)(4) groups that have seemingly made false statements about their political activities…”
The House Oversight Committee followed up on these Judicial Watch disclosures with hearings and interviews of Pilger and his boss, DOJ Public Integrity Chief Jack Smith. Besides confirming the DOJ’s 2013 communications with Lerner, Pilger admitted to the committee that DOJ officials met with Lerner in October 2010. Judicial Watch obtained new documents about these meetings in December 2014 showing the Obama DOJ initiated outreach to the IRS about prosecuting tax-exempt entities.
Following Judicial Watch’s lead, the House also found out about the IRS transmittal of the confidential taxpayer information to the FBI. Because of this public disclosure, the FBI was forced to return the 1.25 million pages to the IRS.