IRS Doc’s Showing Lerner Contacted DOJ abt Prosecution of Tax-Exempt Groups

Judicial Watch:

(Washington, DC) – Judicial Watch today released a new batch of internal IRS documents revealing that former IRS official Lois Lerner communicated with the Department of Justice (DOJ) about whether it was possible to criminally prosecute certain tax-exempt entities. The documents were obtained as a result of an October 2013 Judicial Watch Freedom of Information Act (FOIA) lawsuit filed against the Internal Revenue Service (IRS) after the agency refused to respond to four FOIA requests dating back to May 2013.

The newly released IRS documents contain 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 includes the following:

• May 8, 2013: Lerner to Flax

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…

• May 9, 2013: Flax to Lerner

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?

Lerner then “handed off” scheduling the issue to Senior Technical Adviser, Attorney Nancy Marks, who was then supposed to set up the meeting with the DOJ.  Lerner also decided that it would be DOJ’s decision as to whether representatives from the Federal Election Commission would attend.

Democratic Rhode Island Senator Sheldon Whitehouse had held a hearing on April 9during which, “in questioning the witnesses from DOJ and IRS, Whitehouse asked why they have not prosecuted 501(c)(4) groups that have seemingly made false statements about their political activities.”  Lerner described the impetus for this hearing in a March 27, 2013, email to top IRS staff:

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.

So, don’t be fooled about how this is being articulated – it is ALL about 501(c)(4) orgs and political activity

But in an email sent a few minutes earlier, Lerner acknowledged prosecutions would evidently be at odds with the law:

Whether there was a false statement or fraud regarding an [sic] description of an alleged political expenditure that doesn’t say vote for or vote against is not realistic under current law. Everyone is looking for a magic bullet or scapegoat — there isn’t one. The law in this area is just hard.

The documents also include email exchanges showing that before Lerner’s May 10, 2013, speech to the American Bar Association blaming “low-level” employees in Cincinnati for targeting tax-exempt organizations, the IRS Exempt Organizations division was scrambling to defuse the emerging targeting scandal:

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