First published in the New York Post, January 29, 2015
At her confirmation hearings Wednesday, Loretta Lynch said sheâ€™s only â€œgenerally awareâ€ of the Justice Departmentâ€™s investigation of IRS targeting of conservative groups.
As a service for our likely new attorney general, hereâ€™s a primer on why so many in Congress want a special counsel in the IRS case.
Under federal rules, the attorney general appoints a special counsel â€œwhen he or she determines that criminal investigation of a person or matter . . . would present a conflict of interest for the Department or other extraordinary circumstances.â€
In this case, thereâ€™s both.
On May 14, 2013, the Treasury Departmentâ€™s Inspector General reported that the IRS had â€œused inappropriate criteria that identified for review Tea Party and other organizations applying for tax-exempt status based upon their names or policy positions.â€
Responding to the public outcry, Attorney General Eric Holder announced, â€œI have ordered an investigation to be begun. The FBI is coordinating with the Justice Department to see if any laws were broken.â€
Problem is, Justice had long been interested in IRS investigations of tax-exempt groups.
Back in October 2010, the head of Justiceâ€™s Election Crimes Branch, Richard Pilger, met with IRS Exempt Organizations Director Lois Lerner â€” the woman at the center of the affair.
As Pilger later told House investigators, the meeting came at the request of Jack Smith, the director of Justiceâ€™s powerful Public Integrity Section.
It was one month before the 2010 midterm elections. The Tea Party was on the rise. Democrats were arguing that the Supreme Courtâ€™s decision in Citizens United that January had unleashed a torrent of campaign spending.
Within weeks of the Citizens United ruling, according to the Treasury IGâ€™s report, a Cincinnati-based IRS unit under Lernerâ€™s direction began searching for tax-exemption requests involving the words â€œTea Partyâ€ and other â€œpolitical sounding names.â€
So Lerner had been at work for months when she met with Pilger that October 2010. He told investigators that the meeting was to explore being â€œmore vigilant to the opportunities from more crimeâ€ in the tax-exempt organizations area.
Lernerâ€™s agenda was clear. Days after the meeting with Pilger, she addressed the Citizens United decision in a talk at Duke University.
â€œThey want the IRS to fix the problem,â€ Lerner said. â€œSo everybody is screaming at us right now: â€˜Fix it before the [2010 midterm] election. Canâ€™t you see how much these people are spending?â€™â€
The October 2010 events are significant. They establish high-level Justice Department interest in IRS targeting of conservative groups.
The events also set a partisan political context to the Justice and IRS actions: Everyone â€” meaning, everyone in liberal Democratic circles â€” is screaming at us right now to fix Citizens United.
Three years later, Pilger and Lerner were still at it. In a May 2013 e-mail uncovered by Judicial Watch, Lerner discussed with a colleague a call from Pilger on the thoughts of Sen. Sheldon Whitehouse (D-RI) about building â€œfalse-statement casesâ€ against tax-exempt groups.
Whitehouseâ€™s â€œidea,â€ Lerner wrote, was â€œthat DoJ could piece together false-statement cases about applicants who â€˜liedâ€™ on their [tax-exempt applications].â€ She added, â€œDoJ is feeling like it needs to respond.â€
Smith and Pilger arenâ€™t the only Justice Department officials with conflicts of interest in the IRS case.
Another sign that Justice has a conflict of interest here is the woman tapped to lead its IRS investigation: Barbara Bosserman of the departmentâ€™s Civil Rights Division. She has no apparent experience in cases where high-level political wrongdoing is at issue.
And she gave almost $7,000 to President Obamaâ€™s political campaigns and the Democratic National Committee. In 2009, according to Fox News, she attended a White House event hosted by the president.
Then thereâ€™s Andrew Strelka. Working in Justiceâ€™s Tax Division, he represented the IRS in two civil cases related to the targeting of tax-exempt groups, including a Freedom of Information battle with Judicial Watch. And before Justice, he worked for the IRS in Lois Lernerâ€™s Exempt Organizations division.
â€œI cherished my time in the EO family,â€ Strelka e-mailed Lerner, â€œand I owe a big thanks to you for hiring me.â€
Strelkaâ€™s ties to Lerner were so strong that both Treasury and Justice interviewed him in their IRS probes. But when he was defending the IRS in targeting matters, he failed to disclose to the judge or opposing counsel his ties to the IRS and Lerner.
The involvement of Smith, Pilger, Bosserman and Strelka all point to conflicts of interest for the Justice Department in the case.
Lynch should also weigh the statements of President Obama.
In December 2013, he waved off concerns about IRS pressure on his political opponents, saying a â€œbureaucratic .â€‰.â€‰. listâ€ drawn up in â€œan office in Cincinnatiâ€ was the cause of Tea Party targeting. The next February, he said on Fox News that there was â€œnot even a smidgen of corruptionâ€ in the IRS targeting affair.
In fact, we still donâ€™t know how far up the political food chain the malfeasance goes. Among other things, investigators are still pouring through tens of thousands of e-mails uncovered months after the IRS had insisted they were lost.
But we do know the Justice Department investigation has been compromised, not least by the president announcing its conclusions before the probe is complete.
Lynch should move fast to restore an aura of independence and impartiality to the investigation by turning it over to a special counsel.
Micah Morrison is chief investigative reporter for Judicial Watch.