The Justice Department has informed Congress that it will not be pursuing criminal charges against Lois Lerner or any other present or former officials of the Internal Revenue Service over the alleged targeting of conservative organizations who had applied for tax exempt status:
WASHINGTON—The Justice Department won’t charge Lois Lerner, a former Internal Revenue Service official, over Tea Party groups’ applications for tax-exempt status, closing a nearly 2 1/2-year investigation with a determination that IRS officials bungled the matter but committed no crimes.
“Our investigation uncovered substantial evidence of mismanagement, poor judgment and institutional inertia, leading to the belief by many tax-exempt applicants that the IRS targeted them based on their political viewpoints,” Assistant Attorney General Peter Kadzik wrote to Congress on Friday. “But poor management is not a crime.”
The announcement ends a major phase of the IRS controversy, angering Republicans and Tea Party activists who had pressed for prosecutions.
When the matter first erupted, it prompted bipartisan outrage and accusations that the IRS and Obama administration had pursued a vendetta against conservative groups. The truth proved to be more complex, and the investigations appear not to have revealed any direct involvement by White House officials.
Rep. Paul Ryan (R., Wis.), chairman of the House Ways and Means Committee who is poised to become speaker of the House, said the Justice Department’s decision was a “deeply disappointing” response to what he called the “serious and unprecedented actions” taken by Ms. Lerner.
“The American people deserve better than this,” Mr. Ryan said. “Despite the DOJ closing its investigation, the Ways and Means Committee will continue to find answers and hold the IRS accountable for its actions.”
Mark Meckler, a Tea Party leader and president of Citizens for Self Governance, which sued the IRS over the matter, called the decision “a whitewash and miscarriage of justice at the highest levels of law enforcement.”
But Rep. Elijah Cummings (D., Md.) portrayed the issue as one more example of Republican overreach. “Over the past five years, Republicans in the House of Representatives have squandered literally tens of millions of dollars going down all kinds of investigative rabbit holes-IRS, Planned Parenthood, Benghazi-with absolutely no evidence of illegal activity,” he said.
Ms. Lerner’s legal team at Zuckerman Spaeder issued a statement saying they were “gratified but not surprised” by the decision.
“Ms. Lerner is pleased to have this matter finally resolved and looks forward to moving forward with her life,” the statement said.
Ms. Lerner was director of the exempt organizations office at the IRS. On her watch, employees gave extra scrutiny to applications for nonprofit status from Tea Party groups, which were forming in the early years of the Obama administration in response to the president’s policies. In advance of an inspector general’s report, Ms. Lerner disclosed this added scrutiny in May 2013 and the IRS apologized.
The revelation led to the forced resignation of the acting IRS commissioner, Steven Miller, and several other senior officials left as well. Ms. Lerner was suspended and then retired later in 2013.
Ms. Lerner refused to answer questions from lawmakers at congressional hearings, invoking her constitutional right against self-incrimination. She did speak with prosecutors during about 12 hours of questioning, with no promise of immunity, according to the letter.
This entire story broke in the spring of 2013 when it came to light that the IRS office responsible for the the consideration of applications from organizations seeking tax exempt status under 501(c)(4) of the tax code was engaging in what seemed to be suspicious activities regarding applications from conservative organizations. Among other things, the applications from these groups were delayed longer than was typically the case for applications for 501(c)(4) status that were considered by the Cincinnati office over which Lerner had primary responsibility. In many cases, these groups were also being asked to provide evidence to prove that their actions were not explicitly political in nature in ways that were not applied to other groups also applying for 501(c)(4) status. Additionally, it was discovered during investigations by the agency’s own Inspector General that the Cincinnati office had explicitly sought out applications from groups whose names and other information indicated that they affiliated with Tea Party or similar conservative groups. While it is true that there was some similar scrutiny given to some liberal organizations, the overwhelming evidence showed that the main focus of the effort taking place in Cincinnati was on groups on the political right.
Not surprisingly, the revelations about how the IRS was handling 501(c)(4) applications from conservative groups ended up becoming the perfect political fodder for a Washington political “scandal.” For conservatives, the fact that what is perhaps the most universally hated agency of the Federal Government was singling out conservative groups for special scrutiny played right into the idea that the Obama Administration was conspiring against them in other ways as well. Within weeks after the story broke, hearings were convened by the House Government Oversight Committee, then headed by Congressman Darrel Issa, and that story had taken on a life of its own. As time when on, though, and the facts came forward it became clear that while what these IRS officials did may have been improper, and that it was right that they were dismissed or resigned, it was entirely unclear if there was any criminal liability. Outside of the Congressional investigation, the Justice Department opened an investigation of its own that was headed by career U.S. Attorneys that had been appointed by Republicans and Democrats. The letter sent to Congress yesterday, which I’ve embedded below, is the end result of that investigation and, for all intents and purposes, the end of any criminal inquiry into the IRS’s actions regarding these conservative organizations.
This is unlikely to be the end of the IRS targeting story, of course. Conservatives are unlikely to accept the conclusions of an Obama Justice Department regarding this matter notwithstanding the fact that the investigation was not handled by political appointees to the department. Indeed, the fact that the Department of Justice has concluded that there are not sufficient facts to warrant a criminal investigation will, in and of itself, likely become part of the claim that there has long been a conspiracy to both hobble the ability conservative organizations to oppose President Obama and the Democrats in the 2012 elections. The problem that this argument runs into, of course, is the fact that in the end the 501(c)(4) applications for nearly all of the organizations that were improperly targeted were ultimately approved. This fact was central to last year’s dismissal of most of the counts of a civil lawsuit against the IRS by one of the groups, with the Judge finding that the fact that the Plaintiffs were eventually granted the tax exempt status they sought, along with the fact that they could not really point to any damages due to the delay, made the lawsuits moot. As with the criminal investigation, the point here is that even though the actions in question may have been improper that doesn’t mean they were illegal under the criminal law or that they gave rise to any civil liability.
This may also not be the end of the road for former IRS official Lois Lerner. As you may recall, Lerner was among the first witnesses called by Chairman Issa’s committee to testify regarding the targeting scandal. Rather than answer questions, though, Lerner followed her attorney’s advice and asserted her rights under the Fifth Amendment to remain silent. Republicans on the committee and several conservative legal scholars, though, claimed that Lerner had waived her Fifth Amendment rights when she gave an opening statement in which, in general and rather vague terms, she denied and wrongdoing. As I said at the time, this argument seemed to be very weak to paint it in the best light, and that to the extent there was any doubt it should be resolved against the argument that her rights had been waived merely by making an opening statement. Despite this, several days after Lerner testified, the Committee voted on partisan lines that Lerner had waived her rights and then moved forward with a process that seemed designed to force her to testify. Despite several reports that Lerner would testify if granted immunity, the Committee eventually voted to hold Lerner in contempt nearly a year after her original testimony. Earlier this year, the Department of Justice informed Congress that it would decline to prosecute the contempt charge against Lerner because her claims under the Fifth Amendment appeared solid and the argument that she had waived those rights did not appear to have any merit. In theory, Congress could still choose to prosecute Lerner’s contempt civilly on its own in U.S. District Court, though.
Outside of possible future civil claims by conservative groups that were caught up in the targeting effort and possibly future contempt proceedings against Lerner, though, this matter appears to be closed.
Here is a copy of the Department of Justice letter:
