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EXAMINING THE JUSTICE DEPARTMENT’S 

RESPONSE TO THE IRS TARGETING SCANDAL 

HEARING 

BEFORE THE

SUBCOMMITTEE ON ECONOMIC GROWTH, 

JOB CREATION AND REGULATORY AFFAIRS 

OF THE

COMMITTEE ON OVERSIGHT 

AND GOVERNMENT REFORM 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

JULY 17, 2014 

Serial No. 113–160 

Printed for the use of the Committee on Oversight and Government Reform 

( 

Available via the World Wide Web: http://www.fdsys.gov 

http://www.house.gov/reform 
(II) 

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM 

DARRELL E. ISSA, California, Chairman 

JOHN L. MICA, Florida 

MICHAEL R. TURNER, Ohio 

JOHN J. DUNCAN, JR., Tennessee 

PATRICK T. MCHENRY, North Carolina 

JIM JORDAN, Ohio 

JASON CHAFFETZ, Utah 

TIM WALBERG, Michigan 

JAMES LANKFORD, Oklahoma 

JUSTIN AMASH, Michigan 

PAUL A. GOSAR, Arizona 

PATRICK MEEHAN, Pennsylvania 

SCOTT DESJARLAIS, Tennessee 

TREY GOWDY, South Carolina 

BLAKE FARENTHOLD, Texas 

DOC HASTINGS, Washington 

CYNTHIA M. LUMMIS, Wyoming 

ROB WOODALL, Georgia 

THOMAS MASSIE, Kentucky 

DOUG COLLINS, Georgia 

MARK MEADOWS, North Carolina 

KERRY L. BENTIVOLIO, Michigan 

RON DESANTIS, Florida 

ELIJAH E. CUMMINGS, Maryland, Ranking 

Minority Member 

CAROLYN B. MALONEY, New York 

ELEANOR HOLMES NORTON, District of 

Columbia 

JOHN F. TIERNEY, Massachusetts 

WM. LACY CLAY, Missouri 

STEPHEN F. LYNCH, Massachusetts 

JIM COOPER, Tennessee 

GERALD E. CONNOLLY, Virginia 

JACKIE SPEIER, California 

MATTHEW A. CARTWRIGHT, Pennsylvania 

TAMMY DUCKWORTH, Illinois 

ROBIN L. KELLY, Illinois 

DANNY K. DAVIS, Illinois 

PETER WELCH, Vermont 

TONY CARDENAS, California 

STEVEN A. HORSFORD, Nevada 

MICHELLE LUJAN GRISHAM, New Mexico 

Vacancy 

LAWRENCE J. BRADY, Staff Director 

JOHN D. CUADERES, Deputy Staff Director 

STEPHEN CASTOR, General Counsel 

LINDA A. GOOD, Chief Clerk 

DAVID RAPALLO, Minority Staff Director 

SUBCOMMITTEE ON ECONOMIC GROWTH, JOB CREATION AND REGULATORY AFFAIRS

JIM JORDAN, Ohio, Chairman 

JOHN J. DUNCAN Jr., Tennessee 

PATRICK T. MCHENRY, North Carolina 

PAUL GOSAR, Arizona 

PATRICK MEEHAN, Pennsylvania 

SCOTT DESJARLAIS, Tennessee 

DOC HASTINGS, Washington 

CYNTHIA LUMMIS, Wyoming 

DOUG COLLINS, Georgia 

MARK MEADOWS, North Carolina 

KERRY BENTIVOLIO, Michigan 

RON DESANTIS Florida 

MATTHEW A. CARTWRIGHT, Pennsylvania, 

Ranking Minority Member 

TAMMY DUCKWORTH, Illinois 

GERALD E. CONNOLLY, Virginia 

MARK POCAN, Wisconsin 

DANNY K. DAVIS, Illinois 

STEVEN A. HORSFORD, Nevada 
(III) 

C O N T E N T S 

Page 

Hearing held on July 17, 2014 ............................................................................... 1 

WITNESSES 

The Hon. James M. Cole, Deputy Attorney General, U.S. Department of 

Justice 

Oral Statement ................................................................................................. 6 

Written Statement ............................................................................................ 9 

APPENDIX 

Memo from Democratic staff regarding the hearing, submitted by Mr. 

Cummings ............................................................................................................. 66 

E-mails from 2010 to Lois Lerner, submitted by Mr. Jordan .............................. 98 

Legal Opinion from 1984, submitted by Mr. Cummings ...................................... 100 

Questions for the record, submitted by Mr. Jordan .............................................. 132 

(1) 

EXAMINING THE JUSTICE DEPARTMENT’S 

RESPONSE TO THE IRS TARGETING SCANDAL 

Thursday, July 17, 2014 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON ECONOMIC GROWTH, JOB CREATION, AND REGULATORY AFFAIRS, COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM, Washington, DC. 

The subcommittee met, pursuant to notice, at 9:04 a.m., in room 

2154, Rayburn House Office Building, Hon. Jim Jordan (chairman 

of the subcommittee) presiding. 

Present: Representatives Jordan, DeSantis, Duncan, Gosar, 

Meadows, Bentivolio, Issa, Gowdy, Cartwright, Duckworth, 

Connolly, Kelly, Horsford, and Cummings. 

Staff present: Melissa Beaumont, Assistant Clerk; Molly Boyl, 

Deputy General Counsel and Parliamentarian; Lawrence J. Brady, 

Staff Director; David Brewer, Senior Counsel; Steve Castor, General Counsel; Drew Colliatie, Professional Staff Member; John 

Cuaderes, Deputy Staff Director; Tyler Grimm, Senior Professional 

Staff Member; Christopher Hixon, Chief Counsel for Oversight; 

Laura L. Rush, Deputy Chief Clerk; Jessica Seale, Digital Director; 

Andrew Shult, Deputy Digital Director; Katy Summerlin, Press Assistant, Sarah Vance, Assistant Clerk; Tamara Alexander, Minority 

Counsel; Meghan Berroya, Minority Chief Counsel; Aryele Bradford, Minority Press Secretary; Jennifer Hoffman, Minority Communications Director; Juan McCullum, Minority Clerk; Donald 

Sherman, Minority Chief Oversight Counsel; and Katie Teleky, Minority Staff Assistant. 

Mr. JORDAN. The committee will come to order. I want to welcome our guests, and we will get to our witness here in just a few 

minutes. The subcommittee’s hearing today continues the committee’s ongoing oversight of the IRS and its targeting of conservative 

tax-exempt groups. 

On May 10, 2013, Lois Lerner apologized for the Internal Revenue Service targeting and responding to a planted question at an 

obscure tax law event. Four days later, Attorney General, Eric 

Holder, called the targeting outrageous and unacceptable. He 

vowed that the Justice Department would begin a criminal investigation. That was May of last year. Here we are now, 14 months 

later and we have heard virtually nothing from the administration 

about its criminal investigation. What we have heard gives members on both sides of the aisle cause for concern. 

We have learned that Barbara Bosserman, an attorney in the 

civil rights division, is playing a leading role in the investigation. 
2 

Ms. Bosserman is a substantial contributor to the President and 

the Democrat National Committee, and now it is her job to investigate the targeting of people who opposed the President’s policies. 

The Attorney General then comes out and says Ms. Bosserman 

is not alone. She is working with the public integrity section and, 

of course, the Federal Bureau of Investigation. Then we learn that 

the public integrity section and the FBI actually met with Lois 

Lerner in 2010 to discuss how to bring prosecution against these 

groups; the very same groups that were targeted by the IRS. 

These are serious apparent conflicts of interests, but the Justice 

Department just wants us to look the other way. No big deal, they 

say. Then we have unnamed law enforcement sources who leaked 

to the Wall Street Journal that no criminal charges were gonna be 

filed in the IRS targeting investigation. And then you have the 

President of the United States go on national television and say 

there is not a smidgen of corruption in the Internal Revenue Service. Well, if that is not prejudging the investigation I don’t know 

what is. 

The House has passed a resolution calling on the attorney general to appoint a special prosecutor. Twenty-six Democrats—and I 

stress that, 26 Democrats—joined every single Republican in the 

House of Representatives in approving this measure. But the administration still won’t do anything. They still won’t appoint a special prosecutor. My question is this: what more will it take for the 

administration to appoint a special counsel? And then we find out 

just last month that the IRS lost 2 years of emails from Lois 

Lerner due to a hard drive crash. 

Mr. Cole’s testimony says that the Justice Department is investigating. That, of course, is good. Someone in the administration 

recognizes that there is something rotten with missing emails. But 

more must be done. We have serious concerns about the administration’s investigation and serious questions for our witness today. 

We need to hold all wrongdoers accountable for the targeting of 

Americans for exercising their First Amendment rights to speak 

out in a political fashion. And that is why this hearing is so important. 

And with that, I would yield to Mr. Cummings—— 

Mr. CUMMINGS. Thank you very much, Mr. Chairman—— 

Mr. JORDAN [continuing]. For an opening Statement. The gentleman is recognized. 

Mr. CUMMINGS. Chairman Jordan, and I welcome to this hearing 

Deputy Attorney General Cole. For more than a year, Republicans 

have claimed that the White House directed the IRS to target conservative groups. But now that we have conducted our investigation, we know the truth. There is no evidence to suggest that the 

White House played any role in directing or developing the search 

terms identified by the inspector general as, ‘‘inappropriate,’’ or any 

other aspect of how IRS employees processed these applications. 

We have now conducted, ladies and gentlemen, 42 interviews. 

These were witnesses that were called by the Republicans, and 

they make it very clear that an IRS screening agent in Cincinnati 

developed these inappropriate criteria on his own. We also know, 

from his supervisor—who described himself as a conservative Republican, that is his quote—that he did this not for political rea-
3 

sons but because he was trying to treat similar cases consistently. 

Not one of the witnesses we interviewed, including senior officials 

at the IRS, the Treasury Department and the Justice Department 

identified any White House role in this process. 

Our investigation also confirmed the findings of the inspector 

general, who was appointed by Republicans, whose audit Stated 

that the IRS employees reported that they were, ‘‘not influenced by 

any individual or organization outside the IRS.’’ The inspector general has testified repeatedly before Congress that he has identified 

no evidence of any White House role or political motivation. 

So now, the Republicans have a different argument, although 

they are still trying to somehow link this to the White House. Now 

they claim that the targeting of the conservative groups is a massive governmentwide conspiracy involving the President, the IRS, 

the Securities and Exchange Commission, the Federal Election 

Commission and numerous other agencies, all coordinated in response to the Supreme Court’s decision in Citizens United. 

They claim that the Justice Department is a key player in the 

conspiracy. They accuse the department of engaging in criminal— 

they accuse the Justice Department of the United States of America of engaging in criminal activity by obstructing the committee. 

They claim the department is delaying or even closing down its 

own investigation for political reasons. And they claim that the appointment of a special counsel is needed. 

Mr. Chairman, our staff prepared a detailed, 32-page memo that 

sets forth the top 10 most egregious accusations against the Department of Justice as well as specific responses showing why each 

one is unsubstantiated. And I ask unanimous consent that this 

memo be entered into the official hearing record. 

Mr. JORDAN. Without objection. 

Mr. CUMMINGS. Let me address just one of these allegations. 

Last month, Chairman Issa and Chairman Jordan sent a letter to 

the attorney general claiming that their department conspired with 

the IRS to compile an illicit registry with more than a million 

pages of confidential taxpayer information in order to criminally 

prosecute conservative groups for their political speech. Here is 

what that letter said. 

‘‘The IRS transmitted 21 disks containing over 1.1 million pages 

of non-profit tax return information, including confidential taxpayer information protected by Federal law to the Federal Bureau 

of Investigation in October 2010.’’ 

Their letter then accused the department of working with the 

IRS to ‘‘assemble a massive data base of non-profit groups,’’ which 

they called, ‘‘an illicit and comprehensive registry.’’ These accusations are complete nonsense. There is no illicit registry, there is no 

singling out of conservative groups. The vast majority of information was available to the general public. And this information was 

never used for any investigation or prosecution. In 2010, the IRS 

provided form 990’s not only from conservative groups, but from all 

groups regardless of political affiliation. 

And it wasn’t until earlier this year, more than 3 years later, 

that the department discovered that a very limited amount of confidential taxpayer information was stored on those disks. This was 
4 

an inadvertent error that affected only 33 of 12,000 forms on those 

disks; less than half of 1 percent. 

The bottom line, as I close, is that these disks were never even 

reviewed by the FBI or used as part of any investigation or prosecution. On May 29, the department wrote a letter to the committee, stating as follows, ‘‘FBI advises that upon receipt of the 

disks an analyst imported the index which is set forth in one of the 

disks into a spreadsheet, but did nothing further with the disks. 

And to the best of our knowledge, the information contained on the 

disks was never utilized for any investigative purpose.’’ 

That is from the FBI. Where is the so-called illicit registry. The 

fact is that it simply does not exist. This is not the basis of a White 

House scandal. This is the latest example of Republicans desperately searching for one and then using any excuse they can to 

manipulate the facts until they no longer have any resemblance to 

the truth. Our committee has now held 10 hearings on the issue, 

and the IRS has spent more than $18 million responding to congressional investigations. It is time to stop wasting millions of taxpayer dollars and start focusing on reforms to help our government 

work more effectively and efficiently for the American people. 

And with that, I yield back. 

Mr. JORDAN. I thank the gentleman. I would just also ask for 

unanimous consent to enter into the record a couple of emails from 

2010 from Mr. Pilger, a lawyer in the public integrity section of the 

Justice Department. Emails to Lois Lerner, and I will just quote— 

‘‘Thanks, Lois. The FBI says raw format is best because they can 

put this into their systems.’’ Again, the point that the ranking 

member was just talking about: 1.1 million pages, 21 disks of information. The FBI got it in exact format they wanted. Had this information for 4 years. And I am aware of the testimony from the Justice Department that they did not use this information. 

But what I also know is they had it for 4 years and it did contain 

6103 confidential taxpayer information. 

Mr. CUMMINGS. Would the gentleman yield for just—— 

Mr. JORDAN. I would ask unanimous consent, I would ask that 

we enter this into the record, as well. 

Mr. CUMMINGS [continuing]. The gentleman yield just 15 seconds? 

Mr. JORDAN. I recognize the ranking member. 

Mr. CUMMINGS. And I would ask that Mr. Cole—since we want 

to be effective and efficient and not be caught up in distraction and 

dysfunction—that when he answers his questions that he be allowed to answer what you just Stated. Because I want to hear the 

answer to that, too. All right? 

Mr. JORDAN. But I do, too, because we are gonna ask him about 

it. 

Mr. CUMMINGS. All right. 

Mr. JORDAN. I hope he does answer and doesn’t say it is an ongoing investigation. I hope he does answer our questions today. 

Mr. CUMMINGS. Very well. 

Mr. JORDAN. That is why we got him here. 

Mr. CUMMINGS. Very well. 

Mr. JORDAN. Thank you. Anyone else wish to make an opening 

Statement? For Mr. Cartwright, Ms. Duckworth? 
5 

The gentlelady is recognized. 

Ms. DUCKWORTH. Thank you, Mr. Chairman. I am reading the 

opening Statement on behalf of Ranking Member Cartwright. And 

also, thank you, Deputy General Cole, for testifying today. 

On May 14, 2013, Inspector General Russell George released a 

report stating that IRS employees had used inappropriate criteria 

to screen applicants for tax-exempt status. Republican and Democratic members, including myself, condemned the IRS mismanagement identified in the inspector general’s report. Despite legitimate 

concerns expressed by some members before this committee had 

even begun to investigate, Chairman Issa went on national television and declared the IRS was involved in the targeting of the 

President’s political enemies. 

The inspector general has repeatedly refuted this baseless allegation. He reported that senior leaders at the IRS said the criteria 

were not influenced by any individual or organization outside the 

IRS. Then, on May 17, 2013, the inspector general was asked before a Ways and Means Committee, ‘‘Did you find any evidence of 

political motivation in the selection of tax exemption applicants?’’ 

He responded, ‘‘We did not, sir.’’ 

After interviewing 42 employees in the IRS, Treasury Department and DOJ, and receiving more than 680,000 pages of documents, the committee has not found any evidence of White House 

involvement or political bias. 

Despite these facts, Republicans continue to invent partisan election season conspiracy theories. One of the latest allegations is that 

the Supreme Court’s decision in the Citizens United prompted 

President Obama, Democratic Members of Congress and the IRS, 

DOJ and other agencies to launch a governmentwide effort targeting conservative groups. While I firmly believe that the Citizens 

United decision severely undermines our campaign finance laws— 

allowing special interest dollars to drown out the voices of average 

Americans—Republican attempts to characterize these concerns as 

evidence of political pressure for agencies to target conservative 

groups lack merit. 

These preposterous accusations have also been contradicted by 

the committee’s own investigation. We already know that the inappropriate criteria started with IRS employees in Cincinnati. The inspector general’s report said, ‘‘that they developed and implemented inappropriate criteria.’’ The IRS screening group manager 

in Cincinnati confirmed this fact in a committee interview. He explained that his employees first came up with inappropriate search 

terms not for political reasons, but to promote consistency. And he 

proved his point by telling us that he is a conservative Republican. 

Former IRS commissioner, Doug Shulman, a 2008 President 

Bush appointee, was asked, ‘‘Did the Citizens United case in any 

way affect the IRS process by handling tax-exempt applications.’’ 

And his answer? ‘‘No. You know, to the best of my knowledge, it 

did not.’’ 

Likewise, the head of the election crimes branch at DOJ said, 

‘‘Citizens United is a not a problem. It is the law, and so no, I am 

not aware of any effort or part of any effort to fix a problem from 

Citizens United.’’ 
6 

While Republicans continue to promote their unfounded allegations, they conveniently overlook the funneling of dark money into 

elections; 501(c)(4) organizations are not barred from participating 

in political campaigns. But the regulations are clear. They State 

that political activity must be an insubstantial amount of the 

group’s overall activity, less than 50 percent. These groups can already gain tax-exemption as a section 527 organization, but that 

would require them to disclose their donors rather than keeping 

the American people in the dark about where they are getting their 

money. As I have repeatedly Stated, as I have repeatedly said, 

anonymous money in politics disrupts the democratic process. 

That is why Ranking Member Cartwright introduced the Open 

Act, which would require corporations and unions to disclose their 

political spending to shareholders and members. This legislation 

will shine a light on the dark money funding political activities. I 

commend Chairman Leahy and Senator Udall of the Senate Judiciary Committee for advancing SJ Resolution 19, a joint resolution 

proposing an amendment to the Constitution restoring reasonable 

limits on financial contributions and expenditures in elections. 

Thank you, Mr. Chairman, and I yield back. 

Mr. JORDAN. I thank the gentlelady. 

Members will have 7 days to submit opening Statements for the 

record. 

We now welcome our witness. The Honorable James M. Cole is 

the deputy attorney general of the United States. Mr. Cole, you 

know how this works. If you would stand up and raise your right 

hand. 

[Witness sworn.] 

Thank you. Pleased to have you with us, Mr. Cole. Again, you 

have done this a few times. You got 5 minutes, more or less, but 

around 5 and you get to go. And then you get to answer our questions. 

Fire away. 

STATEMENT OF HON. JAMES M. COLE, DEPUTY ATTORNEY 

GENERAL, UNITED STATES DEPARTMENT OF JUSTICE 

Mr. COLE. I will take less than that, Mr. Chairman. And before 

I start, I want to thank the chairman for accommodating the request I made to have a rescheduling of the date of this hearing. 

When it was first scheduled, I was already scheduled to be down 

at the Southwest border looking at the McAllen Station and dealing with the issues down, and meeting with the United States attorneys on the southwest border to try and deal with the issues we 

have there, as well. So thank you for accommodating that. 

Mr. JORDAN. You bet. 

Mr. COLE. I am here today to testify in response to the committee’s oversight interest in allegations that the Internal Revenue 

Service targeting conservative groups seeking tax-exempt status. 

When the allegations of IRS targeting surfaced in May 2013, the 

attorney general immediately ordered a thorough investigation of 

them. That criminal investigation is being conducted by career attorneys and agents of the department’s criminal and civil rights division, the Federal Bureau of Investigation, and the Treasury inspector general for tax administration. That is known as TIGTA. 
7 

I have the utmost confidence in the career professionals in the 

department and in TIGTA. And I know that they will follow the 

facts wherever they lead and apply the law to those facts. While 

I understand that you are interested in learning about the results 

of the investigation, in order to protect the integrity and independence of this investigation we cannot disclose non-public information 

about the investigation while it remains pending. This is consistent 

with the long-standing department policy across both Democratic 

and Republican administrations, which is intended to protect the 

effectiveness and independence of the criminal justice process as 

well as the privacy interests of third parties. 

I can, however, tell you that the investigation includes investigating the circumstances of the lost emails from Ms. Lerner’s 

computer. In response to your requests, we have undertaken substantial efforts to cooperate with the committee in a manner that 

is also consistent with our law enforcement obligations. We have 

produced documents relating to the limited communications regarding 501(c) organizations by criminal division attorneys with Lois 

Lerner, who is the head of the exempt organizations division at the 

IRS. We have also taken the extraordinary step of making available, as fact witnesses, two career prosecutors from the department’s public integrity section who explained these contacts with 

Ms. Lerner. 

In 2010, for the purpose of understanding what potential criminal violations related to campaign finance activity might evolve following the Supreme Court’s decision in Citizens United versus the 

FEC, a public integrity section attorney reached out to the IRS for 

a meeting, and was directed to Ms. Lerner. In the course of that 

meeting, it became clear that it would be difficult to bring criminal 

prosecutions in this area, and, in fact, no criminal investigations 

were referred to the Department of Justice by the IRS, and no investigations were opened by the public integrity section as a result 

of the meeting. 

A separate contact between the public integrity section and Ms. 

Lerner occurred in May 2013, when the Department of Justice had 

been asked both in a Senate hearing and in a subsequent letter 

from Senator Sheldon Whitehouse whether the department and the 

Treasury Department had an effective mechanism for communicating about potential false Statements submitted to the IRS by 

organizations seeking tax-exempt status. An attorney in the public 

integrity section reached out to Ms. Lerner to discuss the issue. Ms. 

Lerner indicated that someone else from the IRS would followup 

with the section, but that followup did not occur. 

In sum, these two instances show that attorneys in the public integrity section were merely fulfilling their responsibilities as law 

enforcement officials. They were educating themselves on the ramifications of changes in the area of campaign finance laws and ensuring that the department remained vigilant in its enforcement of 

those laws. 

As we have explained to the committee previously, in 2010, in 

conjunction with the meeting I previously described, the IRS provided the FBI with disks that we understood at the time to contain 

only public portions of filed returns of tax-exempt organizations. As 

we have indicated in letters to the committee, the FBI has advised 
8 

us that upon their receipt of those disks an FBI analyst reviewed 

only the index of the disks and did nothing further with them. 

To the best of our knowledge, they were never used for any investigative purpose. Pursuant to the committee’s subpoena, we provided you with copies of the disks on June 2, 2014, when it remained our understanding that the disks contained only publicly 

available information. Shortly thereafter, the IRS notified the department that the disks appeared to inadvertently include a small 

amount of information protected by Internal Revenue Code Section 

6103, and we promptly notified the committee of this fact, by letter, 

on June 4, 2014. We promptly provided our copies of the disks to 

the IRS and suggested that the committee do the same. 

In order to provide you with our best information regarding the 

disks, including the fact that they were not used by the FBI for any 

investigative purpose, we have now written the committee several 

letters regarding the disks, and the director of the FBI answered 

questions about them from Chairman Jordan in a House Judiciary 

Committee hearing on June 11 of this year. 

We recognize the committee’s interest in this matter. We share 

that interest, and are conducting a thorough and complete investigation and analysis of the allegations of targeting by the IRS. 

While I know you are frustrated by the fact that I cannot, at this 

time, disclose any specifics about the investigation, I do pledge to 

you that when our investigation is completed we will provide Congress with detailed information about the facts we uncovered and 

the conclusions we reached in this matter. 

Thank you, Mr. Chairman. I will now be happy to answer the 

questions. 

[Prepared Statement of Mr. Cole follows:] 
9 
10 
11 
12 

Mr. JORDAN. Thank you. 

The gentleman from Florida, Mr. DeSantis, the vice-chair, is recognized. 

Mr. DESANTIS. Thank you, Mr. Chairman. Good morning, Mr. 

Cole. 

Mr. COLE. Good morning. 

Mr. DESANTIS. Mr. Cole, when we learned in Congress, on June 

13, 2014, that 2 years’ worth of Lois Lerner’s emails were missing, 

the IRS would not produce those. When did the Justice Department 

learn of that fact? 

Mr. COLE. I think we learned about it after that, from the press 

accounts that were in the paper following the IRS’ notification to 

the Congress. 

Mr. DESANTIS. OK. So you actually read about it in the press. 

So nobody in the IRS ever went to the Justice Department to give 

you a heads up, knowing that you were conducting the investigation and that some evidence may be been destroyed? 

Mr. COLE. Not before the 13th of June. 

Mr. DESANTIS. OK. Now, let me ask you this. You said in your 

testimony that you share the committee’s interest and you are conducting a thorough and complete investigation and analysis of the 

allegations of targeting by the IRS. If that is the case, then I guess 

my question is why wouldn’t you have known that these emails 

were missing? Did you just simply not seek to obtain those in the 

course of the investigation, or did the IRS not provide documents 

that the Justice Department requested? 

Mr. COLE. Well, again, it is difficult to get into the details of the 

investigation, but there are a number of different sources of emails 

in the IRS. There are lots of recipients and senders, and we were 

looking at many different forms and sources of those emails. And 

it didn’t become apparent, based on that, that there were any missing emails before that. 

Mr. DESANTIS. Now, let me ask you this. If somebody—you are 

investigating an entity, government agency, whatever, you know, 

that agency has a duty, once they know they are under investigation, to preserve evidence, correct? 

Mr. COLE. That is correct. 

Mr. DESANTIS. And they have a duty to produce the relevant documents that are requested in the course of that, correct? 

Mr. COLE. That is correct. 

Mr. DESANTIS. And that would fall—I guess, ultimately, the 

agency head is responsible for ensuring that the agency complies 

with the Justice Department, right? 

Mr. COLE. I would imagine the agency head ultimately bears responsibility. But there are people further down who actually do the 

work. 

Mr. DESANTIS. Now, in the course of investigating a case, if you 

are investigating an agency, an entity, and there is evidence that 

is destroyed, and that agency knows that they are under investigation, don’t they have a duty to report that to the Justice Department so that you know that the evidence has gone missing? 

Mr. COLE. We would like to know that information. It depends 

on when they learn of it. And it is certainly information that we 

would like to have. 
13 

Mr. DESANTIS. Let me ask you this. If you are in court and you 

make a representation to a judge, even if it is in good faith, and 

you later find out that the representation you made is factually incorrect, you have a duty as an attorney and a member of the bar 

to go back to the court and follow a duty of candor to inform the 

tribunal of the mistake and correct the record. Is that right? 

Mr. COLE. That is correct. 

Mr. DESANTIS. So do you think that as you and the Justice Department look—in a congressional investigation, if we have somebody heading an agency or who is involved with an agency, and 

they provide information to us and that information later they determine to be incorrect, do they have a duty of candor to the Congress to correct the record? 

Mr. COLE. Yes. 

Mr. DESANTIS. Very well. Let me ask you this, Mr. Cole. There 

was a letter, we had sent a subpoena for documents, and we received a response on May 28, 2014. It was signed by Peter Kadzik. 

And in that, the department’s position is the same. There are certain items that we requested that the department is not gonna 

produce. Is that accurate? 

Mr. COLE. That is correct. 

Mr. DESANTIS. OK. And there were—the reason for that, cited, 

was substantial confidentiality interests. And I just wanted to clarify. Is not producing the documents—is the reason for that is the 

President actually asserting executive privilege in this matter? 

Mr. COLE. I don’t believe there was an assertion of executive 

privilege. There are law enforcement-sensitive documents and documents involving ongoing investigations that traditionally, over 

decades, the accommodation with the department and the Congress 

is that those are not produced because they are law enforcementsensitive items. 

Mr. DESANTIS. My final question would be, this Congress held 

Lois Lerner in contempt, jeez, almost 9 weeks ago. Federal law requires, when that happens, that the U.S. attorney for the District 

of Columbia take that to a grand jury. Is it your understanding of 

that law that that is an obligatory duty that the U.S. attorney 

must take that before a grand jury? 

Mr. COLE. My understanding of the law is that they are—it does 

not strip the U.S. attorney of the normal discretion that the U.S. 

attorney has. He proceeds with the case as he believes it is appropriate to do so. 

Mr. DESANTIS. So 2-USC–194 says it shall be the duty to bring 

the matter before the grand jury. So you are saying that actually, 

even though Congress mandated a duty, a prosecutor would essentially be able to trump that language by exercising discretion? 

Mr. COLE. I believe that there are aspects of it that give any 

prosecutor prosecutorial discretion on how to run a case and how 

to review a matter. I understand this matter is under review. And 

as far as whether or not it has been presented to the grand jury, 

that is information that you can’t disclose because grand jury proceedings—— 

Mr. DESANTIS. I understand that entirely. OK, my time is up. 

Maybe we will followup on that. 

And I yield back. 
14 

Mr. JORDAN. The gentleman from Maryland is recognized. 

Mr. CUMMINGS. Attorney General Cole, I want to thank you very 

much for being here, and I wish it were under a more constructive 

circumstance. Unfortunately, the Republicans on this committee 

has accused your department, the Justice Department, of engaging 

in criminal conduct, of obstructing the committee and of conspiring 

with the IRS to criminally prosecute conservative groups for their 

political speech. So let me ask you directly, are any of those accusations true? 

Mr. COLE. No, they are not. 

Mr. CUMMINGS. OK, let me focus on one specific accusation. 

Chairman Issa and Chairman Jordan have accused the Department of Justice of conspiring with the IRS to create what they call 

in, ‘‘illicit registry,’’ of confidential taxpayer information to prosecute conserve organizations. Their claim is based on the fact that 

back in 2010 the IRS provided to the FBI 21 computer disks with 

annual tax returns, or form 990’s, from organizations with tax-exempt status. According to your letter, these disks contain the forms 

of all groups that were filed between January 1, 2007 and October 

1, 2010, ‘‘regardless of political affiliation.’’ Is that correct? 

Mr. COLE. That is my understanding, Representative Cummings, 

but I have not seen the list myself. My understanding is, it was 

presented to us as public record information and not selected on 

the basis of any sort of political affiliation. 

Mr. CUMMINGS. So based upon your knowledge, there were—so 

they were not just conservative organizations. 

Mr. COLE. No, not—that is not my understanding. 

Mr. CUMMINGS. As I understand it, the vast majority of this information is accessible to the public. It is public information, it is 

the same as what the IRS provides to the non-profit organizations, 

guidestar.org. Is that right, to your knowledge? 

Mr. COLE. My understanding, when we received the disks, is that 

it was represented to us that it was all public information. 

Mr. CUMMINGS. So these forms were provided in 2010. But earlier this year, more than 3 years later, you discovered that a very 

limited amount of confidential taxpayer information was stored on 

those disks. Is that correct? 

Mr. COLE. That is correct. 

Mr. CUMMINGS. This error affected only 33 of 12,000 forms on 

those disks. That is less than 1 percent. Is that your understanding? 

Mr. COLE. I don’t know how much specifically it was. I knew it 

was a small amount. 

Mr. CUMMINGS. Do you have any reason to believe that this error 

was intentional or that these redactions were done incorrectly or on 

purpose? 

Mr. COLE. I have no basis to be able to conclude anything on 

that, other than it is just a small amount, and what was represented to us when we received them. 

Mr. CUMMINGS. OK. Well, finally, to me, the most important 

point here is these disks were never reviewed. Is that right, to your 

knowledge? 

Mr. COLE. That is correct. Other than the index, the basically 

first page of it, they were never reviewed and never used. 
15 

Mr. CUMMINGS. And so Deputy Attorney General Cole, to conclude, when you hear claims—you know, and here, having dealt 

with the Justice—having practiced law for so many years, and 

dealt with the Justice Department in so many times, and—I mean, 

some of the very best and brightest citizens go into that department. Many of them could make a lot more money doing other 

things, but they decide that they are going to give their life to what 

I call ‘‘feed their souls’’ and make a difference for people. And then 

to—just the idea to hear that the Justice Department is accused of 

criminal activity—the very department that has done so much to 

make sure that our laws are upheld—I mean, I am just—it just— 

it is very upsetting to me. 

And I would just like to give you an opportunity, since you represent so many of these wonderful people who have decided to give 

their careers to us—and the idea that they would—they are working hard, but then they hear these accusations. I just want to know 

your reaction to that. 

Mr. COLE. Well, Ranking Member Cummings, I represent all of 

them. And the career people we have at the Department of Justice 

are really some of the best and most honest lawyers I have ever 

seen. The amount of integrity that is there is really quite astounding. You are right, they do sacrifice a great deal of money to work 

there. But they work there because they feel that it is important 

to go after the pursuit of justice. They work to try and find out 

what the facts are, what the law is, apply the facts to the law and 

let the chips fall where they may. 

There is no politics that is involved with all of these career people, and it is really impressive to see the work that they do and 

the results that the Justice Department is able to bring about and 

the credibility that the Justice Department has because of the wonderful work of the career lawyers that we have. 

Mr. CUMMINGS. And is it my understanding that if you all find 

that this crash of Ms. Lerner’s computer had any criminal elements 

in it you would be looking into that and addressing it as you would 

any other criminal case. Is that correct? 

Mr. COLE. That is what we do in everything. We look to determine whether there is any facts of any criminal violations of any 

Federal laws. And if there are, we act appropriately. That is the 

whole purpose of the Justice Department is to find out what is 

going on, what the truth is, and then take appropriate action. 

Mr. CUMMINGS. Thank you very much, Mr. Chairman. 

Mr. JORDAN. I thank the gentleman. 

Mr. Cole, isn’t it true that Richard Pilger met with Lois Lerner 

back in 2010? 

Mr. COLE. Yes, it is . 

Mr. JORDAN. All right. And isn’t it true that he got the information—this 1.1 million pages of information—in the format that he 

asked for it, the FBI wanted it in? 

Mr. COLE. I think there was a request of several different forms 

it could come in, as I understand it. And we were asked to pick 

which one the FBI would prefer. 

Mr. JORDAN. Lois Lerner said we are checking with my folks. I 

am getting you the disk we spoke about. Incoming data regarding 

501(c)(4) issues. Does the FBI had a format preference? Mr. Pilger 
16 

says the FBI says raw format is best because they can put it into 

their systems like Excel. So you got it—so Pilger meets with Lois 

Lerner. You guys ask for specific information. That is right? You 

guys asked for this data? 

Mr. COLE. I am not sure. I haven’t seen an email specifically asking for it. I think all of that proceeded—— 

Mr. JORDAN. Well, it sure implies when you get it in the format 

you want—when you say we would like it in the Excel format, we 

would like—regarding 501(c)(4). So sure looks you asked for it. And 

then you got the data, right? 

Mr. COLE. My understanding is, we did get the data. That the 

requests were made before the meeting, and that—— 

Mr. JORDAN. Well, here is the question. 

Mr. COLE [continuing]. And that the data was delivered—— 

Mr. JORDAN. Here is the question. If it is publicly available information, why did you ask the IRS for it and why did you have to 

meet with Lois Lerner to get it? 

Mr. COLE. I don’t have an answer to that right now, other than 

maybe—— 

Mr. JORDAN. Well, that is an important point. We would like an 

answer to that. 

Mr. COLE. I can take that back and try and find it. 

Mr. JORDAN. No, you are the one who said, several times already, 

it is public information. Yet you had to go to Lois Lerner and the 

IRS and get it in the format you wanted? And Mr. Cummings says 

that is no big deal? And you had it for 4 years? You had this for 

4 years, correct? 

Mr. COLE. The information—the disks were in the possession of 

the FBI for—— 

Mr. JORDAN. Twenty-one disks? 

Mr. COLE. Twenty-one disks. 

Mr. JORDAN. One-point-one million pages? 

Mr. COLE. I think that is correct. 

Mr. JORDAN. And most importantly, it did contain 6103 information, correct? 

Mr. COLE. We learned that on about the second—— 

Mr. JORDAN. I didn’t ask when you learn it. I said it contained 

it. Correct? 

Mr. COLE. We learned it late that it contained it, yes. 

Mr. JORDAN. So Mr. Cummings just made this big, big, big deal 

about this is no big deal. Well, in fact, it is. The Justice Department asked for information that you said is publicly available, but 

you go to Lois Lerner to get it. You get it in 2010 in the format 

you want it. It is 21 disks, 1.1 million pages. You say it is available 

publicly, but you don’t get it publicly. You go get it from the IRS. 

And it contains confidential taxpayer donor information. All those 

are facts, correct? 

Mr. COLE. They are not necessarily facts that are all linked together, though, Mr. Chairman. 

Mr. JORDAN. They are all in the data base. 

Mr. COLE. They are facts that exist. 

Mr. JORDAN. They are all in the data base, correct? The IRS told 

us it was confidential tax—I didn’t make that up, Chairman Issa 
17 

didn’t make that up. The IRS told us it was confidential information in there. 

Mr. COLE. There was no request at the time. I am not even sure 

if the Justice Department—— 

Mr. JORDAN. Now let’s—— 

Mr. COLE [continuing]. Requested the information, or if the IRS 

offered it. I am not sure how the idea—— 

Mr. JORDAN. When you get it in the format you ask for—— 

Mr. COLE. If I can finish. 

Mr. JORDAN. It sure looks like you asked for it. 

Mr. COLE. If I can finish, Mr. Chairman. 

Mr. JORDAN. OK. 

Mr. COLE. I am not sure how the actual idea of providing that 

information to the Justice Department came up—— 

Mr. JORDAN. Let’s go to your—— 

Mr. COLE. —4 years ago. But it was provided after the meeting. 

Mr. JORDAN. Let’s go to your testimony, your written testimony. 

You say in page two of the written testimony I got that there was 

a separate contact between this same lawyer, Mr. Pilger, and Ms. 

Lerner in 2013 in response to Senator Whitehouse comments in a 

Senate hearing, looking at ways to bring a false Statement action 

against the very groups who wound up being targeted by the IRS, 

right? You follow where I am at in your testimony? 

Mr. COLE. No, it has nothing to do with the groups targeted by 

the IRS. That is not correct. 

Mr. JORDAN. Regarding false—— 

Mr. COLE. Whether or not false Statement cases could be 

brought. 

Mr. JORDAN. They are the same groups, trust me. And an attorney in the public’s integrity section reached out to Ms. Lerner to 

discuss the issue. Correct? I am just reading your testimony. 

Mr. COLE. That is correct. 

Mr. JORDAN. Ms. Lerner indicated that someone else from the 

IRS would followup with the section, but that followup did not 

occur. Why didn’t the followup occur? 

Mr. COLE. I don’t know. 

Mr. JORDAN. You don’t know? 

Mr. COLE. I don’t know. That would be—— 

Mr. JORDAN. Let me give you a reason why I think it might not 

have occurred. Because this correspondence, this meeting, took 

place on May 8, 2013. You know what happened 2 days later, Mr. 

Cole? 

Mr. COLE. Yes, I do. 

Mr. JORDAN. What happened 2 days later? 

Mr. COLE. Ms. Lerner talked to—gave a speech at an ABA conference and talked about this issue. 

Mr. JORDAN. Yes. Where she explained to the whole world that 

the IRS was caught with their hand in the cookie jar and they, in 

fact, were targeting conservative groups. That is why the followup 

didn’t occur. So 2 days before, 2 days before the very lawyer who 

met with Lois Lerner in 2010 got the data base in the format they 

wanted, 2 days before—jump ahead 3 years later. Two days before 

Ms. Lerner goes public, he was meeting with Ms. Lerner again and 

saying followup will take place. 
18 

But the followup doesn’t take place because Ms. Lerner goes public and says, you know what—targeting did, in fact, happen. She 

tried to put the planted question in a bar association speech, spin 

this in a way that blames good public servants in Cincinnati, which 

you know is false. And we are—and Mr. Cummings says that is no 

big deal that you had all this information—give me a break. 

One last question I have, right, before I go to the next member. 

So John Koskinen told this committee just a week ago that he 

knew in April of this year that a substantial portion of Lois 

Lerner’s emails were lost, and he waited 2 months to tell us. And 

he waited even longer to tell you. If a private citizen does something like that, under investigation, finds out they have lost important documents and doesn’t tell someone, that is a problem. 

So is—is it a big deal to you, Mr. Cole, and a big deal to the Justice Department that the head of the Internal Revenue Service 

waited 2 months to tell the U.S. Congress, 2 months to tell the 

American people and, most importantly, 2 months to tell the FBI 

and the Justice Department that they had lost Lois Lerner’s 

emails? 

Mr. COLE. This is a matter, obviously, we would like to know 

about the loss of the emails. 

Mr. JORDAN. I am asking is it a big deal that he waited 2 

months? 

Mr. COLE. It depends on what the circumstances were behind it. 

Mr. JORDAN. The circumstances were he knew in April. He said 

that—when I asked him questions just last week, he said he knew 

in April. And I asked him why didn’t you tell us. And he—but he 

waited 2 months. 

Mr. COLE. I would like to know all the circumstances from him 

as to why there was the 2-month wait—— 

Mr. JORDAN. I would have liked to known right away, as well. 

Mr. COLE. Before I answer the question whether it is a big deal. 

Mr. JORDAN. All right. 

Yield to the gentlelady from Illinois. 

Ms. DUCKWORTH. Thank you, Mr. Chairman. I believe that in his 

testimony he actually—the response to why there was a 2-month 

wait was that he was informed, and then for the next 2 months 

they were attempting to recover the lost emails from other host 

computers where those emails were located. So that just because 

you lose the emails from Ms. Lerner’s hard drive, where she was 

the ‘‘from’’ sender, that they would exist in the ‘‘to’’ recipients. 

Computers never—I believe over 80 other host computers where 

they were looking. So that is part of the delay. 

But I would like to know, also, the full extent of what was going 

on, as well. 

Deputy General Cole, as I am sure you are aware the nature of 

the Justice Department’s investigation into the IRS practices regarding the tax-exempt applications has been such a lengthy, 

lengthy discussion before various congressional committees. Despite unsubstantiated allegations that the Justice Department has 

prematurely closed its investigation for political reasons, Attorney 

General Holder has repeatedly confirmed before both the House 

and Senate Judiciary Committees that the Justice Department and 

FBI are still actively investigating this matter. 
19 

On January 29, 2014, the attorney general testified before the 

Senate Judiciary Committee that the matter, and I quote: ‘‘is presently being investigated. Into the use of being done, an analysis is 

being conducted.’’ 

Several months later, in April—on April 8 of 2014—the Attorney 

General further testified before the House Judiciary Committee 

and confirmed that the department’s investigation was still an ongoing matter that the Justice Department is actively pursuing. 

Deputy Attorney General Cole, can your please confirm that the 

department is still actively investigating IRS practices surrounding 

tax-exempt applications? 

Mr. COLE. This is still an ongoing investigation, that is correct. 

Ms. DUCKWORTH. Thank you. So accusations that the department 

has prematurely closed its investigations are false. Is that correct? 

Mr. COLE. That is correct. 

Ms. DUCKWORTH. Thank you. Some have also lamented the 

length of time this investigation has spanned. In your experience, 

is it uncommon for complex investigations such as this one to take 

a substantial amount of time to complete? 

Mr. COLE. Both as a prosecutor and a defense attorney, this is 

not an unusual amount of time for an investigation like this. 

Ms. DUCKWORTH. Thank you. In your opinion, is there anything 

unusual or troublesome about the length of time the department’s 

IRS investigation is taking? 

Mr. COLE. Not that I have seen, no. 

Ms. DUCKWORTH. So this is standard. This is—other investigations of this complexity you would expect would take a similarly 

lengthy amount of time. 

Mr. COLE. This is normal, yes. 

Ms. DUCKWORTH. OK. Can you comment on reports that the Justice Department has decided not to bring charges against IRS officials? 

Mr. COLE. No decisions have been made in this case. 

Ms. DUCKWORTH. OK. Can your confirm that no decision has 

been made yet about whether to criminally charge anyone in DOJ’s 

ongoing investigation? I know you said that, but because—in reference to the fact that the investigation is still ongoing. 

Mr. COLE. There have been no decisions made about this case as 

of right now. 

Ms. DUCKWORTH. So there is still potential for criminal charges 

if you were to discover in the investigation some cause. 

Mr. COLE. The whole range of options are still open. 

Ms. DUCKWORTH. Thank you. I thank you for your cooperation 

today. And I want to give you a chance to respond to some of the 

allegations whether the Justice Department worked with the IRS 

to compile the massive data base for illicit and comprehensive— 

sorry, an illicit and comprehensive registry for law enforcement officials. Was this something that was a collusion between the Justice Department and the IRS? 

Mr. COLE. No, it was not. 

Ms. DUCKWORTH. Did the DOJ or the IRS use this registry for 

the potential prosecution of non-profits? 

Mr. COLE. We didn’t. As a matter of fact, we didn’t use it for any 

purpose. 
20 

Ms. DUCKWORTH. OK. And both Chairman Issa and Chairman 

Jordan have said that in a letter on June 10, 2014 that a special 

prosecutor is needed for a truly independent criminal investigation 

of the IRS targeting. Do you support that? 

Mr. COLE. I do not. I don’t think one is necessary here. 

Ms. DUCKWORTH. OK. Now, I am gonna give you a little time to 

respond to the accusations on how the DOJ is conducting this investigation and these allegations that you are colluding, that you 

are delaying, that you are lying. And I only have 30 seconds. That 

is just not a lot of time, but go ahead. 

Mr. COLE. Well, short of saying we are not doing that, this is the 

same thing. We are not talking about what we are doing in investigations either way. If my answers would help us or would hurt 

us, we are not talking about what we do in investigations. That is 

just how we proceed with investigations, for a lot of very good reasons. 

Ms. DUCKWORTH. Why—why would that—could you name some 

of the good reasons why you would do that, in general? 

Mr. COLE. You don’t want—first of all, you don’t want people to 

prejudge when not all the facts are in. You want to make sure that 

you gather all the facts that are available so that you have a complete and full record on which to make the determinations. You 

want to protect people’s privacy because many times people will 

provide us information and you don’t want to start going out and 

telling everybody who is talking to us, who is not talking to us. You 

don’t want to have some witnesses infected by what other witnesses have said so that you can get the pure Statements from 

each type of witness. 

Some people, you may just want to make sure they are protected 

because there are allegations about them that turn out not to be 

true. And it is not fair for those to be published. You also just want 

to make sure that everything is done with fairness and thoroughness. And you want to make sure that you have the ability to do 

that without the interference and the glare of a public spotlight. 

That is not the way investigations are done well. 

Ms. DUCKWORTH. Thank you. 

I am out of time, Mr. Chairman. 

Mr. JORDAN. Mr. Cole, would that include the President of the 

United States prejudging the outcome of the case, when he said 

there is not a smidgen of corruption? You just talked about how 

you didn’t want anyone saying anything, you can’t know who is— 

who you are talking to, what is going on. But yet the head of the 

executive branch prejudges the entire investigation on a nationally 

televised interview? 

Mr. COLE. Mr. Chairman, I am talking about what the Department of Justice does. Lots of people—— 

Mr. JORDAN. You are talking about getting to—doing a good investigation, getting to the truth. And you don’t want certain witnesses and certain people talking about it. I would think that 

would include the highest-ranking official in the country. 

Mr. COLE. Mr. Chairman, if I may, we don’t want—the Justice 

Department doesn’t talk about the investigation. We are the ones 

who know what the facts are and what the facts are that we are 

gathering. Lots of people have talked about this investigation on 
21 

both sides of it. They are free to do that. That is part of the First 

Amendment rights. We do not do that because we are the ones 

with the actual facts. 

Mr. JORDAN. Well—but the President is different. Your boss is 

Eric Holder, his boss is the President of the United States. That 

is a—that is a completely different category than Members of Congress or a private citizen talking about it. All I am saying is, you 

just went through a whole list of why you can’t talk about certain 

things, you can’t tell us what you are doing. You can’t even tell us 

who is all involved in the case, but somehow we bring up the President, no big deal. I just fail to get that one. 

The gentleman from Arizona, Mr. Gosar, is recognized. 

Mr. GOSAR. Given the topic of this hearing, I assume you are familiar with the portion of the code of Federal regulations dealing 

with the prohibitions on disqualification arising from personal or 

political relationship with regard to criminal investigations, correct? 

Mr. COLE. Yes. 

Mr. GOSAR. That is Title 28, Section 45.2 of the Code of Regulations, correct? 

Mr. COLE. That is correct. 

Mr. GOSAR. So you surely understand that it explicitly States, 

‘‘No employee shall participate in a criminal investigation or prosecution if he has a personal or political relationship with any person or organization substantially involved in the conduct that is 

the subject of the investigation or prosecution, or any person or organization which he knows has a specific and substantial interest 

that could be directly affected by the outcome of the investigation 

or prosecution.’’ 

Do you understand that? 

Mr. COLE. Yes, that is what it says. 

Mr. GOSAR. You probably also understand that there is a carveout Section B that States, ‘‘An employee assigned to or otherwise 

participating in a criminal investigation or prosecution who believes that his participation may be prohibited by paragraph A of 

this section shall report the matter and all attendant facts and circumstances to a supervisor at the level of the section chief or the 

equivalent, or higher. If the supervisor determines that a person or 

political relationship exists, he shall relieve that employee from 

participation unless he determines further in writing, after full 

consideration of all the facts and circumstances, that the relationship will not have the effect of rendering the employee’s services 

less than fully impartial, professional, and the employee’s participation would not create an appearance of a conflict of interest likely to affect the public perception of integrity of the investigation or 

prosecution.’’ 

You understand all this applies to the Department of Justice, 

correct? 

Mr. COLE. Yes, it does. 

Mr. GOSAR. Do you dispute that this is the regulation and guidance under the Code of Federal Regulations? 

Mr. COLE. This is the regulation and the guidance, yes, sir. 

Mr. GOSAR. Do you believe that Barbara Bosserman, attorney of 

the department of civil rights division and a major contributor to 
22 

the—President Obama’s campaign and the Democratic National 

Committee meets those standards set forth in the code? 

Mr. COLE. You have to look at Section C of that regulation, 

which defines those terms. And it defines a political relationship 

means a close identification with an elected official, a candidate 

whether or not successful for elective public office, or a political 

party or a campaign organization arising from service as a principal advisor thereto or a principal official thereof. 

Mr. GOSAR. But wouldn’t you say a principal advisor is somebody 

that contributes to that party? 

Mr. COLE. No. 

Mr. GOSAR. Or candidate? 

Mr. COLE. An advisor would not be a person who makes a contribution. 

Mr. GOSAR. Really. Do you also believe that she should also have 

brought this forward as a conflict of interest? 

Mr. COLE. I believe that, as the definition States, she didn’t fall 

within the political relationship under the definition. 

Mr. GOSAR. Well, let me ask you a question. Are you familiar 

with the impeachment of Richard Nixon? 

Mr. COLE. I am. 

Mr. GOSAR. Article two, exhibit one was the IRS. So this is very, 

very poignant in the public’s mindset, is the power to tax is the 

power to destroy. So, I mean, even more scrutiny should be applied 

to this. Would you not agree? 

Mr. COLE. We are applying a great deal of scrutiny—— 

Mr. GOSAR. So, I mean, once again the same type of code should 

be very explicit, though, to Ms. Bosserman in regards to making 

sure that it is squeaky, squeaky clean in regards to the perception 

to the public. 

Mr. COLE. I agree. And she did not meet the definition. 

Mr. GOSAR. Sidestepping, I would say. I mean, I—— 

Mr. COLE. I would respectfully disagree. 

Mr. GOSAR. I am not—I am not an attorney, but I am a dentist 

and just the implication of that aspect in the public light, mainstream America would show that there was a conflict of interest. 

And I think from that standpoint, the public is the one that we 

should be, I think, adhering to, their perception of making sure it 

is a fair and equitable evaluation. And I think that goes not only 

to you, but also Ms. Bosserman in regards to their concept to the 

public. And I think they owe that further detail. Would you not 

agree? 

Mr. COLE. Well, I think you have to go through the regulations. 

You have to apply the law to the matter. And the law in this matter has a very clear definition of what is meant by the terms, and 

those terms did not encompass Ms. Bosserman. 

Mr. GOSAR. I see. All right, so I want to go back to some of the 

comments you made here. The President made a comment that 

there is not a smidgen of opportunity there is corruption in this 

case. Would you agree with that terminology? 

Mr. COLE. Congressman, this investigation is open, and—— 

Mr. GOSAR. Well, I mean,—I am gonna cut you off there. Because 

how would you define a smidgen? Small? 

Mr. COLE. Congressman, I—— 
23 

Mr. GOSAR. Smidgen, small. Is it big, it is small? What is a smidgen? 

Mr. COLE. I am not sure the context and the meaning the President—— 

Mr. GOSAR. So you weren’t watching the Super Bowl? 

Mr. COLE. I was. 

Mr. GOSAR. So you actually did—actually hear that. So, I mean, 

you are a literate person. So a smidgen is—would be what? 

Mr. COLE. A smidgen is small. 

Mr. GOSAR. So in this case, there is not an opportunity for something to be wrong and corrupted in this aspect, from your professional judgment? 

Mr. COLE. Congressman, I am not gonna comment on the findings that we have made so far and the facts that we have gathered 

in this investigation. We don’t do that. If somebody else wants to 

render an opinion—— 

Mr. GOSAR. Let me ask you a question. I am gonna cut you off 

right there. You made a comment—the ranking member that these 

individuals that work as career attorneys are fantastic people. Are 

they human? 

Mr. COLE. Of course they are. 

Mr. GOSAR. So they do make mistakes. 

Mr. COLE. Of course they do. 

Mr. GOSAR. Well, thank you very much. 

Mr. JORDAN. The gentleman from Pennsylvania is recognized. 

Mr. CARTWRIGHT. Thank you, Mr. Chairman. Deputy Attorney 

General Cole, thank you for being here today. I do hope we can use 

this opportunity to lay to rest some of the more outrageous allegations that have been circulating about the Department of Justice. 

Chairman Issa and Chairman Jordan’s May 22, 2014 letter to Attorney General Holder noted they were, ‘‘shocked to learn that the 

Justice Department and the IRS had a meeting attended by Lois 

Lerner in early October, 2010 to discuss the criminal enforcement 

of campaign finance laws.’’ In that letter, Chairman Issa and 

Chairman Jordan claimed that testimony about the October 2010 

meeting, ‘‘reveals that the Justice Department contributed to the 

political pressure on the IRS to,’’ ‘‘fix the problem,’’ posed by the 

Citizens United decision??????? 

Question. Deputy Attorney General Cole, do you have any reason 

to believe that the October 2010 meeting between IRS and DOJ 

representatives was improper in some fashion? 

Mr. COLE. No, I do not. 

Mr. CARTWRIGHT. OK. And I also wanted to say, during the transcribed interviews of the DOJ witnesses, committee staff asked 

about that October 2010 meeting. The chief of DOJ’s public integrity section had the following exchange with committee staff. Question. At the October 8, 2010 meeting, did you or anyone else from 

the Department of Justice suggest to IRS employees that they 

should, ‘‘fix the problem posed by Citizens United decision.’’ Answer: No. And the question was, in your opinion does the Citizens 

United decision pose a problem. 

And the answer was, It is not my role to comment on the law 

of the land. It is the law of the land. My job is to enforce the law. 

Citizens United is the law of the land. That was the answer that 
24 

was given. Deputy Attorney General Cole, do you agree that Citizens United is the law of the land and that it is DOJ’s role and 

responsibility to enforce that law? 

Mr. COLE. Yes, it is. And to enforce all the other laws that are 

involved in that area. 

Mr. CARTWRIGHT. All right. Now, the director of the election 

crimes branch of the DOJ’s public integrity section was asked 

about Citizens United during his interview. In response, he said 

the following, ‘‘So Citizens United is not a problem. It is the law. 

And so no, I am not aware of any effort or part of any effort to fix 

a problem from Citizens United. I am aware that it changed the 

law, though, and that law enforcement, in reaction to such changes, 

must be vigilant about the opportunities they present for 

lawbreaking.’’ 

So my question for you, Deputy Attorney General Cole. Are you 

aware of any attempt by the Justice Department to, ‘‘fix a problem 

posed by Citizens United’’? 

Mr. COLE. I am aware of no such effort. There was no problem, 

particularly. That was the law. 

Mr. CARTWRIGHT. Well, now that Statements from DOJ witnesses and Deputy Attorney General himself have directly refuted 

the chairman’s allegation that DOJ, ‘‘contributed to the political 

pressure on the IRS to fix the problem posed by the Citizens 

United decision,’’ I want to say I hope this claim is put to rest once 

and for all. It is time to stop creating fake scandals and start focusing on conducting real oversight, which is the charge of this committee. 

And I yield back. 

Mr. JORDAN. I would just ask to consent to enter into a record 

a Statement made my Ms. Lerner at a speech 8 days after the 

meeting that Mr. Cartwright just referenced. This is a speech at 

Duke University October 19, 2010, where Ms. Lerner said, ‘‘Everybody is screaming at us right now. Fix it now, before the election.’’ 

I forgot what Mr. Cartwright said, but what we do know is that 

Ms. Lerner gave a speech 8 days after that meeting and said everybody is asking me to fix it. 

Mr. CONNOLLY. Mr. Chairman? 

Mr. JORDAN. I would yield to—— 

Mr. CONNOLLY. Mr. Chairman, a unanimous consent request? 

Mr. JORDAN. Unanimous consent request. 

Mr. CONNOLLY. I thank the chair. Since we are putting stuff on 

the record, I would ask unanimous consent that the full transcript 

of the staff interview with the director of the elections crimes 

branch at DOJ—— 

Chairman ISSA. I object. It is not the—Mr. Chairman, it is not 

the policy of this committee to put transcripts in the entirety out. 

I respect the gentleman’s right to take any and all pertinent areas, 

but putting the questions and answers of transcripts has proven to 

be used to coach witnesses. And the coaching of witnesses later on, 

I am sure Mr. Cole would tell you, is not productive in an investigation. 

Mr. JORDAN. Gentleman from California. 

Mr. CONNOLLY. I would just—Mr. Chairman, I have a second 

unanimous consent request. 
25 

Mr. JORDAN. Gentleman is recognized. 

Mr. CONNOLLY. I would further ask, since, you know, we don’t 

want to cherry pick around here. I was simply trying to avoid that 

because I know that the committee chair frowns on that. That the 

May 29, 2014 interview with the chief of DOJ’s public integrity section also be entered into the record. 

Chairman ISSA. Again, I object unless the gentleman can cite appropriate items. He is certainly welcome to, but the policy of this 

chair is that it is destructive to ongoing investigations to do entire 

transcripts. And, for the most part, it has been avoided. 

Mr. CONNOLLY. Well, Mr. Chairman, at the invitation of the 

chairman then I will cite two—two sections of those interview I 

hope the chairman would not object to be entered into the record 

at this time. I—— 

Mr. JORDAN. That is fine. 

Mr. CONNOLLY. But I am afraid I am gonna have to read them 

because otherwise you won’t know. 

Chairman ISSA. All right. 

Mr. CONNOLLY. So the director of election crimes branch, on May 

6, 2014, said, ‘‘Since I joined the public integrity section in 1992, 

I have never encountered politically motivated decisions. To the 

contrary, it has been my consistent experience this section is active 

without exception on a strictly nonpartisan basis in all of its decisions and actions. In my experience, politics plays no role in our 

work as prosecutors, period.’’ 

That was part of his interview, and I would ask without objection 

it be put in the record. 

Mr. JORDAN. Without objection. 

Mr. CONNOLLY. And then the second one, Mr. Chairman, and 

then I will cease. On May 29, John Kennedy’s birthday, of this year 

he told—the chief of DOJ’s public integrity section explained to our 

staff, ‘‘Since I have been chief of this section’’—of the public integrity section—‘‘I have never encountered, nor will I tolerate, any politically motivated decisions. Politics does not and cannot play a 

role in our work as prosecutors.’’ 

And I thank the chair. 

Mr. JORDAN. All right, thank the gentleman. We are gonna try 

to get to two more before we have a couple votes on the floor. 

So the chairman of the committee is recognized. 

Chairman ISSA. Thank you, Mr. Chairman. 

General Cole, a couple of areas. Would you agree that it would 

be wrong to continue an investigation for any length of time if 

there isn’t a smidgen of evidence of wrongdoing? 

Mr. COLE. If you have completed the investigation and you have 

satisfied yourself that there is no wrongdoing in the investigation, 

then the investigation is done. 

Chairman ISSA. That wasn’t my question, General Cole. My question was, if you begin an investigation, and you go through weeks, 

months, now basically a year and you do not have a smidgen of evidence of a crime, is it appropriate to continue spending taxpayer 

dollars? 

Mr. COLE. It depends on whether you think there is a chance 

that you may find additional evidence of crime—— 

Chairman ISSA. Mr. Cole, Mr. Cole—— 
26 

Mr. COLE [continuing]. That you have considered all the avenues 

that you need to—— 

Chairman ISSA. Mr. Cole, General Cole, you have an ongoing investigation. It has been going on now for a year. 

Mr. COLE. That is correct. 

Chairman ISSA. You have confirmed that ongoing investigation. 

So it is appropriate to say that your answer is that there either has 

to be evidence of a crime or a belief by your investigators that 

there is, in fact, a crime that has been committed that you are investigating. Isn’t that correct? 

Mr. COLE. There has to be a belief that there is still evidence 

that is necessary to be looked at to determine whether or not a 

criminal statute has been violated. 

Chairman ISSA. Mr. Cole—— 

Mr. COLE. That is the purpose—— 

Chairman ISSA. Mr. Cole, I really appreciate your dodging on behalf of decorum, but—— 

Mr. COLE. I am not dodging. 

Chairman ISSA. My question needs to be answered. 

Mr. COLE. The purpose of—— 

Chairman ISSA. You cannot spend taxpayer dollars if you do not 

have a belief that it is going to lead to a crime. That would be a 

frivolous investigation, at some point, wouldn’t it? 

Mr. COLE. You—— 

Chairman ISSA. Do you continue looking for crimes for years on 

innocent people when, in fact, there isn’t a smidgen of evidence? Do 

you continue looking at somebody for criminal investigation for 

months or years without any evidence just because you, in the long 

run, think it might happen? 

Mr. COLE. You start investigations based on—— 

Chairman ISSA. No, no. That was a yes or no, General Cole. It 

really is. Do you do that? I outlined a rather repugnant accusation 

that the minority has made about this chair and this committee 

that we are continuing to investigate wrongdoing by the IRS, both 

in Cincinnati and particularly in Washington, led by Lois Lerner. 

We continue to investigate it because we believe and Ways and 

Means has referred to you criminal allegations. Do you continue to 

investigate if—not—we are not talking about whether or not you 

are gonna get a successful prosecution, a conviction. 

We understand that all of that—sometimes you go for years and 

you never get—like organized crime, you don’t necessarily get a 

conviction, you don’t get what you need. But would you continue 

investigating, as you have, if you did not have—if your investigators did not have—a belief that a wrongdoing had occurred for 

which you were trying to build a case? And please, that is a yes 

or no. 

Mr. COLE. Mr. Chairman, unfortunately it is not quite a yes or 

no. 

Chairman ISSA. Oh, yes it is. 

Mr. COLE. Oh no it is not.. 

Chairman ISSA. And we are gonna have this conversation. Would 

you continue to take people’s time, money, force them to get attorneys, investigate, subpoena, grab information, interview people? 

Would you do that if you did not have a belief that there was a 
27 

possibility of a crime, and one that you thought worth investigating? Would you do that? 

Mr. COLE. Can I give you my answer, and then you can always 

followup. 

Chairman ISSA. You could give me a yes or no, and then you 

could further explain. That is how—that is—your boss, the attorney general is a bad witness. Please don’t be a bad witness. 

Mr. COLE. I am trying not to be a bad witness—— 

Chairman ISSA. OK, that was a—— 

Mr. COLE. But not every question has a yes or a no—— 

Chairman ISSA. Mr. Cole, that was a question that you could answer yes or no. Would you continue to investigate people without 

a smidgen of evidence? Would you continue to spend the taxpayer 

dollars when, in fact, there was no reasonable belief that a crime 

had been committed? 

Mr. COLE. Sometimes you investigate to ensure that you have 

evidence that one wasn’t committed. 

Chairman ISSA. So you could be—— 

Mr. COLE. Or to find out whether one was committed. 

Chairman ISSA. You could be—Mr. Cole, that means that you 

could be spending the time and money trying to prove that Lois 

Lerner is innocent and that this committee was wrong in accusing 

her. You could be doing that. 

Mr. COLE. We are not trying to prove anything. 

Chairman ISSA. I didn’t ask what you were trying to do. I 

asked—— 

Mr. COLE. We are trying to find out what the facts are and determine whether or not there is—— 

Chairman ISSA. OK. Well, let me get to my obligation to try to 

get to the facts. I issued you a lawful, constitutionally mandated 

subpoena. I issued a subpoena to the attorney general. And in it, 

we asked for all documents and communications between Lois 

Lerner and employees at the Department of Justice. You responded, and said, ‘‘We also have not included documents reflecting 

the department’s internal deliberations about law enforcement 

matters’’—fine—‘‘in which we have substantial confidential interest 

because we believe that disclosures would chill candid exchange of 

interviews that are important to sound decisionmaking.’’ 

Do you recognize those words? Mr. Peter Kadzik sitting behind 

you could shake his head yes. He signed the letter. 

Mr. COLE. That is a standard policy of the Justice Department. 

Chairman ISSA. OK. So I just want to make it clear. The standard policy of the Department of Justice is, you don’t give us the 

Q&A of your interviews because it could have a chilling effect on, 

or adversely affect, your ongoing investigations. Is that correct? 

Mr. COLE. That is correct. 

Chairman ISSA. Great. I just wanted to make sure we understood 

that was what good investigations do. However, when we subpoenaed the documents between the Department of Justice and Lois 

Lerner we got one tranche. That tranche shows that, in fact, either 

Justice wanted the goods on lots of people—including information 

that wasn’t publicly available, taxpayer ID information—or Lois 

Lerner sent that information and the Department of Justice didn’t 

want it. It is only one or the two, because it did get sent. 
28 

When we subpoenaed all the communications, was there any reason that you would not and have not delivered to us all of those 

documents, since that is not your investigation of Lois Lerner but, 

in fact, our investigation of you being the Department of Justice in 

addition to Lois Lerner, since there obviously was a relationship 

there in which documents inappropriate to be sent were sent. 

Mr. COLE. Right. I would have to go back and look. There is a 

difference between the documents that were created at the time 

and documents that have been created in determining how to respond, as is described in the letter. I don’t know which documents 

are being withheld at this point, Mr. Chairman, so we would have 

to look at those to see which ones they are. 

Chairman ISSA. Will you commit today, in the case of documents 

that would have been exchanges between Lois Lerner or documents 

that Lois Lerner may have asked to be sent back and forth, communications at—in those periods of time? This is before—obviously, 

before you were debating whether to give us information or not. 

But the documents related to her activities and her—and the IRS’ 

activities. 

Will you agree either to give us all the documents related to correspondence back and forth between the IRS and anyone at Department of Justice in this time period that may have been related 

to the ongoing investigation—501(c)(3)’s and (c)(4)’s and so on—or 

give us a privileged log? Understanding that as an attorney one or 

the other is due us. Will you commit to do that? 

Mr. COLE. We will commit to give you the documents, or we will 

give you an indication of what types of documents we are not providing you, as we have done in the past, so that you will understand. 

Chairman ISSA. Will you do it in the form of a privileged log so 

that the documents have sufficient specificity to individually make 

the claim of why there is a specific privilege, not a blanket—we are 

giving you some, we are not giving you others—if you don’t mind? 

Mr. COLE. My understanding, Mr. Chairman, is we have not 

given privileged logs in the past, and we see no reason to start that 

now. But we will give you information that will allow you to understand the nature of the documents that are not being provided. 

Chairman ISSA. My understanding is that your boss has been 

held in contempt because he refused to give us documents related 

to the laws being broken by lying to Congress and the people who 

knew about it for 10 months. And those internal documents have 

yet to be produced, in spite of the fact that it is before the court 

and 2 years later. So understand, I don’t care about your history. 

I don’t care about anything except the Constitution. And when the 

discussion was going on about Citizens United, I almost interrupted for one reason. It is not about the law. 

Citizens United is a constitutional decision. It is not a law that 

can be fixed. You cannot fix a constitutional decision. The Constitution was a decision that the President objected to. The Constitution 

was the one that he truly failed to have decorum in the well of the 

U.S. House of Representatives, when he reprimanded the Supreme 

Court for their decision in Citizens United. And Lois Lerner 

thought publicly and said publicly they want us to fix it. And Lois 
29 

Lerner went about trying to fix it by going after conservative 

groups for what they believed. 

And working with the Department of Justice to try to get audits 

and further prosecution of people who essentially were conservatives and asserting their constitutional free speech. 

So, Mr. Cole, I hope that you would never investigate Lois Lerner 

or the crimes related to this if there wasn’t a smidgen of evidence. 

I would hope that you were doing it because, in fact, as we know 

on this committee crimes were committed, regulations were violated, rules were broken and Americans’ constitutional rights were 

violated by Lois Lerner and perhaps others around her. 

And I would hope that is the reason your investigation is ongoing. And I look forward to those privileged logs. 

Thank you, Mr. Chairman. I yield back. 

Mr. JORDAN. The gentleman from Nevada is recognized if—or— 

we can come—we are gonna come back. We are gonna recess. But 

if you want to go now, we got 3 minutes and 40 seconds left in the 

vote. 

Mr. HORSFORD. Mr. Chairman, I actually ask for unanimous consent under Rule 9 that the minority be given equal time, based on 

the fact that the chairman went over additional 5 minutes. 

Mr. JORDAN. I have been very lenient with the time, and I have 

let the ranking member go over. And we will be happy to let you 

go over if you want. But that may mean we miss votes—but go 

right ahead. 

Mr. HORSFORD. Thank you. Thank you, Mr. General, for being 

here today. And I want to start by again just reiterating the fact 

that the chairman asked at the beginning of this hearing for you 

to swear, under oath, that you were telling the truth, the whole 

truth and nothing but the truth before this committee. And so 

throughout the questioning, you have indicated that this investigation is ongoing by the Department of Justice. Is that correct? 

Mr. COLE. That is correct. 

Mr. HORSFORD. Is there any reason for members of this committee or for millions of Americans to believe that that is not the 

case, or to believe otherwise? 

Mr. COLE. There is no reason, no. 

Mr. HORSFORD. After the press report was released in January 

2014, has Attorney General Holder explicitly Stated to the public 

that the investigation is ongoing? 

Mr. COLE. I believe he has. 

Mr. HORSFORD. Thank you. 

I want to bring to the committee’s attention the fact, again, that 

many of us agree that there was absolutely wrongdoing by the IRS 

on the handling of the tax-exempt status, and the process was unacceptable, and that people do need to be held accountable. I believe that the President famously referred to the IRS mishandling 

of these applications on Super Bowl Sunday as consisting of ‘‘bonehead decisions.’’ The President went further and commented that 

there was ‘‘not even a smidgen of corruption.’’ 

Now, much has been made of the President’s Statements. Chairman Goodlatte asked, during a June 11, 2014 judiciary hearing, 

‘‘How can we trust that a dispassionate investigation is being carried out when the President claimed no corruption occurred?’’ Dur-
30 

ing the same hearing, Chairman Goodlatte asked FBI Director, 

James Comey, ‘‘Can you explain why there is an investigation, 

given that the President said that there was not even a smidgen 

of corruption?’’ 

Director Comey responded, ‘‘I mean no disrespect to the President or anybody else who has expressed a point of view about the 

matter, but I don’t care about anyone’s characterization of it. I 

care, and my troops care, only about the facts. There is an investigation because there was a reasonable basis to believe that crimes 

may have been committed, and so we are conducting that investigation.’’ 

So Deputy Attorney General Cole, do you agree with the assessment that outside characterizations, even by the President, have no 

bearing on a particular investigation? 

Mr. COLE. That is correct. People don’t know what it is we know, 

and they have—we do our job, and try to block out whatever people 

say on the outside. 

Mr. HORSFORD. Is it accurate to say that the department does 

not take direction from the President on how to conduct ongoing investigations? 

Mr. COLE. We do not. And that is a very specific line that is 

drawn. 

Mr. CUMMINGS. Will the gentleman yield? 

Mr. HORSFORD. Yes. 

Mr. CUMMINGS. Just for a second? Mr. Chairman, I understand 

we have less than a minute—Mr. Chairman. I don’t know whether 

you were coming back. Were you coming back? 

Mr. JORDAN. Yes. 

Mr. CUMMINGS. Can he resume his questioning when he comes 

back? I mean, if you don’t mind. I want us to be able to vote. 

Mr. JORDAN. [Off mic.] 

Mr. CUMMINGS. Yes, yes. Does that make sense? I just want to 

make sure we get answers—we are out of time. We got to get to 

vote. 

Mr. JORDAN. But there are 300 people haven’t voted, so—— 

Mr. CUMMINGS. Yes, well, I am not gonna be one of them. 

Mr. JORDAN. All right. It is you up to—I was gonna let him finish 

all 5 minutes. 

Mr. CUMMINGS. Yes, I would—— 

Mr. JORDAN. Recess? All right? Let me—I am gonna ask one 

more question. I won’t take your time. I am gonna have one quick 

question before I go. 

Mr. HORSFORD. So I reserve my time, Mr. Chairman, until we return. 

Mr. JORDAN. All right. You will get—you will be given your full 

2–1/2, 3 minutes, whatever you had left. 

Mr. Cole, we are gonna recess. But before we do, is the Department of Justice investigating why the IRS waited 2 months to disclose the loss of Lois Lerner’s emails? 

Mr. COLE. I don’t know if that is specifically what we are investigating We are looking at the loss of the emails, but—— 

Mr. JORDAN. I am asking your specifically. Are you gonna look 

at the fact that the head of the agency that targeted conservative 
31 

groups knew, in April, and didn’t tell us and didn’t tell you for 2 

months? Are you gonna look at that fact? 

Mr. COLE. I think that depends on whether or not the IRS refers 

or the inspector general refers that to us. This is an area that we 

will probably want to satisfy ourselves—— 

Mr. JORDAN. Why should—what should the inspector general 

have to do with it? If you think that is a problem, I certainly think 

it is a problem, the American people think it is a problem. I would 

hope the Justice Department would think it is a problem. So why 

wouldn’t you look into the 2-month lag? 

Mr. COLE. We would have to determine if there is a potential 

criminal violation before we would look at that. We don’t just investigate for no reason. There has to be some sort of basis or some sort 

of thought that it might implicate a Federal criminal statute. So 

we would have to look at that first. 

Mr. JORDAN. All right. We will resume. We are gonna take a recess. You can—obviously, we will be back in probably 30 minutes. 

So thank you. 

Mr. COLE. OK. 

Mr. JORDAN. We stand in recess. 

[Recess.] 

Mr. JORDAN. The committee will be in order. 

The gentleman from Nevada is recognized for the remainder of 

his time. 

I believe it was—approximately 3 minutes or so still. I will give 

you a couple extra minutes. How is that? Put on 3 minutes, if we 

can. The gentleman is recognized. 

Mr. HORSFORD. Thank you. Mr. Attorney General, thank you for 

continuing to be with us this afternoon. 

So as I was concluding my questions before we recessed, I was 

asking about the fact that regardless of Statements made by outside groups or characterizations that the Department of Justice approaches its investigations in fair, impartial and uninfluenced 

ways. So if you could just answer, for the record, that—whether it 

is the case to say that the department does not take direction from 

the President on how to conduct ongoing investigations. 

Mr. COLE. We do not take any direction from the President. Matter of fact, that is a time-honored restriction and barrier that is put 

in between the Department of Justice and the White House. It is 

independent in its investigations, and that is honored very scrupulously. 

The Department of Justice—I think Director Comey put it very 

well. When we find allegations that are worthy of investigation, for 

whatever reason, we investigate them to find out what the true 

facts are, then apply those facts to the law and make a determination about what the appropriate resolution should be. That is what 

we do; no more and no less. 

Mr. HORSFORD. So has the President’s Statement in any way— 

the Statement that there was ‘‘not a smidgen of corruption’’ influence the department’s investigation in any way? 

Mr. COLE. No, it has not. 

Mr. HORSFORD. Mr. Chairman, what I would like to say is actually the fact that I wish that this committee would approach our 

oversight function in the way that the Department of Justice is ap-
32 

proaching its investigation, which is to do so fairly, impartially and 

without prejudging the facts. 

And the attorney general here today has indicated that that is 

definitely the approach that they take. And we want the facts, as 

well. There are those of us who believe that there was wrongdoing 

and that there should be accountability. 

We just don’t think that we should prejudge the circumstances 

before all of the facts get out, despite the approach by others. I 

would like to ask unanimous consent, Mr. Chairman, to enter into 

the record opening Statements of the two Department of Justice 

employees who were interviewed in the course of this committee— 

IRS investigation. 

Mr. JORDAN. Without objection. Wait, wait, wait, wait. Opening 

Statements, you said? 

Mr. HORSFORD. The chief of the public integrity section, Jack 

Smith, and the director of the elections crimes branch. 

Mr. JORDAN. And what are you asking to enter? 

Mr. HORSFORD. I am asking to enter their Statements from 

their—— 

Mr. JORDAN. Well, is it the full transcript? We had this debate 

just a little bit ago. If it is the full transcript, I would object. If it 

is a Statement they—— 

Mr. HORSFORD. It is not. However, I want to say for the record, 

Mr. Chairman, the Republican Armed Services Chairman, Buck 

McKeon, just released 100 percent of the transcripts from 

Benghazi. So I am not clear on the standard being used by this 

chair. 

Mr. JORDAN. We are gonna try to move on. I think I am gonna 

object. I will take a look it, and I am gonna object now. We will 

take a look at it afterwards. 

Mr. HORSFORD. You are gonna object—— 

Mr. JORDAN. The gentleman from—— 

Mr. HORSFORD. Can I ask the point of order as to the reason 

for—— 

Mr. JORDAN. You need unanimous consent to enter—— 

Mr. CARTWRIGHT. What would be the rule that—— 

Mr. JORDAN. I am gonna recognize—I want to try to move and 

get to as many of our colleagues as I can. So—— 

Mr. HORSFORD. Mr. Chairman, under rule nine—— 

Mr. JORDAN [continuing]. For the next vote. 

Mr. HORSFORD. I have not finished my time that was allotted to 

me. No, we were—— 

Mr. JORDAN. I think you are 42 seconds over. 

Mr. HORSFORD. No, the chair was over 5 minutes. I had additional time, we recessed, I have not finished—— 

Mr. JORDAN. I gave you—I gave you more than the time you had 

left. 

Mr. HORSFORD. No, you—under rule nine—— 

Mr. JORDAN. And I have given Mr. Cummings more time than 

5 minutes. I have given—I think it—talk to Mr. Carver, talk to 

anyone. I have been pretty generous with the time and I will continue to be generous with the time. But I do want to get to everyone who is here, and Mr. Meadows has been waiting a long time. 
33 

Mr. HORSFORD. Under rule nine, I am asking for a parliamentary 

inquiry—— 

Mr. JORDAN. The gentleman is—the gentleman from North Carolina is recognized for his 5 minutes. 

Mr. HORSFORD. Will you—so the chairman will not recognize my 

parliamentary—— 

Mr. JORDAN. I am recognizing the gentleman from North Carolina because you are now a minute 16, plus the additional minute 

I gave you. You are 2–1/2 minutes over time right now. 

Mr. HORSFORD. Because you will not recognize my point of order 

under rule nine. 

Mr. JORDAN. I said I object to your point of order. 

You don’t have a valid point of order on—— 

Mr. HORSFORD. There is a valid point of order. 

Mr. JORDAN. You need unanimous—you asked for unanimous 

consent, I objected to that. 

Mr. HORSFORD. Has the minority been given equal time? 

Mr. JORDAN. Yes, they have. You won’t—— 

Mr. HORSFORD. For the majority. 

Mr. JORDAN. Now, in absolute time you won’t get as much because you are the minority, you don’t have as many members of the 

committee. 

Mr. HORSFORD. That—— 

Mr. JORDAN. But you are going to be—get equal time for the 

number of members you have. 

The gentleman from North Carolina is recognized. 

Mr. MEADOWS. I—— 

Mr. CARTWRIGHT. Mr. Chair, I would like to be recognized. 

Mr. JORDAN. The gentleman from North Carolina has already 

been recognized. If he will yield you can be recognized. But right 

now, the gentleman from North Carolina is recognized for 5 minutes. 

Mr. CARTWRIGHT. Will the gentleman yield for 30 seconds? 

Mr. MEADOWS. Well, yes. I will be glad to yield for 30 seconds. 

Mr. CARTWRIGHT. Thank you. Mr. Chairman, I would like to 

point out that the chairman of the full committee, Mr. Issa, was 

given a full 10 minutes prior to Mr. Horsford’s line of questioning. 

And it was represented by you to Mr. Horsford that he would be 

given an extra 5 minutes. 

Mr. JORDAN. It was not represented I would give him an extra 

5 minutes. 

It was represented I would give him extra time, and I gave—— 

Mr. MEADOWS. I am reclaiming my time. 

Mr. JORDAN [continuing]. To ther committee members—— 

Mr. MEADOWS. I am reclaiming my time. 

Mr. JORDAN. And I have done. 

Mr. MEADOWS. I thank the chair. And let me go ahead, Mr. Cole, 

with a few questions. One, in your testimony, your verbal testimony here today, to give you a quote, you say you have ‘‘the utmost 

confidence in TIGTA,’’ in their investigation. Is that—do you stand 

by that? I mean, that is a direct quote of you. 

Mr. COLE. Yes, I do. And the entire team that is investigating 

this. 
34 

Mr. MEADOWS. All right. So let me ask you, is it normal procedure, when TIGTA investigates somebody, to have a member of 

management in on personal interrogatory discussions with other 

employees? Why would you—would you normally do that in your 

investigative mode? To have members of management in the majority of those interviews? 

Mr. COLE. A lot of those take place before we—— 

Mr. MEADOWS. Would you—the question is—— 

Mr. COLE. I just want to put it in context, Congressman. Because 

the idea—— 

Mr. MEADOWS. So were you there when the interviews were happening back in 2011, with TIGTA? How would you put it in context? 

Mr. COLE. I am trying—if you will let me explain, I think you 

will understand. Inspectors general have different types of investigations that they do other than just criminal investigations. 

Mr. MEADOWS. Right. 

Mr. COLE. This is—we are working with TIGTA on a criminal investigation—— 

Mr. MEADOWS. I understand that. 

Mr. COLE. Prior to this, they were doing an investigation on their 

own, without us—— 

Mr. MEADOWS. So your utmost confidence is really about the investigation now, not what happened before. 

Mr. COLE. It is the different types of rules that may apply. Sometimes different agencies have union rules that apply and control 

the way that an inspector general may talk to people. I am not 

sure what the rules are at the IRS, and they cover TIGTA’s—— 

Mr. MEADOWS. Since you weren’t there, we will go on. May 2013 

you started an investigation. Is that correct? 

Mr. COLE. The Justice Department. 

Mr. MEADOWS. The Justice Department started an investigation. 

And that continues today. 

Mr. COLE. Yes, it does. 

Mr. MEADOWS. OK. Missing emails that we have now discovered, 

does it not concern you that your exhaustive investigation did not 

uncover the fact that there were missing emails and that you had 

to read about it in the press? Should we be concerned that your investigation is not exhaustive if it took you more than 13 months 

and you had to read about it in the press that there were missing 

emails? Does that concern you? It concerns me. 

Mr. COLE. I understand it concerns you. 

Mr. MEADOWS. Would that concern you? 

Mr. COLE. Depends on the reason. And as the—as I have explained, as we have looked through the records in this case there 

was not a gaping hole. Because these emails come from a lot of different sources. 

Mr. MEADOWS. OK. 

Mr. COLE. And as a result—— 

Mr. MEADOWS. And that is reasonable. But the individual with 

TIGTA that knew about the fact that there were missing emails in 

October 2012, did you not talk to him? Because he apparently 

didn’t tell you, and he knew about it. Why would he not have told 

you if you had this ongoing, exhaustive investigation with some-
35 

body from TIGTA of which your have the utmost confidence? And 

they wouldn’t tell you that there were missing emails, when he 

knew about it? 

Mr. COLE. If I am—if I understand your question, the person who 

I believe knew about it earlier on was in a much different context. 

And I don’t know how much they knew about what related to our 

investigation at the time. 

Mr. MEADOWS. Listen, to—— 

Mr. COLE. I just don’t know. I am not—— 

Mr. MEADOWS [continuing]. You are—you are insulting the 

American people. 

Mr. COLE. I don’t believe—— 

Mr. MEADOWS. And if you are indicating that someone that was 

involved in the TIGTA investigation didn’t know that there was all 

that is going on, and that the American people are concerned. Are 

you—is that what you are saying? 

Mr. COLE. I don’t know if that person was involved in this 

TIGTA investigation. 

Mr. MEADOWS. Yes. I mean, they wrote notes. That is how we 

found out about it in October 2012. Actually, the way we found out 

about it is, you gave us emails and we all of a sudden said why 

did the IRS not give us these emails. And then it was, Shazam. 

Here, we found out that these missing emails—when actually 

someone with TIGTA already knew about it. 

Mr. COLE. I would have preferred that the dots get connected 

earlier, but I think that TIGTA agent, in October 2012, was investigating something quite different. And not this investigation, this 

matter that TIGTA was in, is my understanding. 

Mr. MEADOWS. Oh, really? 

Mr. COLE. That is my—— 

Mr. MEADOWS. Because according—he went back and found 

notes that there may be a problem. So let’s go on a little bit further. The IRS commissioner knew in February that there was a 

problem, and he says he didn’t tell you. Are you concerned about 

that? 

Mr. COLE. Would have liked to have known. 

Mr. MEADOWS. Yes, would have liked to have known. We would 

have, too. And so you found out about it in a newspaper. 

Mr. COLE. That is correct. 

Mr. MEADOWS. All right. So how exhaustive is your investigation, 

then, Mr. Cole, if you would have liked to have known about it? 

How can the American people have confidence in your investigation 

if the things that you would like to know about aren’t getting 

asked? Are you not having interviews back and forth? Has anybody 

interviewed the IRS commissioner? 

Mr. COLE. As I have said, we don’t talk about who we interview 

and who we don’t interview. 

Mr. MEADOWS. Well, he says you haven’t. So would you think 

that he was being truthful with Congress? 

Mr. COLE. I am not gonna comment on what we do in our investigations. But certainly, as part of looking into the emails, we will 

look into all of that, as well. 

Mr. MEADOWS. Well, when? If 13 or 14 months is not enough, 

when is enough? 
36 

Mr. COLE. We just found about this last month, Congressman, 

and we are starting to look into it. 

Mr. MEADOWS. I will yield back. Thank—— 

Mr. JORDAN. Mr. Cole, are you asserting that you are going to 

interview Mr. Koskinen? 

Mr. COLE. I didn’t say what we were going to do, Mr. Chairman. 

As you know, we don’t talk about the steps we take in investigations, but we will certainly look into, as part of the emails, all of 

the issues surrounding it. 

Mr. JORDAN. The gentleman from South Carolina is recognized. 

Mr. GOWDY. Thank you, Mr. Chairman. Deputy Attorney General 

Cole, you have been done a tremendous disservice when the President prejudged this investigation. It is not fair to the people at the 

Department of Justice, it is not fair to the people who are investigating, and it is not to the complaining witnesses, the potential 

victims. It is really unheard of for somebody who purports to be an 

expert in constitutional law to prejudge an investigation. So I am 

gonna start with that. 

And I know that you cannot provide names and I know that you 

cannot provide details. But you have, on a number of different occasions this morning, sought to reaffirm that there is an ongoing 

investigation. So I am gonna ask you about some of the traditional 

investigatory tools and make sure that those are at play. And 

again, I am not asking you for names and I am not asking you for 

specifics. But when you say a matter is being investigated, I think 

it—and by the way, back in the old days you couldn’t even confirm 

that there was an ongoing investigation. That was the policy back 

in the old days. 

I don’t know if the policy has been waived or this particular fact 

pattern is such that you are willing to confirm an ongoing investigation. But that is policy, that is not law. There is no law that 

prevents you from answering these questions. Have witnesses been 

brought before a grand jury? 

Mr. COLE. As you well know, Representative Gowdy, we can’t 

talk about anything that takes place before a grand jury. That is 

not prohibit—that is not permitted under rule 6E. 

Mr. GOWDY. Have subpoenas been issued? 

Mr. COLE. That is also a grand jury—— 

Mr. GOWDY. Have administrative subpoenas been issued? Not 

grand jury subpoenas, but administrative subpoenas been issued? 

Mr. COLE. With all due respect, Congressman, we don’t talk 

about the steps we take in our investigations. They are thorough, 

and—— 

Mr. GOWDY. Mr. Deputy Attorney General, I understand that. 

But when the chief law enforcement officer for this country, the 

chief executive, prejudges an investigation, and you are seeking to 

assure us that that investigation is ongoing and vibrant and being 

professionally done, I think it is OK, in this instance, for you to reaffirm us that all the traditional tools available to prosecutors are 

being used. Administrative subpoenas aren’t covered by rule 6E, so 

you can answer that question. 

Mr. COLE. We are using every tool that is appropriate to be used, 

we are using every facility we can to find out what the facts are 

in this matter as thoroughly and as completely as we can. 
37 

Mr. GOWDY. How many witnesses have been interviewed? 

Mr. COLE. I cannot tell you that. 

Mr. GOWDY. You cannot because you don’t know, or you cannot 

because you choose not to answer the question? 

Mr. COLE. It would be both. 

Mr. GOWDY. More than 20? 

Mr. COLE. I am not gonna go into a guessing game with you, 

Congressman. 

Mr. GOWDY. Have any proffers been—— 

Mr. COLE. I am not gonna go into the details of the investigation, 

I am sorry. I know that is frustrating. But when this is over, we 

will be providing you with details. 

Mr. GOWDY. Well, how would we know when it is over? I mean, 

obviously if there is an indictment it is over for that person until 

the prosecution. But how are we—look, you have a constitutional 

responsibility to do your job. With all due respect, so do we. It is 

different. Our job is not to prosecute criminal code violations, but 

it is our job to set policy and to determine whether or not an agency is worthy of the same level of appropriation that it received the 

year before. 

And we can’t do our jobs if we are constantly told, not because 

of the law but because of policy, that we are not gonna answer any 

of the questions related to the investigation. So how will we know 

when this investigation is over? 

Mr. COLE. We will let you know, either through an indictment 

that comes out and you will see that, or through us telling you that 

it is over and providing you with information. 

Mr. GOWDY. You don’t know how many witnesses have been 

interviewed. 

Mr. COLE. I don’t know an exact number, no. But I wouldn’t tell 

you if I did, with all due respect. 

Mr. GOWDY. Do you know what percentage of witnesses have 

been interviewed. Out of the full universe of witnesses that have 

been—that you have identified, how many have been interviewed? 

Mr. COLE. I am not gonna go down that road, Congressman, 

sorry. 

Mr. GOWDY. Are there any plea agreements been signed? 

Mr. COLE. I am not gonna go down that road. 

Mr. GOWDY. Deputy Attorney General, I asked you the last time 

you were before a committee that I had the privilege of serving on 

if you would please, in the quietness of your own conscience, consider whether or not this fact pattern is appropriate for a special 

prosecutor. And I am sure that you did, but this morning you said 

you have reached the conclusion that it would not be appropriate. 

Can you give me the fact pattern where it would be appropriate? 

If prejudging an investigation that has political overtones and undertones, and the selection of—and I am not prejudging Ms. 

Bosserman. She, I am sure, is capable of doing a very fine job. 

I just find it stunning that she would be picked. Out of the full 

universe of available Federal prosecutors, to pick a maxed-out 

donor I just think was very short-sighted. So if it is not this fact 

pattern, what fact pattern would it be appropriate to ever use a 

special prosecutor, given the fact that your boss drafted the regulation? 
38 

Mr. COLE. It is very, very rare in the history of the Justice Department to use a special prosecutor. 

Mr. GOWDY. Give me a fact pattern where it would trigger to 

you, in your mind, the appropriateness of a special prosecutor. 

Mr. COLE. I can’t go down and dream up a fact pattern, Mr. 

Gowdy. But I know the one time we have appointed a special counsel was in the Waco investigation, where Senator Danforth was appointed. 

Mr. GOWDY. Well, the regulation is in place. It is pretty plainly 

written. The interests of justice, potential conflict. You have politics 

infecting this investigation. You have a prejudgment by the commander in chief that there is not a smidgen—and I will substitute 

the word ‘‘scintilla’’ because smidgen is not a legal term—there is 

no evidence of wrongdoing. It has already been determined. You 

talk about jeopardizing investigation, you talk about compromising 

a jury pool, I mean, again, I—out of fairness to you, I am not gonna 

ask you to comment because he is your boss. 

But I—really, that was a tremendous disservice to be done to 

people who dedicate their lives to law enforcement to prejudge an 

investigation and to do it for a cheap political score during the 

Super Bowl. So if not here, when? If not this fact pattern, when? 

Mr. COLE. Each individual matter is gonna have to be judged on 

its own individual and unique facts. I can’t set out a prescription 

for when one would be appropriate. All I can tell you is we have 

analyzed this one, we have looked at the applicable regulations, 

and this does not meet any standard that would come to the point 

of warranting a special counsel. 

Mr. GOWDY. When you say it has been analyzed, this is a determination that is ultimately made by the attorney general himself? 

Mr. COLE. Along with myself. 

Mr. GOWDY. Did you seek outside opinions? Did you consult anyone else whose legal opinion you value, and ask, hey, this is an interesting fact pattern. Maybe this is appropriate. To go find a career prosecutor who hasn’t maxed out to the RNC or the DNC. I 

mean, did you seek other people’s opinions? 

Mr. COLE. The internal deliberations, as you well know, Representative Gowdy, are not things we talk about in public. But we 

made a thorough review of this matter and determined it didn’t 

meet any sort of standard to warrant a special counsel. 

Mr. GOWDY. My time is up, Mr. Cole. I am gonna end the same 

way I ended last time. This is bigger than politics, it is bigger than 

election cycles. The one entity in our culture that is universally respected and represented by a woman wearing a blindfold is the Department of Justice. And when we start playing games with that 

we are in trouble. 

Mr. JORDAN. I thank the gentleman. 

Mr. Cole, when a criminal investigation is started, isn’t usually 

one of the first things that happens is you go gather and protect 

and get ahold of the evidence? 

Mr. COLE. That usually happens fairly early on, yes. 

Mr. JORDAN. OK. So when this investigation was started, did you 

guys go—well, let’s—let’s back up. May 22 of last year Lois Lerner 

came in front of this committee and exercised her Fifth Amendment rights, would not answer our questions. She has been a cen-
39 

tral figure in this whole thing. Has—so back May 23, the day after 

that, did the FBI and the Justice Department look at going to Ms. 

Lerner’s office and seizing and getting ahold of all the documents, 

her computer, her files? Did you attempt to do that in May of last 

year? 

Mr. COLE. Don’t mean to sound like a broken record, Mr. Chairman, but we are not at liberty to talk about non-public information 

about what we did in this investigation. 

Mr. JORDAN. Well, if you—it would seem to me if you had done 

that—let me ask it this way. If you had done that maybe we would 

have learned about the lost emails a lot sooner. Let me ask you 

this. So how do you—how are you getting the evidence in this case? 

You were just waiting for the IRS to give it to you like we have 

to wait for them to give them—give us the documents and the 

emails? 

Mr. COLE. We are doing what we need to do to get the evidence, 

Mr. Chairman, and we are getting the evidence that we need in 

this matter. 

Mr. JORDAN. So you can’t tell me whether you went and got a 

search warrant, a court order to go and get those documents from 

Ms. Lerner’s office or from the IRS? 

Mr. COLE. As I have told you before, and I know it is frustrating 

to you, but we can’t talk about the non-public aspects of the investigation. 

Mr. JORDAN. All right. I am gonna go back to this point that I— 

again, several members have talked about it. If there is a private 

citizen who was under investigation by the Justice Department and 

they withheld information, willfully withheld information, about 

the loss of evidence, the loss of documents, for 2 months would that 

be a crime? 

Mr. COLE. Depends on if they had a legal duty to disclose that, 

as—when you are dealing with somebody withholding something as 

opposed to affirmatively making a false Statement, you have to 

find some sort of legal duty for them to make the disclosure to have 

that be criminal. 

Mr. JORDAN. OK. So it would depend if they had a duty. But that 

would be something you would look into. You would investigate 

whether, in fact, they had a duty to disclose to you in an appropriate time fashion that they had, in fact, lost those documents. 

Mr. COLE. We would. 

Mr. JORDAN. That would be something you would investigate. 

Mr. COLE. Yes. 

Mr. JORDAN. You said earlier that, relative to Mr. Koskinen, it 

depends on whether there is a problem with the fact that the commissioner at the IRS knew in April and waited 2 months to tell us, 

the American people and, more importantly, you. So you are going 

to investigate that aspect, as well, just like you would for a private 

citizen? 

Mr. COLE. All the issues related to those emails will be wrapped 

up in the investigation that we do. 

Mr. JORDAN. Including the delay? 

Mr. COLE. Including the delay. 

Mr. JORDAN. So the delay in—the fact that the commissioner at 

the Internal Revenue Service delayed telling the Congress, the 
40 

American people, the FBI and the Justice Department is a matter 

that you are going to investigate. 

Mr. COLE. We are gonna look into what the circumstances were 

around that, yes. 

Mr. JORDAN. Well, that is—that is important. 

I would recognize the ranking member for his questions. 

Mr. CUMMINGS. Thank you, Mr. Chairman. 

Mr. JORDAN. I will go with whoever wants to go. If Mr. 

Cummings is ready to go—— 

Mr. CUMMINGS. Thank you very much, Mr. Chairman. All right, 

Chairman Issa and Chairman Jordan have alleged that prominent 

Democrats, Mr. Cole, pressured the Department of Justice and the 

IRS to single out conservative groups for potential prosecution. 

Both chairmen allege in a May 22 letter to the attorney general 

that a hearing held in April of last year by a Democratic Senator, 

‘‘led to the Justice Department reengaging with the IRS on possible 

criminal enforcement relating to political speech by non-profits.’’ 

A press release accompanying the letter alleged that the department officials and Lois Lerner ‘‘discussed singling out and prosecuting tax-exempt applicants at the urging of a Democratic senator.’’ General Cole, I would like to give you an opportunity to address this allegation. And did the department discuss singling out 

and prosecuting tax-exempt applicants at the urging of a Democratic senator? 

Mr. COLE. No. What happened in that regard was just trying to 

answer a question of whether we had a mechanism for whether applicants for tax-exempt status, if they had lied on their application 

for that status—if there was a mechanism for the IRS to refer 

those types of false Statements to the Justice Department for consideration for prosecution. That is all that was. 

Mr. CUMMINGS. And so in other words, if someone—we have been 

sitting here talking about crime here quite a bit. If someone allegedly committed a crime, would they—or, again, I said ‘‘alleged.’’ 

Would there be a mechanism by which to get that information to 

the Justice Department? Is that what you are trying to tell me? 

Mr. COLE. That is correct. There was no targeting or anything 

like that. It was just whether or not we had the proper communications and mechanisms that if it was discovered by the IRS that 

false Statements had been made were those going to the Justice 

Department for its consideration. 

Mr. CUMMINGS. Does the department typically take direction 

about prosecution decisions from Members of Congress? 

Mr. COLE. No, we do not. 

Mr. CUMMINGS. Your testimony today is consistent with Statements made by the Department of Justice officials interviewed by 

the committee. On May 29, committee staff asked the public integrity section chief the following question, ‘‘Did you ever receive any 

instruction from any Member of Congress to target Tea Party or 

conservative groups for prosecution?’’ He responded, ‘‘No.’’ Similarly, on May 6 committee staff asked the director of the election 

crimes branch—if a letter from a Democratic senator directed him 

to ‘‘target conservative organizations for prosecution.’’ And he responded no, it did not. 
41 

Mr. Deputy Attorney General, are you aware of the department 

receiving direction from Democratic Members of Congress to target 

or prosecute a conservative organization, or have you—or any 

Member of Congress trying to get you to target any organizations? 

I am just curious. 

Mr. COLE. I am not aware of it. But to the extent any such request was made, we would not honor that. We would ignore it. 

Mr. CUMMINGS. And so you—when you say you would ignore it, 

certainly a lot of investigations are started by newspaper articles, 

I guess. I mean, you see something in an article, and the FBI may 

see it and certain allegations are made like that. But isn’t it a fact 

that sometimes things that may appear in the newspaper may 

start a ball to rolling with regard to an investigation? And I was 

just wondering, just taking a natural extension of that, if someone 

were to say something that seemed to indicate that perhaps some 

criminal activity had taken place, or alleged, would you not pursue 

that? 

Mr. COLE. If somebody brought to our attention evidence of a 

crime we would of course look into it. But if somebody wanted us 

to target somebody because of their political beliefs we would not 

go down that road. 

Mr. CUMMINGS. And so I am hoping that those accusations we 

can put to rest. You know, going back to some questions Chairman 

Issa asked you a moment ago, with regard to the investigation of 

Ms. Lerner, when you look at the facts that you have got—and I 

am not asking you to get into that. Let me talk just generally. And 

you pursue those facts, whatever they may be. And what happens? 

Does the—does a group of attorneys get together and say, you 

know what, we move forward with a case. Again, I am taking away 

from Ms. Lerner, just talking in general I mean, what usually happens there? At what point do you determine that you are gonna 

proceed, and how does that come about? 

Mr. COLE. Generally the way it works is the line attorneys involved in and learn the facts of the investigation. The investigation 

is conducted largely by the law enforcement agents, many times 

the FBI. They may be working with the line attorneys in helping 

figure out what the information is that is needed. When they have 

gathered all the facts, they take a look at what those facts are in 

light of the applicable law. Then recommendations are made to 

their supervisors as to what the resolution should be of the case, 

and it could be any number of resolutions. 

And the supervisors then review those recommendations. They 

may ask for more information to be gathered because certain facts 

may not have been developed sufficiently. They may decide that 

they disagree with the recommendation or agree with the recommendation. Any number of things can happen in that process. 

But these are all done by the career people, usually with input 

from the investigators and through the line and division and section chiefs in the divisions that we have in the department by career people. 

Mr. CUMMINGS. So that the record is clear. So all of this—now 

going to Ms. Lerner—there is no decisions that have been made. 

I assume you can answer that question. 

Mr. COLE. No decisions have been made. 
42 

Mr. CUMMINGS. No decisions have been made. Everything is wide 

open, is that right? 

Mr. COLE. That is correct. 

Mr. CUMMINGS. All right. 

I have nothing else. Thank you. 

Mr. JORDAN. Thank the gentleman. 

Recognize the chairman of the full committee. 

Chairman ISSA. Thank you. I can understand that no decision 

has been made. But let’s just go through this because I think it is 

important. The Ways and Means Committee did do a criminal referral. You have—you are in receipt of that, isn’t that correct? 

Mr. COLE. That is correct. 

Chairman ISSA. And that, in fact, does give you a basis of a number of allegations to investigate. Is that correct? 

Mr. COLE. That is correct. 

Chairman ISSA. You took those allegations seriously. Is that correct? 

Mr. COLE. We do. 

Chairman ISSA. So you have serious allegations, referred—based 

on actual evidence produced from the Ways and Means Committee, 

voted on by that committee and referred to you, on which you are 

continuing to consider wrongdoing by Lois Lerner and have not 

made a final decision. 

Mr. COLE. Yes. 

Chairman ISSA. Additionally, this committee and the U.S. House 

of Representatives, as an entire body on a bipartisan basis, referred 

contempt to the U.S. attorney. Isn’t that correct? 

Mr. COLE. That is correct. 

Chairman ISSA. And the statute says the U.S. attorney shall 

prosecute that. Is that correct? 

Mr. COLE. That, I believe, is the wording of the statute. 

Chairman ISSA. At the current time, the U.S. attorney has not 

prosecuted that. Isn’t that correct? 

Mr. COLE. No charges have been brought, to my knowledge. 

Chairman ISSA. And under the statute, that criminal referral— 

that referral for contempt—is, in fact, a separate event from any 

other allegations and is not, in fact, subject to double jeopardy. 

Isn’t that true? 

Mr. COLE. I am not sure what you mean by subject to double 

jeopardy. 

Chairman ISSA. That all charges need to be brought, often in a 

related manner—need to be brought at one time. Otherwise, there 

is a question of piling them on sequentially. Contempt was, in fact, 

and is in fact, a separate event that can be—you can go forward 

with separate from the ongoing criminal investigation of Lois 

Lerner. Isn’t that true? 

Mr. COLE. I am not sure I agree with the first part, but contempt 

is separate. 

Chairman ISSA. Contempt is separate. So it is not a charge that 

has to wait for the other charges and investigation. So today, can 

you explain to us why the U.S. attorney would not go forward with 

a contempt that has already been evaluated, voted out of the U.S. 

House on a bipartisan basis, and bring it? There is not a lot of discovery, and she came, she talked, then she decided to lawyer up, 
43 

if you will, with taking the Fifth. And then turned around, talked 

some more, answered some questions, and then reasserted the 

Fifth Amendment. The contempt information is available to you on 

video, online. 

Why, in fact, is the U.S. attorney not bringing it? What purpose—what lawful right does he have not to obey ‘‘shall bring the 

case’’? 

Mr. COLE. I don’t believe it says ‘‘shall bring the case,’’ No. 1. 

But—— 

Chairman ISSA. Well, ‘‘shall prosecute.’’ 

Mr. COLE. I don’t think it even says shall prosecute. 

Chairman ISSA. It is not a ‘‘may,’’ it is a ‘‘shall.’’ Yes, there we 

go. ‘‘Shall have a duty to bring the matter before us.’’ So OK, he 

has got to bring it before—look, I am not a lawyer, I don’t try to 

play one. There are good lawyers here on both on the dais and behind the dais. It is very clear this is not a statute where he gets 

to think about it and decide if he is gonna do it. This should be 

brought forward for consideration. 

The only question would be what is a reasonable timeline. Now, 

would you please answer. Do you believe there is a reasonable 

timeline, and if so would you name that for us? 

Mr. COLE. Every case has its own time and it needs its own review. There has been—— 

Chairman ISSA. This didn’t say you can review it and look at it 

and think about it. It says we have already made our decision, he 

has been held in—she has been held in contempt. It is a question 

of when ‘‘shall’’ applies to bringing the case. 

Mr. COLE. Well, ‘‘shall’’ doesn’t say he shall bring a case. That 

is not there. The prosecutor retains discretion about whether or not 

a case should be brought. 

Chairman ISSA. Let me read this verbatim to you. Because apparently, only verbatim matters here. ‘‘To the appropriate United 

States attorney,’’—the U.S. attorney in the District—‘‘whose duty it 

’shall be’ to bring the matter before the grand jury for its action’’— 

shall bring it before the grand jury. There is no discretion there, 

is there? 

Mr. COLE. I believe that the Office of Legal Counsel, when Ted 

Olson was in that position, rendered an opinion that said there is 

discretion, in fact. 

Chairman ISSA. Then would you please grant us a yes or no? You 

know, an absence of justice because you may think that you may 

not have to enforce the Constitution, you may not have to obey 

Congress, you may not have to deliver information pursuant to 

crimes committed by the Justice Department in bringing fraudulent Statements before the Congress, and then covering it up for 

10 months, the only thing we ask for—that Mr. Cummings, I am 

sure, would join me is—if you don’t think ‘‘shall bring’’—shall—I 

will keep reading it appropriately—shall be to bring the matter before the grand jury for its actions. 

If you don’t think that means that in a period of time that would 

be reasonable to do it, that he shall do it. If you think it is discretionary, would you please give that back to us in a legal opinion 

so that we can change the law to make it clear you are wrong. 

Mr. COLE. We can provide you with that. 
44 

Chairman ISSA. I would appreciate having a legal opinion. Now 

I have one last question. Do you know a person named Virginia 

Seitz, S-E-I-T-Z? 

Mr. COLE. Yes, I do. 

Chairman ISSA. Did she work for the Department of Justice for 

approximately 90 days? 

Mr. COLE. She worked for more than 90 days. 

Chairman ISSA. How long? 

Mr. COLE. I don’t know the exact amount. 

Chairman ISSA. At that time, was she working on criminal areas, 

including wire fraud? 

Mr. COLE. She was the—Virginia Seitz, I believe, was the assistant attorney general in charge of the Office of Legal Counsel. 

Chairman ISSA. OK. So is there any chance that during her tenure policy changed as to the enforcement of Internet online gaming, 

illegal activities, or any chance that any policy changed under her? 

Mr. COLE. I would have to go back and look. I don’t know offhand. 

Chairman ISSA. This committee is interested in knowing, during 

her relatively short tenure apparently, what role she played in 

evaluating any policy change related to the—going after online 

gaming. We can followup with appropriate demands if that is necessary. But we would hope that you would inform us as to any policy change, as to going after Internet and online—essentially, online gaming. And any role she may have played in it. 

Mr. COLE. If you communicate your request to us, Mr. Chairman—— 

Chairman ISSA. We will do so. 

Mr. CUMMINGS. Will the gentleman yield? 

Chairman ISSA. Of course I would yield. 

Mr. CUMMINGS. Thank you very much. The only reason I am asking for a yielding is to—I want to join the gentleman. I, too, 

would—you mention my name, and I am interested in seeing the 

Olson opinion. But there is something else that I want you to do, 

too. I want you to provide us with a history of how contempt has 

been dealt with through Republican and Democratic prosecutors, 

U.S. attorneys. And any information that you may have with regard to this ‘‘shall.’’ 

Because I understand the gentleman’s concern. You have got the 

word ‘‘shall’’ there, but I just want to know what the history has 

been, the history. And the Olson opinion is just one part of that 

history. And the question of whether the statute usurps 

prosecutional discretion. I hope your people can get something back 

to us so that we have that entire body of law of whatever you have 

been doing, your tradition, so that we will know what Republicans 

and Democrats have been doing. 

Chairman ISSA. And I would—I would only amend that ever so 

slightly to say please leave out of it, or put separately, the questions in which executive privilege has been claimed. Since in the 

case of Lois Lerner, the case in point, we are talking about what 

we believe to be a criminal, based on referrals from the Ways and 

Means Committee, who made Statements before this committee 

under oath, asserted her Fifth Amendment rights, and made more 
45 

Statements under oath. And then reasserted and was held in contempt by the U.S. House of Representatives. 

So we are talking narrowly about somebody who came, quite 

frankly, not in any particular role. She is a former employee of the 

government, but she came and was held in contempt. Not someone 

in which the President claims any executive or, you know, similar 

privileges. 

Mr. COLE. I understand. 

Chairman ISSA. Mr. Chairman, thank you for your indulgence. 

This has been very informative, and we will followup with a letter 

on Ms. Seitz. 

Mr. JORDAN. Mr. Cole, we know that emails Lois Lerner sent 

outside the IRS are missing. We know that she had communications with the Justice Department on several occasions in emails. 

And we know that you are withholding certain documents from the 

committee. Is it fair to assume that some of those documents you 

are withholding actually are emails that Ms. Lerner has—emails 

from Ms. Lerner to people in the Justice Department? 

Mr. COLE. I don’t know if it is fair to assume it. I don’t know exactly which documents are being withheld. But I don’t know if it 

is fair to assume that it would include—— 

Mr. JORDAN. Well, let me ask it this way. Can you guarantee us 

that none of the documents the Justice Department is withholding 

from Congress are Lois Lerner emails? 

Mr. COLE. I can’t guarantee. I haven’t seen all the documents we 

are withholding. But we will take a look at them. 

Mr. JORDAN. We would like to see the documents, is frankly what 

we would like to see. 

Mr. COLE. I understand, but we are gonna give you the ones that 

we can give you. 

Mr. JORDAN. So you very well could have. I mean, we have all 

kinds of emails where it is Lois, can you send it to us in the format 

the FBI wants? We have the pretty extensive correspondence back 

and forth you are withholding documents. The only emails that are 

missing—frankly, this is why I raised the question earlier. It would 

have been nice if you would have went in—and maybe you have, 

but you won’t tell us—got a search warrant, got a court order, went 

in and seized her files right at the get-go maybe we would have 

known that all these emails were missing a year ago. 

But the fact that emails she has sent outside the IRS are missing, she had direct correspondence with people in the Justice Department, you are now withholding documents from this committee 

and from the Congress and, more importantly, the American people. Seems to me there are probably some Lois Lerner emails in the 

documents you are withholding. 

Mr. COLE. I am not sure there is a valid assumption that there 

are probably Lois Lerner’s emails that we are withholding. I don’t 

think that is a fair assumption. 

Mr. JORDAN. Yes, but what is fair to say is, you cannot guarantee 

that there aren’t. 

Mr. COLE. I haven’t looked at all the documents, Mr. Chairman, 

so—— 

Mr. JORDAN. Well, that would be important for—well—— 

Mr. COLE. I can’t answer that question—— 
46 

Mr. JORDAN. First of all, it would be important for you to look 

at it, as the guy who is coming here testifying to say maybe you 

could give us more information about it. Because second of all, it 

would be nice if we could get them. 

With that, I will recognize the gentleman from Pennsylvania. 

Mr. CARTWRIGHT. First off, General Cole, would you like to respond to that last Statement? 

Mr. COLE. I am not sure I heard completely the last Statement. 

Mr. CARTWRIGHT. All right, fair enough. 

A couple issues I want to touch on, on the prejudging and the 

screaming issues. First of all, I share something with Mr. Gowdy 

of South Carolina. I prefer technical, legal terms. And when we 

talk about—you know, when we talk about smidgens, ‘‘scintilla’’ 

might be better. And when we talk about prejudging, ‘‘prejudicing’’ 

might be better. And I want to talk about whether anything has 

been done to prejudice the investigation of the Justice Department. 

My colleague, Mr. Horsford, touched on this earlier. 

Last month, the Judiciary Committee held a hearing, and they 

brought in FBI Director, James Comey, and went over this. And 

Chairman Goodlatte asked him can you explain why there is an investigation, given that the President said there was not even a 

smidgen, or a scintilla, of corruption. And Director Comey, the director of the FBI, said, ‘‘I mean no disrespect to the President or 

anybody else who has expressed a view about the matter, but I 

don’t care about anyone’s characterization of it. I care, and my 

troops care, only about the facts. There is an investigation because 

there was a reasonable basis to believe that crimes may have been 

committed, and so we are conducting that investigation.’’ 

Now, Deputy Attorney General Cole, do you agree with the FBI 

director’s assessment that outside characterizations, even by the 

President of the United States, have no bearing on a particular investigation? 

Mr. COLE. That is correct. Outside characterizations by anybody 

have no bearing on our investigation. 

Mr. CARTWRIGHT. And when you talk about career prosecutors, 

line prosecutors, career investigators, does that apply to these people? 

Mr. COLE. It does. These are all career Justice Department investigators, attorneys. None of them are political appointees. 

Mr. CARTWRIGHT. Is it accurate to say that the Department of 

Justice does not take direction from the President on how to conduct ongoing investigations? 

Mr. COLE. We do not and we would not. 

Mr. CARTWRIGHT. All right. There was also an allegation of 

screaming going on by the DOJ screaming at the IRS. And I am 

gonna invite your attention to the testimony of Jack Smith who, as 

you know, is the chief of the DOJ public integrity section. This was 

testimony taken on May 29, 2014. Representative Jordan was 

present. And I am gonna read to you a brief quote from that. 

Question—and this was a question to Mr. Smith. ‘‘If you direct 

your attention to the second sentence of the second paragraph 

below the block quote, it reads, ’By encouraging the IRS to be vigilant in possible campaign finance crimes by 501(c)(4) groups the 

department was certainly among the entities, ’screaming,’ at the 
47 

IRS to do something in the wake of Citizens United before the 2010 

election.’’ And the question was, ‘‘Are you aware of the department, 

‘‘screaming at the IRS to do something in the wake of Citizens 

United before the 2010 election?’’ 

And the chief of the DOJ public integrity section said no. The 

next question was, ‘‘At the October 8, 2010 meeting, did anyone at 

the department raise their voice at the IRS, speak in strident 

tones, make demands on the IRS?’’ The answer was no, by Jack 

Smith. And then the question was, ‘‘Are you aware of anyone at the 

Department of Justice placing pressure on the IRS to influence the 

outcome of the 2010 elections?’’ And the answer was no. And I am 

gonna put that same question in front of you, Mr. Cole. Are you 

aware of anybody at the Department of Justice screaming at anybody at the IRS to fix Citizens United or put any kind of pressure 

on the IRS? 

Mr. COLE. No, Mr. Cartwright, not at all. This is not something 

we would be doing. We are just looking for whether or not there 

are criminal cases to be made or not, and that is it. 

Mr. CARTWRIGHT. Not aware of any screaming. 

Mr. COLE. No screaming. 

Mr. CARTWRIGHT. And you didn’t do any screaming yourself, I 

take it. 

Mr. COLE. I did not. 

Mr. CARTWRIGHT. Thank you, Mr. Cole. 

I yield back. 

Mr. JORDAN. Mr. Cole, when the President of the United States 

makes a speech or makes a Statement, does that have meaning? 

Does that have bearing, does that have influence? 

Mr. COLE. On a criminal investigation by the department—— 

Mr. JORDAN. I am just saying when the President talks, he does 

an interview, he goes and—he gives speeches all the time. Sometimes he will talk in a way that is designed to send a message to 

even foreign heads of State. So when the President talks, does that 

have meaning and influence? 

Mr. COLE. As a basic matter, it can, certainly. 

Mr. JORDAN. So when the President gives an interview—where 

he is not telling some story, he is not telling some joke—he is commenting on a serious subject matter, that has influence, that has 

impact, that has significance. Correct? 

Mr. COLE. Not on a criminal investigation. 

Mr. JORDAN. I am not—I am just saying in general. I am asking 

you—you are a smart guy, a lawyer, you have done very well in 

life. You are at an important position in the U.S. Government and 

the Justice Department. When the President talks, it has impact. 

Mr. COLE. It can. 

Mr. JORDAN. It should. He is the President of the United States, 

President of the greatest country in the world. 

Mr. COLE. I understand that. 

Mr. JORDAN. The leading—it should have impact. 

Mr. COLE. He has asked Congress to do a lot of things. It seems 

not have had much impact. 

Mr. JORDAN. It has impact. It had impact. We heard him. But 

we think he is—we think he is wrong. Here is my point, then. And 

I respect—I am like everyone else on this panel, I respect the good 
48 

professionals who work in the Department of Justice. But don’t you 

think it is possible, maybe even likely, that in the back of even the 

best professional—in the back of their mind, they know that the 

President has said in a public way, in a very public way—a nationally televised interview—that there is nothing there, there is nothing there. 

Don’t you think that just somewhere deep back in there it may 

have a—just to use the term my colleague uses, a ‘‘scintilla’’ of impact, just a smidgen of impact, on the decisions of these great professionals who work in your agency? 

Mr. COLE. I am gonna echo Director Comey’s Statement in that 

regard. No, it doesn’t. These people put out—what other people say, 

they put it out of their minds, and they go after the facts. That is 

what they care about. And particularly in high profile cases like 

this, that happens quite a bit. And they are very expert at putting 

out of their minds anything but the facts in the law in the case. 

Mr. JORDAN. So the—so Barbara Bosserman doesn’t take this 

into account. That the guy she gave a max-out contribution to his 

campaign goes on national television and says there is nothing 

there, it is not anywhere—not anywhere in the back of her mind 

that this thing has already been prejudiced. 

Mr. COLE. Her job is to not do that, and she does her job—— 

Barbara Bosserman, who gave $6,750 to the President’s campaign and the Democrat National Committee. Here is the President 

who could be a potential target of the investigation, when she 

hears that, it doesn’t impact her at all. 

Mr. COLE. It does not. She does her job professionally. 

Mr. JORDAN. You can say that for sure. You can speak for Barbara Bosserman here today. 

Mr. COLE. Yes, I can. 

Mr. JORDAN. That does not impact her. 

Mr. COLE. I have confidence in the career prosecutors and career 

people—— 

Mr. JORDAN. That is amazing. 

Mr. COLE [continuing]. In the Department of Justice. 

Mr. JORDAN. That is amazing. OK, thank you. 

I will recognize the gentleman from Florida. 

Mr. DESANTIS. Thank you, Mr. Chairman. Deputy Attorney General Cole, if the DOJ is investigating an individual or an entity, 

when is it ever acceptable, if it is acceptable at all, to conceal the 

fact that the—that evidence sought by law enforcement has been 

destroyed? I mean, I can see a civil case where you are asking for 

specific things, a criminal case where a search warrant is issued. 

Is it acceptable to not disclose that to law enforcement? 

Mr. COLE. Again, as I have said with Mr. Jordan and—Chairman 

Jordan, it depends on the circumstances. They shouldn’t conceal it, 

they shouldn’t lie about it. There may or may not be, depending on 

the circumstances, a duty to tell about it. But those are all gonna 

depend on the circumstances of—— 

Mr. DESANTIS. So if you were—the DOJ was prosecuting a civil 

matter against, say, a company, issues subpoenas asking for emails 

over a specific period of time, and then that company responded 

saying, yep, we will comply with it. But if they had reason to be-
49 

lieve that they wouldn’t be able to fulfill that request, then that 

would be a problem if they had represented that to you, correct? 

Mr. COLE. Yes. If, at the time they represented that to us, they 

knew that they weren’t complying that would be a problem. 

Mr. DESANTIS. And then if they didn’t know at the time, but 

then after sending you the response they figured out that they 

were wrong, they do have a duty to come back to you and amend 

that response, correct? 

Mr. COLE. Yes, they should come back and tell us. 

Mr. DESANTIS. OK. Here is an issue that I just—I was confused 

about. The DOJ was not informed that emails had been lost or destroyed. Congress obviously wasn’t until June. But according to 

IRS Commissioner Koskinen the Treasury Department and the 

White House were informed in April. So what would be the reason 

to disclose that to the Treasury and the White House but not disclose it to either the DOJ or Congress, who are both conducting investigations into the matter? 

Mr. COLE. I don’t know. That is a question you should probably 

give to the IRS. 

Mr. DESANTIS. Does it bother you, though, that they would have 

told the Treasury Department without telling the Justice Department? 

Mr. COLE. They are part of the Treasury Department so, again, 

you would have to ask them as to their reasons for doing this. 

Mr. DESANTIS. How about the White House? Does it concern you 

that they would let the White House know, but not tell the Department of Justice? 

Mr. COLE. Again, I would want to know what the circumstances 

were and who at the White House and what was told. I just don’t 

know enough information to answer. 

Mr. DESANTIS. So is it gonna be something, though—those circumstances, is that something that you think is appropriate to investigate? 

Mr. COLE. This will all be part of our looking into the emails, 

yes. 

Mr. DESANTIS. Recently, two Federal judges have greeted the 

IRS’ claim of lost emails with suspicion. And they have actually— 

are forcing the IRS to come in and substantiate their claim that 

these things are somehow lost and not recoverable. And we have 

people who have advised us, that say, yes, you know we got data 

from the Challenger explosion, 9–11, all this stuff. And a lot of people in the data community, IT, say, well, come on you are gonna 

be able to get these emails. 

So how would you characterize the Department of Justice? Do 

your greet the IRS’ claim that these emails are simply lost because 

the hard drive crashed with skepticism? 

Mr. COLE. We are trying to find out if there is any way to recover 

them and do what we can to do that. 

Mr. DESANTIS. Is it safe to say that if you were investigating a 

private entity, and you wanted specific documents, if they simply 

said, sorry, the hard drive crashed, that would be not—that probably would not be something you would simply just accept at face 

value? 
50 

Mr. COLE. Generally, we would ask what the circumstances were 

and the facts were behind a Statement that they couldn’t be recovered. 

Mr. DESANTIS. Let me just followup with this whole thing about 

the U.S. attorney, whether they shall bring it. Because I think we 

are kind of—people are using different terms. Bringing something 

before a grand jury is not the same as prosecuting at the trial, correct? 

Mr. COLE. That is correct. 

Mr. DESANTIS. So the statute does not impose a duty on the U.S. 

attorney to actually bring the case to trial, right? 

Mr. COLE. That is correct. 

Mr. DESANTIS. It imposes a duty on the U.S. attorney to bring 

it to a grand jury. Is that accurate? 

Mr. COLE. The language of the statute, and I don’t mean to be 

just kind of fine-point lawyerly on your, but there is this Ted Olson 

opinion from—— 

Mr. DESANTIS. Well, what—I think what Olson is saying is—— 

Mr. COLE [continuing]. From another—— 

Mr. DESANTIS [continuing]. He is basically—the statute, to me, 

is crystal clear. An obligation to bring it before a grand jury. I 

think what Olson is saying is, look, article two, we are the executive, you guys are the executive branch. You can’t force someone, 

necessarily, to prosecute a case. I think generally that is true. I 

mean, if we told you just to prosecute every money laundering case 

you may get a lot of cases that aren’t meritorious and so would be 

a waste of resources. And it would impinge on your discretion. 

Mr. COLE. Right. 

Mr. DESANTIS. But this, I think, is a little bit different. Because 

we in Congress have found reason for contempt. It was voted on 

behalf of the American people. So us imposing a duty simply to 

bring it to a grand jury and allow them to make a decision, I think 

is a little bit different. 

Let me ask you this. The fact that we impose the duty to bring 

it to a grand jury, let’s just say you accept that. Do you think that 

imposes a duty on the prosecutor to ask that a true bill be returned? Or could you, as a prosecutor, consistent with that statute 

go into a grand jury proceeding? 

And I don’t necessarily think this is what should happen. But 

could you actually go in your judgment, if you didn’t think the contempt was meritorious, and ask the jury not to return a true bill? 

Mr. COLE. Well, obviously there is an assumption in your question that it has to be brought before a grand jury. And this Ted 

Olson opinion does—— 

Mr. DESANTIS. Assume that, for me, for just a second. 

Mr. COLE [continuing]. Does address that, and say that is not 

necessarily the case. Bringing a matter before the grand jury for 

action which is, I believe, the wording of the statute, leaves open 

any number of different resolutions that the grand jury could be 

asked to bring. 

Mr. DESANTIS. Thank you. 

I yield back. 

Mr. JORDAN. The gentlelady, Ms. Kelly, is recognized. 

Ms. KELLY. Thank you, Mr. Speaker—Mr. Chairman. 
51 

Republicans allege that efforts to target conservative groups in 

the screening of applicants’ tax-exempt status is the result of an 

overarching government conspiracy involving the White House, the 

IRS, the Justice Department, Securities and Exchange Commission, the Federal Election Commission as well as other agencies. 

According to the Republicans, this vast conspiracy originated after 

the Supreme Court’s 2010 Citizens United decision. 

Chairman Issa, in my opinion, issued a partisan staff report on 

June 16, 2014 concluding that the Justice Department and the IRS 

had ‘‘internalized the President’s political rhetoric lambasting Citizens United and non-profit speech.’’ Deputy Attorney General Cole, 

to the best of your knowledge did the President’s political rhetoric 

about Citizens United cause the department to conspire against 

non-profit political speech? 

Mr. COLE. It did not. 

Ms. KELLY. Do you have—— 

Mr. JORDAN. Would the gentlelady, are you asking about the IRS 

or the Justice Department? 

Ms. KELLY. I haven’t yielded. 

Mr. JORDAN. I thought the question was did the IRS conspire. Of 

course they did. 

Ms. KELLY. I haven’t yielded. 

But do you have any reason to believe that the Citizens United 

has prompted the unwarranted prosecution of political organizations? 

Mr. COLE. No, I have no reason to believe that. 

Ms. KELLY. Your answer does not surprise me. Because despite 

conducting 10 hearings, receiving hundreds of thousands of pages 

of documents, and conducting over 40 transcribed interviews, the 

committee has been unable to gather any actual evidence of this 

vast conspiracy my Republican colleagues claim exist. 

In fact, the evidence gathered by the committee and the IG show 

that the inappropriate search terms that were first used by an employee in the Cincinnati determinations unit, and the inspector 

general’s May 14, 2013 report concluded, that the inappropriate criteria, ‘‘were not influenced by any individual or organization outside the IRS.’’ 

Deputy Attorney General Cole, in the written testimony that you 

submitted to the committee, you wrote, ‘‘I have the utmost confidence in the career professionals in the department and the 

TIGTA, and I know that they will follow the facts wherever they 

lead and apply to the law to those facts,’’ which you have said here. 

Is that the guiding principle that the department uses in conducting all of its investigations? 

Mr. COLE. Yes, it is. 

Ms. KELLY. I think that this committee should follow these same 

principles to its investigation of the IRS. It is quite clear that the 

facts do not lead to the conclusion that Citizens United prompted 

a governmentwide conspiracy. 

And thank you for your testimony. 

Mr. CUMMINGS. Will the gentlelady yield? 

Ms. KELLY. Yes. 

Mr. JORDAN. The gentleman from—— 
52 

Mr. CUMMINGS. I want to go to what Mr. DeSantis was just asking you. You referred to the Olson case, and I have the Olson case 

in front of me, the Olson opinion rather. And what it says is we 

believe that Congress may not direct the executive to prosecute a 

particular individual without leaving any discretion to the executive to determine whether a violation of the law has occurred. That 

is what the opinion says. It is a 1984 opinion, dated May 30. And 

this was a contempt citation coming from the Congress that he was 

talking about. 

So I guess this is consistent with what you were saying. I mean, 

is this a—so this Olson case in the U.S. attorney’s office—I mean, 

it is well-known. Is that right? In a certain—I mean, this Olson 

opinion, is this something that is well-known, it is something that 

you all, you know—— 

Mr. COLE. It is known, I don’t know if it is well-known. But if 

you are dealing with—— 

Mr. MEADOWS. Will the gentleman yield? 

Mr. COLE [continuing]. A citation—— 

Mr. MEADOWS. Will the gentleman yield? 

Mr. CUMMINGS. Of course. 

Mr. MEADOWS. I am confused. Is Mr. Olson—is he a judge? I 

mean, what opinion are we talking about here? I thought he was 

a career employee. 

Mr. CUMMINGS. I am sorry. 

Mr. MEADOWS. I yield back. 

Mr. CUMMINGS. Mr. Olson was a—— 

Mr. MEADOWS. I thank the gentleman from Maryland for yielding. 

Mr. COLE. If I may answer, Mr. Olson was not a career employee, 

but a political employee, political appointee, as the assistant attorney general for the Office of Legal Counsel back in 1984 in the 

Reagan Administration. The Office of Legal Counsel is asked many 

times, and is authorized, for the executive branch of government to 

provide legal opinions which are binding upon the executive branch 

of government, to interpret various aspects of law that the government has to abide by. 

Mr. CUMMINGS. Thank you very much. So you said he was a 

Reagan employee—appointee? 

Mr. COLE. Yes. 

Mr. CUMMINGS. Very well. I would like to—since we have talked 

about this opinion, Mr. Chairman, I would like to enter into the 

record—— 

Mr. JORDAN. Without objection. 

Mr. CUMMINGS. Very well. 

That is all I have. 

Mr. JORDAN. The gentleman from North Carolina is recognized. 

Mr. MEADOWS. Thank you, Mr. Chairman. 

Mr. Cole, let me come back to, really, what I guess I am a little 

concerned. The public integrity section, you said, reached out to the 

IRS. Is that correct—in 2010? 

Mr. COLE. In 2010, yes. My understanding is they made contact 

with the IRS. 

Mr. MEADOWS. All right. So what was the nexus of why they 

reached out? 
53 

Mr. COLE. I just look at the account that I have heard from Jack 

Smith and from Richard Pilger, who have testified—given transcribed interviews to the committee about what they were doing at 

the time. 

Mr. MEADOWS. All right. Do you.. 

Mr. COLE. So I take their purpose as what it was. I think Mr. 

Smith had seen an article in the newspaper about what appeared 

to be perhaps a misuse of the tax-exempt organization laws and 

wanted to find out if there—— 

Mr. MEADOWS. So that is your opinion. 

Mr. COLE. No, that is not my opinion. That is just my understanding of what—— 

Mr. MEADOWS. OK. But as part of this investigation, wouldn’t it 

be important for us to understand the nexus of them reaching out 

to the IRS; emails, I mean, motivations. Wouldn’t that be important to understand? 

Mr. COLE. Right. I think we are in the process of providing that 

to you. When you talk to both of them about what their motivations were—— 

Mr. MEADOWS. But I mean, isn’t it important for DOJ to look at 

that? Wouldn’t that be part of the investigation? 

Mr. COLE. That is not necessarily part of the IRS investigation. 

Mr. MEADOWS. Why wouldn’t it be? Because, I mean, motives 

back and forth, wouldn’t that be part of it? 

Mr. COLE. Nothing happened. That was a brief meeting. There 

was a discussion about how it would be very, very difficult, if not 

impossible, to bring cases. There were no investigations started, 

there were no referrals made. Nothing happened after that. This 

was a very, very brief—— 

Mr. MEADOWS. So you say nothing happened. 

Mr. COLE [continuing]. And unproductive—— 

Mr. MEADOWS. How can you give me that kind of specificity with 

regards to what happened and what didn’t happen if you are really 

not familiar with what went on? Because you just said that prior 

to that. How can you be so precise in nothing happening. I 

don’t—— 

Mr. COLE. Because we have had people look at whether or not 

the public integrity section got any referrals from the IRS as a result of that. 

Mr. MEADOWS. So part of your investigation, you have looked at 

that. 

Mr. COLE. We asked about whether that happened. 

Mr. MEADOWS. OK, all right. So do you have an open investigation right now on April Sands, who used to be with the FEC? 

Mr. COLE. I am not aware one way or another. April Sands? 

Mr. MEADOWS. Yes. I mean, maybe you need to read the newspapers about this, when she was the one that actually violated the 

Hatch Act, worked with the FEC, used to work with Lois Lerner. 

You are not aware of that? 

Mr. COLE. Not off-hand. 

Mr. MEADOWS. OK. Well, I would encourage you to become aware 

of that. Because she admitted that she violated the Hatch Act and 

that, quite frankly, some of the Twitters asking for donations while 
54 

at work, or have been alleged, wouldn’t that be important that you 

look at that, from the Department of Justice? 

Mr. COLE. You said she worked at the FEC? 

Mr. MEADOWS. Yes. 

Mr. COLE. I am not sure that is part of the IRS investigation. It 

may be—— 

Mr. MEADOWS. Well, let me just tell you. There was—Ms. Lois 

Lerner, it has been reported that Lois Lerner and April Sands actually worked together when they were with the FEC. Would part 

of your investigation—wouldn’t—— 

Mr. COLE. I am not gonna go into all the details, as I have said 

before, of our investigation. But—— 

Mr. MEADOWS. But I find it interesting. So you have never heard 

of April Sands. 

Mr. COLE. Not sitting here today. I don’t know about every single 

case that the Justice Department is investigating. We have 112,000 

employees. 

Mr. MEADOWS. Well, I am—I have been led to believe that you 

guys are not gonna look at it. And that is troubling because this 

gets to the very heart of what we have been talking about. And so 

would you commit here today to take a look at April Sands and the 

FEC, and what violations of the Hatch Act may or may not have 

occurred? 

Mr. COLE. I will commit here today to find out what the story 

is and see if it is a matter that is worthy of looking into. 

Mr. MEADOWS. All right. So let me close with this. You have done 

an exhaustive—I think, according to your words—exhaustive research in terms of these missing emails. Is that correct? 

Mr. COLE. I don’t know if I would use the word ‘‘exhaustive.’’ 

Mr. MEADOWS. Investigation. 

Mr. COLE. We have been very thorough in trying to find emails. 

Mr. MEADOWS. OK. So if you have been that thorough, does it 

not trouble you that it is very slow in forthcoming, and that you 

have to read the Washington Post to figure out what is going on 

in terms of IRS employees telling you what may or may not have 

happened over the last 4 or 5 months? 

Mr. COLE. I would have preferred to have learned earlier. 

Mr. MEADOWS. OK. So would that be something that would be 

subject to investigation by the DOJ? 

Mr. COLE. As I have said, that will be part of our looking at the 

emails, all the things that surround it. 

Mr. MEADOWS. So the fact that Mr. Koskinen, the commissioner—the IRS commissioner—didn’t tell you until months later, 

that troubles you. 

Mr. COLE. We are gonna be finding out what happened—— 

Mr. MEADOWS. Does that trouble you? 

Mr. COLE. Not until I find out all the facts, Congressman. 

Mr. MEADOWS. If it is true, does that trouble you? 

Mr. COLE. I need to find out all the facts—— 

Mr. MEADOWS. So you are afraid to say it troubles you. 

Mr. COLE. I am not afraid to say anything. I just don’t deal with 

hypotheticals. 

Mr. MEADOWS. All right. 

I yield back, thank you. 
55 

Mr. JORDAN. Thank the gentleman. 

The gentleman from Nevada is recognized. 

Mr. HORSFORD. Thank you, Mr. Chairman. Let me just say on 

the outset, I still find it astonishing the lack of courtesy that the 

chairman continues to show to members of this committee. The fact 

that members continue to not receive equal time, that the chair 

interrupts members during our time, the fact that you badger witnesses and make judgments upon employees and their motivations 

without any evidence. 

I think all of this does a disservice to the role of the oversight 

function which is very serious and has a very clear responsibility 

to the American people for providing an oversight to Federal agencies; and in this particular case, because there is so much concern 

about the wrongdoing that occurred at the IRS. 

I am also, you know, alarmed by the ongoing efforts by some 

members of the committee to treat this process like a courtroom. 

We have three branches of government for a reason. And I know 

while some members may be versed in the law and may have previous careers in that arena, this is not a courtroom. And yet there 

are those who continue to try to treat it as such. 

I want to speak to the issue of the special prosecutor, and to ask 

you, Mr. Cole, for your response. The attorney general, in a January 8, 2014 letter, responded—excuse me, Chairman Issa and 

Chairman Jordan in a letter to the attorney general claimed that 

Ms. Bosserman, a career attorney in the civil rights division at the 

Department of Justice, is leading the DOJ-FBI investigation. 

However, this allegation was directly refuted by the attorney 

general in his testimony before the Senate Judiciary Committee on 

January 29, 2014. I won’t read his full testimony. But so that there 

is no stone left unturned, Deputy Attorney Cole, I would like to ask 

you the same question that was asked of Mr. Holder. Is Barbara 

Bosserman the lead attorney in the Department of Justice’s investigation or the member of a larger team? 

Mr. COLE. She is a member of a larger team. She is not the leader of the investigation. 

Mr. HORSFORD. Despite assurances from the department that 

Ms. Bosserman is not the lead investigator, Chairman Issa and 

Chairman Jordan continue to assert that her political donations 

have created a ‘‘startling conflict of interest.’’ This supposed conflict 

of interest is a key justification for some Republican members’ request that the special prosecutor be appointed to conduct the criminal investigation. 

On May 2, 2014, days before introducing a resolution requesting 

a special counsel, Chairman Jordan said we need a special counsel 

to help us get to the truth because the so-called investigation by 

the Justice Department has been a joke; the current investigation 

has no credibility because it is being headed by a max donor who 

is financially invested in the President’s success. 

Mr. Cole, is there any merit to allegations that Ms. Bosserman’s 

involvement destroys the credibility of the Department of Justice 

investigation? 

Mr. COLE. No, I don’t believe there is any merit at all. 

Mr. HORSFORD. On June 26, the Department of Justice sent a 

letter concluding that the appointment of a special counsel is not 
56 

warranted. Can your explain the determination as to why the special counsel is not needed? 

Mr. COLE. We look at the regulations, we go by law in these matters, and we look at what the regulation is that is applicable here. 

And we have talked about it already in this hearing. Regulation at 

45.2, and Ms. Bosserman’s activities don’t come anywhere near the 

ambit of that regulation for her disqualification. There is no reason 

to take it away from the normal regular order of career prosecutors 

doing their job, with lots of other people involved: FBI, TIGTA, 

other people in other divisions and sections in the department. 

She is part of a much larger team, and there is no reason to take 

anything out of the normal course and the normal order. That is 

usually the best way to do an investigation. 

Mr. HORSFORD. Thank you. Well, then, I would assert, rather 

than wasting more taxpayer money on a special prosecutor, Congress should be focused on addressing some other pressing issues 

facing our constituents. 

And again, Mr. Chairman, I deplore you to please provide a level 

of decorum and civility so that those of us on this committee who 

do want to get to the truth and have a fair and impartial process 

can do so without having an abusive setting in which to operate. 

Mr. JORDAN. I thank the gentleman. 

Mr. Cole, does Barbara Bosserman have a financial interest in 

the President’s success? 

Mr. COLE. I don’t believe she does, no. 

Mr. JORDAN. So when you give a campaign contribution, you are 

not invested in—in hoping good things happen to the person you 

made that investment in? 

Mr. COLE. You do not have a financial interest. I know several 

leading ethics attorneys in the United States have been asked to 

opine on that and have said it is not even close that there is a conflict of interest just from—— 

Mr. JORDAN. Of the 112,000 employees that you have at the Justice Department, you couldn’t find someone, though, who didn’t 

have this perceived financial interest. You couldn’t find someone 

else to be a part of this team? 

Mr. COLE. There is no perceived financial interest, Mr. Chairman. 

Mr. JORDAN. There is by the American people. There may not be 

by you, but there is by the American people. 

Mr. COLE. I am not sure I agree with that, but—— 

Mr. JORDAN. Then you are welcome to come to my district any 

time you want and talk to all kinds of folks. Because they sure 

think there is. 

The gentleman from Arizona is recognized. 

Mr. GOSAR. Thank you, Deputy General Cole. Once again, I am 

a dentist and so these little minutia things I can go smaller; micromillimeters, millimeters, you got my point. Can you tell me a little 

bit more about this statute of 6103? Can you tell me the privileged 

information, and who gets that 6103? 

Mr. COLE. I am not an expert in 6103. It is part of the tax code, 

and it deals with protecting taxpayer information from disclosure 

except in certain circumstances. 
57 

Mr. GOSAR. OK. So I am gonna make a comparison, I guess. 

Being a dentist, I have to know HIPAA regulations and OSHA. I 

am not excused from that, right? 

Mr. COLE. That is correct. 

Mr. GOSAR. So when we are talking about 6103 within the IRS 

or DOJ or executive branch, or anybody working within the Federal 

Government, they are pretty astute to who gets 6103, right? 

Mr. COLE. They should be. 

Mr. GOSAR. Oh? Does it give them an excuse if they violate that? 

I mean, when I am under a malpractice case, I don’t get an excuse 

from HIPAA or OSHA, do I? 

Mr. COLE. Not that I know of. Depending on the circumstances. 

Mr. GOSAR. OK, so—and that is where I want to go here. Because I am talking from America, America wants to make sense of 

this jargon, this legal jargon. OK, does anybody get away with 

6103? 

Mr. COLE. If you violate 6103, if you violate the provisions, you 

should not get away with it. But it depends on the facts and circumstances, as with any case. 

Mr. GOSAR. Well, wait a minute. I mean, you just told me, as a 

regular citizen, I can’t get away with HIPAA and OSHA violations. 

But I can get away with a 6103? 

Mr. COLE. No, that is not what I am saying. I am sure—— 

Mr. GOSAR. OK, I just—— 

Mr. COLE [continuing]. I am sure that not every single HIPAA 

or OSHA violation is prosecuted, or dealt with. 

Mr. GOSAR. No, I am sure they are not. 

Mr. COLE. Serious ones are. 

Mr. GOSAR. I know. I understand that. OK. 

Mr. COLE. That is what I am saying. 

Mr. GOSAR. But, when we share 6103 there has to be an implicit 

to ask, right, from DOJ? 

Mr. COLE. There has to be an approval from the IRS, as I understand it—— 

Mr. GOSAR. Approval from the DOJ. 

Mr. COLE. No, from the IRS to share 6103 information. They 

have to authorize that. 

Mr. GOSAR. Do you have that in your possession from Ms. Lois 

Lerner? 

Mr. COLE. I am sorry? 

Mr. GOSAR. Do you have that in your possession from Ms. Lois 

Lerner? 

Mr. COLE. Have what? 

Mr. GOSAR. A permission to share 6103. She sent you a disk with 

1.1 million applications on there, with some 30 individuals have 

privileged information, for 6103. And the reason I bring that up is 

I am hampered as a Member of Congress with pertinent information, or 6103. And this is a willy nilly, just flippant aspect of sharing a disk. She knew it was on there. 

Mr. COLE. I don’t know that she knew that there was 6103 information on that. 

Mr. GOSAR. Well, wait. But the emails—— 
58 

Mr. COLE. It was represented to us at the time it came that there 

was not. And I don’t know if she is the one who sent it, or if someone else in the IRS—— 

Mr. GOSAR. She is the one who sent—whoa, whoa. She—she is 

the one. Thanks, Lois, FBI says they are all formatted best. She 

is the one that has the correspondence with the FBI in regards to 

the format of the disk. 

Mr. COLE. Right. But that doesn’t necessarily mean she prepared 

the disk, or sent it. 

Mr. GOSAR. She is the one that—she has oversight of that, right? 

Mr. COLE. I don’t know if that is within her control or not. I just 

don’t know. But the question is whether or not whoever sent it 

knew there was 6103 information on it. 

Mr. GOSAR. Well, she is—she has been involved in this regards 

of the leak of—this formatted aspect because she is the one talking 

to the FBI. Where I am going with this is, it gives me lenient— 

more pertinent information if I am learned in person that there 

was a violation of 6103. Wouldn’t that—if I am a learned person? 

Mr. COLE. Generally, there has to be an intentional violation. 

The question is whether this was—the information that was included, whether it was inadvertent or whether it was intentional. 

At the time it was provided, we were told that there was no nonpublic information. 

Mr. GOSAR. Then, once again, you were told that there was nonpertinent information, and there was. 

Mr. COLE. Non-public. 

Mr. GOSAR. Non-public information. So once again, to me, this 

brings—this issue up of this being pertinent information. And that 

when Congress says that we are doing contempt charges, when we 

are looking at the criminal or civil violation of an oath of office, 

doesn’t that give us some aspect of hedging our bet? 

Mr. COLE. I am not sure what you mean by hedging our bet. 

Mr. GOSAR. Well, wouldn’t this kind of go in the mindset of a 

U.S. attorney that they would actually bring forth the contempt 

charges issue by the—by Congress? 

Mr. COLE. I believe the U.S. attorney for the District of Columbia 

has the contempt citation and is reviewing it, and has assigned it 

to somebody. And the memo is being reviewed and worded. 

Mr. GOSAR. Let me ask you a question. You keep bringing up 

this Olson ruling. Isn’t that a subjective and an interpretive ruling, 

when the statute is very specific? 

Mr. COLE. The opinions by the Office of Legal Counsel, when 

they issue formal opinions, are binding on the executive branch. 

Mr. GOSAR. But isn’t it also the—when there is a conflict between the legislative intent of the language and the executive 

branch that we have to have a better review. So just one interpretive aspect would not be good enough. We should look—— 

Mr. COLE. That can—I am sure somebody could probably challenge that in the right forum in court if they don’t agree with an 

OLC opinion. But generally, the way the structure is set up for 

OLC is, they are the source of legal advice for the executive branch. 

Mr. GOSAR. Well, thank you, General Cole. 

Mr. JORDAN. The gentleman from California, the chairman is, 

recognized. 
59 

Mr. HORSFORD. Mr. Chairman, my—— 

Chairman ISSA. Thank you, Mr. Cole. Are you interrupting me? 

Isn’t there decorum? 

Mr. HORSFORD. I was asking the chairman—— 

Chairman ISSA. I guess I will yield. Please—— 

Mr. JORDAN. The gentleman from Nevada is recognized. 

Mr. HORSFORD. I was asking whether the chairman had made a 

determination on my request for unanimous consent to enter the 

document—— 

Mr. JORDAN. My apologies. I forgot to look at that. If you—if we 

can take a look at—the staff can look at the documents, then we 

will look at it. 

The gentleman from California. 

Chairman ISSA. General Cole—would you put up on the board 

the org chart, please? I am glad you brought up this whole question. This is a little small, a little complex. But that org chart up 

on the board shows the attorney general, followed by you, followed 

by a whole group of associates, followed by all the division chiefs. 

Virtually all of those people are political appointees, aren’t they? 

Mr. COLE. Many of them are. The—— 

Chairman ISSA. Virtually all. I mean, you and the attorney general and your—— 

Mr. COLE. Just the attorney—— 

Chairman ISSA [continuing]. Direct reports are political appointees. 

Mr. COLE. By and large, most of them are. Some are career, but 

the vast majority are political appointees. 

Chairman ISSA. Well, even if they are career—even if they are 

career, they are career people who serve at the pleasure. I mean, 

you can move them around. 

Mr. COLE. Some. They are in the SES service, and there are 

rules on that. But the vast majority of the assistant attorneys general and the associate attorney general are political appointees. 

Chairman ISSA. And the head of the civil rights division? 

Mr. COLE. Right now, that person is an acting person and is a 

career employee. 

Chairman ISSA. But they serve at the pleasure of you. 

Mr. COLE. That is correct, although there are certain civil service 

requirements—— 

Chairman ISSA. But you can move them, right?, to some other position. 

Mr. COLE. That would probably—— 

Chairman ISSA. OK. I mean, they keep their pay but they lose 

their job. And the criminal division? 

Mr. COLE. Same thing. That person is a political appointee, approved by the Senate. 

Chairman ISSA. So when we talk about Ms. Bosserman and the 

team she is on, everybody practically—from her team all the way 

up to your boss—you are all political appointees who control their 

lives and so on. So when the question was asked—and the gentleman from Nevada has left, but I think fairly—he was saying, 

well—he was asking you, and you answered, ‘‘Oh, of course. We 

don’t need a special prosecutor.’’ Don’t you understand the Amer-
60 

ican people see you as a political appointee. They see your boss, 

who has been held in contempt by the House for failure to comply. 

They see the Supreme Court finding that those legal opinions 

you seem to have get nine to zero against you. Now, I am gonna 

go to one quick one. Your legal opinions included your brief in Fast 

& Furious, didn’t they? Before Amy Berman Jackson, right? 

Mr. COLE. I am sorry, our legal opinion? 

Chairman ISSA. Your legal opinions led to those briefs in the 

Fast & Furious case that is currently in the district court in Washington. 

Mr. COLE. We have our lawyers in the civil division who draft 

those—— 

Chairman ISSA. OK, so your legal opinions were that you didn’t 

have to provide them, and that you were immune from having to 

provide them. And that it could—and specifically, your opinion was 

that she didn’t have the right to adjudicate that. Wasn’t that so? 

Mr. COLE. I believe that was the position we took. 

Chairman ISSA. And didn’t Judge Jackson say just the opposite? 

That she did have the authority, and that she found the same as 

Judge Bates did in an earlier case? That your premise was wrong? 

And weren’t you relitigating the exact same thing that President 

Bush had lost in the Conyers case? 

Mr. COLE. We were stating—everybody litigates positions constantly in—— 

Chairman ISSA. OK. So you are part of an administration that 

can relitigate that which has been decided. Just yesterday, you decided that there was an inherent—your administration decided 

there was an inherent right not to deliver a Federal employee, even 

though in the Harriet Miers-Bolton case it was made clear that 

depositions and witness subpoenas were, in fact, binding. So the 

strange thing is, is when you talk about legal opinions—and I appreciate the former solicitor general and how well he is held in regard. 

But what you are—what you are saying is, is you pick an opinion. And the opinion can be wrong, but your opinion is that you 

don’t fall under us. That, in fact, our oversight is irrelevant, that 

you don’t have to answer our questions, you don’t have to produce 

documents, and you can withhold. That has been a consistent pattern in this administration. 

And just yesterday, the President of the United States asserted 

a brand-new right, an inherent right, not to deliver a political appointee who serves, and interfaces with, the DNC and the D-tripleC—that is the Democratic National Committee and the Democratic 

National congressional Committee—works directly with those 

heads to plan the President’s targeting of races to support Democrats for their reelection on a partisan basis, and we are not even 

allowed to hear from that person because there is an inherent right 

not to produce that. 

So when you ask—you say here that you stand—and the attorney 

general’s letter is well thought out, that you don’t need a special 

prosecutor, do you know how absurd it sounds to the American people—absurd it sounds to the American people that you don’t need 

a special prosecutor because all your political appointees overseeing 

a team of people who may, at the lowest level, actually be career 
61 

people hoping to move up. That you political people aren’t influencing it, that there is no influence. I just find it amazing, and I 

know that Mr. Horsford has left and I am sorry he has left because 

he would get an opportunity, once again, to take the party line. 

You are not prosecuting a contempt of Congress because you 

have got this new opinion that ‘‘shall’’ doesn’t mean ‘‘shall present 

to the’’—‘‘to the court’’ or, in this case to the grand jury. But you 

haven’t given it to us, and today is the first time we hear about 

it. 

So I join with the chairman in reiterating that we need a special 

prosecutor because you are a political appointee, your boss is a political appointee held in contempt by Congress, the people that 

work for you work for you at your pleasure, and you are controlling 

an investigation that is slowly reaching no decision. When, in fact, 

Lois Lerner has been found by a committee of this Congress to 

have violated laws as she targeted conservatives for their views. 

This committee has produced a massive document showing that 

Lois Lerner targeted them and not liberal groups. And yet you sit 

here today implying that you are relying on some well-known, more 

conservative individual’s decision as though we are supposed to believe that. 

I have got to tell you, when the gentleman from Nevada talks 

about contempt, yes, we have contempt for the man you work for. 

Because, in fact, Congress has, as a matter of record, held him in 

contempt for failure to deliver documents. Your office has implied 

that a Federal judge had no right to even consider a case that was 

directly on point a Nixon-era point of lying to Congress and then 

refusing to deliver documents related to those false Statements. 

I am ashamed that you sit here day after day implying that 

there is no reason for a special prosecutor. The whole reason you 

want an independent prosecutor is not to be independent of somebody down low, but to be independent of you. 

Mr. Chairman, I thank you for your indulgence, and I yield back. 

Mr. JORDAN. I thank the gentleman. 

And I was just—well, let me do this. One other line of questioning here, Mr. Cole. And I know you have been here awhile, and 

we are almost done because we have votes on the floor. August 27, 

2010, chairman—then-chairman of the White House Counsel of 

Economic Advisors, Austan Goolsbee, revealed private taxpayer information about Koch Industries in order to imply that they somehow didn’t pay their full amount of taxes. How Goolsbee knew this 

information and whether or not he inappropriately viewed Koch’s 

6103 protected tax information remains unknown. 

My question to you is this. If a White House employee without 

6103 authority viewed 6103-protected information, and made that 

public, would he or she—what they learned, what he or she 

learned, from that information, would that be a crime? 

Mr. COLE. You know, I would have to have all the facts and circumstances. What generally happens when there is disclosure of 

6103 information is TIGTA, the IG for the tax department, for the 

IRS, investigates the matter, determines whether or not they believe there has been a criminal violation of 6103. And if they do 

believe there has been one, they present it to the Justice Department for our consideration. 
62 

Mr. JORDAN. Have you guys investigated this matter? 

Mr. COLE. This is—— 

Mr. JORDAN. Or have you, or are you going to investigate this 

matter? 

Mr. COLE. This is—it depends on whether TIGTA has deteriorated whether or not this matter presents itself with evidence that 

there was criminal activity. So that is up to TIGTA to decide in the 

first instance. 

Mr. JORDAN. OK, finally, and then I will let the ranking member 

have some time, too, before we conclude. I just want to go back to 

what the chairman—just to reiterate this because it is so frustrating to me and it is so frustrating to so many of the good folks 

I get the privilege of representing in the 4th district of Ohio. 

When, in fact, you have the fact pattern we do, the FBI leaking 

to the Wall Street Journal and no one is gonna be prosecuted. The 

President prejudicing the case with his comments about no corruption, not even a smidgen. The fact that Barbara Bosserman is the 

lead investigator, part of the team, and is a max-out contributor to 

the President’s campaign. 

The fact that Richard Pilger and Jack Smith had interaction 

with Lois Lerner in 2010 and 2013. That you had a data base of 

1.1 million pages of taxpayer information, donor (c)(4) information, 

you had it for 4 years, and some of that information was confidential. 

All that fact, all that cries out for a special prosecutor. And I 

would think you would want it just so you can say, ‘‘Look, we are 

gonna get to the—we are gonna be as unbiased as—we are gonna.’’ 

That would be a welcome thing to do to find someone Republicans, 

Democrats, everyone could agree on. Oh, fine, let them—let them 

do the investigation. 

That would be something seems like you would want. So if, as 

Mr. Gowdy pointed out and I think others have pointed out, if that 

doesn’t warrant a special prosecutor I don’t know what does. I do 

not know what—and when I look at the elements contained in the 

statute, I don’t—if that doesn’t meet it, I don’t know if you ever 

could meet it. And with that, I will end. And I do thank you for 

being here today, Mr. Cole. 

And I will yield to the ranking member. 

Mr. CARTWRIGHT. Thank you, Mr. Chairman. And just a few 

points I want to cover at the end of this hearing. No. 1, I want to 

note that the chairman of the full committee was highly critical of 

our fellow member, Mr. Horsford, noting that Mr. Horsford had left 

the room. The fact of the matter is that we have been called to 

vote, and we have less than, I think, 7 minutes on the clock to go 

vote. That is why Mr. Horsford was not here and was not here to 

defend himself against the charges made by the chairman of the 

full committee. 

Second, before we let you go, Mr. Cole, I want to—I think I speak 

on behalf of the full committee. That we all really want to know 

what happened to those missing emails, all of us. Now, we are all 

somewhat skeptical that they can’t be recovered in some fashion, 

all of us. And we urge you to do your utmost, and urge your colleagues to find those missing emails. Because when there are 

emails missing and it makes people suspicious, and then it leads 
63 

to unfounded charges and reckless allegations. And this is an arena 

where reckless allegations find a home. And so I think it would 

make a lot of sense to redouble your efforts to find those emails. 

I also want to mention, a lot has been made in this hearing today 

about improper influence on the IRS having to do with Citizens 

United and the way that the IRS folks were targeting certain 

501(c)(4) groups. I want to mention here that the inspector general’s report, Mr. George, found that Lois Lerner, the former director of exempt organizations at the IRS, did not discover the use of 

these inappropriate criteria that we are all talking about until a 

year later, in June 2011. After which she immediately ordered the 

practice to stop. This is something found by the inspector general. 

Mr. MEADOWS. Will the gentleman yield for just one point of clarification? 

Mr. CARTWRIGHT. Certainly. 

Mr. MEADOWS. We have been going back to this TIGTA report 

that says that she didn’t know until June 2011, when the majority 

of the TIGTA report were based on emails. Now that we know that 

emails are missing, to make that conclusion is hard. And I just 

wanted to point that out. 

I yield back. 

Mr. CARTWRIGHT. That is a fair point. I want to go on. I also 

want to point out that the inspector general’s report found that employees subsequently began using different inappropriate criteria 

without management knowledge. 

The inspector general’s report, Mr. George, Stated, ‘‘The criteria 

were not influenced by any individual or organization outside the 

IRS.’’ In other words, Russell George, the inspector general, whose 

report brought here before this committee, started the firestorm 

that has been raging for more than a year-and-a-half. His report 

said flat out that these IRS people were not influenced by any organization or individual outside the IRS. 

Mr. JORDAN. Will the gentleman yield for—— 

Mr. CARTWRIGHT. I yield. 

Mr. JORDAN. Well, one of the reason is because we didn’t have 

the emails from the Justice Department and Lois Lerner. We got 

those because Judicial Watch did a FOIA request. But for that, we 

would have never had Mr. Pilger and Mr. Smith from the Justice 

Department in for a deposition. So Mr. George didn’t have that information in his hand. 

Mr. CARTWRIGHT. And I—let’s let the witness answer a question 

here. Mr. Cole, are you aware of any information to the effect that 

the inspector general’s Statement there is incorrect? 

Mr. COLE. No. The understanding I have of the interactions between the Justice Department and the IRS on those two meetings 

was that the IRS, in the first one, said there is really nothing we 

can do here. And nothing came of it. And on the second meeting, 

there was never really any substance discussed. It never was followed up on. 

Mr. CARTWRIGHT. Well, I thank you for that. 

And I yield back, Mr. Chairman. 

Mr. JORDAN. The point I am making is, that is the timeframe 

that are the—is that the timeframe where the emails are lost. The 

only—I am not even sure the IRS was gonna tell us they lost the 
64 

emails, but for the Judicial Watch FOIA request which uncovered 

the Richard Pilger-Lois Lerner correspondence, Lois Lerner email. 

Once they knew we got something from Justice, then the IRS says, 

‘‘Wait a minute. We better let them know we lost all the emails 

from that time period who went outside the agency.’’ And Mr. Cole 

has told us today that maybe some of the documents they are withholding from the committee are more of that correspondence. 

Mr. COLE. I didn’t say that. 

Mr. JORDAN. You said you can’t guarantee it is not. 

Mr. COLE. That is correct. 

Mr. JORDAN. That is correct, so—— 

Mr. COLE. Beause is just—because I haven’t seen them. I just 

can’t answer your question. 

Mr. JORDAN. Well, it would been nice if you had looked at them 

before you came here to testify today and you could have been able 

to answer that question, right? I wish you would of done your 

homework there, know what documents—you would think you 

would know what documents you are withholding from the committee. 

Mr. COLE. I know we are in the process of gathering and collecting them, and that that process is not done yet. So I—— 

Mr. JORDAN. We have been trying to get you here a couple 

weeks. We accommodated your schedule. You knew we were gonna 

ask about the stuff you are withholding from us, and you didn’t 

even review it? 

Mr. COLE. Not the specific documents. I knew what the status 

was of the review, but I don’t review—— 

Mr. JORDAN. And because you didn’t review it, you cannot guarantee that some of those documents you are withholding aren’t Lois 

Lerner emails. 

Mr. COLE. And I can’t tell you that they are either. That they are 

or they aren’t. 

Mr. JORDAN. I know you can’t tell us either way because you 

didn’t look at them. 

Mr. COLE. That is correct. 

Mr. JORDAN. Well, for goodness sake, when you come in front of 

the Oversight Committee—we have been investigating this thing 

for 14 months—you would think you would have reviewed the documents you are not gonna let us see. You think. I think my ranking member would—the ranking member would agree with that. 

You should have reviewed this stuff and you didn’t do it. And that 

is the whole point. We would have not known Lois Lerner’s emails 

were lost but for Judicial Watch doing the FOIA request and we 

getting that one email which showed, wait a minute, Richard Pilger 

was talking with Lois Lerner in 2010 when the targeting started. 

We would have never know that. 

And now you tell us you are not even—we got to vote. Votes are 

out of time. I want to thank the deputy attorney general for being 

here, and the committee is adjourned. 

[Whereupon, at 12:26 p.m., the subcommittee was adjourned.] 
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