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IRS TARGETING SCANDAL: 

THE NEED FOR A SPECIAL COUNSEL 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

JULY 30, 2014 

Serial No. 113–92 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 
(II) 

COMMITTEE ON THE JUDICIARY 

BOB GOODLATTE, Virginia, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

STEVE CHABOT, Ohio 

SPENCER BACHUS, Alabama 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

RAU ́ L LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

GEORGE HOLDING, North Carolina 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

JASON T. SMITH, Missouri 

[Vacant] 

JOHN CONYERS, JR., Michigan 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

SUZAN DelBENE, Washington 

JOE GARCIA, Florida 

HAKEEM JEFFRIES, New York 

DAVID N. CICILLINE, Rhode Island 

SHELLEY HUSBAND, Chief of Staff & General Counsel 

PERRY APELBAUM, Minority Staff Director & Chief Counsel 
(III) 

C O N T E N T S 

JULY 30, 2014 

Page 

OPENING STATEMENTS 

The Honorable Bob Goodlatte, a Representative in Congress from the State 

of Virginia, and Chairman, Committee on the Judiciary ................................. 1 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 3 

WITNESSES 

Jay Alan Sekulow, J.D., Ph.D., Chief Counsel, American Center for Law 

and Justice 

Oral Testimony ..................................................................................................... 6 

Prepared Statement ............................................................................................. 9 

Ronald D. Rotunda, Professor, Chapman University 

Oral Testimony ..................................................................................................... 21 

Prepared Statement ............................................................................................. 23 

Charles Tiefer, Professor, University of Baltimore School of Law 

Oral Testimony ..................................................................................................... 31 

Prepared Statement ............................................................................................. 33 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Material submitted by the Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from the State of Virginia, and Member, Committee on 

the Judiciary ......................................................................................................... 57 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Letter from Ronald D. Rotunda, Professor, Chapman University ....................... 96 

(1) 

IRS TARGETING SCANDAL: 

THE NEED FOR A SPECIAL COUNSEL 

WEDNESDAY, JULY 30, 2014 

HOUSE OF REPRESENTATIVES

COMMITTEE ON THE JUDICIARY

Washington, DC. 

The Committee met, pursuant to call, at 10:15 a.m., in room 

2141, Rayburn House Office Building, the Honorable Bob Goodlatte 

(Chairman of the Committee) presiding. 

Present: Representatives Goodlatte, Coble, Chabot, Bachus, Issa, 

Forbes, King, Franks, Gohmert, Jordan, Poe, Chaffetz, Gowdy, Labrador, Farenthold, Holding, Collins, Conyers, Nadler, Scott, Jackson Lee, Johnson, Richmond, Garcia, Jeffries, and Cicilline. 

Staff Present: (Majority) Shelley Husband, Chief of Staff & General Counsel; Branden Ritchie, Deputy Chief of Staff & Chief Counsel; Allison Halataei, Parliamentarian & General Counsel; Caroline 

Lynch, Counsel; Robert Parmiter, Counsel; Kelsey Deterding, 

Clerk; (Minority) Perry Apelbaum, Staff Director & Chief Counsel; 

Danielle Brown, Parliamentarian; and Aaron Hiller, Counsel. 

Mr. GOODLATTE. Good morning. The Judiciary Committee will 

come to order. 

And without objection, the Chair is authorized to declare recesses 

of the Committee at anytime. We welcome everyone to this morning’s hearing on the ‘‘IRS Targeting Scandal: The Need for a Special Counsel,’’ and I will begin by recognizing myself for an opening 

statement. 

On May 10, 2013, the Internal Revenue Service admitted to inappropriately targeting conservative groups for ‘‘extra scrutiny,’’ in 

connection with their applications for tax-exempt status. Following 

the revelation of the IRS targeting, President Obama denounced 

the targeting as outrageous and unacceptable and stated that the 

IRS as an independent agency requires absolute integrity and people have to have confidence that they’re applying the laws in a nonpartisan way. He pledged that the Administration would find out 

exactly what happened and would make sure wrongdoers were held 

fully accountable. 

In testimony before this Committee on May 15, 2013, Attorney 

General Eric Holder promised me and everyone else on this dais 

that the Justice Department would conduct a dispassionate investigation into the IRS admitted targeting of conservative groups. 

The Attorney General pledged that this will not be about parties, 
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this will not be about ideological persuasions, and anyone who has 

broken the law will be held accountable. 

Last month, FBI Director Comey assured this Committee that 

the FBI was conducting a very active investigation into the IRS 

targeting matter, and not 2 weeks ago Deputy Attorney General 

Cole stated that DOJ investigators will follow the facts wherever 

they lead and apply the law to those facts. Unfortunately, despite 

the Administration’s stated commitment to its investigation, the 

facts and recent events have demonstrated repeatedly that the Administration’s real commitment is to slow walk this investigation 

and undermine congressional efforts to uncover the truth. 

Earlier this year, unnamed Justice Department officials leaked 

information to the Wall Street Journal suggesting that the Department does not plan to file criminal charges over the IRS targeting 

of conservative groups. On Super Bowl Sunday, President Obama 

stated that there was ‘‘not even a smidgen of corruption’’ in connection with the IRS’ admitted targeting of conservative groups based 

upon their beliefs. 

Finally, as we all know, the Justice Department appointed an attorney in the notoriously politicized Civil Rights Division to head 

the investigation. That individual donated more than $6,000 to 

President Obama’s campaigns in 2008 and 2012. In response to 

this, on May 7, 2014, the House passed H. Res. 565, a bipartisan 

resolution calling on the Attorney General to appoint a special 

counsel to investigate the IRS targeting of conservative groups. 

That resolution was supported by 26 Democrats, including two 

Members of this Committee. Since passage of the House Resolution, additional troubling facts have come to light that solidify the 

need for a special counsel to investigate the IRS matter. 

On June 13, 2014, after agreeing to turn over to Congress all 

emails belonging to Ms. Lerner, the IRS announced it had lost an 

untold number of emails belonging to Ms. Lerner. The lost emails 

covered the period between January 1, 2009, and April 2011, a period when the IRS targeting of conservative groups was occurring 

regularly. 

In his testimony before the House Oversight Committee, Deputy 

Attorney General Cole made the shocking admission that the Justice Department did not learn until June of this year that the Internal Revenue Service had lost the emails and, even then, only 

learned of it via media reports. Both the Attorney General and the 

FBI director have insisted that the Justice Department is conducting a ‘‘very active,’’ and ‘‘dispassionate investigation.’’ How, 

then, is it possible that investigators pursuing this matter very actively and dispassionately were unaware that a sizable, potentially 

key piece of evidence had simply vanished? 

On July 10, 2014, U.S. District Judge Emmet G. Sullivan ordered 

the IRS to provide a full explanation of the notorious computer 

crash and infamous missing emails within 30 days and assigned a 

magistrate judge to ‘‘assist the parties,’’ in the process. Not surprisingly, less than 2 weeks later, the IRS announced that investigators looking into these missing emails had located backup tapes 

which may contain the missing Lerner emails. 

The relevant special counsel regulations require appointment 

when the Attorney General determines that three circumstances 
3 

exist: One, criminal investigation of a person or matter is warranted; two, investigation or prosecution of that person or matter 

by a United States Attorney’s office or litigating division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances; and, three, under 

the circumstances, it would be in the public interest to appoint an 

outside special counsel to assume responsibility for the matter. 

As I have said before, there can be little doubt to any neutral, 

honest observer that these requirements exist. First, further criminal investigation of this matter is clearly warranted. The Administration, particularly the FBI, admits as much. Second, there is 

clearly a conflict of interest between the Justice Department investigators and this Administration. The Administration’s statements 

and actions have repeatedly served to undermine the Department’s 

investigation. The fact that President Obama prejudged the investigation by saying there was not a smidgen of corruption and the 

fact that unnamed department officials leaked information to the 

media designed to undermine the investigation has made it impossible for the Department to conduct a fair, unbiased investigation. 

Even assuming for the sake of argument that there is no conflict, 

there clearly exists other extraordinary circumstances called for in 

the regulations. 

Finally, it is clear that appointing an outside special counsel to 

investigate this matter would be in the public interest. The American people are very concerned that their government has targeted 

individual American citizens for harassment solely on the basis of 

their political beliefs. The Administration’s delays, denials, and 

continued efforts to obfuscate the truth have further eroded this 

trust. 

As I’ve said repeatedly, the American people deserve to know 

who ordered the targeting, when the targeting was ordered, and 

why. I look forward to exploring these and other important issues 

with our witnesses today. 

And it is now my pleasure to recognize the Ranking Member of 

the Judiciary Committee, the gentleman from Michigan, Mr. Conyers, for his opening statement. 

Mr. CONYERS. Thank you, Mr. Chairman and Members of the 

Committee. 

Today is the last full working day before the August recess, and 

I’m concerned and deeply disappointed by how we have chosen to 

spend it. Under Federal regulations and according to all available 

precedent, the appointment of special counsel is reserved for extraordinary circumstances, where a conflict of interest at the highest levels of government requires the Department of Justice to 

abandon its normal process of investigation and prosecution. 

Two separate congressional Committees have sorted through 

more than half a million pages of documents, conducted 40 transcribed interviews, and held more than three dozen hearings and 

markups to examine the criteria used by the IRS to screen applicants for tax-exempt status. The Committees have not uncovered 

one shred of evidence to suggest that the involvement of senior officials of the Department of Justice, the Department of the Treasury 

or the White House itself. Without that evidence, calls for a special 

counsel are simply unwarranted. 
4 

The Chairman now has mentioned House Resolution 565, which 

demands that the Attorney General appoint special counsel in this 

matter. Of course, as a matter of law, the Attorney General has absolute discretion to determine whether a special counsel is necessary. Congress cannot compel him to do so. I repeat: Congress 

cannot compel him to do so. Nor can this Committee, of course. We 

might have explained this point had we maintained regular order 

and discussed House Resolution 565 in this Committee prior to consideration on the House floor. 

What troubles me most about this resolution is its preamble: 

Eight pages of unsubstantiated claims, carefully tailored halftruths, and political innuendo. For example, the resolution references two anonymous sources in a January 13 Wall Street Journal article who claimed that the Department has concluded its investigation. That claim ignores the testimony of both Attorney General Eric Holder and FBI Director James Comey, who assured this 

Committee that the investigation is ongoing. The resolution claims 

that the Department of Justice and the FBI have refused to cooperate with congressional oversight. Of course, as the Chairman 

knows, that under long-standing policy applied consistently by Administrations of both parties, Congress is not entitled to materials 

related to an ongoing criminal investigation. Otherwise, the department’s attempt to accommodate our needs have been, in my mind, 

extraordinary. The resolution’s largest error is the same false 

premise underlying this hearing. House Resolution 565 claims that 

the IRS targeted conservative nonprofit groups for extra scrutiny 

in connection with applications for tax-exempt status. That is partly true, but it is a deliberate half truth and one that leads to the 

wrong conclusion. 

The record is clear. Overwhelmed with applications for tax-exempt status after the Citizens United decision, the IRS created a 

list of search terms in an attempt to sort legitimate applicants from 

mere political shells. Those search terms applied across the political spectrum to Tea Party groups but also to groups with the 

words ‘‘progressive’’ and ‘‘occupy’’ in their titles. We all agree that 

this approach was poorly conceived, but not a single applicant was 

denied tax-exempt status because of it. The majority knows or 

must know that this is a case of bureaucratic ineptitude and not 

so-called political targeting. They only frame it as such because it 

is politically expedient to do so. 

This underscores my final point. Given the long list of urgent 

matters pending before us, this hearing is an unacceptable misuse 

of our time and our resources. The 113th Congress has spent more 

than 18 million taxpayer dollars investigating the IRS. The House 

has held more than three dozen hearings and markups on the 

topic. We’ve already voted on the particular question of appointing 

special counsel, but we have not held one hearing in the House Judiciary Committee on comprehensive immigration reform, not one. 

We’ve not held one hearing on legislation to update the Voting 

Rights Act, not one. Not one hearing on much-needed reform of the 

Electronic Communications Privacy Act. Not one hearing on stemming the tide of gun violence in this country, a scourge that has 

claimed nearly 20,000 lives since this Congress began. Not one 

hearing on a range of local civil rights issues across the map, in-
5 

cluding police practices in New York, due process rights for minors 

at the Texas border, prison conditions in California, access to the 

ballot box in Florida, and access to drinking water and other basic 

utilities in Michigan. Any one of these topics would be appropriate 

for consideration today, which I repeat is our last full day of work 

before the break. Instead, we will hold one more hearing in the line 

of dozens of hearings on a so-called scandal in which one office in 

the IRS bureaucracy denied zero applications for tax-exempt status. 

In terms of actually compelling the Attorney General to appoint 

a special counsel, this hearing stands about as much chance of success as the Speaker’s woefully misguided lawsuit against the President of the United States. 

I hope, Members of the Committee, that after the break, cooler 

heads will prevail. There’s still time to correct this Committee’s priorities before the Congress ends. 

Mr. Chairman, that concludes my remarks, and I yield back. 

Thank you. 

Mr. GOODLATTE. Thank the gentleman. 

And we welcome our distinguished panel today. 

If you would all rise, I’ll begin by swearing in the witnesses. 

[Witnesses sworn.] 

Mr. GOODLATTE. Thank you, and let the record reflect that all 

the witnesses responded in the affirmative. 

I’ll introduce our witnesses. Mr. Jay Sekulow is chief counsel of 

the American Center for Law and Justice. He is an accomplished 

Supreme Court advocate, renowned expert on religious liberty, and 

a respected broadcaster. At the Supreme Court of the United 

States, Mr. Sekulow has argued several landmark cases which 

have become part of the legal landscape in the area of religious liberty litigation. 

Mr. Sekulow expanded the ACLJ’s work globally, working to protect religious liberty and religious freedom. He launched the European Center for Law and Justice, where he serves as chief counsel 

and has opened offices around the world. Prior to joining ACLJ, 

Mr. Sekulow worked in the Office of Chief Counsel for the Internal 

Revenue Service as a tax trial attorney. Mr. Sekulow received his 

Ph.D. from Regent University with a dissertation on American 

legal history, is an honors graduate of Mercer Law School, where 

he served on the Mercer Law Review, and an honors graduate of 

Mercer University. He was appointed a visiting fellow of Oxford 

University at Harris Manchester College, where he lectured on 

Middle East affairs and international law. He also serves as a 

member of the Summer Research Institute at Oxford from 2013 to 

2016. 

Professor Ronald D. Rotunda joined the faculty of Chapman University in 2008. Prior to coming to Chapman, he was a university 

professor and professor of law at George Mason University School 

of Law. Before that, he was the Albert E. Jenner, Jr., professor of 

Law at the University of Illinois. He joined the University of Illinois faculty in 1974, after clerking for Judge Walter R. Mansfield 

of the United States Court of Appeals for the Second Circuit, practicing law in Washington, D.C., and serving as assistant majority 

counsel for the Watergate Committee. He has coauthored the most 
6 

widely used course book on legal ethics and is the author of a leading course book on constitutional law, ‘‘Modern Constitutional 

Law.’’ He has written several other books and more than 350 articles in various law reviews, journals, newspapers, and books. These 

books and articles have been cited numerous times by State and 

Federal courts at every level, from trial courts to the United States 

Supreme Court. He has been interviewed on radio and television 

on legal issues, both domestically and abroad. In 1993, he was constitutional law adviser to the Supreme National Council of Cambodia and assisted that country in writing its first democratic Constitution. Professor Rotunda received his bachelor of arts and juris 

doctor degrees from Harvard University. 

Professor Charles Tiefer joined the faculty of the University of 

Baltimore Law School in 1995. Previously, he served as solicitor 

and deputy general counsel of the U.S. House of Representatives 

for 11 years. He also taught as a visiting lecturer at Yale Law 

School and for a decade as an adjunct at Georgetown University 

Law Center. He was an associate editor of the Harvard Law Review, a court law clerk for the D.C. Circuit, a trial attorney with 

the Civil Rights Division of the U.S. Department of Justice, and an 

assistant legal counsel for the U.S. Senate. Professor Tiefer wrote 

‘‘Congressional Practice and Procedure’’ and the ‘‘Semi-Sovereign 

Presidency,’’ a book on separation of powers. He has published articles on legislation, separation of powers, international law, and 

Federal Government operations in the Harvard Journal on Legislation, Yale Journal on Regulation, Texas International Law Journal 

and the Boston University Law Review and numerous other law reviews. Professor Tiefer received his bachelor’s degree from Columbia College and his juris doctor from Harvard University. 

I would ask each witness to summarize their testimony in 5 minutes or less, and to help you stay within that time, there’s a timing 

light on your table. When the light switches from green to yellow, 

you’ll have 1 minute to conclude your testimony. When the light 

turns red, that’s it, you’re done, time is up. And we will start with 

Mr. Sekulow. Welcome. 

TESTIMONY OF JAY ALAN SEKULOW, J.D., Ph.D., 

CHIEF COUNSEL, AMERICAN CENTER FOR LAW AND JUSTICE 

Mr. SEKULOW. Thank you, Mr. Chairman, Ranking Member Conyers, distinguished Members of the Committee, and on behalf of 

the American Center for Law and Justice, thank you for allowing 

me to participate today. 

I serve as counsel to 41 organizations that have filed Federal litigation against the IRS and related officials regarding the targeting. 

We were in cooperation with the Department of Justice for a period 

of time with their investigation, but when I chronicled the order in 

which things have developed over the last several months, specifically the missing emails, which is key evidence in this case, the 

faux apology that Lois Lerner gave when this scandal broke over 

a year ago, I have unfortunately had to conclude that the investigation by the Department of Justice is also a faux investigation. It 

is at surfaced at best, and we were compelled in a situation where 

we were producing clients for these investigators, for DOJ officials, 

for FBI agents, for Ms. Bosserman to interview, with the assurance 
7 

from the FBI that our clients were not and have not been subject 

to criminal investigations and were not targets of those investigations. They made that clear. 

Then an email surfaced in a batch of emails that were delivered. 

This one was dated May 8 of 2013. Of course, it just came out several weeks ago. It is from Lois Lerner. It is to Nicole Flax, who was 

the chief of staff for the then commissioner of Internal Revenue 

Service: I got a call today from Richard Pilger, director, Election 

Crimes Branch at DOJ. I know him from contacts from my days 

there. He wanted to know who at the IRS the DOJ folks could talk 

to about Senator Whitehouse’s idea that a hearing that DOJ could 

piece together false claim cases about applicants who ‘‘lied’’—this 

is her email—on their 1024s, saying they weren’t planning on doing 

political activity and then turning around and making large visible 

political expenditures. DOJ is feeling like it needs to do something 

to respond, but they want to talk to the right folks at the IRS to 

see whether there are impediments from our side and what, if any, 

damage this might do to the IRS programs. I told them we need 

to talk to several folks at IRS. I’m out of town all of next week, 

so wanted to reach out and see who you think might be right for 

such a meeting, all hands on this—I’ll hand this off to Nan as a 

contact person if things need to happen while I’m gone. 

Piece together false claim cases so that my clients, which, by the 

way, and let me acknowledge no evidence, could be subject to what, 

grand jury investigations? And at the very same time—this comes, 

by the way, out 2 days before the apology from Lois Lerner. So this 

was an ongoing systematic scheme. 

And Ranking Member Conyers, with due respect, there were a 

couple of liberal groups that were picked up in this dragnet. None 

of them were denied their tax-exempt status. I’ve got one client, by 

the way, that has been held for 5 years, still does not have that 

status resolved. 

So we’ve got an email saying let’s piece together or attempt to 

piece together false statement cases. 

Another email, March 27, just a few months before, this one 

again Lois Lerner: As I mentioned yesterday, there are several 

groups of folks from the FEC world that are pushing tax fraud 

prosecution for (c)(4)s who report they are not conducting political 

activity when they are or at least these folks think they are. One 

is my ex-boss, Larry Noble, former general counsel at the FEC, 

who is now president of Americans for Campaign Reform. This is 

their latest push to shut these down. One IRS prosecution would 

make an impact, and they wouldn’t feel so comfortable doing this 

stuff. By the way, the stuff they’re talking about is activity protected by the First Amendment. 

So I’ve got an email from the IRS referencing a Department of 

Justice call while the Department of Justice is supposed to be conducting this investigation. We know that there’s the missing 

emails, but what may not be known is that there was actually a 

much earlier FOIA request. This has not been discussed publicly. 

This FOIA request was made in May 27 of 2010, right when this 

whole issue started just getting some attention. It came in from 

Lynn Walsh. She did this as an independent journalist. She sent 

it to the Internal Revenue Service disclosure office asking for, as 
8 

*Attachments to this prepared statement are not printed in this hearing record but are on 

file with the Committee and can be accessed at http://docs.house.gov/Committee/Calendar/By 

Event.aspx?EventID=102569. 

she phrased it, documents relating to any training, memos, letters, 

policies, et cetera, that detail how the Tax-Exempt Government Entities Division reviews application for nonprofits, 501(c)(3)s, and 

other not-for-profit organizations specifically mentioning Tea Party, 

the Tea Party, Tea Party or tea parties. The response that came 

in to this request, of course, took until January 6, 2011. It’s a quick 

response. We found no documents specifically responsive to your request. Well, we know that’s absolutely false because there’s been— 

take out the ones that are missing, there are literally thousands, 

tens of thousands that were responsive to this. This is the cavalier 

attitude upon which the IRS was conducting itself. That’s problematic. This is an office I served in, my first job out of law school, 250 

years ago, was Chief Counsel’s Office of the IRS. I have a lot of respect for the office. I served on the legal faculty for the Department 

of Justice. This isn’t something that I’m pleasant about this. This 

is damaging, it’s troubling, and Mr. Chairman, in all due respect, 

it could be solved so easily by appointing a special counsel to get 

to the bottom of what is clearly a significant problem, the last of 

which is the missing emails. Thank you. 

Mr. JORDAN [presiding]. I thank the gentleman for his testimony. 

[The prepared statement of Mr. Sekulow follows:]* 
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Mr. JORDAN. I would just point out that that very first email you 

referenced, we had Mr. Cole in front of the Oversight Committee— 

2 weeks ago asking about that very email, and nothing happened, 

he said, afterwards, and the reason nothing happened is because 

2 days later, that email that you first referenced, May 8—2 days 

later, May 10, Lois Lerner went public and told the story. So, of 

course, nothing happened after the fact, but we’ll get to that in a 

second. 

But professor, you are recognized for your 5 minutes. 

TESTIMONY OF RONALD D. ROTUNDA, PROFESSOR, 

CHAPMAN UNIVERSITY 

Mr. ROTUNDA. Thank you very much. 

We have an anniversary today actually, 40 years ago to the day 

President Nixon released the White House tapes to comply with 

the U.S. Supreme Court order. A day earlier, the House Judiciary 

Committee approved articles of impeachment—one dealt with 

abuse of power, and one of the counts was that the President unsuccessfully tried to use the IRS to harass his political opponents. 

Now any claim that Lois Lerner, any IRS official tried to use the 

IRS to harass or attack political opponents undercuts the people’s 

faith in the IRS, which is supposed to be nonpartisan; not bipartisan, but nonpartisan. So we all should be very happy if the President is correct when he solemnly assured us that there’s not even 

a smidgen of corruption regarding Lois Lerner and the IRS. 

The problem is that there’s a lot of evidence of a smidgen of corruption, and I think a thorough investigation by a special counsel 

would hopefully show how far this leads. Does it go up within the 

IRS, above Lois Lerner? Does it go to the Department of Justice? 

What was the basis for the President’s assurance that there’s not 

a smidgen? Did somebody in the Department of Justice mislead 

him, either intentionally or unintentionally, either incompetently 

or with scienter? We all know she pled the Fifth Amendment and 

refused to testify just after assuring us under oath that she had 

committed no crimes. 

The months after the President’s assurances of not a smidgen of 

corruption, the inspector general issued an audit that said that the 

IRS systematically used inappropriate criteria to identify the taxexempt applications for review, and the inspector general is also 

nonpartisan. Last month, the IRS, represented by the DOJ, agreed 

to pay $50,000 for the illegal disclosure of tax return information 

leaking the 2008 return and donor list of the National Organization 

for Marriage to an activist who turned it over to NOM’s adversary, 

the Human Rights Campaign. That’s a coincidence: the president 

of the organization just happened to be the national cochair of the 

President’s reelection campaign. 

The DOJ is defending the IRS and actually defending itself 

against these charges. We really can’t expect the DOJ to competently and objectively investigate itself. By the way, the DOJ refused to give immunity to this activist who could tell us who gave 

him the information. He said he got it from a good contact in the 

IRS, and there was more to be given. But we’re not going to find 

out. 
22 

Now, there’s no longer a statute that provides for a special prosecutor. However, we don’t need a statute to have one. There was 

a special prosecutor for Teapot Dome done by regulation, not by 

statute. No statute for Watergate. That was also by regulation. The 

regulation says the Attorney General will appoint a special prosecutor of criminal investigation—he will appoint if criminal investigation of a person or matter is warranted, there’s a conflict of interest, or in the public interest to appoint the outside special counsel. We cannot expect the DOJ to impartially investigate itself, and 

it will not do this impartially. 

The problem here, frankly, is not simply how far up in the IRS 

did it go. It is the DOJ part of the cover-up? The impartial investigation may undercut the President’s assurance that there’s not a 

smidgen of corruption or maybe the independent counsel will determine that, in fact, there’s nothing wrong or it didn’t go past Lois 

Lerner, and then we would all be much happier for that. 

Now, the special counsel regulation is not a statute. It’s a regulation, but regulations are law, as the Supreme Court explained in 

the United States v. Nixon, when referring to the regulation that 

governed the Watergate special counsel, ‘‘so long as this regulation 

is extant, it has the force of law.’’ Then it went on to say, the Supreme Court went on to say, As long as the Attorney General’s regulations remain operative he denied himself the authority to exercise his discretion. 

Now, that doesn’t mean that a court will order him to appoint 

a special prosecutor. There are a lot of laws that people don’t obey, 

and there’s no way we can enforce them. The President could have 

refused to turn over the tapes, and we don’t see a court putting 

him in contempt, jailing the President, but the President complied, 

and the Department of Justice, the Attorney General should recognize he’s also under the law. 

The government officials require us to turn square corners when 

dealing with them. They should turn square corners when dealing 

with us. The Attorney General should follow the regulations when 

he denied himself the authority to exercise discretion. By the way, 

even discretion, the cases say, is not abuse of discretion. You may 

not abuse your discretion. 

Now, the Attorney General can restore America’s faith in a nonpartisan IRS and in the DOJ by appointing the special counsel. It 

probably should be a Republican. During the Watergate counsel, 

during the Watergate controversy, the Attorney General appointed 

a prominent Democrat, first Archibald Cox and then Leon Jaworski, to investigate the President. In the Teapot Dome, the Attorney 

General appointed two prosecutors, one Democrat, one Republican, 

to investigate. If a Democrat had given Nixon a clean bill of health, 

we would feel better for it, and if a special prosecutor gives the IRS 

a clean bill of health, we would feel good about that, too, and we 

hope that’s what would happen. Thank you. 

[The prepared statement of Mr. Rotunda follows:] 
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Mr. JORDAN. Thank you, Professor. 

Professor Tiefer. 

TESTIMONY OF CHARLES TEIFER, PROFESSOR, 

UNIVERSITY OF BALTIMORE SCHOOL OF LAW 

Mr. TIEFER. I’m Charles Tiefer. I was in the Senate Legal Counsel’s Office from 1979 to 1984 and in the House General Counsel’s 

Office 1984 to 1995, rising to be acting general counsel. I had more 

years than anyone else in the House of Representatives looking at 

this issue, working with the Justice Department special and independent counsels. I’m now a professor at the University of Baltimore Law School. 

The regulation at issue here gives the Attorney General broad 

and total discretion. It says, ‘‘the Attorney General will appoint a 

special counsel when he or she determines that investigation and 

prosecution would present a conflict of interest for the department.’’ And I think it has been agreed by all the witnesses here 

today, certainly clearly by Mr. Sekulow in his testimony, that the 

Attorney General has that discretion. 

Moreover, he’s supposed to look at conflicts of interest in the Department of Justice in exercising his discretion. It doesn’t matter 

what problems there are at Treasury, at the IRS, at the White 

House. Their problems are their problems. His only consideration 

is what’s going on at the Department of Justice. 

Now, since this 1999 regulation, we had the entire two terms of 

the Bush administration to see what the experience is under this 

regulation. There were very, very few special counsels. Patrick 

Fitzgerald is one, and he is the only regular special counsel I know 

of in the Bush administration. Even though the applications, the 

quests from the Congress for special counsels included two times 

where the person being charged was Attorney General Gonzalez 

himself. Now, they didn’t have special counsels even though the 

person being charged for perjury and in connection with authorizing alleged torture was the Attorney General himself. 

Now, if it doesn’t do it to get a special counsel when the Attorney 

General is the target, the effort here today is about as realistic as 

a fishing expedition for the Loch Ness monster. 

Now, the arguments that have been made as to why the Department of Justice is conflicted, Professor Rotunda has noted that the 

President said there was no corruption, but as the Members here 

have already noted, Attorney General Holder testified that they’re 

investigating. Jim Comey, who is the head of the FBI and was a 

Republican, was an appointee as Deputy Attorney General of the 

Bush administration says they’re investigating. Within the Public 

Integrity Section, Jack Smith and Mr. Pilger, who are respectively 

the head of the section and the head of the Elections Branch that’s 

doing this, both submitted to questioning by staff, House Committee staff, which is unheard of. I wish they had been willing to 

do it in my time, but they did it, and they said they’re investigating 

seriously. So they’re doing it. What more assurance do you want 

that they’re doing it? 

And, finally, there’s been some fuss made that Barbara 

Bosserman, who was said in Mr. Sekulow’s testimony to be the 

leading attorney in this investigation, gave donations to a political 
32 

party. She’s not the leading attorney. Even the greatest, the most 

intense accusations have admitted in H. Res. 565, she’s just an attorney from the Civil Rights Division. This is a Criminal Division 

Public Integrity Section investigation, and her role is, she’s sort of 

visiting from the Voting Rights Section I think of the Civil Rights 

Division. So to believe that the Public Integrity Section, contrary 

to its mission, its history, its very reason for existence, the pride 

of its career prosecutors, and all my experience with them is not 

doing its job, that we’ve caught them in a conflict of interest here 

is like, we’re like a hunter who catches a squirrel and says, look, 

I’ve caught bigfoot here. I thank you for allowing me to present 

this. 

Mr. JORDAN. I thank the gentleman for his testimony. 

[The prepared statement of Mr. Tiefer follows:] 
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Mr. JORDAN. I would recognize the gentleman from North Carolina, Mr. Coble, for his 5 minutes of questions. 

Mr. COBLE. I thank the Chairman, and it’s good to have you all 

with us today. 

Mr. Sekulow, let me start with you. 

Mr. SEKULOW. Yes, sir. 

Mr. COBLE. Can you defend General Holder’s decision not to appoint a special counsel to the IRS matter by regarding the investigations that took place under the Bush administration? Can you 

compare the two? 

Mr. SEKULOW. Well, I think the difference here is, number one, 

acknowledging the discretion. There were special counsels under 

the Bush administration, Patrick Fitzgerald being one of them. The 

situation you have here, and I think this is what’s significant in 

referring to the last witness, the comment, it’s not what the IRS 

has done. I don’t think any of us have the scope and understanding 

what the IRS has done. The problem is the agency investigating 

the IRS also does not know the scope of what the IRS has done— 

and it’s not comforting to me as a litigant, to answer the question, 

lawyer representing clients, that the DOJ would come before Committees like this and say, we learned of the missing emails in the 

press, when they had been conducting a 1-year criminal investigation, and they learned in the press. 

Granted, the Attorney General has the discretion here, but discretion is sometimes the better part of valor, and I think that in 

a situation like this you want to assure the American people and 

specifically those that have been targeted, that a real investigation 

is taking place. We had clients that were interviewed by the IRS. 

I will tell you the level of questioning was at the line agent level. 

And that was while, Congressman, I had the letters in my file from 

lawyers in Washington, not just Lois Lerner and others, but they 

were focusing on, did the agent keep you on hold too long, which 

is not a crime. It’s impolite, but not a crime. So I think it’s clearly 

within the discretion of the Attorney General. It was the Attorney 

General of the United States that said there may well be criminal 

violations here. He brought that up, talking about the civil rights 

statute. But when you’ve got an email from the IRS saying DOJ 

is basically colluding with us and saying, could we piece together— 

this is what, I remind you, piece together false claims statements 

for people that ‘‘lied,’’ and then what are we going to do, impanel 

a grand jury? This is why I believe the special counsel would be 

appropriate and would stop any of the serious questioning that a 

lot of us have on whether this investigation is real or not. By the 

way, it took them 9 months to get to us to even talk to our client. 

Mr. COBLE. Let me elaborate on your conclusion that they found 

out in the media. Does this cast a shadow over their claim that 

they are engaged in an ongoing investigation, the fact that they obtained it through the media? 

Mr. SEKULOW. Well, it certainly does, and how can they be conducting a thorough criminal investigation, and due respect to Professor Tiefer, I mean, and not any disrespect to Barbara 

Bosserman, but they loan her over to a group. She was the one 

that was in the meetings, but they did not know that the emails 

that were the key years involved in the investigation were missing? 
43 

And that is a criminal investigation? They should be fired then if 

that’s what they did. If it wasn’t criminal what they were doing, 

it wasn’t, they just made a mistake, those agents should have been 

fired for that because that’s not a real investigation. How do you 

not have the 9 months or 12 months or 14 months of the key time 

and the emails are gone, and that was not known by the FBI? 

Mr. COBLE. I thank you, sir. 

Mr. SEKULOW. Thank you. 

Mr. COBLE. Professor Rotunda, in your view, did the President’s 

statement about there not being a smidgen of corruption by itself 

create a conflict of interest? 

Mr. ROTUNDA. I think it’s a real problem because the chief law 

enforcement officer of the land has prejudged the conclusion of the 

investigation. So you’re asking the DOJ—I mean, what are they 

supposed to do? If they find evidence of corruption, like the inspector general did, they’re undercutting their boss. And I think what 

we’re interested in is not only the emails at the time, it’s what’s 

going on now. There’s a group called Z Street, they applied for taxexempt status. They’re a group that has the views of Israeli policy 

that they think are contrary to the Administration. They sued the 

IRS, the Department of Justice is representing them, and as we 

speak now, the Department of Justice is trying to stop all discovery 

in the case. The Wall Street Journal said slow walk the investigation. The Department of Justice seems to be defending the IRS in 

court while they also claim they’re investigating the IRS. You can’t 

serve two masters. 

Mr. COBLE. And the Justice Department’s apparent lack of interest in the investigation? 

Mr. ROTUNDA. I’m sorry, the what? 

Mr. COBLE. The Department of Justice’s apparent lack of interest 

in the investigation? 

Mr. ROTUNDA. Well, that’s actually a polite term. In the Z Street 

case, they’re doing more than nothing, they’re trying to slow walk 

and prevent discovery. So think about it this way: If, in fact, IRS 

officials higher than Lois Lerner were involved and if, in fact, some 

DOJ officials were involved in trying to gin up something to harass 

political opponents, the DOJ, if that were the case, the DOJ would 

do exactly what it’s doing now, slow walking investigations, claiming they’re doing something without doing it, learning that there 

is a third party who got, who says under oath, I got information 

from—brags to people, I got information, I have a conduit in the 

IRS but refuses to tell us who, and not give them immunity, not 

try to find out. You would do exactly what you’re doing now if you 

wanted to slow walk the investigation. I think that’s active; more 

than lack of interest, it is the opposite, but it’s not good interest. 

Mr. COBLE. Mr. Chairman, I see that my red light is illuminated, 

so I yield back. 

Mr. JORDAN. I thank the gentleman. 

The gentleman from Michigan, the Ranking Member, Mr. Conyers, is recognized for 5 minutes. 

Mr. CONYERS. Thank you, Mr. Chairman. 

Professor Tiefer, I want to bring you in on this. As you noted in 

your testimony, where the regulations for special counsel are found, 

is it your opinion that these regulations give the Attorney General 
44 

sole discretion to appoint special counsel if, in his judgment, it is 

appropriate to do so? 

Mr. TIEFER. Yes, exactly. I think they give the Attorney General 

sole discretion. 

Mr. CONYERS. May I ask our distinguished witness, do you agree, 

sir? 

Mr. SEKULOW. Yes, it’s the discretion of the Attorney General. 

Mr. CONYERS. And do you agree, sir? 

Mr. ROTUNDA. Well, to be precise, it is discretion. Discretion can 

be abused. I don’t think there’s a way to legally enforce the Attorney General, but there are a lot of things that people have to do 

under the law that are difficult to enforce legally. There’s President 

Nixon turned over the tapes, I don’t know what we would have 

done if he just refused. 

Mr. CONYERS. Okay. 

Mr. ROTUNDA. The regulation says shall appoint. 

Mr. CONYERS. I don’t want to go into it. All I wanted to know 

is do you agree that the Attorney General has sole discretion to appoint special counsel. 

Mr. ROTUNDA. No, I don’t, because it doesn’t use the word ‘‘sole 

discretion,’’ it just says, shall appoint if he determines a criminal 

investigation is warranted and if there is a conflict of interest. 

Mr. CONYERS. So your answer is no? 

Mr. ROTUNDA. Yes, sir. 

Mr. CONYERS. Okay. Now let me ask you three this question, 

starting with Professor Tiefer: Can the House compel the Attorney 

General to appoint special counsel? 

Mr. TIEFER. It absolutely can’t. Not only is it not given that 

power in the statute and it wouldn’t be constitutional for the House 

to interfere in law enforcement, but Mr. Conyers, you and I go back 

to the old statute which had a role for the House Judiciary Committee. At least the statute said it could make a statement, and the 

old role that we used to have back then, we don’t even have that 

under the regulation. 

Mr. CONYERS. May I ask, Mr. Sekulow, your view? 

Mr. SEKULOW. Well, I would take a little bit of an issue here. I 

think the House has the right to pass a resolution requesting or 

sending a letter requesting the Attorney General to exercise his authority. 

Mr. CONYERS. But compel? Can we compel? 

Mr. SEKULOW. No, not compel, but certainly allow him to—I 

think the House has a role to play. This idea that the House is inappropriate by moving this way I think is wrong. They do; the 

House certainly can bring it and request it. It can’t compel it. 

Mr. CONYERS. All right, thank you very much. 

May I ask you that same question, Professor Rotunda? 

Mr. ROTUNDA. Sure. Basically, Mr. Sekulow has summarized my 

position. 

Mr. CONYERS. You agree with him? 

Mr. ROTUNDA. For example, Powell v. McCormack, the Supreme 

Court ordered Congress to—— 

Mr. CONYERS. Okay, I don’t need—— 

Mr. ROTUNDA. But I don’t think a court will issue an order compelling the appointment of a special prosecutor, I agree with that. 
45 

Mr. SEKULOW. Correct. 

Mr. CONYERS. It’s been suggested, witnesses, in statements and 

testimony today that President Obama created a conflict of interest 

for the entire Federal Government when he suggested in a preSuper Bowl interview on Fox News that he believed there was no 

evidence of corruption in the Internal Revenue Service. In your 

opinion, does the statement create a conflict of interest at the Department of Justice? 

And I’ll begin with you again, Professor Tiefer. 

Mr. TIEFER. Positively not. Mr. Pilger and Mr. Smith and the 

others who actually as career prosecutors are the Justice Department on this matter, I can just imagine how little they care for 

what the President says in pre-Super Bowl hearings. They just 

blow it off. 

Mr. CONYERS. All right. Let me just get to Professor Rotunda. 

What is your view, does the statement create a conflict of interest 

at the Department of Justice? 

Mr. ROTUNDA. At the DOJ, yes, and I care what the President 

says. I would be shocked if the DOJ lawyers, including the people 

that serve at his pleasure, do not care. They should. He’s the President of the United States. He’s our President. 

Mr. CONYERS. And Mr. Sekulow, I ask you finally. 

Mr. SEKULOW. It does raise the conflict of interest without question, number one, and number two, the idea that the President of 

the United States could prejudge a case or if he did not prejudge 

it was given evidence that no one else has seen that there was no 

‘‘smidgen of corruption’’ certainly presents a conflict of interest. 

He’s the chief executive. 

Mr. CONYERS. All right. Thank you very much. 

My time has expired. I yield back. 

Mr. JORDAN. I thank the gentleman. 

Before yielding to the gentleman from Alabama, I would just 

make one comment. I read Mr. Tiefer’s testimony last night, and 

he spent like five pages on discretion. No one up here on either side 

of the aisle I think, save to the former Chairman, thinks the Attorney General doesn’t have discretion. Of course, he has. Plain reading of the resolution, it’s a sense of the House Resolution. All we’re 

saying is look at the fact pattern, and we think that cries out for 

a special counsel. And not just Republicans; 26 Democrats voted for 

that resolution. Recognize the gentleman from Alabama for 5 minutes. 

Mr. BACHUS. Thank you. 

Mr. NADLER. Mr. Chairman. 

Mr. JORDAN. The gentleman from New York. 

Mr. NADLER. Just to reply to you, I, too, agree this hearing is a 

total waste of time. 

Mr. JORDAN. No, I didn’t say that. I said that—— 

Mr. NADLER. You implied it. 

Mr. JORDAN. I don’t think I implied it at all, but the gentleman 

can have his editorial comment there, and we will move to the gentleman from Alabama. 

Mr. BACHUS. Thank you. 

One email was read, Mr. Sekulow, you read one of the emails, 

but another one I was just noting here is from Lois Lerner on 
46 

Wednesday, March 27, and said everyone is looking for a magic 

bullet. 

Mr. SEKULOW. Right. 

Mr. BACHUS. To prosecute these people. And that traffic included 

the DOJ. 

Mr. SEKULOW. Right, and also several of the others included the 

FEC. I mean, there’s no doubt that this is a multi-agency engagement. The question is, in a situation like this, when you have got 

a multi-agency engagement, has the DOJ’s ability to impartially investigate this been compromised? No one is questioning that it is 

the authority of the Attorney General to determine whether a special counsel can be appointed, but it’s certainly appropriate for this 

Committee to bring forward the facts that show why it would be 

prudent, and again, in this particular case, you’re pointing to the 

March 27 email, there are emails going back even further. You’ve 

got the statements that Lois Lerner made at Duke University. 

But it all started with the fake apology and a planted question 

in the ABA. That should have been the focus of the FBI’s investigation, not questions to our clients about if they were on the phone 

calls too long or treated rudely. 

Mr. BACHUS. Yeah, it’s pretty clear here that they were looking 

for a way to prosecute these people. 

Mr. SEKULOW. Oh, yeah. They say it. 

Mr. BACHUS. And the Justice Department was involved in this. 

I mean, if that’s not a conflict, to investigate yourself—— 

Mr. SEKULOW. Well, Congressman—— 

Mr. BACHUS. And we’re talking about, but if part of the issue 

you’re talking about to whether to have a special counsel is to investigate wrongdoing, and the wrongdoing is in your very department, how can you investigate yourself? That would be my question, Professor Rotunda or Sekulow or maybe Tiefer. 

Mr. ROTUNDA. Yeah, and of course you can’t, at least not objectively, and the problem is not only what happened a year or two 

ago; it’s what’s happening as we speak today, that is the Z Street 

group is in litigation, the DOJ is defending the IRS and slow walking the discovery. The IRS, to settle litigation against the IRS, the 

DOJ approves this $50,000 settlement. The IRS is not in the habit 

of handing out money. They’re there to collect money. And to say 

that there’s not a smidgen of corruption and then pay a $50,000 

check to make the case go away because of the corruption area, 

that’s inconsistent, and what I would like, I think the advantage 

of the special counsel is if he tells us in fact it went no further than 

Lois Lerner, maybe Lois Lerner and the IRS commissioner, somebody else, we could believe that. When this Administration, when 

the people are investigating themselves, it’s very hard to believe 

that. 

Mr. BACHUS. Well, and let me ask you this. Let’s assume the 

Justice Department is investigating Lois Lerner. They say they 

are. And to investigate someone, the first thing you do is you ask 

for all the documents. Emails now—— 

Mr. ROTUNDA. Right. 

Mr. BACHUS [continuing]. Are probably the central thing, phone 

records. How is it, and I’ll ask any of you, how is it conceivable that 
47 

if they’re investigating or asking her for emails, there could have 

been all these emails destroyed and they didn’t know it? 

Mr. ROTUNDA. How can the IRS commissioner testify to the 

House under oath that the emails have been destroyed and then 

the inspector general says actually they’re there? Why did the IRS 

commissioner say that? Somebody lied to him? Somebody was incompetent? Certainly somebody wasn’t looking very hard because 

the inspector general, the nonpartisan official, signed it. There are 

a lot of things here that are, shall we say, eyebrow raisers. 

Mr. BACHUS. Professor Tiefer, go ahead. 

Mr. TIEFER. You may think they’re too slow, okay? I won’t argue; 

I don’t know enough to argue. It took them a while in the investigation to find this out, point taken that they may have been slow. 

The scale of what it takes to find that the Justice Department has 

a conflict of interest such that they can’t do this investigation, that 

it’s taken away from them, if you did that every time they did a 

slow investigation, you would have to build a new Main Justice 

building just for the special counsels. 

Mr. BACHUS. Well, you realize, there’s 70 percent of the American people say they’re covering up and they’re guilty of misconduct. Now, that’s just their opinion. But isn’t that enough, when 

70 percent of the people think their government is lying to them 

and covering up and destroying evidence, isn’t that reason enough? 

Mr. SEKULOW. They didn’t find it slow, Congressman. 

With due respect, Professor, they didn’t find it slow. They didn’t 

find it at all. It was only public after a Freedom of Information Act 

request. That’s the problem. The FBI investigation did not uncover 

the missing emails from the key period and, apparently, from people that also received them. 

Mr. ROTUNDA. Yeah, third parties without a subpoena get more 

information than the Department of Justice with a subpoena. 

Mr. BACHUS. Another word you used, slow walking, if nothing 

else, this is a case of slow walking. 

Mr. JORDAN. The gentleman from New York is recognized. 

Mr. NADLER. Mr. Chairman, before I’m recognized, can Professor 

Tiefer answer Mr. Bachus’s question about the 70 percent? 

Mr. TIEFER. I’ll refer back, if the regulation said anytime the 

public puts thumbs down about their government, now we have 

twice as many special counsels as I was worried about before, but 

I’ll just note that the instances I talked about in the Bush administration involving Attorney General Gonzalez, I don’t know the 

exact poll figures, but I know there were times during the Bush administration that there was grave public doubt about either Attorney General Ashcroft or Attorney General Gonzalez, and we didn’t 

get special counsels. 

Mr. BACHUS. But that doesn’t make it right, does it? 

Mr. JORDAN. No, it doesn’t make it right that the Justice Department learned of the missing emails from the press accounts when 

the IRS wrote the letter. 

The gentleman from New York is recognized. 

Mr. NADLER. Thank you, Mr. Chairman. 

Mr. BACHUS. I just don’t think a defense that someone else did 

something just as bad is a defense. 

Mr. JORDAN. I hear you. 
48 

The gentleman from New York is recognized. 

Mr. NADLER. Thank you. 

Professor Rotunda, in your written testimony, you state, ‘‘We also 

know that the Department of Justice is in a conflict of interest in 

continuing that investigation because the President has compromised it.’’ That occurred when the President, the chief law enforcement officer of the United States, announced last February 

that there has not been a ‘‘smidgen of corruption.’ ’’ You’re referring, and I think you did today earlier, to the President’s comments 

in an interview with Bill O’Reilly on February 2, are you not? 

Mr. ROTUNDA. Yes, sir. 

Mr. NADLER. Thank you. In your view, the President has created 

a conflict of interest for the entire Federal Government because he 

gave his opinion based on the facts of a case as he understood that 

at the time? 

Mr. ROTUNDA. Not for the entire Federal Government, but for the 

Department of Justice, and he’s never gone back on his remarks. 

Mr. NADLER. Well, whether he’s gone back on his remarks or not, 

that’s not the question. By saying that he’s created a Federal conflict of interest for the entire Department of Justice although not 

the Department of Agriculture is what you’re saying? 

Mr. ROTUNDA. That’s right. Command influence we call it in the 

military. 

Mr. NADLER. December 6, 2005, you wrote a column in The 

Washington Post titled, ‘‘A Shaky Ethics Charge.’’ Reports show 

that John Roberts then on the D.C. Circuit had interviewed with 

senior White House officials, including Alberto Gonzalez, then the 

Attorney General, Dick Cheney, then the Vice President, Karl 

Rove, I presume then the politician in chief, while sitting as a 

member of the three-judge panel considering Hamdan v. Rumsfeld. 

A number of people called for his recusal from that case. You argued that, ‘‘Roberts had no obligation to withdraw from the case’’ 

and concluded that conflict of interest charges should not be raised 

lightly. 

There a sitting judge consulted with the White House, presumably for appointment, possibility of appointment as the chief justice 

while hearing a case that tested a central theory of the White 

House’s war on terror, but there was no conflict of interest. Here 

the President gave his opinion on a case far removed from the 

White House, but there is a conflict of interest. How is that consistent? 

Mr. ROTUNDA. Well, as I pointed out then, we had a lot of case 

law that fit under Roberts. And Justice Breyer, for example, was 

deciding cases as a First Circuit judge and then appointed to the 

Supreme Court and talking to the Supreme Court—or talking to 

the Department of Justice about positions. There’s a lot of case law 

on this. We have in the executive branch—— 

Mr. NADLER. But that doesn’t apply to an off-the-cuff expression 

of opinion by the President. 

Mr. ROTUNDA. The President’s never said it was off-the-cuff. I 

don’t think it was off-the-cuff. 

Mr. NADLER. Well—— 

Mr. ROTUNDA. I’ve never heard that one before. 
49 

Mr. NADLER. It was an expression of opinion on a TV show, not 

in a legal brief or anything else. 

Mr. ROTUNDA. He was command influence, he was telling us 

what the investigation shows is there’s not a smidgeon of corruption. What was the basis for that? That somebody may have misrepresented to him? Somebody may have been incompetent, but it’s 

little difficult for the Department of Justice to show—— 

Mr. NADLER. And yet—— 

Mr. ROTUNDA [continuing]. But argue the President was incorrect. 

Mr. NADLER. Well, that’s a different question, whether he was 

correct or incorrect. Yet you published an article in the Hofstra 

Law Review, titled, ‘‘Alleged Conflicts of Interest Because of the 

Appearance of Impropriety.’’ In it you discuss the situation where 

a lawyer openly takes a position on a controversial issue. You conclude, ‘‘Those who claim that there is some sort of conflict of interest in public statements about policy matters do not refer to any 

rules, regulations, case law or ethics opinions to support their 

charge; that is because the law on this subject all points the other 

way.’’ 

Can you point to any precedent, any rule, regulation, case law or 

ethics opinion that suggests the President’s unscripted remarks 

from a pre-Super Bowl interview compelled the Department of Justice to recuse itself from a criminal investigation? 

Mr. ROTUNDA. I referred to them briefly earlier. In the military, 

it’s called command influence. If the general says—— 

Mr. NADLER. Wait a minute. This is not the military. 

Mr. ROTUNDA. I’d like to finish my sentence if I could. All right? 

The President is not in the military, but he can’t prejudge that as 

well. I objected to that article talking about the appearance of impropriety, because we never define what is not an impropriety but 

appears to be. We ought to have stricter rules. 

Mr. NADLER. Can you point—and I’ll repeat the question. Can 

you point to any rule, regulation, case law or ethics opinion to support the charge that the President sets up a conflict of interest for 

the entire Justice Department by expressing his opinion? 

Mr. ROTUNDA. Yeah. 

Mr. NADLER. Question mark. 

Mr. ROTUNDA. All the cases on command influence that cover 

even the President, who’s not—— 

Mr. NADLER. Command influence—— 

Mr. ROTUNDA [continuing]. Military. 

Mr. NADLER [continuing]. Is within the military structure, which 

is a very different thing, where the President is on top of the—not 

only the prosecution but the judicial chain. 

Mr. ROTUNDA. Yeah. The President is the chief law enforcement 

agent of the land. 

Mr. NADLER. He’s not the chief judge, as he is in the military, 

in effect. 

Mr. ROTUNDA. He’s not the chief judge, no. That’s why he can’t 

exercise command influence. 

Mr. NADLER. Cannot exercise command influence. In the military, he exercised command influence. That’s what you were saying, otherwise, why did you mention it? 
50 

Mr. ROTUNDA. I’m sorry. I guess I don’t understand. 

Mr. NADLER. I asked if there was any case, rule, regulation or 

anything, and you cite the military because of command influence. 

This is not the military. There is no command influence. 

Mr. ROTUNDA. Even though the case will be decided by a military 

judge or prosecuted by the military attorneys and the President 

has no direct rule, he’s still not allowed to tell people how the case 

is supposed to come out. And we’d like to know, since I think part 

of the investigation here is whether the DOJ is involved in the 

coverup, why did the President say that? Was it about—— 

Mr. NADLER. The President—— 

Mr. ROTUNDA [continuing]. Off-the-cuff remark—— 

Mr. NADLER. The President—— 

Mr. ROTUNDA. Was it because the DOJ—— 

Mr. NADLER. Hold on. 

Mr. ROTUNDA [continuing]. Gave him information? 

Mr. NADLER. The President is not the subject of the investigation. There is no evidence whatsoever to tie senior Administration 

officials to the case, and yet it’s your position that the President’s 

expression of opinion creates a government-wide or at least a department-wide conflict of interest. This seems to go against everything else you’ve ever written on the subject. 

Mr. ROTUNDA. I don’t think so. 

Mr. GOODLATTE [presiding]. The time of the gentleman has expired, but the gentleman will be allowed to answer the question. 

Mr. ROTUNDA. Yeah. I don’t think so. That’s why I got footnotes. 

I cite the various authorities. Now, I will add—— 

Mr. NADLER. But you can’t cite a single—— 

Mr. GOODLATTE. The time of the gentleman has expired. 

The Chair recognizes the gentleman from Virginia, Mr. Forbes. 

Mr. NADLER. A point of order, Mr. Chairman. 

Mr. GOODLATTE. The gentleman will state his point of order. 

Mr. NADLER. Yeah. Before you came in, the gentleman who was 

seated in the Chair was commenting after every question and every 

witness, and took a minute or two or three to make his comments. 

I think I can ask one more question of the professor. 

Mr. GOODLATTE. Without objection, the gentleman will have 1 

more minute. 

Mr. NADLER. Thank you. 

And yet when I asked you whether you can cite any regulation, 

rule, case law or ethics opinion to support the charge, all you can 

come up with is military stuff, command influence, nothing civilian. 

Is that correct? 

Mr. ROTUNDA. Well, in my written testimony, that’s correct. 

Mr. NADLER. Thank you. 

Mr. ROTUNDA. What I tried to point out today, because the email 

just came out, we now learn that the Department of Justice is slow 

walking the discovery in cases defending the IRS, and that is also 

creating a conflict, much more serious, because it is the Department of Justice officials defending the IRS while they’re supposed 

to be investigating the IRS. 

Mr. NADLER. So nothing outside the military. Thank you. 

Mr. GOODLATTE. The Chair recognizes the gentleman from Virginia, Mr. Forbes, for 5 minutes. 
51 

Mr. FORBES. Thank you, Mr. Chairman. 

I want to try to get back to the essence of this hearing, which 

is basically, it’s not the credibility of one particular individual, but 

would all of the witnesses, would any of you disagree that currently 

the credibility of the Internal Revenue Service is a major question 

now with a vast majority of the American people? Would any of our 

witnesses disagree with that? 

Mr. Tiefer would, I take it. 

Mr. TIEFER. I would just say it’s nothing new. The public has always hated the IRS. 

Mr. FORBES. Well, it’s a difference between hating them. 

Mr. Sekulow, have you seen any difference in actually with the 

American public in terms of the credibility of the Internal Revenue 

Service? 

Mr. SEKULOW. I can give you actual evidence of the concern, and 

generally, the IRS doesn’t win—when I used to get introduced and 

you said you were chief counsel of the IRS, that usually didn’t get 

applause in the early days, but the reality is now, I’ve been literally inundated with cases, requests for assistance from people 

that are simply getting notices of deficiency, wondering if they have 

been targeted for something, because it’s coming out of nowhere. 

So there is this palpable general distrust, and what counters that 

is the reality of it is it’s not just one person, this is happening time 

and time again. And then you had, which has not been brought up, 

you know there were a series of audits conducted by the IRS 

against adoptive parents because of the adoption tax credit. They 

recovered less than 1 percent of the revenue that was of the credit 

that was actually taken. These kind of actions lead to an increased 

concern by the American people. 

Mr. FORBES. Would you not agree that the IRS is not just any 

agency. It’s a core agency in terms of both the overreaching power 

that they have on the American people and also the core of its capability of raising revenue for this country, and then the other part 

of that is it depends on the voluntary—— 

Mr. SEKULOW. Right. 

Mr. FORBES [continuing]. Compliance of the American people. 

Now, having said that, I want to go back to this question that 

most of you agree that this is a discretionary issue for the Attorney 

General, but if you take Mr. Tiefer’s response that any time anybody comes in here and just says, we’re doing an investigation, 

then this Committee should just go home and not do anything, 

then I will tell you, we wouldn’t do any of our oversight roles, because time and time again, this Administration’s come in and said, 

oh, yeah, we got into look that, we’re going to get back to you, we’re 

doing an investigation, and we don’t hear anything. 

And then when you look at the other comment, Mr. Tiefer, that 

you said about the people in the Justice Department not paying 

any attention to what the President of the United States says, I 

know it’s a different role, but look at the generals and admirals 

who have lost their jobs at the Pentagon because they disagree 

with this Administration. They’ve issued gag orders on them. 

They’ve fired them because they disagree, and you tell me if I’m 

in an agency and the President of the United States, who’s my boss 
52 

and I serve at will, comes out and says there’s no evidence here, 

I’m sending that message, I’m not going to pay attention to it? 

Mr. SEKULOW. I was just going to say, Congressman Forbes, and 

this goes to what Congressman Nadler was talking about, this was 

not just an off-the-cuff statement. It was a statement by the President of the United States that there was not a smidgeon of corruption on what was purportedly an ongoing criminal investigation. 

Now, if an attorney was involved in a case and made that kind 

of statement, they would be reprimanded by the court. An ongoing 

criminal investigation, and the President of the United States has 

prejudged it, and there’s an executive function within the Department of Justice, that is very troubling. Again, it’s discretionary to 

the Attorney General what he wants to do with that, but to say 

that doesn’t raise an issue, I think, is—— 

Mr. FORBES. Mr. Sekulow, let me come back to this question. The 

essence of this case, to me, comes down to this, whether you appoint this special counsel. Mr. Rotunda, you talked about the Nixon 

tapes, and he probably didn’t have to turn them over. If you had 

it to go over now and it wasn’t a worry about impeachment, he 

wasn’t worried about the politics of it, and you had to advise him, 

and he had two questions to ask: Do you want to make sure you’re 

restoring the credibility of the Internal Revenue Service, or do you 

want to make sure that your agencies aren’t held accountable for 

perhaps some misconduct that took place there, what would you 

have advised him to do, turn over that information or not turn it 

over? 

Mr. ROTUNDA. Turn it over, that is, comply with the law, even 

though it can’t be enforced. 

And by the way, this is not Super Bowl Monday. That is, we’re 

not talking about asking for a special prosecutor an hour after the 

President issued his remark. We have that remark, which raised 

my eyebrows, what does he know that we don’t know, and we’ve 

had a whole series of things after that, including the DOJ attitude 

and actions in the lawsuit involving the Z Street Corporation, the 

$50,000 settlement in the National Organization of Marriage, the 

refusal of the DOJ to give immunity to this individual who could 

tell us who gave him the information from the IRS. 

Mr. FORBES. Thank you. 

My time’s expired. I’m not going to take more time. 

And, Mr. Chairman, with that, I yield back. 

Mr. GOODLATTE. I thank the gentleman. 

The Chair recognizes the gentleman from Virginia, Mr. Scott, for 

5 minutes. 

Mr. SCOTT. Thank you. Thank you, Mr. Chairman. 

As the Ranking Member has indicated, this is the last full working day before we go on a 5-week recess. We’ve still got pending, 

and apparently not enough time to consider voting rights legislation to improve voting rights generally or the voting rights bill that 

would respond to the Shelby decision. We haven’t passed immigration reform or done anything about gun violence and a host of 

other issues, but here we are with a hearing, and you wonder about 

the purpose of the hearing generally, but the House has already 

passed H. Res. 565, demanding that the Attorney General appoint 

a counsel. This hearing might have made sense before we consid-
53 

ered that resolution, but after we passed it, it wonders what this 

is all about, but let me get to a—we’ve been talking about a lot of 

regulations. 

The code of the United States under 501(c)(4) says that those organizations that could get that tax-exempt status are civic league 

organizations not organized for profit but operated exclusively for 

the promotion of social welfare. 

The regulations say that to qualify as a social welfare organization under 501(c)(4), an organization must be operated exclusively 

for the promotion of social welfare. An organization is considered 

to be operated exclusively for the promotion of social welfare if it 

is primarily engaged in activities which in some way promote the 

common good and general welfare of the community. They say that 

political activities are not considered to be activities for the promotion of social welfare. 

Then they go on to talk about attempts to influence legislation 

are considered to be activities that further Section 501(c)(4) social 

welfare purposes so long as such legislation is germane to the accomplishment of its social welfare purposes. 

Promotion of social welfare does not include participation or 

intervention in political campaigns, but 501(c)(4) organizations may 

intervene in political campaigns without jeopardizing its tax-exempt status provided it is primarily engaged in other activities 

which further the promotion of social welfare. 

Those are the regulations. Let me get back to the code. Organized not-for-profit but operated exclusively for the promotion of social welfare. Aren’t these regulations that essentially changed the 

law? Isn’t this the problem we’re confronted with? 

Mr. SEKULOW. Well, the issue under 501(c)(4), Congressman 

Scott, is the test that the IRS has been applying for over 50 years 

was the primary test. It was primary. The word does say ‘‘exclusive,’’ and then the regulations define ‘‘exclusive’’ to be primary. 

However, there has been a 50-year history of how (c)(4)s are allowed to operate, what they can and cannot do. And, frankly, as 

someone that’s been involved in tax work since 1980, there has not 

been a significant issue here. There’s been very few revocations of 

tax-exempt status of (c)(3)s or (c)(4)s. There’s been some, but it has 

been very rare. The applications actually during the years in question here were down from the previous year. 

What you have is the regulations are not clear. You’ll remember, 

they were trying to do a quick fix to this problem. The acting commissioner said, what we’re going to do is if you’ll agree to expend 

no more than 40 percent of your activity for political expenditures, 

we will automatically grant you—which is different than the standard they even set in their regulation. So it’s fair to say that the 

rules and regulations are complex. However, they’ve been administered for 50 years pretty consistently. 

Mr. SCOTT. They essentially amend the law by regulation exclusively as meaning in the English language that would not include 

significant political activities. 

Mr. SEKULOW. Unless that was social welfare. Social welfare 

could include political engagement. 

Mr. ROTUNDA. Yeah. I think we add something else, and that is 

the inspector general said there was inappropriate criteria. Lois 
54 

Lerner in her full apology acknowledged it was inappropriate criteria. So it’s a little late for the IRS to argue that what they did 

was appropriate, when the head of the decision and the IRS independent inspector general says that it is inappropriate. And the 

reason it was inappropriate is because it focused on the political 

views of the people, of the people involved. 

Mr. SCOTT. Well, now, there’s no evidence to that. There are were 

liberal groups that were also—had their—— 

Mr. ROTUNDA. Well, actually—— 

Mr. SEKULOW. None denied. 

Mr. ROTUNDA [continuing]. There’s lots of evidence to that. 

Mr. SEKULOW. None of those denied. There were seven groups 

picked up, Congressman, but none denied their exempt status. 

Mr. SCOTT. Well—— 

Mr. TIEFER. Mr. Scott, I think they were caught in the problem 

you’re talking about, but they had outdated criteria. And the decisions on how to handle it, which were not to deny, not to deny Tea 

Party applications, but just trying to figure out what to do with 

them, were made at the lower level of the bureaucracy, passed back 

and forth between the unit that gives advice, technical unit, and 

the people who have the frontline roles. 

Mr. SEKULOW. That is absolutely incorrect. 

Mr. ROTUNDA. And it doesn’t justify a $50,000 settlement, because you don’t act that way if you’ve got nothing to worry about. 

Mr. GOODLATTE. The time of the gentleman has expired. 

The Chair recognizes the gentleman from California, Mr. Issa, 

for 5 minutes. 

Mr. ISSA. I thank the Chairman. 

You know, I don’t want to get too far into the weeds on the last 

colloquy we just heard, but during those 50 years, more or less, 

weren’t we living with the decision in the NAACP v. Alabama? 

Mr. SEKULOW. Yes. 

Mr. ISSA. Weren’t we living with the recognition that a state, 

Alabama, had tried to get the records of people who gave to the 

NAACP, because the NAACP, a not-for-profit, on their behalf was 

trying to do voter registration, was trying to do political things as 

a social service, and the Supreme Court held very much that they 

had an anonymous right. And wasn’t one of the situations in this 

targeting demanding that these 501(c)(4)s turn over their contributor list? 

Mr. SEKULOW. Their donor records, contributor lists. In fact, in 

our response back, Congressman, to the IRS, we cited all the— 

there’s a lot of NAACP cases on this, and we cited—— 

Mr. ISSA. There’s a great history. 

Mr. SEKULOW. A really rich history, and it’s a fascinating study, 

but the end result is what the IRS was asking for was outside of 

the scope of legitimate inquiry and was protected by the First 

Amendment. Ultimately, they backed down, but, Congressman, it 

took months for them back down. 

Mr. ISSA. But of course, it’s a very powerful agency against—— 

Mr. SEKULOW. Yep. 

Mr. ISSA [continuing]. A small startup in the case of a Tea Party 

group. 
55 

Aren’t the other cases that you often see—hear about anonymous 

free speech, union cases where time after time, people wanted to 

identify the union element so they could be targeted? It is amazing 

that we’re relitigating something that was so settled during the 

civil rights era. 

Well, let me go to the special counsel, because that’s what—— 

Mr. ROTUNDA. The decision in the Social Workers Party v. Ohio, 

it’s not just civil rights cases. The court said if you release the 

names of the political contributors in the Social Workers Party, 

they’re afraid of harassment of the donors. That’s what happened 

in the National Organization for Marriage. 

Mr. ISSA. I think you’re exactly right. And so one of the key tenets here is, in fact, your ability to take your after-tax money, 

you’ve already paid your taxes, and give it to a group that’s considered ‘‘tax exempt,’’ but 501(c)(4)s, they only pay tax on retained 

money. The reality is if they spend all the money that people give 

them with their after-tax money, there’s no tax consequences anyway. 

Mr. SEKULOW. Right. 

Mr. ISSA. So the major part of the harassment, these endless 

questions of delay, but a major part of it was asking for information that the IRS clearly should have known was inappropriate to 

ask for. So when we have an investigation into this wrongful act, 

when we have a clear wrong act, Lois Lerner went before the 

American Bar Association, planted a question so she would be 

asked about a TIGTA investigation that was coming out, and she 

could then spring it as a release, when in fact what she was really 

doing was sending something out so she could spin a false narrative. Now, that happens to be a crime. 

So when you have that and then you have the President following up with there’s not a smidgeon of evidence, pre-determining 

the case, does it fit any of these criteria, one, conflict of interest, 

I’ll set that aside, it has been talked about a lot. The ‘‘or’’ in the 

first test is extraordinary circumstances. Is, in fact, the series of 

events pretty extraordinary for the American people to digest? 

Lastly, is there a public interest? 

So I’ll ask the question, leaving the first one out for a moment, 

even though the Attorney General sat before this Committee and 

told us he wore two hats, one, the highest law enforcement office 

and the other a political appointee, and he said that sitting right 

in that middle chair, but leaving that aside, the conflict of interest, 

isn’t it pretty extraordinary to have a President taint a jury pool, 

so to speak, by saying there isn’t a smidgeon of evidence while 

there is, in fact, an ongoing investigation? 

And isn’t there a public interest in the American people believing 

that anyone who was involved in this now known to be wrongful 

activity at the IRS has been held accountable? And I would take 

them in reverse order if possible, public interest, extraordinary circumstances. 

Mr. SEKULOW. Well, the public interest is clear, because the integrity of the IRS right now is in complete disarray, and, in fact, 

there are some that question whether they’re institutionally capable of self-correcting this. That’s one. 
56 

**The information referred to is not printed in this hearing record but is on file with the Committee and can be accessed at http://oversight.house.gov/wp-content/uploads/2014/04/4-7-2014- 

IRS-Staff-Report-w-appendix.pdf. 

With regard to the nature of what’s happened here and the impact that that has on the conflict—not even the conflict, but the 

standards or review for a special counsel, it’s unprecedented that 

you had the President pre-judge the case while the evidence was 

lost, and the IRS lost it, allegedly, and the FBI doesn’t find out 

about that during the scope of their investigation. They find that 

from media reports. When you put all of that together, it would be 

an easy justification for a special counsel, that is for sure. 

Mr. ISSA. Mr. Chairman, at this time, I’d like to ask unanimous 

consent that the Oversight report authored that says, ‘‘Debunking 

the Myth the IRS Targeted Progressives,’’ be placed in the record 

so that Members could resolve those conflicts that seem to be unresolved by our panel.** 

Mr. GOODLATTE. Without objection, it will be made a part of the 

record. 

Mr. ISSA. I thank you, Mr. Chairman. 

Yield back. 

Mr. SCOTT. Mr. Chairman. 

Mr. GOODLATTE. For what purpose does the gentleman from Virginia seek recognition? 

Mr. SCOTT. Unanimous consent request. 

Mr. GOODLATTE. The gentleman will state his request. 

Mr. SCOTT. Mr. Chairman, I ask unanimous consent that two articles be admitted into the record, one entitled, ‘‘Meet the Group 

the IRS Actually Denied: Democrats,’’ and the other, the ‘‘IRS Sent 

Same Letter to Democrats That Fed Tea Party Row,’’ and it outlines the fact that the Democratic-leaning group actually saw its 

tax-exempt status denied, forcing it to disclose its donors and pay 

some taxes. 

Mr. GOODLATTE. Without objection, the articles will be made a 

part of the record. 

[The information referred to follows:] 
57 
58 
59 
60 
61 
62 
63 

***The information referred to is not printed in this hearing record but is on file with the 

Committee and can be accessed at http://oversight.house.gov/wp-content/uploads/2014/06/HowPolitics-Led-to-the-IRS-Targeting-Staff-Report-6.16.14.pdf. 

Mr. ISSA. Mr. Chairman, one more unanimous consent, since we 

are on a roll. I’d also like to also put in, ‘‘How Politics Led the IRS 

to target Conservative Tax-Exempt Applications for Their Political 

Beliefs.’’*** 

Mr. GOODLATTE. Without objection—— 

Mr. ISSA. I thank the Chairman. 

Mr. GOODLATTE [continuing]. It’ll be made part of the record. 

Mr. TIEFER. If I can respond to Mr. Issa’s last question. 

Mr. GOODLATTE. Without objection, you may respond to the question. 

Mr. TIEFER. Okay. When we go back to look at the special counsel’s regulations in 1999, when it was adopted in the Federal Register, it says that you have a special counsel when the Attorney 

General concludes that extraordinary circumstances exist. And 

here’s what he has to decide—it isn’t whether you want to restore 

the IRS, it has nothing to do with anybody outside the Department 

of Justice, as we were talking about on both sides of the aisle, the 

questioning so far until now. When the Attorney General would be 

served by removing a large degree of responsibility for the matter 

from the Department of Justice. 

You don’t get away from the criterion. Are you going to say, Oh, 

Public Integrity Section, you’re conflicted; oh, FBI, you’re conflicted. 

We’ve got to take it out of your hands? 

Even if the head of the FBI is a Republican, I don’t think that 

this criterion is met here. 

Mr. GOODLATTE. Thank you. 

Mr. BACHUS. Mr. Chairman. 

Mr. GOODLATTE. For what purpose does the gentleman from Alabama seek recognition? 

Mr. BACHUS. You know, I recall reading somewhere, and maybe 

somebody can pursue this—— 

Mr. GOODLATTE. If I may, I think the gentleman needs to get 

someone else to yield time to him, and then he can make the point 

at the appropriate time. 

At this time, I—— 

Mr. BACHUS. Ten seconds. Thank you. 

Mr. GOODLATTE. I will make sure you get that time yielded to 

you, but now it’s the time of the gentleman from Rhode Island, Mr. 

Cicilline. He’s recognized for 5 minutes for his questions. 

Mr. CICILLINE. Thank you, Mr. Chairman. 

Mr. Tiefer, are you aware of any serious argument that has been 

made in the 15 years since this regulation existed, any serious 

claim that disputes the Attorney General has discretion for this appointment? 

Mr. SEKULOW. You’re asking—— 

Mr. CICILLINE. No. I’m asking the gentleman on the end. Professor Tiefer, I believe. 

Mr. TIEFER. I’m sorry. 

Mr. CICILLINE. Are you aware of any serious argument that has 

been made in the last 15 years or any serious claim that the Attor-
64 

ney General does not have discretion for the appointment of a special counsel? 

Mr. TIEFER. There has never been, I guess I just heard a couple 

of words today, never been until now an argument that he lacks 

discretion. 

Mr. CICILLINE. And in fact, in your written testimony, you describe claims to the contrary as a, and I quote you, ‘‘a convenient, 

unheralded concoction of fanciful imagination.’’ What do you mean 

by that? 

Mr. TIEFER. I don’t think there’s a lot of reality to it. 

Mr. CICILLINE. And there is an ongoing investigation by both the 

Department of Justice and the Federal Bureau of Investigation on 

this matter, correct? 

Mr. TIEFER. Correct. 

Mr. CICILLINE. And has it been the practice of the Congress to 

engage in hearings, to sort of piggyback on ongoing criminal investigations? 

Mr. TIEFER. Absolutely not. 

Mr. CICILLINE. And why is that? 

Mr. TIEFER. Because the Department has a very firm stance that 

it will not provide material from open investigations. I worked with 

not only with House Committees during my time as general counsel; I testified in favor of Mr. Issa’s investigation of Fast and Furious. I was the lead witness at his hearing. I said, as long as you’re 

going after closed stuff, you can get it; but open investigations, you 

can’t. 

Mr. CICILLINE. Thank you. I think in light of that, as the gentleman from Virginia just mentioned, with all of the work that we 

have unfinished, the Voting Rights Act, immigration reform, enacting responsible gun safety legislation, it’s hard to understand what 

we’re doing here today. 

But I’d like now to go to Mr. Sekulow. In your written testimony 

accusing the Department of Justice and the IRS of collusion, you 

cite Criminal Statute 18 USC 241, which makes it illegal for two 

or more persons to conspire to injure, oppress, threaten or intimidate any person in any State in the free exercise or in enjoyment 

of any right or privilege secured to them by the United States or 

laws of the United States. 

You conclude that the targeting of any American based upon 

their personal beliefs or freedom of association is repugnant to the 

Constitution. And while you uphold principles of anti-discrimination in the U.S. Code and constitution, Human Rights Watch 

named the organization which you head, the American Center for 

Law and Justice, to their LGBT Rights Hall of Shame for their active support of discriminatory policies in Africa, for example, the 

East African Center for Law and Justice, an offshoot of your organization, and I quote, ‘‘lobbied against Kenya’s progressive new 

constitution’’ in 2010 solely on the basis that the constitution’s 

anti-discrimination clause would eventually be used to advance 

LGBT equality, according to Human Rights Watch. 

You then opened a Zimbabwe chapter, and your organization’s 

chairman led a prayer march with President Mugabe, who is a notorious homophobe dictator, who has referred to gays and lesbians 

as dogs and pigs and said, and I quote, ‘‘they should rot in jail.’’ 
65 

A State Department spokesman, Victoria Nuland, said, we are 

deeply concerned when security forces have become an instrument 

of political violence used against citizens exercising their democratic rights. 

And so my question to you, sir, is how do you reconcile your support for civil rights under the Constitution and U.S. law while your 

organization is actively promoting discriminatory policies abroad? 

And don’t we have a right, as Members of this Committee, to consider this hypocrisy in evaluating what weight to give your testimony? 

Mr. SEKULOW. Well, you’re conflating, Congressman, with due respect, an issue where there is a discussion or a debate within a culture about a constitutional referendum. You certainly wouldn’t 

deny, Congressman, that individual citizens would have the right 

to object to a provision of a constitution, at least vocally through 

free speech rights, to engage in the process. That’s what they were 

doing down there. 

Mr. CICILLINE. I—— 

Mr. SEKULOW. Let me—— 

Mr. CICILLINE. I would not agree with that. I do not—— 

Mr. SEKULOW. Oh, you think if there’s a discussion between—— 

Mr. CICILLINE. No. I don’t think there is a discussion that can 

be had in the context of recognizing basic human rights that would 

authorize the discrimination, imprisonment and acts of violence 

against people because of sexual orientation, period. So my question really is—— 

Mr. SEKULOW. Well, you’re conflating the two again. 

Mr. CICILLINE [continuing]. Your organization is actively engaged 

in promoting discriminatory policies, and you claim in your written 

testimony that you’re here trying to vindicate free expression. The 

two seem to be in direct contradiction. 

Mr. SEKULOW. Well Congressman, you needed to do some more 

reading, with due respect, because you’d find out I’ve represented 

the ACLU before the Supreme Court of the United States. 

Mr. CICILLINE. I’m asking you about your representation promoting—— 

Mr. SEKULOW. Why don’t—we also have offices in Russia—— 

Mr. CICILLINE [continuing]. Policies that—— 

Mr. SEKULOW [continuing]. In Jerusalem, in Pakistan. 

Mr. CICILLINE [continuing]. And criminalize behavior of people in 

the LGBT community and your claim today—— 

Mr. SEKULOW. We’ve never taken that position in the United 

States. And these are different issues—— 

Mr. CICILLINE. Oh, not in the United States, but internationally. 

Mr. SEKULOW. You’re making a very serious accusation, but 

you’re conflating a group’s ability to organize to say, we don’t like 

the direction of a law in a country: We think that it should be X; 

you think it should be Y. The people have the right to say that, 

and that’s why you have free discourse. 

Mr. CICILLINE. Reclaiming my time. 

Mr. NADLER. Would the gentleman yield? 

Mr. CICILLINE. Certainly. 

Mr. NADLER. Thank you. Would it be more—— 

Mr. GOODLATTE. The time of the gentleman has expired. 
66 

Mr. NADLER. Would it be more of a—— 

Mr. GOODLATTE. The time of the gentleman has expired. 

Mr. NADLER. I ask unanimous consent for one additional minute. 

Mr. GOODLATTE. I object. This is not the appropriate time for 

asking for unanimous consent, when I just denied the gentleman 

from Alabama’s request to speak out of order. We have a number 

of people who wish to ask questions, and the time now turns, as 

it happens, to me. And after that, I’ll ask someone else to take the 

chair, and if there is a unanimous consent request or if another 

Member wishes to yield to you, that would be the appropriate thing 

to do, but we are here to talk about this issue, and I’d like to return to a focus on the issue of whether or not the Attorney General 

should appoint a special counsel. 

So, first of all, let me ask Professor Rotunda, your testimony 

highlights that in discussing the special counsel regulations, the 

regulations call for appointment of a special counsel when investigation or prosecution of that person or matter by the United 

States Attorney’s Office or litigating division of the Justice Department would present a conflict of interest. 

Now, would you like to respond to Professor Tiefer’s argument 

that there is no conflict of interest within the Justice Department 

on this issue? 

Mr. ROTUNDA. Yeah. I think there is; that is, the Justice Department is defending the IRS in court today opposing the discovery of 

these documents. They’re slow walking it, the cases involving, what 

is it, the Z Street, their tax-exempt status. They’re supposed to be 

investigating the IRS at the same time they’re defending the IRS. 

Now, Professor Tiefer said that the person in charge of this investigation is, what, on loan, if I heard you right, it’s on loan from 

Civil Rights to Office of Public Integrity. Is that what you said? 

Mr. TIEFER. Barbara Bosserman. I said she’s not in charge, but 

she is on loan. 

Mr. ROTUNDA. Yeah. I find that bizarre, because the whole idea 

of the Office of Public Integrity is they’re supposed to be nonpartisan and separate. So what do we do? We bring somebody from 

another part of the Justice Department to be involved, either in 

charge or involved with the investigation in Public Integrity. That’s 

like shifting it away from Public Integrity. That’s another part of 

the conflict. 

Mr. GOODLATTE. Would you say that the investigation was being 

slow walked if over a year after the investigation supposedly began, 

the Justice Department did not even know that emails that would 

seem to me to be a core part of the investigation were not even 

available, making it apparent that they had not even asked for 

those documents? 

Mr. ROTUNDA. ‘‘Slow’’ is an adverb that is not slow enough to describe what they’ve been going. It’s just very slow. And when NOM, 

the National Organization for Marriage, finds somebody who actually got information illegally from the IRS, the Department of Justice reaction is let’s pay the $50,000, get rid of the lawsuit, and not 

put that person under oath, give them immunity to find out who 

in the IRS violated the law. So that ‘‘slow’’ is—if I had a thesaurus, 

I think maybe I’d find a better word, but it is very slow. 
67 

Mr. GOODLATTE. Professor Tiefer, you dismiss as absurd a claim 

that the House of Representatives possess the authority to appoint 

a special counsel; in fact, you say it is pure fantasy for the House 

to deny that the Attorney General has discretion to appoint a special counsel. Where was the claim made that the House has this 

authority and who made it? 

Mr. TIEFER. I was kind of stumped to understand what H. Res. 

565 was. I don’t remember another time. I really don’t remember 

another time. 

Mr. GOODLATTE. Let me read you the specific language from H. 

Res. 565. It says, ‘‘it is the sense of the House of Representatives 

that Attorney General Holder should appoint a special counsel 

without further delay to investigate the IRS’s targeting of conservative nonprofit advocacy groups.’’ 

Is it not within the authority of Congress to urge an executive 

branch official to act on a matter, however discretionary, that the 

House deems to be important? 

Mr. TIEFER. Well, I am glad it was the sense of resolution, I’ll 

say that, instead of a—— 

Mr. GOODLATTE. That would make a big difference, wouldn’t it? 

No one’s denying that the Attorney General has the discretion. 

What we’re asking is, why hasn’t he exercised that discretion? 

That’s the subject of this hearing today. 

Mr. TIEFER. I am glad that there is agreement here that he has 

the discretion, because I think after this, that will calm people 

down who are wondering what’s going on. 

Mr. GOODLATTE. Good. Thank you. I like that answer. 

Mr. Sekulow, when the Justice Department first launched its 

supposed investigation against the IRS, the groups you represent 

were cooperating with that investigation, however, you explain in 

your testimony that your clients are no longer cooperating in that 

investigation. Can you tell us why? 

Mr. SEKULOW. Well, when the emails came out from Lois Lerner 

that stated—and the one in particular is the one dated May 9, 

2013, which we just received this summer back in early June, it’s 

the email that says that the call took place between the director 

of Election Crimes at DOJ, talked about ‘‘piecing together false 

claims statements about applicants who lied,’’ saying they were 

planning on doing political activity and then turning around and 

not doing it. DOJ feels like they need to respond. 

Well, we were assured initially that our clients were never the 

subject to an ongoing criminal investigation, they were just being 

produced as witness. Then I get this email that says, in fact, they 

were looking at piecing together evidence and cases against our client. Piecing together. No evidence of anything. 

And, by the way, that letter that we sent to J.P. Cooney, the trial 

attorney at the United States Department of Justice, it was the 

lawyer that the letter was addressed to, that letter from the ACLJ, 

which is part of the record, was dated June 18, 2014, and has 

never been responded to. 

Mr. GOODLATTE. Thank you. 

My time has expired. The Chair recognizes the gentlewoman 

from Texas, Ms. Jackson Lee, for 5 minutes, and would advise the 

gentlewoman that, while you were not present, the gentleman from 
68 

New York asked unanimous consent to speak out of order, and I 

suggested to him, as I did the gentleman from Alabama, that perhaps some time might be yielded to him. 

And I would ask whoever takes the chair here in a moment, 

since I need to leave for a few minutes, be generous in the granting 

of the amount of time so people can yield. 

Mr. BACHUS. Mr. Chairman, I only would like that time after 

every other Member has had—— 

Mr. GOODLATTE. Well, I’ll ask if other Members would have the 

forbearance to yield the gentleman time. 

At this time, the gentlewoman from Texas is recognized for her 

time. 

Ms. JACKSON LEE. Just a point of clarification. I’m always eager 

to be gracious to colleagues. Someone explain, what did the Chairman say? Someone needing time? Okay. 

Then Mr. Gowdy is taking the chair—pardon me? All right. After 

Mr. Gowdy has taken the chair, if I can continue to a period of 

time, I may be happy to have my extra time yielded to Mr. Nadler 

if that be the case. 

Let me thank the witnesses for their presence here today. The 

title of this hearing is, ‘‘The IRS Targeting Scandal: The Need for 

a Special Counsel.’’ I want to be very clear that as I read the particular section in the Federal Register articulating the provision, 

600.1—600.2, clearly there is a section, Professor Tiefer, that indicates alternatives, because at least this particular hearing does 

say, ‘‘the need for a special counsel.’’ 

Just a little background. I want to make it very clear, what I understood when this first came forward, the President had a very 

stern representation of wanting to get to the bottom of it, speaking 

directly to the American people, as I am suggesting, that no one 

wants to tolerate targeting, it is abhorrent, and that whatever laws 

need to be applied should be applied. As I understand, there have 

been a number of investigatory hearings. There is certainly an individual in the eye of the storm at this point, a Ms. Lerner, there 

are suggestions of looking for additional emails and other resources, but I think this hearing on the Judiciary Committee 

should be very clear. We are not commenting on the issue of 

whether there should be an investigation. There is one going on. 

There is a question for the need for a special counsel. Now, that’s 

an interesting terminology, because maybe the underbelly of that 

is, Mr. Attorney General, we are telling you to appoint a special 

counsel. 

So my question to you, as I look at 600.2, it says the Attorney 

General may appoint a special counsel or direct that an initial investigation consisting of such factual inquiry or legal research as 

the Attorney General deemed appropriate be conducted in order to 

better inform the decision. 

How do you characterize the question ‘‘need?’’ And in the backdrop of what I’ve just said, do you not see a framework where the 

Attorney General can do many things? 

Mr. TIEFER. I have not only read the regulation, as in the way 

you read it, but I went to look at the background of the regulation, 

and the background says very strongly that the regulation is set up 

to give him many ways to go. And the specific background, which 
69 

we may remember is, under the old statute, there hadn’t been that 

kind of choice of ways and alternatives, it was inflexible, and during the Reagan administration, it drove people crazy that there had 

to be five special counsels on Ed Meese, and then during the Clinton administration, it drove people crazy that so much jurisdiction 

had to get handed over again and again to Ken Starr. And the regulation in contrast with the statute gave flexibility to avoid that, 

and has avoided that. I read it the way you do, Ms. Lee. 

Ms. JACKSON LEE. And can you just go into the regulation, I 

think you’ve done it well, but the discretion that the Attorney General has? And you said something very valuable. The burden that 

the American people feel: how many more are we going to have and 

pay for? I should have had the numbers for what Ken Starr spent 

for an ultimate nonconviction. But this discretion is an important 

element on behalf of the American people. It takes into the seriousness of the question, or can, takes into an elongated, expensive 

process with dollars being spent. Could you comment on the word 

‘‘discretion’’? 

Mr. TIEFER. Exactly. That once you remove the Department of 

Justice from the investigation, in effect, you have to set up a parallel Department of Justice, pay all the salaries, pay all the stuff, 

and then you end up—if I can answer—by the way, one technical 

point that was said earlier: Oh, there are civil suits that the Department of Justice is handling at the same time it’s doing this 

criminal investigation, so we have to remove the criminal work 

from the Department of Justice, we have to have a special counsel. 

The Department of Justice has had many, many times where 

they’re handling civil in the Civil Division and criminal in the 

Criminal Division. You look at the papers these days, and they’re 

having the criminal trial from Nisour Square of the guards for alleged homicide at the same time they’ve had civil suits on the same 

matter. They do it all the time. That’s why they have different divisions. 

Ms. JACKSON LEE. Let me thank you. 

Mr. Sekulow, are you—I’m sorry. Give me how to pronounce 

your—— 

Mr. SEKULOW. Sekulow. 

Ms. JACKSON LEE. Thank you so very much. Are you here testifying that the AG must appoint a special counsel? 

Mr. SEKULOW. No. We clearly have stated in my written testimony and in our testimony today, it’s discretionary. What we’re 

asking is that the Attorney General utilize that discretion to appoint a special prosecutor. 

Ms. JACKSON LEE. And your reasoning is? 

Mr. SEKULOW. That the Department of Justice has been compromised in the investigation, particularly because they were, in 

coordination with the IRS, in manufacturing, as they said, piecing 

together criminal cases against clients like mine. And that in and 

of itself raises a significant conflict, in fact, puts the whole investigation in a taint, because the Department of Justice is investigating itself for potentially involving themselves in violation of 

criminal laws. And I’d just like to add for the record that it was 

the Attorney General of the United States, and it might have been 

in this very room, who was the one who brought up the code sec-
70 

tions, 242, of the criminal code that could well have been violated 

if, in fact, the evidence showed it. And now we’ve got the email saying his department—— 

Ms. JACKSON LEE. Thank you. Mr. Gowdy, if the—— 

Mr. GOWDY [presiding]. The gentlelady—— 

Ms. JACKSON LEE. I was asked a little general time here, if Mr. 

Gowdy would just allow me to ask—— 

Mr. GOWDY. You mean—— 

Ms. JACKSON LEE. [continuing]. Mr. Tiefer—— 

Mr. GOWDY [continuing]. In addition to the 53 seconds already 

allotted for additional time? 

Ms. JACKSON LEE. Your kindness, Mr. Chairman, so I can have 

Mr. Tiefer respond to that very quickly, and I would appreciate 

your indulgence. 

Mr. Tiefer, if an investigation by the DOJ is not yet finished, can 

we cede the point that there is conflict and that they’re not fully 

investigating as professional staff members of the DOJ? Can we 

make that judgment? I think we cannot. What is your assessment? 

Mr. GOWDY. Professor, you may answer the question with all deliberate speed. 

Ms. JACKSON LEE. I thank you. So to avoid the $80 million that 

have been spent on special counsels. 

Thank you, Mr. Chairman. 

Mr. TIEFER. There is an investigation going on. We can’t decide 

they’re not doing their job, because they’re doing their job. 

Mr. GOWDY. I thank the gentlelady—— 

Ms. JACKSON LEE. Thank you. 

I yield back. 

Mr. GOWDY. Thank the gentlelady from Texas and now recognize 

the gentleman from Arizona, Mr. Franks. 

Mr. FRANKS. Well, thank you, Mr. Chairman. 

Mr. Sekulow, a lot of the questions that we’ve had here prepared, 

some other person on the Committee has stolen. I’m thinking about 

filing some sort of deliberate inquiry as to how that always happens to me. So I’m going to, if I can, just back up and take a broad 

look at this. 

We’ve heard the central talking point of our friends on the left 

here is that this is the last full day before the break, that we 

shouldn’t be dealing with such a miniscule issue. And I would just 

suggest to you that I think the issue that we deal with here is one 

of profound significance, in that the entire basis of a government 

that is essentially predicated on the rule of law is that somehow 

we can trust our government to treat us all equal under the law, 

and I think that’s the central point here. 

And if indeed the IRS is guilty of using the power of the Federal 

Government to discriminate against people on the basis of political 

motivation, then the entire rule of law here is at stake. And this 

Committee, being the Judiciary Committee, should be first and 

foremost committed to protecting the constitutional rights of the 

American citizens and to do everything that we can to further this 

notion of the rule of law. So I think it’s a really big issue here that 

we’re dealing with, and I guess I’m going to ask you to put it in 

your own words. Why do you think this is such a big deal? 
71 

Mr. SEKULOW. Because fundamentally, when you look at the tax 

code as it exists, it’s a voluntary compliance. The idea that if a conflict were to arise during the course of an investigation, that you 

have to wait for the investigation to be completed, is absurd. If the 

rule of law means anything, and with due respect to the Congresswoman, if the rule of law means anything, when you’ve got an 

agency with this amount of authority, both the Department of Justice and the IRS, and there is evidence in writing, not denied, that 

there was activity going on between two agencies while there is a 

criminal investigation going, if the rule of law means anything, if 

that conflict becomes known, it should be actionable. 

Now, that action rests with the Attorney General, but to say that 

we shouldn’t be able to bring it up or discuss it or that it’s not as 

significant as these other issues that the Congress is dealing with 

right now, I beg to differ. The freedom of speech, the freedom of 

press, the freedom of assembly, the freedom to petition your government for redress of a grievance is at the very core of who we 

are. And when that is tampered by two agencies, and one in particular that controls the lives of every American citizen, I don’t 

think it’s insignificant that this work is going on today. No disrespect to any other piece of legislation you’re dealing with, but 

this is a very significant burden placed on American people for simply exercising their free speech rights. And when an agency has 

violated that trust and there is notification that in fact there is a 

conflict, you do not have to wait for the investigation to be completed. Because you want to talk about a waste of money? Know 

about a conflict, don’t react on that conflict—in the law, if you do 

that, it’s malpractice—and you know what ends up happening? 

You’ve got to do the investigation all over again, and, Congresswoman, that becomes a lot more expensive. 

Mr. FRANKS. Well, obviously, I couldn’t agree with you more. I 

would suggest to you that we’re in violent agreement on that subject. 

The notion that we all pay our taxes voluntarily, is something 

that you brought up in your response. It seems to me that if people 

believe that the IRS will arbitrarily begin to persecute particular 

groups, that people begin to wonder why do we even pay taxes, and 

the entire process, the entire hope of our government is based on 

a fundamental intrinsic trust of the American people that somehow 

that this thing called law is going to prevail, that everybody’s going 

to be treated fairly under it. And if it isn’t, then it’s time for us 

to go ahead and give our apology to England for being so recalcitrant in the revolutionary days, and to board this place up and 

go home and wait for the end patiently. So this is not a small issue 

that my friends on the left would try to suggest. 

So my last question to you, Mr. Sekulow, is this: What do you 

think is the most significant—I know we’ve got, you know, the conflict of interest. I know we’ve got the President saying that there’s 

not a smidgeon of corruption here. All of those things bear thought, 

but what do you think, in your opinion, is the most significant legal 

or glaring piece of evidence that shows that the IRS has deliberately used its power in an untoward and an unfair and outside 

the rule of law? 
72 

Mr. SEKULOW. Besides their own admission, Congressman, of 

that—— 

Mr. FRANKS. That’s a detail. 

Mr. SEKULOW. That’s right. 

Mr. FRANKS. Yeah. 

Mr. SEKULOW. If you look at the email exchange from Lois 

Lerner to other officials within the IRS referencing her conversation with the director of the Election Crimes Branch of the Department of Justice and uses the words, piece together false statement 

cases to see if they ‘‘lied,’’ to impanel a grand jury—that would be 

the next thing. Of course, no evidence of any criminal wrongdoing 

here. That is a government that is out of control, out of check, and 

needs to be put back in balance. And that’s why a special counsel 

would be a good move, not mandated, but a good move for the Department of Justice to make here. They themselves are part of the 

problem, and it’s in emails right here. 

Mr. FRANKS. Well, thank you, Mr. Chairman. 

Mr. GOWDY. I thank the gentleman from Arizona and now recognize my friend from Louisiana, Mr. Richmond. 

Mr. RICHMOND. Thank you, Mr. Chairman. 

Mr. Sekulow. 

Mr. SEKULOW. Yes, sir. 

Mr. RICHMOND. I’ll pick up right where you left off. And you’re 

mentioning this sentence where she—where it says, could piece together false statements about applicants who lied on their 1024s. 

Mr. SEKULOW. Uh-huh. 

Mr. RICHMOND. And the ‘‘piece together’’ is whether you can 

piece together a hearing, right, because—— 

Mr. SEKULOW. No, no, no. The hearing already took place. It’s 

piece together false claim cases about applicants. 

Mr. RICHMOND. Right. But it doesn’t say manufacture false claim 

statements. Wait. Does it say ‘‘manufacture’’? Does it say ‘‘create’’? 

Mr. SEKULOW. No. It says piece together false cases. They have 

no evidence of any wrongdoing. 

Mr. RICHMOND. Well, wait, wait. I don’t think—— 

Mr. SEKULOW. I didn’t write this. Lois Lerner did. 

Mr. RICHMOND. Right. I don’t think you know what they have 

evidence of, but—— 

Mr. SEKULOW. Right. Evidently none of is do. 

Mr. RICHMOND. But they’re not saying, let’s manufacture, let’s 

create it, let’s make it up. They’re not saying that. So I think we’re 

taking small things to get to where we want to go. But let me ask 

you another question. Part of what you said, and I want to use 

your words, I didn’t find it in your testimony, part of what you said 

was part of the reason why we need special prosecutor, the Department should appoint one, is because the President said, and I want 

to use what you quoted, and was it not even a smidgeon of evidence? 

Mr. SEKULOW. Of corruption. 

Mr. RICHMOND. Oh. Not even a smidgeon of—— 

Mr. SEKULOW. Corruption. 

Mr. RICHMOND [continuing]. Corruption? 

Mr. Sekulow. Right. 
73 

Mr. RICHMOND. Which would mean not a smidgeon of evidence 

of corruption. Would you agree with that? 

Mr. SEKULOW. Sure. 

Mr. RICHMOND. What if he said, I have evidence of whatever? 

Would that make it just as a potential conflict? 

Mr. SEKULOW. No. I would want to get the President’s evidence, 

get him under oath, find out what he knows that the Department 

of Justice haven’t had. So you’re conflating, though, the issue of 

when you would have a pre-judgment of guilt, not a smidgeon of 

corruption, so there’s no guilt—— 

Mr. RICHMOND. Right. 

Mr. SEKULOW [continuing]. On an ongoing criminal investigation 

by the Internal Revenue Service, and it’s not just—— 

Mr. RICHMOND. But wait. That’s exactly what I’m asking. So 

what if there’s a pre-determination of guilt? Does it matter? 

Mr. SEKULOW. Well, sure it would matter if there was a predetermination of no guilt on behalf of the IRS. 

Mr. RICHMOND. The question is about whether the guy at the 

top, the President or the AG, and their departments can be impartial. You’re saying they can’t be impartial, because his statement 

was there’s not a smidgeon of corruption. And I’m saying if he said, 

I have evidence of corruption, should he still be this impartial guy 

that heads up the investigation? 

Mr. SEKULOW. Well, if he had evidence of corruption, he would— 

if he had evidence, he shouldn’t be talking about it on a television 

show. Okay. Now, let’s put this in the real context of what happened here, Congressman. 

Mr. RICHMOND. That’s what I’m trying to do. 

Mr. SEKULOW. The President of the United States is asked a 

question. 

Mr. RICHMOND. And he said there was no evidence. 

Mr. SEKULOW. The question is, exactly from Bill O’Reilly, let’s 

talk about the IRS scandal. 

Mr. RICHMOND. Yes. 

Mr. SEKULOW. You’re concerned about that, and then he gets into 

the dialogue of boneheaded decision, you know, not a smidgeon of 

corruption. Now, there is an ongoing criminal investigation, and 

who told the President there was not a smidgeon of corruption? 

And this, of course, is before he learned of—— 

Mr. RICHMOND. So—— 

Mr. SEKULOW [continuing]. The IRS emails. 

Mr. RICHMOND [continuing]. We’re bothered because—— 

Mr. SEKULOW. So the President—— 

Mr. RICHMOND. We’re both-—hold on. Wait. Stop. 

We’re bothered because the President is saying he has not seen 

anything that suggests a smidgeon of corruption. Now, let’s switch 

over to the same parallel, because we now have this select 

Benghazi committee where a very capable, intelligent person is 

heading that Benghazi committee—— 

Mr. SEKULOW. Right. 

Mr. RICHMOND [continuing]. And his statement before we even 

started is, I have evidence of guilt, that before I even start the investigation, I know where I’m going to end. What’s the difference? 

I still think—— 
74 

Mr. SEKULOW. I don’t believe the Chairman said he knows where 

it’s going to end. 

Mr. RICHMOND. Well, I think—— 

Mr. SEKULOW. You just said he said he knows where it’s going 

to end. 

Mr. RICHMOND. Well, no. That was the conclusion. The words 

was he has evidence of a systematic intentional effort to break the 

law. So—— 

Mr. SEKULOW. Okay. Well, I have evidence of a systematic attempt—— 

Mr. RICHMOND. So I think—— 

Mr. SEKULOW [continuing]. To break—— 

Mr. RICHMOND. Hold on. Wait. 

Mr. SEKULOW [continuing]. The law here, too, but, I mean—— 

Mr. RICHMOND. We’re going to do this—— 

Mr. SEKULOW. I don’t think—— 

Mr. RICHMOND [continuing]. One of us is going to talk at a time. 

Mr. SEKULOW. I’m sorry. 

Mr. RICHMOND. And I promise you it’s going to be me when I’m 

talking and it’ll be you—— 

Mr. SEKULOW. Go ahead. 

Mr. RICHMOND [continuing]. When you’re talking. 

Mr. SEKULOW. Please. 

Mr. RICHMOND. So in an effort to break the law. So that is almost a conclusion, but—— 

Mr. SEKULOW. That’s the opposite. 

Mr. RICHMOND. But let me just say this. I think that we are trying too hard to get to where we want to go without listening or 

looking at the process to get there. You just can’t make it up to get 

there. 

And the frustration that I really have is that I just defied the 

greatest advice I ever got from my grandmother, was that if you 

see a circus going on, don’t jump in the middle of it and think people won’t see you with a red nose and a wig and big shoes and looking like a clown, and I have jumped right into this circus. I think 

we’re going on wasting time on something when we can be doing 

more important things, because there is an investigation going on, 

there are people looking at this, and for some reason, because we’re 

not in charge or someone’s not in charge of the White House, we 

decide that we will have a full circus. 

And with that, I’ll yield back my time and try to heed the advice 

that I already broke. 

Mr. GOWDY. I thank the gentleman from Louisiana. 

And the Chair would now recognize the gentleman from Texas, 

Judge Gohmert. 

Mr. GOHMERT. Thank you, Mr. Chairman. 

And thank each of the witnesses for being here. 

I want to go to the comment about ‘‘smidgeon,’’ but before that, 

just a comment. I’m going to go back, as I used to as a judge and 

chief justice, and look at exactly what was said in the record, but 

I think I heard a very amusing answer, Professor Tiefer, when— 

if I understood correct, you said—you said that we couldn’t assess 

the investigation, but it’s doing a good job. But I’ll go back and see 

exactly what you said. I’m not asking for comment. 
75 

But let’s go back to what the President said about there not 

being a smidgeon of evidence. Now, if someone has influence over 

an investigator and tells the world, where the investigator can 

hear, that as your boss, I’m saying, I don’t see a smidgeon of evidence, then if that person were an attorney, hypothetically, say, 

this was an attorney, then that would be a potential breach of ethics. And, in fact, as a judge, I have called lawyers in and warned 

them, one more comment, and you’re going to jail for contempt of 

court for breaching our canon of ethics and commenting on an ongoing case about the evidence. 

There is no such citation available for a President, but hypothetically, I think we’ve got to give this President a pass, because 

to really be culpable in making a statement like that, you’d have 

to be a lawyer, you’d have to be a professor of constitutional law, 

maybe, to know the complexities of that kind of comment, and so 

we’ve got to give this President a pass. 

But, Professor Rotunda, you were talking earlier about how 

tough it is for the Department of Justice that’s currently defending 

the IRS to do a criminal investigation, and that triggered in my 

mind a line of questions that I think needs to be followed up. If 

you are defending a person or an entity in court, the communications between you as the Attorney General and your client, the defendant, the IRS in this case, they’re privileged, aren’t they? 

Mr. ROTUNDA. Yes. 

Mr. GOHMERT. And they have to be privileged in order for you 

to do a decent job as their attorney. 

Mr. ROTUNDA. Yes. 

Mr. GOHMERT. And they have to know, the client does, in this 

case the IRS, that anything they say to their own attorney will be 

used to help them and will not ever be used to prosecute them. 

Isn’t that right? 

Mr. ROTUNDA. Yeah. That’s the theory. That’s what the—— 

Mr. GOHMERT. Well, I hadn’t really thought about it until you 

brought this up, but it seems to bring to the forefront just how critical it is that there be an independent look at what the Department 

of Justice and the IRS has done. There is a relationship established 

when DOJ represents the IRS in matters that is an absolute conflict. Would you elaborate? 

Mr. ROTUNDA. Yes. They get information from the IRS official 

that they’re defending. They’re deciding whether or not to approve 

a $50,000 settlement or whether or not to slow up discovery, and 

then they discover things that look bad, usually that’s why you settle a case, but the DOJ is not supposed to release that information 

to other DOJ attorneys because of the privilege. I mean, you can’t 

have it both ways. You can’t tell the client, the IRS, you can be 

candid with me, because this is all protected by the privilege, and 

then say, I’m going to use the information against you. Of course, 

if they don’t use the information against them, they’re not doing 

their job as a prosecutor. 

Mr. GOHMERT. Well, Mr. Sekulow, let me ask—my time I see is 

running out, the light turned yellow, but with regard to John 

Mitchell, he went to prison. 

Mr. ROTUNDA. Yes. 
76 

Mr. GOHMERT. Let’s say hypothetically John Mitchell and Richard Nixon decide, you know what, if we don’t appoint a special 

counsel, nobody can touch us. Wouldn’t that have been true? 

Mr. ROTUNDA. I think that’s right. 

Mr. GOHMERT. Mr. Sekulow, your thoughts. 

Mr. SEKULOW. Sure, I mean, I agree with Professor Rotunda on 

that. I think that the need for a special counsel becomes evident 

when the Department of Justice has been compromised. It’s the call 

of the Attorney General, but when the Department of Justice is 

compromised, you put in a special counsel to restore trust and the 

law. 

Mr. GOHMERT. So historically speaking, you could learn the lesson that Richard Nixon—— 

Mr. SEKULOW. I would think. 

Mr. GOHMERT [continuing]. Don’t appoint a special counsel and 

nobody in the Administration goes to jail. 

Thank you, I yield back. 

Mr. GOWDY. The gentleman from Texas yields back. 

The Chair will now recognize the gentleman from New York, Mr. 

Jeffries. 

Mr. JEFFRIES. Thank the distinguished gentleman from the Palmetto State for yielding. 

And Professor Rotunda, let me try and get an understanding of 

why you believe that a special prosecutor is merited in this case, 

notwithstanding the fact that no senior Administration official is 

even alleged to be part of the wrongdoing. And so I just want to 

walk you through—I just want to walk you—I still have the floor. 

Mr. ROTUNDA. I mean, I don’t know if there’s a factual precedent. 

Mr. JEFFRIES. Sir, sir, sir. 

Mr. ROTUNDA. Go on. 

Mr. JEFFRIES. Sir, I still have the floor. I just want to walk you 

through your testimony here. Now, on page 2, you stated, we 

should all be happy if the President is correct when he assured us 

that there is not even a smidgen of corruption regarding Lois 

Lerner and the IRS targeting of Tea Party groups, correct? 

Mr. ROTUNDA. Uh-huh. 

Mr. JEFFRIES. And then you stated that the problem is that there 

are many suggestions of much more than a smidgen of evidence, 

correct? 

Mr. ROTUNDA. Yes, sir. 

Mr. JEFFRIES. And then you make the point that because, apparently, the information that exists out there has not been forthcoming is the word that you use, we’ve got to have a special prosecutor, right? That’s the conclusion that you draw on page 3 of your 

testimony, correct? 

Mr. ROTUNDA. It’s not just not forthcoming; I give examples on 

pages 3 to 4. 

Mr. JEFFRIES. I appreciate that because we’re going—— 

Mr. ROTUNDA. To 5, what is the evidence. 

Mr. JEFFRIES. I appreciate that because we’re going to get—— 

Mr. ROTUNDA. I’m in the middle of a sentence. 

Mr. JEFFRIES. We’re going to get into those examples, okay? 

Mr. ROTUNDA. I’m sorry, what? 
77 

Mr. JEFFRIES. You answered the question. We’re going to get into 

those examples. 

Mr. ROTUNDA. All right. 

Mr. JEFFRIES. Now, you believe in the sanctity of the United 

States Constitution, correct? 

Mr. ROTUNDA. Yes. 

Mr. JEFFRIES. And within the United States Constitution there’s 

a Bill of Rights incorporated in that document, correct? 

Mr. ROTUNDA. Yes. 

Mr. JEFFRIES. And as part of that Bill of Rights there’s a Fifth 

Amendment, correct? 

Mr. ROTUNDA. Yes. 

Mr. JEFFRIES. Now, the Fifth Amendment of the United States 

Constitution in part states no person shall be compelled in any 

criminal case to be a witness against himself, and that’s been 

broadly interpreted to imply as well to a congressional proceeding, 

correct? 

Mr. ROTUNDA. Civil cases, too, sure. 

Mr. JEFFRIES. Okay. So you just mentioned this whole list of 

things that trouble you, that suggest that we take the extraordinary step of a special prosecutor, and I just for the life of me am 

flummoxed. I can’t understand. At the top of that list, presumably 

because you believe it’s the most significant piece of evidence, you 

say Ms. Lerner pled the Fifth Amendment and refused to testify 

before Congress, oddly enough, after assuring us under oath that 

she did nothing wrong. That’s your point, correct? 

Mr. ROTUNDA. My list is chronological, but that’s correct, that’s 

what I said. 

Mr. JEFFRIES. Okay. So because she exercised her Fifth Amendment right under the United States Constitution, a document that 

you just said you believed in its sanctity, that provides evidence, 

in your view—that’s not my interpretation, that’s your testimony— 

that provides evidence of wrongdoing here? 

Mr. ROTUNDA. No, not at all, that’s not what I said. 

Mr. JEFFRIES. So why is that here? 

Mr. ROTUNDA. Look, I think you’re putting words in my mouth, 

and that’s not fair. 

Mr. JEFFRIES. No, this is your testimony, sir. 

Mr. ROTUNDA. No, what I said is that she pled, first of all, she 

swears under oath that she did nothing wrong, and then, 30 seconds later, she says she’s taking the Fifth. That’s inconsistent. In 

fact, there’s a lot of cases say you’ve waived the Fifth Amendment—— 

Mr. JEFFRIES. Does she have a constitutional right to plead the 

Fifth Amendment? 

Mr. ROTUNDA. Absolutely—— 

Mr. JEFFRIES. Is that consistent with the great tradition of our 

founders. Why would you possibly include that as evidence, suggesting you’re on a fishing expedition? 

Mr. ROTUNDA. You’re absolutely right, she has a right to plead 

the Fifth Amendment, but you can’t open the door a crack, that’s 

what the cases say. And this woman says under oath two things: 

I’ve done nothing wrong; I plead the Fifth Amendment. They’re in-
78 

consistent, and that’s a bit of a smidgen. We find after that is that 

she interviewed for a long time with the DOJ without immunity. 

Mr. JEFFRIES. Right. Is she a high level government official, sir? 

Mr. ROTUNDA. Is she high level? She’s head of the not-for-profit 

section, yeah, I thought she was high—— 

Mr. JEFFRIES. Is she the commissioner of the IRS? 

Mr. ROTUNDA. Was she commissioner? No. 

Mr. JEFFRIES. The commissioner of the IRS at the time actually 

was a Republican appointed by George Bush, correct? 

Mr. ROTUNDA. Maybe. The IRS is supposed to be nonpartisan. 

Mr. JEFFRIES. Okay. And now she’s not the Secretary of the 

Treasury, correct? 

Mr. ROTUNDA. No. 

Mr. JEFFRIES. She didn’t have any high level position in the 

White House, correct? 

Mr. ROTUNDA. She was with the IRS. 

Mr. JEFFRIES. Okay. Her position required congressional approval in the Senate? 

Mr. ROTUNDA. Was she subject to confirmation? I don’t know. 

Mr. JEFFRIES. Okay. So you have no real evidence, no basis for 

making an argument that she was a high level official subjected to 

this statute, do you, sir? 

Mr. ROTUNDA. Actually, I thought I did. She’s making policy. 

She’s making these decisions. I mean, she’s not an auditor. She’s 

making policy as head of the not-for-profit section, and it turned 

out, under her own words, they were using inappropriate criteria, 

and she apologized. 

Mr. JEFFRIES. You expressed respect for the sanctity of the Constitution and presumably congressional statutes, but you can’t 

point to a single statute, you can’t point to a single case, you can’t 

point to a single provision of the Constitution that would subject 

Ms. Lerner to designation as a high-level official in this Administration, and I yield back. 

Mr. ROTUNDA. To the contrary. She’s making policy for this 

whole, for the whole section of not-for-profits. She’s making policy 

that overturns 50 years of tradition. I think she’s pretty high level. 

Mr. GOWDY. The gentleman from New York’s time has—— 

Mr. ROTUNDA. Senior Executive Service. 

Mr. GOWDY. The gentleman from New York’s time has expired. 

The Chair will now recognize the gentleman from Ohio, Mr. Jordan. 

Mr. JORDAN. I thank the Chairman. 

There’s the three key facts. There’s the fact that on January 13 

of this year, Justice Department leaks to the Wall Street Journal, 

no one is going to be prosecuted. There is the now famous statement from the President of the United States where he prejudges 

the outcome of the case and says there’s no corruption, not even a 

smidgen. And then, of course, there’s the fact that the lead attorney, and let’s be clear, she’s the lead attorney because she’s the one 

asking all the questions when they interview the witnesses. We 

talked to some of the same witnesses when we do our congressional 

investigation, congressional interviews and depositions, and it’s 

Barbara Bosserman who is doing it, the lead attorney, the maxedout contributor to the President’s campaign. She’s got a financial 
79 

stake and a beneficial outcome to the President and his administration; that’s the lead attorney. So you’ve got those three key facts, 

but the one that gets me is the one that’s been cited already, it’s 

when James Cole, the number two guy at the Justice Department, 

sat at a table just like this in the room next door in the Oversight 

Committee and told us he learned of the lost emails from the press. 

Now, it’s not just that fact that he learned from the press; it’s the 

fact that he learned from the press but when also the IRS knew 

that they had lost the emails. So the IRS knew, according to John 

Koskinen’s testimony, he knew that they were lost in April, his 

Chief Counsel’s Office knew they were, the hard drive had crashed 

and was unrecoverable in February, so 4 months before the Deputy 

Attorney General in the Justice Department learns, the Chief 

Counsel’s Office in the IRS office know. So it’s those four key facts 

that underscore and warrant and cry out for a special prosecutor. 

And that’s why you had a resolution with every single Republican 

House Member supporting and, more importantly, 26 Democrats 

supporting, including two Members from the Judiciary Committee. 

Now, what I want to ask about is this, and I’ll start with Mr. 

Sekulow. I think there’s one other key fact. I think but for outside 

organizations doing FOIA requests, but for that fact, I’m not sure 

the IRS would have told us yet, and let me walk you through it. 

So we learn from a FOIA request from Judicial Watch that Richard 

Pilger and the Public Integrity Section Elections Division in the 

Justice Department is meeting with Lois Lerner, and it’s an email 

that Mr. Sekulow started off today’s hearing referencing, they met 

in 2013. So we say, wow, we probably should talk to Mr. Pilger. So 

we bring him in. Mr. Tiefer references in his opening statement; we 

bring him in, and we interview him, our staff at the Oversight 

Committee. We interview him, and we learn in that interview, 

frankly in his opening statement, where he says, you know what 

I didn’t just talk to Ms. Lerner in 2013 looking for ways to make 

false claims, which, by the way, is unbelievable, this is the blindfolded lady equals the balanced scale, and they’re trying to look at 

false claims at the tax—he says, I not only talked to her in 2013 

just days before this thing went public, but we also met in 2010. 

And we were, like, wow, the Justice Department was interacting 

with Lois Lerner in 2010? 

So you know what we did? We subpoenaed the Justice Department. We said, we want all the correspondence between the Justice 

Department, Lois Lerner, and the IRS, and we got a bunch of 

emails, talked about 1.1 million pieces of pages of information, 21 

disks, 21 files, donor information, including in that confidential 

6103 that the FBI had for 4 years that they got from the IRS. So 

we get those emails. We say, wow, we’ve had a subpoena at the 

IRS for over a year; why didn’t the IRS give us these emails? So 

we sent a letter to the Internal Revenue Service and said, you 

know what, we got these emails from the Justice Department, why 

didn’t you get them to us? And that was on June 9, and suddenly 

4 days later they tell us, oh, you know what, we’ve lost Lois 

Lerner’s emails. 

Mr. SEKULOW. Right. 

Mr. JORDAN. Mr. Sekulow, they may have waited, we still might 

not know that those emails had been lost because the investigation 
80 

seems that they’re doing at the Justice Department sure isn’t 

digging—and I’ll quit giving a speech and let you guys respond, but 

let me say this: Why in the world when May 10, when Lois Lerner 

uses the planted question and makes the statement or, more importantly, May 24, the day after she came in front of our Committee and pled the Fifth, why didn’t the Justice Department then 

go to her office with a warrant, with a court order, seize all the documents, and grab the computer then? 

Mr. SEKULOW. Because it’s a faux investigation. This isn’t real. 

There was a Freedom of Information request from 2010 from an organization regarding documents related to the Tea Party, Tea Party’s, training memos, emails, anything. You know what the response of the IRS was? The response of the Internal Revenue Service is, a year later, by the way, I found no documents specifically 

responsive to your request. Those documents would have never 

been produced. It’s questionable whether we will ever see them, 

and the fact is that you go back to 2010, and there’s a discussion 

between the Internal Revenue Service and a prosecutorial arm of 

the IRS, of the Department of Justice, and how can anybody with 

a straight face say this doesn’t rise to the level of a situation where 

the Attorney General should exercise his discretion? It really is 

that simple. That in and of itself should end the inquiry. 

Mr. JORDAN. Yeah, Mr. Tiefer, I would be curious your, with that 

fact pattern, obviously, you’re still on the other side, but is there 

anything in that fact pattern which would cause you concern? 

Mr. TIEFER. Well, a lot of this—I mean, you did your job in the 

other Committee and you’ve been writing reports and so forth, and 

I feel like I’m hearing an echo chamber, it’s what I was reading 

about what you used to do and now we’re hearing the same thing 

here now. Barbara Bosserman is not the head of this investigation. 

Mr. JORDAN. Let me ask you a question. Did you represent one 

of the IRS employees in front of a congressional transcribed interview? 

Mr. TIEFER. I was the pro bono person for him, yes. 

Mr. JORDAN. So you represent one of the people who could potentially be targeted in a criminal investigation, and yet you’re here 

telling us we don’t need a special prosecutor because we like just 

the way this criminal investigation is going on? 

Mr. JOHNSON. Mr. Chairman—— 

Mr. TIEFER. He was—— 

Mr. GOWDY. You may answer the gentleman’s question. The gentleman is out of time, but you may answer the gentleman’s question. 

Mr. TIEFER. He was a witness. He was never considered a target. 

He was a low level guy, and I did pro bono for him, yes. 

Mr. GOWDY. The gentleman from Ohio yields back. 

The Chair will now recognize the gentleman from Georgia, Mr. 

Johnson. 

Mr. JOHNSON. Thank you. 

Dr. Sekulow—— 

Mr. SEKULOW. Yes, sir. 

Mr. JOHNSON. Your name will live in infamy as a litigator 

extraordinaire. Whether or not you agree with your positions or 

not, you have to tip your hat to a litigator, a man who uses the 
81 

courts as the courts should be used, and that is to rectify and redress harms that afflict his clients and so I take my hat off to you 

for that, sir. 

Mr. SEKULOW. Thank you. 

Mr. JOHNSON. And you’re also from Georgia, are you not? 

Mr. SEKULOW. Yes, sir. 

Mr. JOHNSON. Yes, sir. I remember. 

Mr. SEKULOW. Decatur. 

Mr. JOHNSON. Decatur, Georgia, which is where I started practicing law back in 1980. 

Mr. SEKULOW. Same here. 

Mr. JOHNSON. Is that right? 

Mr. SEKULOW. I did. 

Mr. JOHNSON. Did you take the bar exam in 1979? February? 

Mr. SEKULOW. I did. Probably sitting right there with you, wherever we took it in downtown. 

Mr. JOHNSON. Is that so? We have more in common than I 

thought. 

Mr. SEKULOW. There you go. 

Mr. JOHNSON. But I’m going to tell you, Dr. Sekulow, you are 

aware that we’ve got a broken immigration system in this country, 

are you not? 

Mr. SEKULOW. I am. 

Mr. JOHNSON. And you are aware, are you not, of how many 

hearings that this Committee has held on that issue? 

Mr. SEKULOW. I don’t think immigration has been before the Judiciary Committee. I’m not sure. 

Mr. JOHNSON. Isn’t that a shame? 

Mr. SEKULOW. Well, I think the immigration situation—to be 

honest, I worked on the immigration reform when President Bush 

was trying to get it through many years ago. 

Mr. JOHNSON. It’s a shame that this Congress has not had one 

hearing on comprehensive immigration reform. 

Do you agree with that, Professor Rotunda? 

Mr. ROTUNDA. I don’t know about the hearings or even if this 

was the Committee to bring it before, I just didn’t know about that, 

but I’ll take your word for it. 

Mr. JOHNSON. Well, you are aware of the gun violence that we’ve 

had in this country, you are certainly aware that over the last 18 

months, there have been 74 school shootings in our country? 

Mr. ROTUNDA. I didn’t know the numbers. 

Mr. JOHNSON. You did not know that? 

Mr. ROTUNDA. But I lived south of Chicago. 

Mr. JOHNSON. Is that because you do nothing but pay attention 

to a purported IRS scandal, and that’s it? You’ve got blinders on? 

Mr. ROTUNDA. Don’t have blinders. I just think the IRS is a really big stage scandal, something Congress could do about. 

Mr. JOHNSON. It’s a big scandal. 

Mr. ROTUNDA. Whereas a problem in Chicago is something that 

Chicago can work on. 

Mr. JOHNSON. What about all of those gun deaths in Chicago? 

Mr. ROTUNDA. Gun thefts? 

Mr. JOHNSON. Gun deaths. 
82 

Mr. ROTUNDA. Deaths, yeah. Well, I think they ought to work on 

that. It’s a problem. 

Mr. JOHNSON. We’ve got a lot of things we could be working on 

in this Congress, I’m sure that you would agree. 

Mr. ROTUNDA. What do I—— 

Mr. JOHNSON. We have a lot of things that we could be working 

on in this Congress, I’m sure that you would agree. 

Mr. ROTUNDA. Well, I mean, we—— 

Mr. JOHNSON. Such as Section 5 of the Voting Rights Act invalidated by the U.S. Supreme Court last year. Do you know how 

many Judiciary Committee hearings have been held on the Voting 

Rights Act, the legislation that would protect people from discrimination at the polls? Do you know how many hearings we’ve held 

in this Committee on that issue? 

Mr. SEKULOW. I don’t know how many hearings you’ve held on 

the Voting Rights Act. 

Mr. JOHNSON. I’ll tell you. 

Mr. SEKULOW. I’ll assume it’s zero. 

Mr. JOHNSON. I’ll tell you. It’s zero. 

Mr. SEKULOW. Having said that, though. 

Mr. JOHNSON. Attorney Sekulow—— 

Mr. SEKULOW. I don’t think that takes away from the significance of this. This is a constitutional issue, also. 

Mr. JOHNSON. Attorney Sekulow—— 

Mr. SEKULOW. Yes. 

Mr. JOHNSON. I mean, how many hearings are we going to have 

on this? We’ve had over three dozen hearings, and still no smoking 

gun. 

Mr. SEKULOW. Well—— 

Mr. JOHNSON. No nothing. 

Mr. SEKULOW. Can I give you one that just came out? Let me 

give you one that just came out. 

Mr. JOHNSON. Please. 

Mr. SEKULOW. Maybe this is a smoking gun. 

Mr. JOHNSON. I know that we are trying—— 

Mr. SEKULOW. So we don’t need to worry about alien terrorists; 

it’s our own crazies that will take us down. Lois Lerner email just 

came out. 

Mr. JOHNSON. I know we are trying to get everything on the 

record. 

Mr. BACHUS. Mr. Sekulow, is that the one where she called conservatives assholes? 

Mr. SEKULOW. Uh-huh, that’s the one. 

Mr. BACHUS. Okay. 

Mr. JOHNSON. We are scraping the bottom of the barrel when it 

comes—— 

Mr. SEKULOW. A Senior Executive Service member of the IRS, by 

the way. I don’t think you would say this either, Congressman, 

when you’re talking about people’s fundamental constitutional 

rights, even if you disagree with their politics, this is not insignificant, this Committee is not wasting its time. The American people 

have the right to be protected in those rights, and they have the 

right not to be targeted, and they have the right to a real investigation. 
83 

Mr. JOHNSON. Well, I know—— 

Mr. SEKULOW. So I think we agree on this. 

Mr. JOHNSON. I know, Dr. Sekulow, that you take your work very 

seriously, and I respect that. 

Mr. SEKULOW. I appreciate that. 

Mr. JOHNSON. And we see things differently, but as a legislature, 

we have a job to do, and we haven’t been doing it. That’s why we 

will go down in history as being the most do-nothing Congress in 

the history of this great Nation, and we’re doing ourselves a disservice by continuing to focus on what some call scandal but which, 

actually, when you look at it closely, errors were made, but it’s not 

the kind of scandal that should replace the hard work on other 

issues that are before this Committee. 

Mr. BACHUS. Would the gentleman yield? 

Mr. JOHNSON. And with that—— 

Mr. BACHUS. Would the gentleman yield? 

Mr. JOHNSON. Yes, I’ll yield. 

Mr. BACHUS. Do you—— 

Mr. GOWDY. The gentleman is out of time, but the gentleman 

from Alabama may have 30 seconds. 

Mr. BACHUS. Do you consider Lois Lerner, head of the IRS investigating conservative groups and saying on her official email account with the IRS that conservatives are assholes who are crazies, 

who are going to take this country down, is that not a scandal? 

Mr. JOHNSON. Well, some would say that she made a truthful 

comment, and others would say that in addition to making a truthful comment, she also erred in investigating groups other than Tea 

Party groups. 

Mr. GOWDY. And I think everyone would say she lacks the objectivity that you should have if you’re in a position like that. 

And with that, I would now recognize the gentleman from Texas, 

Judge Poe. 

Mr. BACHUS. All these groups they’re investigating. 

Mr. POE. Thank you, Mr. Chairman. 

It concerns me that it appears that some even not in the Committee regard all of this with a flippant attitude, as no big deal. 

I agree, this is a constitutional issue. It involves real people. One 

of those is Kathryn Engelbrecht, a friend of mine in Texas, who, 

because she had the nerve to make sure that the voting booth was 

sacred and there weren’t dead people voting and there wasn’t other 

corruption, starts an organization called True the Vote. And immediately thereafter, here come the government officials. She was audited by the IRS, visited by the FBI terrorist squad. She was audited by the equivalent of EPA in Texas. OSHA investigated her, 

constantly under the surveillance of the IRS, questions after questions after questions. It’s real people. Her constitutional rights 

were violated because she was persecuted, because she took a 

stand different than government. The Constitution protects that 

absolute right for all Americans. 

And then here’s a timetable. I’m sure you have it all memorized. 

Eric Holder hides information, misleads Congress in 2011. So, in 

June 2012, over 2 years ago, the House in a bipartisan vote holds 

him in contempt. April 2013, the D.C. District Court rejected the 

government’s motion to dismiss. October 2013, the D.C. District 
84 

Court judge who is handling this case rejected the DOJ’s claim that 

there was no standing. May 2014, the district judge took the DOJ 

motion for summary judgment under advisement. Two hearings 

since then. In July 25th, all the parties met with a mediator and 

still no resolution to the Attorney General of the United States 

being held in contempt. 

Now, I look at a contempt of Congress similar to an indictment. 

Would you agree with that, Mr. Sekulow? 

Mr. SEKULOW. The repercussions are very serious, yes. 

Mr. POE. It’s an indictment and then tried by the Senate if it 

ever gets that far. 

Mr. SEKULOW. Right. 

Mr. POE. We have a situation that is similar to a district attorney down in Texas or Louisiana or Chicago, wherever, pick one, 

getting indicted by a grand jury for corruption, but yet the DA decides whether or not there will be someone not in his office or her 

office to prosecute him. Isn’t that the same situation we’re in? 

Mr. SEKULOW. It is, and that’s why the discretion and the better 

part of discretion here would be for the Attorney General to appoint a special counsel. 

Mr. POE. No kidding. 

Mr. SEKULOW. Also, talking about judges. 

Mr. POE. Just a second, Mr. Sekulow, I only have 5 minutes. 

Mr. SEKULOW. Please, please. 

Mr. POE. I’ll let you talk when I’m through. 

Mr. SEKULOW. No, no, no, your floor. 

Mr. POE. Not only that, you’ve got the Justice Department, Eric 

Holder, representing Lois Lerner in court. 

Mr. SEKULOW. That’s what I was going to hold up. 

Mr. POE. Where I come from, you cannot have lawyers for one 

law firm and the same lawyers on the other law firm representing 

opposing individuals. It’s a violation of ethics. Is that not generally 

true, Mr. Sekulow? 

Mr. SEKULOW. It is. Their argument is, Congressman, that it’s 

different departments handling it. 

Mr. POE. It’s still the Justice Department. 

Mr. SEKULOW. Of course, it is. It’s still within the Justice Department. 

Mr. POE. Just a second, just a second. I know you’re talking. I’m 

like Mr. Johnson, I admire your passion. 

Mr. SEKULOW. No, go, please. 

Mr. POE. But Eric Holder is defended by the Justice Department—— 

Mr. SEKULOW. Right. 

Mr. POE [continuing]. In the District Court here whether or not 

to uphold the contempt, so he’s in court as a defendant, taxpayers 

are paying for his lawyer. I personally think he ought to get his 

own lawyer. Taxpayers shouldn’t pay for his lawyer. He should get 

his own criminal defense lawyer. And yet they’re on the other side 

as well or we have private lawyers on the other side trying to get 

the district judge to make a decision. Doesn’t this seem a little bizarre, that you’ve got the government representing the accused individuals on one side and the prosecution on the other? My question is, maybe we should step back eventually and pass legislation 
85 

that the District or Circuit Court, like in D.C., should have jurisdiction to pick a special prosecutor when it’s the Attorney General 

that is in trouble with Congress. What do you think about that? 

Mr. SEKULOW. I think it’s an interesting proposal. You would 

have to look at the ramifications and how it would affect the working of the Department of Justice, but you raise the right issue, and 

that is, I’m holding up the lawsuit. So, in this particular case, this 

is our amended complaint, you’ve got the Department of Justice 

representing the IRS and all the government officials, also the individuals, and the individuals also have outside counsel, which I believe are being paid for by taxpayer dollars. I’m not a hundred percent sure of that. 

Mr. POE. With my analogy, if I might have one more question, 

with my analogy of the district attorney being indicted for corruption, it’s like having the district attorney’s office represent the district attorney in court? 

Mr. SEKULOW. Right. 

Mr. POE. Yet the district attorney has got to pick the prosecutor 

to prosecute him or her for corruption. That seems a little bizarre. 

Mr. SEKULOW. Lack of incentive to get to the bottom line of the 

issue, that’s the problem, yes. 

Mr. POE. I yield back. 

Thank you. 

Mr. GOWDY. The gentleman from Texas yields back. 

The Chair will now recognize himself for questioning. 

Professor Tiefer, would you seat a juror who referred to your client as an obscene body part? 

Mr. TIEFER. I’m sorry? 

Mr. GOWDY. Would you seat a juror in a trial who referred to 

your client as an obscene body part? 

Mr. TIEFER. I really have trouble giving you an answer, except 

it sounds like it’s bad. 

Mr. GOWDY. Well, then you would starve to death as a lawyer if 

you can’t answer that question, Professor. You would seriously consider seating a juror in a trial, a criminal trial, where your client 

was accused of a crime if that juror had referred to your client as 

an obscene body part, you would struggle with whether or not to 

strike that juror? 

Mr. TIEFER. Well, it doesn’t sound too good. 

Mr. GOWDY. No, it’s not, and I’ll give you some free litigation advice, you’ll want to use one of your strikes on that juror. 

How about if you were a prosecutor, and one of the potential jurors referred to the police as terrorists who were going to bring the 

country down, would you seat that juror in a criminal prosecution 

if you were the prosecutor? 

Mr. TIEFER. I wish I saw the connection here, but—— 

Mr. GOWDY. I’ll give you the connection. Lois Lerner just referred 

to conservatives as an obscene body part, and she said we were 

crazies and likened us to terrorists. 

Mr. JOHNSON. Well, Mr. Chairman, if I—— 

Mr. GOWDY. You are not recognized. The gentleman from Georgia 

is not recognized. 

Mr. JOHNSON. Well, would the gentleman yield? 

Mr. GOWDY. No, sir, I will not. 
86 

Let’s go to the regulation, Professor. Conflict of interest for the 

Department. People like standards, they like bright lines, so I 

thought it would be interesting to go find out what the Attorney 

General’s standard is for recusal, and you know when he recuses 

himself? I’ll quote him: ‘‘When there’s the potential appearance of 

a conflict. He recused himself from a criminal prosecution when 

there’s the potential appearance of a conflict.’’ Those are his words, 

not mine. 

So that’s the standard for when there should be a conflict. I want 

us to analyze whether or not there could possibly be the potential 

appearance of a conflict. You have the President of the United 

States—when I ask a question, it will be very clear, Professor. The 

President of the United States in the most widely viewed television 

show in our country said there’s not a smidgen of corruption. You 

don’t think that is the potential appearance of a conflict? 

Mr. TIEFER. For the issue of a special counsel, which is what I’m 

here for, I think—— 

Mr. GOWDY. How about giving me a yes or no, and then you can 

explain your answer. 

Mr. TIEFER. I think it’s irrelevant what the President says to 

whether there is a conflict of interest. 

Mr. GOWDY. Well, what if a judge says let’s go give this guilty 

bastard a trial, is that irrelevant? Would you want that judge? If 

he prejudged the outcome of a prosecution, said let’s go give this 

guilty guy a fair trial. 

Mr. TIEFER. Given the independence of the public integrity section for the last 30 years, I don’t think it matters what the President says. 

Mr. GOWDY. So you don’t think it matters that the chief law enforcement officer for this country before there is an investigation, 

while there are emails missing, before he has analyzed one scintilla 

of evidence prejudges and says there’s not a scintilla of corruption, 

you don’t think that matters? You don’t even think it creates the 

potential appearance of a conflict? 

Mr. TIEFER. I absolutely reject that the standard here is the 

standard you’re naming for recusal. If he recuses himself, it’s still 

the same Justice Department without a special counsel who—I’m 

sorry. 

Mr. GOWDY. How about when the Department of Justice trades 

emails with Lois Lerner seeking to implement an idea from a Democrat Senator? Do you know Senator Whitehouse? 

Mr. TIEFER. My understanding is the idea was rejected after the 

meeting in question, that the idea was—— 

Mr. GOWDY. I’m simply saying, do you really want the Department of Justice and the IRS taking their prosecutorial advice from 

a Democrat Senator? I thought the Department of Justice was 

blindfolded. 

Mr. TIEFER. I’m glad they rejected the idea. 

Mr. GOWDY. I’m sad that they even discussed it. I’m sad that 

they even discussed pursuing because when the AG sits where Professor Rotunda is, all we hear about is how he doesn’t have the resources to actually do his job, and now they’re going to contemplate 

manufacturing false statement cases? 

Mr. TIEFER. The standard is not a potential—— 
87 

Mr. GOWDY. So you do no think there is even the potential appearance of a conflict? 

Mr. TIEFER. That’s not the standard. You’re talking about 

recusal, which is whether it’s the AG or the deputy AG who deals 

with the matter, that’s recusal. 

Mr. GOWDY. All right. Just so the record is clear, you don’t—— 

Mr. TIEFER. This is special counsel, which is whether—— 

Mr. GOWDY. So you don’t think there’s even a potential appearance of a conflict? 

We’re not even going to get into Ms. Bosserman. 

How about extraordinary circumstances? Do you think it is extraordinary when a government agency targets people based on 

their political ideology, do you think that that is extraordinary? 

Mr. TIEFER. I think it’s an issue with the Department of Justice, 

not the IRS. The IRS is much criticized, and I assume rightly so, 

but the Department of Justice under the special counsel regulation 

is the one we’re talking about here. 

Mr. GOWDY. Well, I’ll tell you what, let’s go to the third element. 

How about whether it would be in the public interest to do so? 

Would you agree to let our fellow citizens decide whether or not 

they think a special prosecutor is warranted in this case? That’s 

the third element. 

And, by the way, the Attorney General drafted this regulation, 

this CFR. So I assume he put in there it would be in the public 

interest to do so. Would you agree to let our fellow citizens decide 

whether or not there should be a special prosecutor? 

Mr. TIEFER. You mean by poll? 

Mr. GOWDY. However. We elect Presidents that way. 

Mr. TIEFER. No, I don’t think polls should tell the Department 

of Justice what laws to enforce. No, I don’t. 

Mr. GOWDY. So you see no potential conflict of interest, you don’t 

think this is an extraordinary fact pattern, and you don’t trust your 

fellow citizens to make the call? 

Mr. TIEFER. It’s not a matter of trusting. You can’t run the Department of Justice and decide extraordinary questions of the law 

by poll numbers. No, I would not. 

Mr. GOWDY. Neither can you prejudge the outcome of an investigation that hasn’t even started. You can’t do that when you are 

the chief law enforcement officer for this country, and it wasn’t a 

hot mike situation where he’s whispering to Eric Holder. It’s on the 

most watched television show in our culture, and he prejudges an 

investigation, and you want us to expect that the outcome of this 

is going to have any validity or credibility? It’s not going to happen. 

And with that, I would recognize the gentleman from Idaho. 

Mr. LABRADOR. Thank you, Mr. Chairman. 

I just have a couple questions. 

Professor, you say in your testimony that Democrats requested 

special counsels to investigate accusations of torture by the Bush 

administration and possible perjury by the Attorney General Gonzalez. You also said that you didn’t think in those cases there 

should be an appointment of a special counsel; is that correct? 

Mr. TIEFER. I thought that it was within the discretion of the Attorney General. I’m not sure I said that it shouldn’t be done. 
88 

Mr. LABRADOR. So do you think there should ever be a special 

counsel appointed? 

Mr. TIEFER. I think that the one in the Bush administration, the 

one regular one we know of in the Bush administration, Patrick 

Fitzgerald, on the Libby Scooter matter, I think that was a good 

choice. 

Mr. LABRADOR. So you’re okay with special counsels being appointed, yes or no? 

Mr. TIEFER. Yes. 

Mr. LABRADOR. Yes, okay. Now, you also seem to think that the 

Congress has its authority in the future to stop whatever abuses 

of the executive authority. So what other tools do we have to stop 

any abuse of the executive authority? 

Mr. TIEFER. Every year, the money has to be appropriated for 

them. You put on riders, and they don’t have the money to do 

whatever it is you’re saying is wrong. 

Mr. LABRADOR. Okay, so just through the appropriations process? 

Mr. TIEFER. Well, you also have the authorizing process here. 

That is, if you pass a statute and say the Department of Justice 

should no longer do this, that, and the other thing, this is the Committee on the Judiciary. 

Mr. LABRADOR. Now, there seems to be some evidence suggesting 

that the DOJ colluded with the IRS regarding prosecution of conservative groups. If the DOJ colluded with the IRS to target organizations on the basis of their political beliefs, wouldn’t that be a 

conflict of interest and require a special prosecutor? 

Mr. TIEFER. Oh, I think that I’m a little unsure about the discussion here, but in any event, factually, the idea was rejected, and 

the question is from rejecting an idea, should there be a special 

counsel on it, do they have a conflict of interest? 

Mr. LABRADOR. If they actually colluded and if they were actually 

working together to go after conservative groups, don’t you think 

that’s enough evidence of a conflict of interest? I’m not asking you 

to determine whether there was a collusion, but if there is an actual collusion, don’t you think that’s enough evidence? 

Mr. TIEFER. It’s one of those hypotheticals that I can’t get my 

mind around because the Public Integrity Section I’ve known for 30 

years wouldn’t do such things. 

Mr. LABRADOR. Okay. So your testimony today is that you trust 

the Public Integrity Section, that you think that they can make 

these decisions. But many of us trusted the IRS that they wouldn’t 

make these kind of decisions. So at what point do we start thinking 

that there’s an Administration that has just gone above and beyond 

what we have thought in the past? Most of us didn’t like the IRS 

before because we don’t like paying taxes, but we never assumed 

that they would go after different groups just because the leader 

of their group was somebody not to their liking. 

Mr. TIEFER. I won’t quarrel with you. I understand the parallel 

you’re making. 

Mr. LABRADOR. Okay. 

Mr. Sekulow, can you tell me at what point—I’m having a hard 

time understanding from my friends on the other side if they have 

a bright line rule of when we actually need to have special counsel 
89 

because the professor seems to be arguing that it’s the Attorney 

General who decides, and I agree with that. 

Mr. SEKULOW. Right. 

Mr. LABRADOR. I don’t think we need to decide. I think the Attorney General decides. But at what point should we decide or should 

there be a bright line that that automatically goes to a special 

counsel, or should we even have that bright line? 

Mr. SEKULOW. Well, there’s been a continuing debate about the 

whole reinstatement of an independent counsel statute, and I think 

probably it’s pretty overwhelming people don’t want it. The integrity of the system rests on the ability of the Attorney General to 

make the decision, but it needs to be made on a decision where 

there is evidence being presented, which I think is what your 

House Resolution did, urging, which is the appropriate response, to 

take action. The inaction here is palpable. I mean, my team has 

been in these meetings with these FBI agents. This is a faux investigation, this is not a real investigation. I mean, they’re talking 

about, you know, how long were you placed on hold in talking to 

a revenue agent instead of asking where in the world are Lois 

Lerner’s emails, and how in the world did she write that my clients 

were A-holes, her words, okay, and worse than foreign terrorists. 

And she’s a member of the Senior Executive Service at the IRS, 

which is a very high ranking position. 

Mr. LABRADOR. That’s outrageous. 

Mr. SEKULOW. Yeah, outrageous, and what’s the response? Well, 

the Department of Justice is investigating it. That’s the problem. 

The Attorney General could end this himself. He’s the one who 

raised the specter of criminality, I believe it was in this room or 

next door, he raised the specter when he said it could be violations 

of 242. He should now realize he’s been compromised or his agency 

has been compromised, appoint somebody that will get to the bottom of this quickly. 

Mr. LABRADOR. All right. Thank you. 

I yield back my time. 

Mr. KING [presiding]. The gentleman yields back. 

The Chair would now recognize himself for his 5 minutes, and 

I turn first to Mr. Sekulow, and I would say that, you know, as I 

have listened to the dialogue that exchanged back and forth, it has 

been as rapid fire and fiery as anything I’ve heard in here in a 

while. I appreciate the intensity of that matter, and I think this 

has been sliced and diced with a significant focus, but to bring it 

back to the larger focus, I would pose this from the hypothetical 

part of this, and that is that let’s just suppose that we had a President of the United States and inside the operation, he had a network of Cabinet members that were utilizing the assets and resources of the executive branch to advance the political interests of 

his political party and punish the political interests of the opposing 

political party and to whatever level of potential criminality that 

might be and however that network might lead its way up through 

the chain from, let’s say, perhaps, an office out somewhere in the 

Midwest working its way up through the chain and to the White 

House itself, and if the Attorney General was part of that understanding, and if the Cabinet members were part of that understanding that they were going to lock together and resist, then 
90 

what would be the alternative for the United States Congress, and 

what would be the alternative for the American people to try to get 

justice if a relentless suppression of their liberty was being enacted 

in such a fashion? 

Mr. SEKULOW. If a fortress mentality were to be utilized by the 

executive to protect itself and its team, and the Department of Justice becomes part of that, which is the situation here, nothing. 

There’s nothing the American people other—short of the next election cycle, but a lot could happen to the country between that 

point—that’s the reality. That’s the problem. I’m not saying let’s 

get an independent counsel statute back on the books, but I’m saying you’re the Attorney General of the United States. This is a 

mess. You know it’s a mess. We know it’s a mess.Put somebody in 

charge to restore confidence of an agency, don’t get into a fortress 

mentality, which is what they’re in right now. 

Mr. KING. Well, let me suggest that we’ve seen a response from 

the American people, and I draw the comparison of Obamacare, 

when tens of thousands of people came to this Capitol, surrounded 

the Capitol building for the first time in the history of America, 

and rose up in objection to their God-given liberty, the risk, the 

threat that it would be usurped by Obamacare itself. And the response of the American people was, as you mentioned the election, 

Mr. Sekulow, 87 freshmen Republicans came to the United States 

Congress as a result of that overreach, and all 87 pledged to repeal 

Obamacare. And every Republican since then has voted to repeal 

Obamacare, and still we have Obamacare, and still we’re stuck in 

this place, so the quick response of the hot cup of coffee in the 

House of Representatives isn’t adequate. Could you take that another step? 

Mr. SEKULOW. Well, in a situation like that, which is the reality 

in the world we live in, the problem is, how do people seek recourse 

and redress? I mean, that’s really what’s at the bottom here, and 

where I think this is significant, and not to diminish in any way, 

Congressman Johnson, any other issues that you are compelled or 

you are passionate about in dealing with, but this isn’t insignificant. This is really significant. This is the core of our freedom, this 

is the core of the republic, the ability to engage your government 

for a redress of a grievance, for freedom of speech and freedom of 

association, and when you get targeted by an agency and their answer, Congressman, is, we apologize for that, we have a serious 

problem, and that’s when the Attorney General needs to take serious action, which he’s refusing to do right now. 

Mr. KING. Let me take another step. Another round of elections 

and perhaps then you see the same kind of fury that came about 

in 2010, and that’s reflected within a change in the majority in the 

United States Senate. 

Mr. SEKULOW. Yeah. 

Mr. KING. Is that enough then to fix this problem with the IRS 

having software that targets people that say, I’m a patriot? 

Mr. SEKULOW. No, because the bureaucracies are running the 

government. 

Mr. KING. And so when I get criticism from my constituents that 

say, Why don’t you do something about the IRS abuse of me and 

my neighbors and my friends, how do I respond to them? 
91 

Mr. SEKULOW. This is the real situation we live in, and I said 

this, and it could get you in a little bit of trouble. It’s almost as 

if the Presidency doesn’t matter. The government is being run by 

the bureaucrats. The bureaucrats have no accountability. You pass 

laws, they’re signed by the President, and then the regulations 

overtake the law. That’s the bureaucratic nonsense we’re living in, 

and that’s why they’re able to put out emails with these kind of 

nasty—who even would think about writing an email like that on 

a government computer? And yet they do it with impunity, and 

that’s the problem. 

Mr. KING. And then if we continue with this, if there was a process to remove the obstructing bureaucrat, do you think that would 

change anything? 

Mr. SEKULOW. I think that would—if there was a process to remove the obstructing bureaucrat, if there was a price to be paid by 

bureaucrats that do this, I think that would go a long way. Right 

now, the defense of the Department of Justice to our lawsuit is, 

sorry, you don’t get to touch them because they’re acting in their 

official capacity. 

Mr. KING. And they will drag this out until this Administration 

leaves the White House, and I believe that there’s a calculation 

that’s been made, even if we have to sit under oath and lie to the 

United States Congress, the price for that is less than the price for 

admitting the truth. Would you agree with that? 

Mr. SEKULOW. Well, I think that there is a serious argument to 

be made that the American people are not getting truthful answers, period. 

Mr. KING. No question. I thank all the witnesses for your testimony here, and I appreciate the panel for the intensity you brought 

to this. 

Mr. BACHUS. Mr. Chairman? 

Mr. KING. This concludes today’s hearing. 

Mr. BACHUS. Mr. Chairman? 

Mr. KING. Thank you to all of our witnesses, and I adjourn this 

hearing. 

Mr. BACHUS. Mr. Chairman? 

Mr. KING. Oh, excuse me, I would yield to the gentleman from 

Alabama. 

Mr. BACHUS. Mr. Chairman, I would like to have an opportunity 

to follow up on some questions before he left. 

Mr. KING. I temporarily recognize the gentleman from Alabama 

to follow up. 

Mr. BACHUS. Professor Rotunda—— 

Mr. ROTUNDA. Uh-huh. 

Mr. BACHUS [continuing]. You actually served, I note, as assistant majority counsel of the Senate Watergate Select Committee? 

Mr. ROTUNDA. Yes. 

Mr. BACHUS. This really has the makings of a Watergate. There 

the President was accused of basically taking down, attempting to 

take down his political opponents by using the IRS. The IRS resisted. In this case the IRS, it wasn’t an attempt, the IRS is actually taking down their, you know, they’re bringing action against 

their political enemies. So in the second count in the impeachment 

was that they attempted, that the President or the Administration 
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attempted to take down their opponents, but in this case, we have 

evidence that the IRS was being used for political purposes. 

Mr. ROTUNDA. We hope it would not come to that, and that’s why 

the advantage of an independent counsel is that we can rely on 

that, and if he tells us it doesn’t go much further or maybe goes 

to Lois Lerner or the person just above her, we would be happier. 

Mr. BACHUS. As opposed to the Attorney General, who is the 

chief political officer for the President, among other—he has political interests. He has personal interests, and he probably has financial interests, which are three of the definitions of conflict of interest. I looked at the statute, I think one thing that we really need 

to do is look at the statute, and all of a sudden, I’m wondering 

where it is. 

Mr. ROTUNDA. Is this the special counsel regulation? 

Mr. BACHUS. The special counsel. 

Mr. ROTUNDA. Oh, yeah. 

Mr. BACHUS. And we’ve talked about presenting a conflict of interest, but we also, what we didn’t talk as much about is extraordinary circumstances. Now, when you have an email that says we 

are looking for a magic bullet to take down our political opponents, 

that’s extraordinary. 

Mr. ROTUNDA. It’s scary. 

Mr. BACHUS. It is. 

Mr. KING. Could the gentleman expedite his inquiry? 

Mr. BACHUS. Yes. Well, I’m just going to say it. It also says when 

it would be in the public interest, and you know, there was a bipartisan resolution, not a partisan, a bipartisan resolution of this Congress, including that was voted on by both Republicans and Democrats, and two Democrats on this Committee voted for a resolution 

urging the Attorney General, but and then, of course, we have 

George Will, and I’m going to close with this. This will be it. 

Mr. KING. Okay. 

Mr. BACHUS. He said he wished the Justice Department was interested in this investigation, but the trouble is that instead, the 

Justice Department is uninterested in this investigation, and I 

think we need to ask ourselves, why aren’t they doing this? They 

have a duty under Section 3 of the special counsel thing to conduct 

an ably expeditious and thorough investigation. Now, that is part 

of the—— 

Mr. KING. The gentleman’s time has expired. 

Mr. BACHUS. And they’re not doing any of those things. 

Mr. KING. And—— 

Mr. JOHNSON. Mr. Chairman—— 

Mr. KING [continuing]. This concludes today’s hearing. I want to 

thank all the witnesses for attending. 

Mr. JOHNSON. Mr. Chairman. 

Mr. KING. Without objection, all Members will have 5 legislative 

days—— 

Mr. JOHNSON. Mr. Chairman? 

Mr. KING [continuing]. To submit additional written questions for 

the witnesses or additional materials—— 

Mr. JOHNSON. Mr. Chairman, I just have—— 
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Mr. KING [continuing]. For the record, and I would point out to 

the gentleman from Georgia that there’s a hearing upstairs that 

must commence exactly at 1. 

Mr. JOHNSON. Just one statement. 

Mr. KING. Thirty seconds. 

Mr. JOHNSON. Thirty seconds? 

Mr. KING. Yes. 

Mr. KING. And I’m ready to adjourn. 

Mr. JOHNSON. I just want everybody to know that should I ever 

have an issue with the First Amendment and my case needs to go 

all the way up to the U.S. Supreme Court, I’m going to call Jay 

Sekulow and the American Center for Law and Justice, regardless 

of whether or not it’s a progressive or conservative issue. I just 

wanted to state that for the record. 

Mr. KING. I thank the counsel, my friend from Georgia—— 

Mr. JOHNSON. Thank the Chairman. 

Mr. KING. And this hearing is adjourned. 

[Whereupon, at 1:01 p.m., the Committee was adjourned.] 

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