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IS THE OBAMA ADMINISTRATION CONDUCTING A 

SERIOUS INVESTIGATION OF IRS TARGETING? 

HEARING 

BEFORE THE

SUBCOMMITTEE ON ECONOMIC GROWTH, 

JOB CREATION AND REGULATORY AFFAIRS 

OF THE

COMMITTEE ON OVERSIGHT 

AND GOVERNMENT REFORM 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

FEBRUARY 26, 2014 

Serial No. 113–92 

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

( 

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

http://www.house.gov/reform 

(II) 

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM 

DARRELL E. ISSA, California, Chairman 

JOHN L. MICA, Florida 

MICHAEL R. TURNER, Ohio 

JOHN J. DUNCAN, JR., Tennessee 

PATRICK T. MCHENRY, North Carolina 

JIM JORDAN, Ohio 

JASON CHAFFETZ, Utah 

TIM WALBERG, Michigan 

JAMES LANKFORD, Oklahoma 

JUSTIN AMASH, Michigan 

PAUL A. GOSAR, Arizona 

PATRICK MEEHAN, Pennsylvania 

SCOTT DESJARLAIS, Tennessee 

TREY GOWDY, South Carolina 

BLAKE FARENTHOLD, Texas 

DOC HASTINGS, Washington 

CYNTHIA M. LUMMIS, Wyoming 

ROB WOODALL, Georgia 

THOMAS MASSIE, Kentucky 

DOUG COLLINS, Georgia 

MARK MEADOWS, North Carolina 

KERRY L. BENTIVOLIO, Michigan 

RON DESANTIS, Florida 

ELIJAH E. CUMMINGS, Maryland, Ranking 

Minority Member 

CAROLYN B. MALONEY, New York 

ELEANOR HOLMES NORTON, District of 

Columbia 

JOHN F. TIERNEY, Massachusetts 

WM. LACY CLAY, Missouri 

STEPHEN F. LYNCH, Massachusetts 

JIM COOPER, Tennessee 

GERALD E. CONNOLLY, Virginia 

JACKIE SPEIER, California 

MATTHEW A. CARTWRIGHT, Pennsylvania 

TAMMY DUCKWORTH, Illinois 

ROBIN L. KELLY, Illinois 

DANNY K. DAVIS, Illinois 

PETER WELCH, Vermont 

TONY CARDENAS, California 

STEVEN A. HORSFORD, Nevada 

MICHELLE LUJAN GRISHAM, New Mexico 

Vacancy 

LAWRENCE J. BRADY, Staff Director 

JOHN D. CUADERES, Deputy Staff Director 

STEPHEN CASTOR, General Counsel 

LINDA A. GOOD, Chief Clerk 

DAVID RAPALLO, Minority Staff Director 

SUBCOMMITTEE ON ECONOMIC GROWTH, JOB CREATION AND REGULATORY AFFAIRS

JIM JORDAN, Ohio, Chairman 

JOHN J. DUNCAN Jr., Tennessee 

PATRICK T. MCHENRY, North Carolina 

PAUL GOSAR, Arizona 

PATRICK MEEHAN, Pennsylvania 

SCOTT DESJARLAIS, Tennessee 

DOC HASTINGS, Washington 

CYNTHIA LUMMIS, Wyoming 

DOUG COLLINS, Georgia 

MARK MEADOWS, North Carolina 

KERRY BENTIVOLIO, Michigan 

RON DESANTIS Florida 

MATTHEW A. CARTWRIGHT, Pennsylvania, 

Ranking Minority Member 

TAMMY DUCKWORTH, Illinois 

GERALD E. CONNOLLY, Virginia 

MARK POCAN, Wisconsin 

DANNY K. DAVIS, Illinois 

STEVEN A. HORSFORD, Nevada 

(III) 

C O N T E N T S 

Page 

Hearing held on February 26, 2014 ....................................................................... 1 

WITNESSES 

The Hon. George J. Terwilliger, III., Partner, Morgan, Lewis & Bockius 

LLP 

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

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

The Hon. Eileen J. O’Connor, Former Assistant Attorney General (2001– 

2007), Tax Division, U.S. Department of Justice 

Oral Statement ................................................................................................. 14 

Written Statement ............................................................................................ 17 

The Hon. Hans A. Von Spakovsky, Manager, Election Law Reform Initiative 

and Senior Legal Fellow, Edwin Meese III, Center for Legal and Judicial 

Studies, The Heritage Foundation 

Oral Statement ................................................................................................. 21 

Written Statement ............................................................................................ 23 

Mr. Glenn F. Ivey, Partner, Leftwich and Ludaway LLC 

Oral Statement ................................................................................................. 29 

Written Statement ............................................................................................ 31 

Mr. Richard W. Painter, S. Walter Richey Professor of Corporate Law, University of Minnesota Law School 

Oral Statement ................................................................................................. 37 

Written Statement ............................................................................................ 39 

APPENDIX 

June 11, 2007 letter to the Senate Rules Committee from members of The 

Voting Section, submitted by Rep. Connolly ...................................................... 64 

(1) 

IS THE OBAMA ADMINISTRATION CONDUCTING A SERIOUS INVESTIGATION OF 

IRS TARGETING? 

Wednesday, February 26, 2014 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON ECONOMIC GROWTH, JOB CREATION, 

AND REGULATORY AFFAIRS, 

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM, 

Washington, D.C. 

The subcommittee met, pursuant to call, at 1:35 p.m., in Room 

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

of the subcommittee] presiding. 

Present: Representatives Jordan, DeSantis, DesJarlais, Lummis, 

Meadows, Bentivolio, Issa (ex officio), Cartwright, and Connolly. 

Staff Present: David Brewer, Senior Counsel; Drew Colliatie, 

Professional Staff Member; Linda Good, Chief Clerk; Tyler Grimm, 

Senior Professional Staff Member; Christopher Hixon, Chief Counsel for Oversight; Ashok M. Pinto, Chief Counsel, Investigations; 

Sarah Vance, Assistant Clerk; Jeff Wease, Chief Information Officer; Meghan Berroya, Minority Counsel; Susanne Sachsman 

Grooms, Minority Deputy Staff Director/Chief Counsel; Jennifer 

Hoffman, Minority Communications Director; Adam Koshkin, Minority Research Assistant; Julia Krieger, Minority New Media 

Press Secretary; Elisa LaNier, Minority Director of Operations; 

Juan McCullum, Minority Clerk; Brian Quinn, Minority Counsel; 

Donald Sherman, Minority Counsel. 

Mr. JORDAN. The committee will come to order. Today’s hearing 

constitutes the committee’s ongoing oversight of the Department of 

Justice’s investigation into the IRS’ inappropriate treatment of conservative groups applying for tax-exempt status. On May 10th, 

2013, Lois Lerner apologized for the IRS’ targeting of Tea Party 

groups while answering a pointed question at some obscure Friday 

morning tax law panel. She said, ‘‘They use names like ’Tea Party’ 

or ’Patriots,’ and they selected cases simply because the applications had those names in the title. That was wrong. That was absolutely incorrect, insensitive, and inappropriate.’’ 

Immediately after Lerner’s apology, the President and the Attorney General vowed to get to the bottom of the targeting. Attorney 

General Holder called it, ‘‘outrageous and unacceptable,’’ and the 

President said his administration would not tolerate this behavior 

in any agency. 

One month later, I asked then FBI Director Mueller a couple of 

basic questions. I said, Who is the lead agent? How many agents 

2 

have you assigned to the case? And have you interviewed any of 

the victims? His answers were, I don’t know, I don’t know, I don’t 

know. Not exactly inspiring a lot of confidence in the quality of this 

investigation, one month after the President and the Attorney General had made the statements that they made. 

We sent letters to the FBI and the DOJ seeking information 

about the investigation. At every turn, they refused to cooperate. 

There is new information raising concerns about the integrity of 

the Administration’s investigation. Department of Justice Attorney 

Barbara Bosserman is leading the investigation. Publicly available 

records show that Ms. Bosserman contributed almost $7,000 to 

President Obama’s political campaigns and the Democratic National Committee over the last few years. 

Last month, anonymous sources in the Justice Department 

leaked information to the Wall Street Journal that no criminal 

charges would be filed in the IRS matter, despite the fact that 

many victims of the targeting had not yet been interviewed. And 

shortly thereafter, on national television, the President declared 

that there was, ‘‘not a smidgeon of corruption in the IRS targeting.’’ 

I don’t know how the President can make this claim because the 

Department of Justice had told me and lot of other members that 

it cannot discuss an ongoing investigation. Earlier this month, the 

committee heard from victims Catherine Engelbrecht and Becky 

Gerritson, who testified that they have not been interviewed. Jay 

Sekulow testified that not one of his 41 clients had been interviewed. He also testified under oath that Ms. Bosserman was the 

highest ranking Department of Justice official he had spoken with 

about the investigation. 

Just imagine how this looks to the American people. The President says, there is not a smidgeon of corruption. The Administration leaks that it will not file charges, and yet witnesses have not 

been interviewed, and a substantial contributor to the President is 

leading the investigation. 

Again, doesn’t inspire much confidence that this is a true investigation. There is still serious questions that needs to be answered. 

Our witnesses this afternoon come with years of experience, either 

working at the Department of Justice or advising the President on 

governmental ethics. Through their testimony, the hope is we may 

understand the dangers of perceptions of bias and politicized leaks 

in how the Administration can work to restore public faith in this 

critical investigation. 

The American people are rightly outraged. They deserve the 

truth. And that is what we are going to get to today. And with 

that, I would yield to the ranking member for his opening statement. 

Mr. CARTWRIGHT. I thank you, Mr. Chairman. 

Today marks the second hearing that this subcommittee has held 

in a span of 3 weeks about the IRS. In less than 24 hours from 

now, it will be convening yet another hearing on this very same 

matter. Thus far, the Oversight and Government Reform panel has 

interviewed no fewer than 38 IRS and Treasury Department employees and has received more than 385,000 pages of documents to 

review in this matter. Responding to congressional investigations 

3 

in this matter has now cost American taxpayers at least $14 million so far and still counting. 

And none of the evidence uncovered so far shows any political 

motivation or any White House involvement, which is exactly the 

same thing that the Inspector General of the Treasury Russell 

George told us in this room many months ago that he found no evidence of a political animus either. 

The Department of Justice and the FBI are conducting their own 

independent investigation to determine if there was any crime committed by anybody at the IRS. They do not rely on our investigative 

findings, and they will reach their own conclusions. Today’s hearing is about allegations that there is some political bias in the Department of Justice’s investigation. 

Republicans have criticized the Department for failing to discuss 

the details of its ongoing criminal investigation and that this is 

somehow a coverup for the political bias that they are alleging. As 

the majority knows well, the Department of Justice has a longstanding practice, to which I have alluded many times from this 

side of the dais of not disclosing information about ongoing criminal investigations. It is a practice that Americans are familiar 

with. When the county sheriff at home is involved in an investigation and is interviewed on television, he or she always says, ‘‘I can’t 

comment on an ongoing investigation,’’ and Americans understand 

that, and they’re comfortable with it. 

The Justice Department handles it the same way, and this is a 

practice spanning Democratic and Republican administrations in 

longstanding practice of not commenting. That is why none of the 

witnesses testifying today have any direct knowledge about the investigation and including who in the Department is actually leading that investigation, what they found, and when they will conclude. 

But maybe the most troubling criticism is the chairman’s claim 

that the investigation has, ‘‘the appearance of a substantial and 

material conflict of interest,’’ and the basis for the chairman’s claim 

is that a career prosecutor who is one of at least 13 DOJ and FBI 

employees involved in the investigation exercised her constitutional 

right to participate in the democratic process and made political donations. 

During the last hearing we had on this very same topic, I entered into the record the legal opinion of Professor Daniel Richman 

of Columbia University Law School, who has spent decades working on just such issues, and prior to serving in academia, served 

as an assistant U.S. attorney in the Southern District of New York 

and was the chief appellate attorney in that office. Professor 

Richman categorically rejected the chairman’s interpretation of the 

law saying any claim that these contributions in and of themselves 

create a conflict of interest strikes me as meritless. 

The plain and undisputed—and indisputable language of the law 

allows career civil servants, like any other American, to exercise 

their constitutionally protected right to participate in the democratic process. Can you imagine, Mr. Chairman, if a private employer looked into a private citizen’s participation in the political 

process before hiring them or didn’t give them an assignment based 

solely on whether they were a Democrat or a Republican? Where 

4 

would it end? Would it end at campaign contributions, or what 

about signing a petition to get their Member of Congress on the 

ballot or about whether they—whether or not they simply voted in 

the last election. 

In fact, what is even more interesting is that this is the exact 

same thing that some of the groups applying for the (c)(4) status 

at the heart of this matter are complaining about, that they are 

being scrutinized excessively because of their political stances and 

their involvement in the political process. 

So let me make this final point clear: If the Justice Department 

were to adopt the Republican position here and start screening career Federal prosecutors for their participation in the democratic 

process before assigning them cases, it would not only be illegal; it 

would be unconstitutional and downright un-American. 

I yield back, Mr. Chairman. 

Mr. JORDAN. I would just remind the ranking member, no one is 

talking about Ms. Bosserman not keeping her job. No one has ever 

questioned the character and the professionalism of Ms. 

Bosserman. All we are saying is, is that 28 CFR. 45.2, says ‘‘Disqualification arising from personal or political relationship, the employee’s participation would not create an appearance of conflict of 

interest likely to affect the public perception of the integrity of the 

investigation or prosecution.’’ 

It couldn’t be any clearer. This is not—this is not me making this 

up. This is straight from the rules that apply to the Justice Department personnel. So, to equate it to the private sector, it has just 

simply no bearing whatsoever on the issue at hand. 

With that, I recognize our distinguished panel today. 

Excuse me, is Mr. Connolly giving an opening statement? I was 

looking for the—I thought the chairman and the ranking member 

of the full committee were going to be here for an opening statement, but if they are not, we are willing to see if Mr. Meadows or 

Mr. Bentivolio has an opening statement, or Mr. DeSantis. 

Mr. Connolly. 

Mr. CONNOLLY. Thank you, Mr. Chairman. 

I don’t really have an opening statement, other than I just heard 

the ranking member statement and your own. I would just say if 

we are going to, you know, apply the standard across the board 

equally, then frankly, it would tend to disqualify the credibility of 

the IG, Mr. Russell George, who has done precisely the same kind 

of political activity, has contributed to Republican causes was a 

member of the Republican staff, has met exclusively with the Republican staff of this committee. So if we are going to cast aspersions of somebody else’s character or just questioning whether she 

meets the standard, we could apply the same thing to the IG, 

whose testimony we rely on to create, you know, a great scandal, 

that turns out to be very limited testimony and rather cherrypicked at that, so I look forward to hearing us explore this issue. 

I hope we will do it fully and across the board in an evenhanded 

way. 

Thank you, Mr. Chairman. 

Mr. JORDAN. We are going to pause for just a second because I 

know the chairman is on his way and would like to make an openVerDate Aug 31 2005 11:52 Apr 09, 2014 Jkt 000000 PO 00000 Frm 00008 Fmt 6633 Sfmt 6633 C:\DOCS\87350.TXT APRIL
5 

ing statement, and I know we do have votes any minute now. Let 

me introduce our panel. 

Maybe we can swear them in and then come back to Mr. Chairman Issa’s opening statement. 

We have first Mr. George Terwilliger, who is a partner at Morgan Lewis law firm. We have Ms. Eileen O’Connor, who is a partner at the firm Pillsbury Winthrop Shaw Pittman. Mr. Hans von 

Spakovsky is the Edwin Meese, III, 

Center for Legal and Judicial Studies senior legal fellow at the 

Heritage Foundation. Mr. Glenn Ivey is a partner at Leftwich and 

Ludaway. And finally, Mr. Richard Painter is a Walter Richey professor of Corporate Law at the University of Minnesota School of 

Law. 

I want to thank you all for being here. We know it is not easy 

always to come for these, and—but we appreciate your expertise 

and your willingness to share with us that expertise today. 

Pursuant to committee rules, all witnesses will be sworn in before they testify, so if you will please stand and raise your right 

hand. 

Do you solemnly swear or affirm that the testimony you are 

about to give will be the truth, the whole truth and nothing but 

the truth, so help you God? 

Let the record show that each of our witnesses answered in the 

affirmative. 

The rules are, you are going to get 5 minutes, more or less, close 

to 5 is how we will do it, and we will work right down the line, 

but unfortunately, that is not going to happen until after we vote, 

and I am hoping chairman—so we are going to recess now, and the 

chairman will have an opening statement when we come back and 

we will get to your testimony. This is a good way to break as we 

are going to get on a day like today, so you can retire to either 

room. There are restroom facilities, coffee, whatever you need, and 

we will be back in, how many votes again? 

Mr. CONNOLLY. Three votes. 

Mr. JORDAN. Two or three. Three. So, 45 minutes. 30 to 45 minutes is what it is going to take, so thank you very much, and we 

stand in recess. 

[Recess.] 

Mr. JORDAN. The committee will be in order. And we recognize 

the chairman of the full committee with the understanding that 

Ms. O’Connor is on her way back. But recognize the chairman for 

his opening statement. 

Chairman ISSA. Thank you, Mr. Chairman. 

And I took special note of your hearing today. The series of hearings you have held really are critical to a full and complete understanding of the scope of the injustice going on before, during, and 

after the discovery of the IRS targeting of 501(c)(4) groups. Today’s 

panel is an excellent panel, and I look forward to hearing all of 

their testimony. I think the one thing that we all know is that solutions for large bureaucracies, and particularly ones that operate by 

necessity behind closed doors, must first start with a full admission 

of what has happened, what safeguards existed and were not observed, and what safeguards did not exist. 

6 

This committee has discovered that the safeguards of confidential 

information are selective and that in fact the safeguards to protect 

against the release of private information, although they failed at 

times at the IRS, are currently being used to hamper investigation 

and the public’s right to know who was targeted and for how long 

and, in fact, who is still being targeted. I know tomorrow you will 

have a list of groups, both nonprofit 501(c)(3)s and 501(c)(4)s, all 

of whom are opposed to the very selective partisan change that the 

President has proposed. I am more concerned today with this hearing because DOJ’s decision, prosecutory discretion, appears to be a 

clear abuse of discretion. There is no doubt that DOJ claimed to 

be doing investigations, but the highest law enforcement officer at 

the FBI could not name someone. The Attorney General seemed 

not to know anyone. And there have been mixed statements about 

nothing was expected to come, but maybe it would come. This is 

as ambiguous as the Attorney General’s statement that he will 

leave sometime in 2014, or he won’t. 

I believe that our committee, and with your leadership, Mr. 

Chairman, has an absolute responsibility to make sure that the Department of Justice reconsiders their investigations and their possible prosecutions of people who abused the trust of the American 

people. And so, for that, I am already in your debt, Mr. Chairman. 

I look forward to this hearing, and I very much believe that this 

committee has a special role in making sure this never happens 

again. Thank you. 

I yield back. 

Mr. JORDAN. I thank the chairman for his statement and for his 

leadership on this issue and many others. 

With that, we will turn to our distinguished panel. 

Mr. Terwilliger, you are going to start. You have got 5 minutes. 

There will be members trickling in and out of here, but you have 

done this before, so fire away. 

WITNESS STATEMENTS 

STATEMENT OF THE HONORABLE GEORGE J. TERWILLIGER, 

III 

Mr. TERWILLIGER. Thank you, Mr. Chairman, Chairman Issa, 

Mr. Cartwright, members of the committee. 

Thank you for inviting me to express my views concerning the 

Justice Department’s investigation of possible abuse of IRS authority. I am not here today to opine on the merits of the underlying 

allegations of improper conduct involving the IRS. Rather, I agreed 

to speak to what is, in my experience and best judgment, the appropriate means for the Department of Justice to conduct such an 

investigation. 

That background and experience at the Department of Justice 

began when I served while in law school as a law clerk in the Civil 

Appellate Section and ended when I was the acting Attorney General at the conclusion of the Bush One administration. In the 15 

years in between, I served as a career assistant United States attorney, and as the Deputy Attorney General, as well as a Presidential-appointed United States attorney. 

7 

I also would like to note at the outset that so long as we have 

a tax system that depends on voluntary payment by our citizens, 

we need a strong IRS capable of performing tax examinations and 

enforcement that can render the tax system equal and fair for all. 

I am sure most IRS personnel work hard to do just that. But if, 

from either within or without, their work has been despoiled by the 

actions of a few, then, obviously, that needs attention. 

Two fundamental points establish why questions need to be answered concerning how the matter is being addressed by the DOJ 

investigation. First, any credible allegation that IRS powers of inquiry or approval are being influenced by or used in furtherance of 

partisan political objectives is a matter of the utmost concern and 

needs to be investigated credibly and thoroughly. Second, and 

equally important in my view, public confidence in such an investigation is critical, not just to this specific matter, but more broadly 

to the Justice Department’s institutional responsibility to secure 

the independent administration of justice. These two very critical 

objectives affecting public confidence in government have now, due 

to a combination of circumstances, been put in jeopardy by legitimate questions concerning at least the appearance of independence 

of the current DOJ investigation. How can the public have confidence that an investigation under the control of the Attorney 

General and subordinates at the Department of Justice will be vigorous in its pursuit of the truth and fair in its analysis of the facts 

when the President has already stated, in effect, that there is nothing to it, as he has publicly stated while the investigation has been 

pending. 

Public reports also state that the prosecutor leading the investigation, or substantially responsible for it, has provided financial 

support to Democratic Party campaigns, including the President’s. 

I do not believe such contributions should disqualify this lawyer, 

nor do I believe that the lawyer assigned is on account of such political contributions incapable of conducting a vigorous and thorough investigation, nor do I believe as a general proposition that 

the decision as to whom to assign to a case for investigation or 

prosecution ought to turn on whether a given prosecutor has a particular political affiliation or association. 

However, given the circumstances as they have developed in this 

matter, if the objective is to assure the public that an investigation 

of allegations that government officials in this administration may 

have intentionally impeded the exercise of First Amendment rights 

by private citizens, then this is a case where more investigative 

independence, rather than less, is needed. I am no fan of the now 

expired independent counsel statute, and nothing I say today 

should be construed as suggesting that we put that law back on the 

books. It is not needed because the Attorney General already has 

wide authority to make investigative assignments to persons within or outside the Justice Department that can assure the public of 

the independence and integrity of an investigation. 

Such appointments are not new, and examples of them abound. 

Current FBI Director Comey, for example, while serving as acting 

Attorney General under President George W. Bush, made such appointments. So did Attorney General Reno during the Clinton administration. And while I served as Deputy Attorney General and 

8 

acting Attorney General, we made such appointments. In each of 

these and many other instances, the common factor in making such 

an appointment is taking steps to assure the public that an investigation of unquestioned integrity will be conducted. 

In my view, it is past time for the Attorney General to act in this 

instance to use these authorities and appoint a lead counsel for the 

investigation of alleged IRS abuse who will have a charter of independence. Such an appointment is needed to provide assurance of 

the integrity of the investigation that the public deserves, and respect for venerable Justice Department practice is required. I 

thank you. 

Mr. JORDAN. I thank the gentleman. 

[Prepared statement of Mr. Terwilliger follows:] 

9 


Insert offset folio 1 here 87350.001

Prepared Statement of 

Hon. George J. Terwilliger III 

before the 

House Committee on Oversight and Government Reform 

Subcommittee on Economic Growth, Job Creation and Regulatory Affairs 

Wednesday, February 26, 2014 

Mr. Chairman, Ranking Member Cartwright, members of the Subcommittee: 

Thank you for inviting me to express my views concerning the Justice Department's 

investigation of possible abuse of the examination power of the Internal Revenue Service 

("IRS") for political purposes. I am not here today to opine on the merits of the underlying 

allegations of improper conduct involving the IRS. Rather, I agreed to speak to what is, in my 

experience and best jUdgment, the appropriate means for the Department of Justice to 

conduct the investigation into those allegations that it has already decided is required. My 

comments today are my own, based on my more than fifteen years of experience as a line and 

supervisory attorney in the Department of Justice, culminating in my service as the Deputy 

Attorney General during the George H.W. Bush administration, and I do not speak on behalf 

of my colleagues at Morgan, Lewis & Bockius LLP or any individuals or entities whom I 

represent. 

I am aware that committees of the Congress and this House are looking into the 

matter. J The review of possible abuse of executive power is, of course, one of Congress's 

most important oversight responsibilities and a key chcck on our constitutional balance of 

power. But legislative oversight is not a substitute for-and was never intended to be a 

substitute for-a thorough and impartial law enforcement investigation. The public rightly 

demands that possible misconduct be investigated fairly and impartially. This is particularly 

true when the possible misconduct involves the Executive Branch. 

Two fundamental points establish why questions need to be answered concerning how 

the matter is being addressed by the DOJ investigation. First, the IRS has unparalleled 

powers to deeply scrutinize the financial and related activities of individuals and 

organizations in America. Any credible allegation that these powers are being used in 

I See, e.g.. Memorandum from the Majority Staff, Committee on Oversight and Government Reform to the 

Members of the Committee on Oversight and Government Reform (Sept. 17. 2013). 
10 


Insert offset folio 2 here 87350.002

furtherance of partisan political objectives is a matter of the utmost concern and needs to be 

investigated credibly and thoroughly. Second, and equally important, public confidence in the 

investigation is critical not just as to this specific matter, but more broadly to the Justice 

Department's institutional responsibility to secure the independent administration of justice. 

Let me be clear-I oppose a witch hunt for culprits in the IRS. So long as we have a 

tax system that depends on voluntary payment by our citizens, we need a strong IRS capable 

of performing the tax examinations and tax enforcement that can render the tax system equal 

and fair for all. There are many good people doing what are often unpopular jobs in the IRS. 

But when questions arise about whether thcir good work may have been sullied by people 

within or outside the IRS directing or influencing its activities for improper political purpose, 

that needs to be investigated thoroughly and in such a way that gives the public confidence in 

its government. 

These two very critical factors affecting public confidence in government-that of 

non-partisan administration of the laws and impartiality in law enforcement investigationswere captured in a clear and timeless observation by then-Attorney General, and later 

Supreme Court Justice, Robert Jackson in 1940, when he stated: 

"It is in this reaIm--in which the prosecutor picks some person whom he dislikes or 

desires to embarrass, or selects some group of unpopular persons and then looks for 

an offense, that the greatest danger of abuse of prosecuting power lies. It is here that 

law enforcement becomes personal, and the real crime becomes that of being 

unpopular with the predominant or governing group, being attached to the wrong 

political views, or being personally obnoxious to or in the way ofthe prosecutor 

himself.,,2 

Since the Treasury Inspector General for Tax Administration's ("TIGTA") conclusion 

in May that the Determinations Unit, a branch ofthe IRS's Rulings and Agreements office, 

"developed and used inappropriate criteria to identify applications from organizations with 

the words Tea Party in their names,") the Justice Department has announced its intention to 

investigate this conduct and the Attorney General has recently left open the possibility that 

2 Robert II. Jackson. Attorney General of the United States, Address at the Second Annual Conference of United 

States Attorneys (April I. 1940). 

3 Treasury Inspector General for Tax Administration. Ref. No. 2013-10-053, Inappropriate Criteria Were Used 

to Identify Tax-Exempt Applications for Review (May 2013). 

2 
11 


Insert offset folio 3 here 87350.003

criminal sanctions may be imposed against wrongful perpetrators in the IRS.4 It will take 

more than this statement, however, to assure the public that the investigation is thorough and 

unbiased. The Justice Department investigation in the IRS matter should be defined by the 

extent to which the public perceives that investigation to be impartial-that is, one driven by 

a determination to gct the rclevant facts without regard to any partisan or political effect 

disclosure of the facts may have. A combination of circumstances now give rise to legitimate 

questions concerning the level of confidence the public can have in the independence of the 

current DO] investigation. 

First, while that investigation has been pending, the President-the unitary head of 

the Executive Branch and thus the prosecutor's superior-has publicly stated in a nationally 

televised interview that there was no corrupt abuse of IRS authority.s I do not know what the 

President's intent was in making that very public conclusion, but I know very well what the 

effect of it can be, even if unintended. How can the public have confidence that an 

investigation firmly under the control of his Attorney General and subordinates at DOl will 

be vigorous in its pursuit of the truth and fair in its analysis of the facts when the President 

has already stated, in effect, that there is nothing to it? 

This is not just any investigation of possible violations of law. Rather, it is one that, if 

done thoroughly, will examine whether partisan political considerations were involved in 

making decisions about searching examinations, done for tax purposes, of the activities of 

organizations and individuals involved in political activity protected from government 

interference by the First Amendment. Public reports state that the prosecutor leading the 

investigation has provided financial support to Democratic Party campaigns, including the 

President's campaign. 6 I do not believe such contributions should disqualify this lawyer from 

the assignment, nor do I believe that the lawyer assigned is, on account of such political 

contributions, incapable of conducting a vigorous and thorough investigation. Nor do I 

believe as a general proposition that the decision to whom to assign a case for investigation 

ought to turn on whether a given prosecutor has a particular political affiliation or 

association. 

4 Rachael Weiner, Holder has ordered IRS investigation. Wash. Post, May 14,2013; Stephen Dinan, Holder 

won't rule out criminal charges for employees in IRS scandal, Wa,h. Times, Jan. 29, 2014. 

5 See Stephen Dinan, Obama didn't consult Justice before saying no corruption at IRS, Wash. Times, Feb. 4, 

2014. 

6 Letter from Reps. Darrellissa and Jim Jordan to Attorney General Eric H. Holder, Jr. (Jan. 8,2014). 

3 
12 


Insert offset folio 4 here 87350.004

However, considering that this is an investigation of allegations of partisan political 

activity by government officials, that the prosecutor assigned has made political contributions 

to the President's party and the President's own campaign and that the President publicly 

stated his conclusion that there has been no wrongdoing, if the objective is to provide public 

confidence in the integrity of the inquiry, then this is a case where more investigative 

independence from the Administration and the Attorney General is needed. 

In addition, credible reports show that IRS officials involved in aspects of the matter 

went to the White House on an unusual number of occasions.7 Public reports also disclose 

that since at least 2010, the White House's political operation has been concerned with 

conservative political organizations8 A study conducted by scholars at the non-partisan 

American Enterprise Institute suggested that the IRS's targeting of Tea Party groups for 

additional scrutiny had an appreciable negative impact on their effectiveness in turning out 

voters during the 2012 election.9 Thus, because a thorough investigation will of necessity 

involve looking into the political operation within the administration-if to simply rule out 

any impropriety-this is one of those few, but critically important, instances where an 

administration should not be investigating itself. Perhaps there is no link between the White 

House and those IRS employees that scrutinized certain groups, and perhaps there are 

legitimate explanations for the number of White House-IRS interactions during this period, 

but such explanations need to be examined and tested by an independent investigation. 

I am no fan of the now expired independent counsel statute, and nothing I say today 

should be construed as suggesting we put that law baek on the books. 10 It is not needed 

because the Attorney General already has wide authority in conducting investigations to 

make investigative assignments in a manner that can assure the public of the independence 

and integrity of an investigation. Indeed, existing law permits the Attorney General to appoint 

a special or independent counsel from within the Justice Department or from outside of it. 

Such counsels can be given all authority and have the final word on what should be 

7 See. e.g., John Steele Gordon, A Frequent Visitor to the White House. Commentary Magazine. May 27.2013; 

Susan Ferrechio. Lawmakers zero in on IRS meetings at White House. The Wash. Examiner, May 23, 2013; 

Editorial, IRS Chief's 118 White House Visits Must Be Explained. Investors.com, May 28, 2013. 

8 See. John McCormack. Koch Industries Lawyer to White House: How Did You Get Our Tax Information? 

The Weekly Standard, Sept. 20. 2010; Editorial. Obama's IRS 'Corifusion.' The Wall Street Journal. Feb. 7. 

2014. 

9 Stan Veuger, Yes, IRS harassment blunted the Tea Party ground game, American Enterprise Institute (June 20. 

20 13), http://www.aei.orglarticlc/economics/yes-irs-harassment-blunted-the-tea-party-ground-game. 

10 See 28U.S.C. § § 591, et seq .. expired on June 30.1999. 

4 
13 


Insert offset folio 5 here 87350.005

investigated or prosecuted, or the Attorney General or another official designated for that 

purpose can retain the such authority as may be deemed appropriate. I I In short, the Attorney 

General has the legal authority to appoint someone to conduct an investigation with as much 

independence as sound judgment dictates that the circumstances require. 

These appointments are not new. Examples of making such appointments abound in 

presidential administrations of both parties. Current FBI Director Corney, when serving as 

Acting Attorney General under President George W. Bush, directed a sitting U.S. Attorney to 

conduct an independent investigation and delegated all the Attorney General's authority to 

that special counsel. Attorney General Reno, acting in the Clinton administration, moved for 

appointment of an outside independent counsel under that now repealed statute. When I 

served as Deputy Attorney General and Acting Attorney General in the George H. W. Bush 

administration, we appointed special or independent counsels from within and outside the 

Justice Department and gave them various levels of final authority as we believed the 

circumstances warranted. 

In each of these and many other such instances, the common factor in making such 

appointments is taking steps that assure the public that an investigation of unquestioned 

integrity will be conducted. In my view, it is past time for the Attorney General to act in this 

instance to use these authorities and appoint a lead counsel for the investigation of alleged 

IRS abuse who will have a charter of independence. Such an appointment is needed to 

provide assurances of the integrity of the investigation that the public deserves and that 

respect for venerable Justice Department practice requires. 

I thank the Subcommittee again for inviting me to share my views on this matter and 

look forward to answering your questions. 

II See 28 U.S.C. § 510 (authorizing the Attorney General to delegate any function of his office to any officer, 

employee, or agency of the Department of Justice). 

5 
14 

Mr. JORDAN. Ms. O’Connor. 

STATEMENT OF THE HONORABLE EILEEN J. O’CONNOR 

Ms. O’CONNOR. I thank the chairman, ranking member, members 

of the committee. Thank you so much for inviting me. 

I speak on my own behalf as a private citizen and not on behalf 

of my firm or partners or clients. I hope to bring to you some of 

the understanding I have gained through my many decades of 

working with the Internal Revenue Code and therefore with the Internal Revenue Service, including the 6 years I was privileged to 

lead the honorable and dedicated men and women of the Justice 

Department’s Tax Division. 

Americans deserve to trust and respect the institutions of their 

government. Revelations that the machinery of government might 

have been turned against our own citizens damaged that trust. And 

I am grateful for your efforts to learn the whole truth about the 

group of government activities that have collectively come to be 

called IRS targeting. Perhaps you are more limited than this in 

your current inquiry, but for my purposes, the targeting you should 

be considering is not just the disparate and apparently discriminatory treatment of certain groups in the processing of applications 

for tax exemption, but also the leaking of confidential information, 

the disproportionate selection of certain groups for examination, 

what appears to be a coordinated attack by a multitude of Federal 

agencies based on information that might be available only to the 

Internal Revenue Service. 

I hope that you are looking into the entire spectrum of what 

looks very much like serious misconduct by IRS and perhaps other 

government personnel. The U.S. tax system depends on Americans 

taking upon themselves to gather their tax information and prepare and file their tax returns every year. One reason they are 

willing to do this, to provide personal information to the government, is the government’s solemn promise, embodied in law providing criminal consequences for its violation, that the information 

they provide will be kept in the strictest confidence. 

When people form organizations and apply for tax-exempt status, 

they are entitled to expect that their confidential information will 

be respected as such, that their applications will be processed 

promptly and considered fairly, in accordance with the applicable 

law, not in accordance with special procedures designed just for 

them. 

On a Friday last May, a planted question at an ABA conference 

prompted an IRS official, just in time to get out ahead of an IG report, to admit that the IRS had, as some had long suspected, been 

targeting conservative groups for additional scrutiny. By Monday, 

according to news reports, Ways and Means Committee Chairman 

Camp, Senate Finance Committee Chairman Baucus, the President, Senate Majority Leader Reid, former Speaker Pelosi, Senator 

Warner of Virginia all had expressed outrage and said something 

must be done. 

These were all a day before the IG’s report was even issued. The 

day it was issued, news reports noted that the President’s half 

brother had received, in just over a month, a determination of taxexempt status for a questionable organization he had been operVerDate Aug 31 2005 11:52 Apr 09, 2014 Jkt 000000 PO 00000 Frm 00018 Fmt 6633 Sfmt 6633 C:\DOCS\87350.TXT APRIL
15 

ating for more than 2 years. Early the following week, a group of 

nearly 20 organizations spanning the political spectrum had expressed concern about this serious threat to the First Amendment. 

What a shame that Members of the House and Senate squandered the opportunity then to immediately use the tools at their 

disposal to specially authorize an investigating committee, to appoint a special counsel, to engage in outside counsel to investigate 

them. 

I turn now to the administration’s investigation of these matters. 

My written testimony outlines the Federal regulations that describe the authorities of the civil—excuse me, the Civil Rights, 

Criminal, and Tax Divisions. Generally speaking, the Tax Division 

handles all litigation, civil and criminal, trial and appellate, arising 

under title 26, the Internal Revenue Code. But when criminal offenses to be investigated and prosecuted involve allegations of misconduct by IRS personnel, the investigation and prosecution is the 

responsibility of the Criminal Division. The Civil Rights Division is 

charged with the enforcement of the Nation’s civil rights laws. 

DOJ officials have selected a career attorney in the Civil Rights 

Division to conduct the investigation. Some have criticized the selection as inappropriate because of her political contributions. But 

when does support for a sitting President and his party make a 

person an imprudent choice for an assignment? Not usually. But 

perhaps it does when the assignment is to investigate the administration’s alleged mistreatment of its political adversaries. 

Here is why: Justice must not only be done; it must be seen to 

be done. This has two elements. First, when wrongdoing comes to 

light, the public deserves to know that those responsible have been 

identified and dealt with appropriately. Second, not only must laws 

be enforced impartially, but they must be seen to be enforced impartially. This is why judges recuse themselves from cases; not because they can’t rule on them impartially, but because there might 

be something that would make the public think they are not impartial, and damaging the public trust is a dangerous thing to do. 

In 1959, Ian Fleming had his character Goldfinger say, ‘‘Once is 

happenstance. Twice is coincidence. Three times is enemy action.’’ 

We know, because the Treasury IG’s administration report says so, 

that groups banding together to promote an understanding of, and 

fidelity to, our Nation’s founding principles were targeted for special scrutiny that was harsh, intrusive, probably unnecessary, and 

resulted in delay, if not the constructive denial, of their applications for tax-exempt status, effectively silencing them during the 

better part of two election cycles. We know, because they had the 

courage to come forward and tell us about it, that people engaged 

in activities directed at improving the integrity of our elections 

were targeted for scrutiny, not just by the IRS but also by other 

arms of the Federal Government. 

We know because we have seen it in the public domain that the 

private information of people who contributed to organizations devoted to preserving traditional values was made public, in violation 

of laws providing for fines and imprisonment of up to 5 years. As 

an American who cares about our country and our laws and our future, I thank the committee for continuing to press to learn the 

truth about what appears to be the administration’s targeting of 

16 

people who disagreed with its policies and encourage you to use all 

the tools available to you to do so. Thank you. 

Mr. JORDAN. Thank you, Ms. O’Connor. 

[Prepared statement of Ms. O’Connor follows:] 

17 


Insert offset folio 6 here 87350.006

Testimony of 

Eileen J. O'Connor, Esq. 

Partner, Pillsbury Winthrop Shaw Pittman LLP 

Before the House Subcommittee on 

Economic Growth, Job Creation and Regulatory Affairs 

Hearing on the Obama Administration's Investigation of IRS Targeting 

February 26, 2014 

Mr. Chairman, Ranking Member, Members of the Subcommittee: thank you for inviting me. 

I speak on my own behalf as a private citizen and not on behalf of my firm or partners or 

clients. I hope to bring to you some of the understanding I have gained through many 

decades of working with the Internal Revenue Code and therefore with the Internal 

Revenue Service, including the six years I was privileged to lead the honorable and 

dedicated men and women of the Justice Department's Tax Division. 

Americans deserve to trust and respect the institutions of their government. Revelations 

that the machinery of government might have been turned against our own citizens 

damage that trust, and I am grateful for your efforts to learn the whole truth about the 

group of government activities that have collectively come to be called "IRS targeting." 

Perhaps you are more limited than this in your current inquiry, but for my purposes, the 

targeting you should be considering is not just the disparate and apparently discriminatory 

treatment of certain groups in the processing of applications for tax exemption, but also 

• the leaking of confidential information, 

the disproportionate selection of certain groups for examination, and 

what appears to be a coordinated attack by a multitude offederal agencies based on 

information that might be available only to the IRS. 

I hope that you are looking into the entire spectrum of what appears to be serious 

misconduct by IRS and perhaps other government personnel. 

The U.S. tax system depends on Americans taking it upon themselves to gather their tax 

information and prepare and file their tax returns every year. One reason they are willing 

to do this, to provide personal information to the government, is the government's solemn 

promise, embodied in law providing criminal consequences for its violation, that the 

information they provide will be kept in the strictest confidence. 

And when people form organizations and apply for tax-exempt status, they are entitled to 

expect that their confidential information will be respected as such, and that their 

applications will be processed promptly and considered fairly in accordance with the 

applicable law, and not in accordance with special procedures designed just for them. 
18 


Insert offset folio 7 here 87350.007

Testimony of Eileen J. O'Connor, Esq. February 26,2014 

Before the House Subcommittee on Economic Growth, Job Creation and Regulatory Affairs Page 2 of 4 

One Friday last May, a planted question at an ABA conference prompted an IRS officialjust in time to get the news out ahead of an IG report - to admit that the IRS had, as some 

had long suspected, been targeting conservative groups for additional scrutiny. By Monday, 

according to a Wall Street Journal Washington Wire blog entry posted that day: 

the House Ways and Means Committee had set a hearing a mere four days hence. That 

Committee had been investigating these allegations for nearly two years. 

Senator Baucus, its Chairman, had said the IRS should prepare for a full investigation 

by the Senate Finance Committee 

the President had said he was outraged, and that IRS personnel would be held fully 

accountable for their actions 

Senate Majority Leader Reid had called the prospect of the IRS administering the tax 

laws selectively based on the political views "troubling" and "a terrible breach of the 

public's trust" 

Rep. Pelosi had said the tea party targeting had to be "condemned" 

Senator Warner had said "a quick and thorough investigation" should be carried out by 

the administration and ... those responsible for the "betrayal of public trust" should be 

fired. 

These statements of outrage and something,must-be-done came a day before the Inspector 

General's damning report was even issued. Tuesday, the day it was issued, the New York 

Post reported that in June 2011 - while conservative groups waited for years - a 

questionable organization the President's half,brother had established more than two years 

before received a determination of tax exempt status within about a month of requesting it. 

Early the next week, a group of nearly 20 organizations spanning the political spectrum 

from the ACLU to the Tea Party Express, had signed a statement that began: 

"It is difficult to conceive of a more serious threat to the First Amendment of the 

Constitution of the United States than the federal government using its 

awesome power to target individuals and organizations solely because of their 

political beliefs." 

. What a shame that members of the House and Senate squandered the opportunity to 

immediately use the tools at their disposal, 

to "specially authorize" a committee with authority to investigate the allegations, or 

to appoint a special counsel to investigate the allegations, or 

to engage an outside counsel to advise them in their investigations. 
19 


Insert offset folio 8 here 87350.008

Testimony of Eileen J. O'Connor, Esq. February 26,2014 

Before the House Subcommittee on Economic Growth, Job Creation and Regulatory Affairs Page 3 of 4 

It was right in line with predictions when, just a few weeks later, House Oversight 

and Government Affairs Committee Ranking Member Cummings said on a Sunday 

. talk show that he thought the evidence adduced to that point showed "that the White 

House was not involved in this ... ," adding: "Based upon everything I've seen the 

case is solved. And if it were me, I would wrap this case up and move on, to be frank 

with you." 

With all due respect, it seems that whether the White House was involved was not only not 

the only question, but also that it has yet to be fully answered. 

I turn now to the Administration's investigation ofthese matters: regulations under Title 

28 set out the jurisdictions and responsibilities of various parts of the ,Justice Department. 

28 CFR Part 0, Subparts J, K, and M, describe the authority of the Civil Rights, Criminal, 

and Tax Divisions, respectively. Generally speaking, the Tax Division handles all 

litigation, civil and criminal, trial and appellate, arising under Title 26, the Internal 

Revenue Code. But when the criminal offenses to be investigated and prosecuted involve 

allegations of misconduct by IRS personnel, the investigation and prosecution is the 

responsibility of the Criminal Division. The Civil Rights Division is charged with the 

enforcement of the nation's civil rights laws. 

DOJ officials have selected a career attorney in the Civil Rights Division to conduct the 

. investigation into the allegations of misconduct by IRS personnel. Some have criticized 

that selection as inappropriate because the attorney contributed to the President's 

campaign and to other causes of his political party. 

But when does support for the sitting President and his party make one an imprudent 

choice for an assignment? Not usually. But perhaps it does when the assignment is to 

investigate the Administration's alleged mistreatment of its political adversaries. 

Here is why: Justice must not only be done, it must be seen to be done. This has two 

elements. 

First, when wrongdoing has come to light, the public deserves to know that those 

responsible have been identified and dealt with appropriately. This is why, when I was at 

the Department, I initiated a program of press releases to announce newsworthy 

developments, so that the public would know the law was being enforced, and that there 

were consequences to violating it. This is important not only to deter potential 

lawbreakers, but also to reassure law abiding citizens. 

Second, not only must the laws be enforced impartially, but they must also be seen to be 

enforced, in the words of Deuteronomy', without respect to persons. It is for this reason 

Deuteronomy 1:17 King James Version· Ye shall not respect persons in judgment; but ye shall hear the small as well as the 

great. 
20 


Insert offset folio 9 here 87350.009

Testimony of Eileen J. O'Connor, Esq. February 26, 2014 

Before the House Subcommittee on Economic Growth, Job Creation and Regulatory Affairs Page 4 of 4 

that judges recuse themselves from deciding cases. Not because they would not be able to 

rule impartially, but because there might be a reason the public might think they are not 

impartial. It is essential to respect for our laws that even the appearance of partiality be 

avoided, 

These same considerations are applicable in the assignment of a case to a DOJ employee. A 

. prosecutor who might appear to have a personal grudge against a defendant would never be 

assigned to his prosecution. Similarly, a prosecutor who might appear to favor a defendant 

wouldn't either. While DOJ might not be permitted to take into account an employee's 

political contributions, in this case, where the very allegations are of targeting people and 

organizations for political reasons, avoiding the appearance of partiality or of a conflict of 

interests might have been in the best interests of justice. 

In 1959, Ian Fleming had his character Goldfinger say: Once is happenstance. Twice is 

coincidence. Three times is enemy action. 

We know, because the Treasury IG for Tax Administration's report says so, that groups 

banding together to promote an understanding of and fidelity to our nation's founding 

principles were targeted for special scrutiny that was harsh, intrusive, probably 

unnecessary, and resulted in the delay, if not the constructive denial, of their 

applications for tax-exempt status, effectively silencing them during the better part of 

two election cycles. 

We know, because they had the courage to come forward and tell us about it, that people 

engaged in activities directed at improving the integrity of our elections were targeted 

for scrutiny not just by the IRS, but also by other arms of the federal government. 

We know, because we've seen it in the public domain, that the private information of 

people who contributed to organizations devoted to preserving traditional values was 

made public, in violation of 26 USC §6103, a crime punishable by fines and 

imprisonment of up to five years. 

As an American who cares about our country and our laws and our future, I thank the 

Committee for continuing to press to learn the truth about what appears to be the 

Administration's targeting of people who disagree with its policies, and encourage you to 

use all the tools available to you to do so. 
21 

Mr. JORDAN. Mr. von Spakovsky. 

STATEMENT OF THE HONORABLE HANS A. VON SPAKOVSKY 

Mr. VON SPAKOVSKY. Thank you, Mr. Chairman. 

I appreciate the invitation to be here today. I am a career veteran of the Civil Rights Division of the Justice Department. I also 

spent 2 years as a commissioner at the Federal Election Commission, where we worked with the public integrity section of the 

Criminal Division when there were potential civil and criminal violations of the Federal Election Campaign Act. 

Now, on May 14th of last year, Attorney General Eric Holder announced that he was opening up an investigation of the IRS targeting of conservative organizations, something that he called outrageous and unacceptable. Yet the Justice Department has refused 

to provide this committee with any information or updates on the 

investigation. 

Now, it is certainly true that the Justice Department cannot reveal sensitive information. But an active investigation does not prevent the FBI and the Justice Department from giving Congress 

basic information that does not compromise the investigation. 

There is no reason why the Justice Department can’t provide this 

committee with a briefing on, for example, how many FBI agents 

and Justice Department lawyers have been assigned to the investigation; who the lead lawyer and supervising FBI agent are; what 

Federal statutes the lawyers are reviewing that they believe might 

have been violated; what the general plan is for the investigation 

of this matter; and without identifying them specifically, what 

types of witnesses they have already interviewed or intend to interview. The Justice Department—— 

Mr. JORDAN. Mr. von Spakovsky, if I could just interject for a 

second, I apologize, but in your experience, were those kind of 

pieces of information given to congressional committees and to people inquiring about an investigation? Were those done in the past? 

Mr. VON SPAKOVSKY. We would give basic information, yes. 

Mr. JORDAN. All the time? 

Mr. VON SPAKOVSKY. Not specific information. 

Mr. JORDAN. But I mean basic information you just outlined in 

your—— 

Mr. VON SPAKOVSKY. Yeah. 

Mr. JORDAN. Okay. Thank you. 

Mr. VON SPAKOVSKY. They could also provide you with how long 

they expect the investigation to take, what progress has been made 

to date, and when they expect to conduct their preliminary or final 

review. None of this information would compromise the integrity 

and confidentiality of the investigation. Yet lawyers representing 

dozens of the targeted conservative groups say their clients have 

not even been contacted or interviewed by the FBI. 

I find it simply incredible that 9 months after the investigation 

was opened, little or no basic interviews have been done with the 

victims about their dealings with the IRS employees who may have 

been involved in wrongdoing. In addition, there is the troubling selection of Barbara Bosserman, a lawyer in the Criminal Section of 

the Civil Rights Division, where I used to work, as the lead lawyer 

in the investigation. She has given almost $7,000 in political donaVerDate Aug 31 2005 11:52 Apr 09, 2014 Jkt 000000 PO 00000 Frm 00025 Fmt 6633 Sfmt 6633 C:\DOCS\87350.TXT APRIL
22 

tions to President Barack Obama’s Presidential campaigns. Now, 

the Criminal Section where she works prosecutes cases, and this is 

according to their own Web site, quote, ‘‘Involving the violent interference with liberties and rights through the use of force, threats, 

or intimidation.’’ Now, as bad as what the IRS may have done, I 

don’t think anyone would characterize the actions of IRS employees 

as violent. I find it difficult to understand why the Public Integrity 

Section of the Criminal Division is not conducting this investigation in its entirety. 

This scandal involves possible corruption, public corruption by 

IRS employees. It is the Public Integrity Section of the Criminal 

Division, not the Civil Rights Division, that has long been responsible for investigating and prosecuting this type of public corruption. That is made clear on its own Web page. And General Holder 

would certainly know that. Why? Because the very first job he got 

out of law school, when he went to the Department of Justice, was 

in the Public Integrity Section of the Criminal Division. 

Now, DOJ claims, and others have said, that Ms. Bosserman 

can’t be removed because it would be, according to Justice, a prohibited personnel practice to consider political affiliation making 

personnel decisions. That claim totally mischaracterizes the situation. Taking a lawyer off a particular case because of a conflict of 

interest or the possible appearance of a conflict of interest is not 

a prohibited personnel practice. A prohibited personnel practice 

would be if they terminated her, changed her pay, disciplined her 

because of her political views or her political donations. 

No one questions the fact that Federal employees can give political donations. But the rules that govern the Justice Department 

specifically say that lawyers are supposed to avoid even the appearance of corruption and anything that would cause the public 

to question the integrity of an investigation. Now, that certainly is 

the case where we have an investigation that potentially could embarrass the administration being conducted by a lawyer who has 

given a large amount of money to the President. And we have a 

situation where the President had already told her and others in 

the Justice Department how he wants their investigation to come 

out, because he says there is not a smidgen of corruption involved. 

Taking a lawyer off a case at the Justice Department to avoid 

a conflict of interest is a routine occurrence at the Justice Department. DOJ should be making every effort to conduct a thorough investigation and avoid any questions about the objectivity of the attorneys and investigators involved in the investigation. The possible bias of one of the supervising, if not lead, lawyers in this investigation, is a very serious issue. When combined with the refusal of DOJ to provide even basic information about the status of 

the investigation, as well as the seemingly unjustifiable delays in 

talking to key witnesses, substantial questions are raised about 

whether or not a serious and unbiased investigation is being truly 

conducted. Thanks. 

Mr. JORDAN. Thank you. 

[Prepared statement of Mr. von Spakovsky follows:] 

23 


Insert offset folio 10 here 87350.010

214 Massachusett.I' Avenue, NE· Washington DC 20002· (202) 546-4400' heritage.org 

LEGISLATIVE TESTIMONY 

IS THE OBAMA ADMINISTRATION CONDUCTING A 

SERIOUS INVESTIGATION OF IRS TARGETING? 

Testimony before the House of Representatives, Committee on 

Oversight and Government Reform, Subcommittee on Economic 

Growth, Job Creation and Regulatory Affairs 

February 26, 2014 

Hans A. von Spakovsky 

Senior Legal Fellow 

The Heritage Foundation 

My name is Hans A. von Spakovsky.l I am a Senior Legal Fellow in the Edwin Meese III 

Center for Legal and Judicial Studies at The Heritage Foundation. The views I express in this 

testimony are my own, and should not be construed as representing any official position of The 

Heritage Foundation. 

I The title and affiliation are for identification purposes. The staff of The Heritage Foundation testify as individuals 

discussing their own independent research. The views expressed here are my own, and do not reflect an institutional 

position for The Heritage Foundation or its board of trustees, and do not retlect support or opposition tor any 

specific legislation. The Heritage Foundation is a pub lie policy, research, and educational organization recognized 

as exempt under § 501(c) (3) orthe Internal Revenue Code. It is privately suppOlted and receives no funds from 

government at any level; nor docs it perform any government or other contract work. Heritage is also the most 

broadly supported think tank in the Unitcd States, with nearly 700,000 supporters in every state, 78% of whom are 

individuals, 17% arc foundations, and 5% arc corporations. The top five corporate givers provide The Heritage 

Foundation with 2% of its 2011 income. A list of major donors is available from The Heritage Foundation upon 

request. 

Page 101'6 
24 


Insert offset folio 11 here 87350.011

I spent four years at the Justice Department as a career civil service lawyer, including three years 

as Counsel to the Assistant Attorney General for the Civil Rights Division. I helped coordinate 

the investigation of many cases in the voting and elections area. That included working with the 

Public Integrity Section of the Criminal Division of the Justice Department when there were 

cases in which there appeared to be both civil rights violations and potential criminal violations 

of federal election laws. Election cases were the only type of cases I ever saw in which there was 

a potential intersection between the Civil Rights Division and the Public Integrity Section. 

After leaving the Justice Department, I spent two years as a commissioner at the Federal Election 

Commission. At the FEC, we also worked with the Public Integrity Section in cases in which 

there were potential civil and criminal violations of the Federal Election Campaign Act. 

As this committee is welI aware, on May 10,2013, fonner IRS official Lois Lerner revealed that 

the IRS had been targeting Tea Party and other conservative organizations in a presentation at a 

conference in Washington, D.C. sponsored by the American Bar Association.2 This was 

apparently made public because of the pending release of a May 14 report by the Inspector 

General for the Department of the Treasury detailing the "inappropriate criteria" used by the IRS 

to identify for review the applications of conservatives organizations for tax-exempt status under 

Section 501 (c)( 4) of the Internal Revenue Code.3 These reviews "resulted in substantial delays 

in processing" of their applications, and the organizations were also subjected to "urmecessary 

information requests.,,4 

On May 14, 2013, Attorney General Eric Holder announced that the Justice Department was 

opening an investigation and "was coordinating with the FBI to assess whether or not any laws 

were broken." Holder at that time called the IRS's action "outrageous and unacceptable."s 

On January 8, 2014, the Washington Times reported that Committee Chairman Darrell E. Issa 

(R-CA) and Subcommittee Chainnan Jim Jordan (D-OH) had discovered that the head orthe 

Justice Department investigation is Barbara Kay Bosserman, a trial lawyer in the Civil Rights 

Division.6 According to Federal Election Commission records, Bosscrnlan has givcn $6,750 

in political donations since 2004, $5,600 to President Barack Obama's presidential campaigns, 

$500 to the 2012 Obama Victory Fund, and $650 to the Democratic National Committee. The 

2 "IRS apologizes for inappropriately targeting conservative political groups in 2012 election," ASSOCIATED PRESS 

(May 10,2013). 

l "Inappropriate Criteria Were Used to Identi/)' Tax-Exempt Applications tor Review," Treasury Inspector General 

for Tax Administration, Ref. No. 2013-10-053 (May 14,2013). 

, Highlights, "Inappropriate Criteria Were Used to Identify Tax-Exempt Applications for Review." Treasury 

Inspector General for Tax Administration, Ref. No. 2013-10-053 (May 14, 20l3). 

'Lucy Madison, "Justice Dept. to investigate IRS targeting," CBS News (May 14.2013). 

6 Stephen Dinan, "Justice: Feds pick Obama supporter to led probe into IRS tea party targeting," WASIIINCiTON 

TIMES (Jan. 8, 2014). 

Page 20[6 
25 


Insert offset folio 12 here 87350.012

Committee discovered this information only through its own investigative efforts, not from the 

Justice Department. 

A Jan. 8 letter from the Committee to Attorney General Holder outlined the Justice 

Department's refusal to provide any information or updates on the status of the Department's 

investigation. The Ictter notes that the FBI offered to meet with Rep. Jordan to do exactly 

that but later "rescinded" the offer "after [Justice] Departmcnt officials apparently interfered." 

It is certainly true that the FBI cannot disclose sensitivc information during an ongoing 

criminal investigation, but an active investigation does not prevent the FBI and the Justice 

Department from giving Congress basic information regarding the status of an investigation 

that does not compromise their work. There is no reason why the Justice Department could not 

have provided this committee with a briefing on how many FBI agents and Justice Department 

lawyers are involved in the investigation; who the lead lawyer and supervising FBI agent are; 

what federal statutes the lawyers believe might have been violated; what the general plan is for 

investigating this matter; without identifying them specifically, what types of witnesses they 

have already interviewed or intend to interview (such as IRS employees in certain ofl1ces; 

chief officers of affected conservative organizations; investigators in the Treasury 

Department's Ofl1ce oflnspector General, etc.). 

The Justice Department and the FBI could also have generally described to the Committee how 

long they expect the investigation to take, what progress has been made to date, and when they 

expect to complete their preliminary and final review. Nonc of this information would 

compromise the integrity and confidentiality of the investigation. 

Yet lawyers represcnting dozcns of the targeted conservative groups havc recently testified 

bej()re this Committee and have said that their clicnts have not been contacted or interviewed 

by any FBI agents. 

I find that simply incredible -- that nine months after the Attorney General announced he was 

opening an investigation, neither the FBI nor the Justice Department has conducted basic 

interviews with the victims to gather information about their dealings with the IRS officials 

and employees who may have been involved in wrongdoing. 

In addition to thc unjustificd refusal of the Department to provide this Committee with any 

inforn1ation about its investigation, there is the troubling selection of a Civil Rights Division 

lawyer, Barbara Bosserman, as the lead lawyer in the investigation.7 This seandal involves the 

possibility of public corruption - misbehavior by federal employecs in thc Intcrnal Revenue 

'In testimony on Jan. 29, 2014, Attorney General Holder denied the "characterization" of Bosserman as the "lead" 

lawyer in the matter. See Melanie Hunter, "'I Don't Know Anything ... ' Holder Denies Knowing IRS lnvestigator 

Wa., Obama Contributor," CNS NEWS (Jan. 30, 2014). 

Page 3 of6 
26 


Insert offset folio 13 here 87350.013

Service. It is the Public Integrity Section of the Criminal Division - not the Civil Rights 

Division that has long becn responsiblc for investigating and prosecuting this type of public 

corruption. 

Bosserman works in the most politicized division within the entire Justice Department. She is a 

lawyer in the Criminal Section of the Division, whose own website says that it prosecutes 

cases "involving the violent interference with liberties and rights defined in the Constitution or 

federal law" through the "use of force, threats, or intimidation." The website's list of cases 

that the Section has prosecuted involvc hate crimes, interference with the exercise of religious 

beliefs, human trafficking, interference with access to abortion services, and official 

misconduct. The cases listed under "official misconduct" are almost all cases involving 

violent assaults, rapes, sexual misconduct, and the use of force by police officers and prison 

officials.s As bad as what the IRS did, I don't think anyone would characterize the actions of 

IRS employees as "violent." 

It is certainly possible that the IRS practices under investigation may be civil rights violations, 

but it is curious that Attorney General Holder chose to dip into that talent pool for this 

particular lawyer to lead this investigation, rather than allowing the Public Integrity Section to 

conduct this investigation in its entirety. The lawyers there are very experienced in 

investigating and prosecuting the type of official corruption alleged in the IRS scandal. As its 

own website reflects, it is the Public Integrity Section that "oversees the federal effort to 

combat corruption though the prosecution of elected and appointed publie officials at ail levels 

of government...Seetion attorneys prosecute selected cases against federal, state, and local 

officials.,,9 

General Holder would certainly understand the specific expertise that the Public Integrity 

Section brings to such an investigation - the very first job he got at the Justice Department 

when he was hired right out of law school as part of the Attorney General's Honors Program 

was in the Public Integrity Secljan.w 

The Justice Department's pick of Barbara Bosserman to lead or be involved in making 

decisions about this investigation raises the appearance of a conflict of interest because of her 

extensive political donations to President Barack Obama, who recently said there was "not 

even a smidge of COiTuption" in the IRS scandal even though the investigation is supposedly 

not complete. II 

8 Soe http://www.justice.gov/crtiabout/crm/selcases.php#conduct. 

: See http://wwwJustice,govlcriminalipin/. 

10 Wil S. Hylton, "Hope. Change. Reality.," GQ(Dec. 2010). 

11 '''Not even a smidgen of corruption'" Obama downplays IRS, other scandals," Fox News (Feb. 3, 2014). 

Page40f6 
27 


Insert offset folio 14 here 87350.014

When this first became public, Justice Department spokeswoman Dena Iverson claimed that 

Bosscrman could not be removed from the investigation because "[iJt is contrary to department 

policy and a prohibited personnel practice under federal law to consider the political affiliation 

of career employees or other non-merit factors in making personnel decisions.,,12 The problem 

with this claim is that it is not true. 

Taking a lawyer off a particular casc bccause of a possible cont1ict of interest or the 

appearance of such a conflict is not a "prohibited personnel practice" like firing, terminating, 

or changing the pay of someone for political reasons. Indeed, Justice Department regulations 

clearly state that DOJ lawyers must avoid even "an appearance of a conflict of interest likely to 

affect the public perception of the integrity" of an investigation or proseeution.13 

No one questions the right of career employees to make political donations. This is allowed 

under the Hatch Act and applicable DOJ regulations, as explained by the Justice Department's 

Ethics Office. 14 But Bosserman's considerable campaign contributions certainly raises the 

appearance ofa possible conflict of interest in terms of the public's perception of her ability to 

make unbiased, objective decisions in an investigation that could prove very embarrassing to 

the president she supports a president who has already signaled through his publie statements 

what hc thinks thc outcome of thc investigation ought to be. 

Contrary to Iverson's claim, the Justice Department has previously acted in the cxaet way she 

now says it cannot. During the investigation into the unjustified dismissal of the New Black 

Panther Party voter intimidation case, the Justice Department's OUice of Professional 

Responsibility removed the first career lawyer assigned to the investigation, Mary Aubry, after 

reports surfaced that she had contributed more than $7,000 (almost the same amount as 

Bosserman) to the Democratic Party and Democratic candidates including Barack Obama. 15 In 

fact, two veterans of the Civil Rights Division told me that DOJ rcmoves attorneys from cases 

all the time for such perceived potential conflicts of interest. One of them also told me that 

!30sserman was more of a "research" attorney who almost never goes to court, which seems an 

odd choice to head up such a significant investigation. 

Given the allegations in the IRS case, especially the suspicion that conservative organizations 

were specifically targeted by IRS officials to help dampen public opposition to President 

Obama's reelection, the Justice Departmcnt should make every effort to conduct a thorough 

investigation and avoid any questions about the objectivity of the attorneys and investigators 

involved in the investigation. 

12 Josh Hicks, "Ohama political donor leading Justice Department's IRS investigation," WASHINGTON POST (Jan. 9, 

2014). 

Il 28 CFR §45.2. 

14 See http://www.justice.gov/jmd/ethics/politic.html. 

15 Hans A. von Spakovsky, "Is the Fix In at .Iustice?" National Review Online (Jan. 26, 20 II). 

Page 5 of6 
28 


Insert offset folio 15 here 87350.015

This is particularly true givcn that the Justice Department's Inspector General Michael 

Horowitz sent a memorandum to General Holder in December reminding him that "public trust 

in the Department, its senior officials, and its employees is essential to every aspect of the 

Department's operations." One of the biggest challenges, according to Horowitz, is the Civil 

Rights Division, where Bosserman works. The Office of the Inspector General reported that 

the way the division has handled cases "riskcd undermining public confidence in the nonideological enforcement" of federal law. 16 

The involvement of the Civil Rights Division and the appearance of possible bias by one of the 

supervising, if not lead, lawyers in this investigation is a very serious issue. When combined 

with the rcfusal of the Justice Department and the FBI to provide even basic information about 

the status of the investigation, as well as the seemingly unjustifiable delays in talking to key 

witnesses in the conservative organizations targeted by the IRS, it raises substantial questions 

about whether or not a serious, objective, unbiased investigation is being conducted. 

This Committee should continue to attempt to get more information about the integrity of the 

government's investigation and should pursue its oversight function vigorously. Otherwise, 

what happened at the IRS will happen again, and federal employees will believe that they ean 

engage in wrongdoing by targeting the political opposition of the administration without fear 

of any consequences. 

16 "Top Management and Perfomlancc Challenges Facing the Department of Justice - 2013." Memorandum for the 

Attorney General and the Deputy Attorney General from Michael E. Horowitz, Inspector General (Dec. 11.2013, 

re-issued Dec. 23, 2013). 

Page60f6 
29 

Mr. JORDAN. Mr. Ivey. You have 5 minutes. 

STATEMENT OF GLENN F. IVEY 

Mr. IVEY. Thank you, Mr. Chairman, members of the subcommittee. I appreciate the opportunity to testify before you today. 

My name is Glenn Ivey. I am a partner at the Washington law firm 

of Leftwich & Ludaway, where I specialize in civil and criminal litigation. I am a former Federal prosecutor and elected State prosecutor, and an adjunct professor of law. 

I am very familiar with these types of issues you are considering 

here today in the Oversight hearing. By way of introduction, I 

spent about half my career as a prosecutor. I served as an assistant 

U.S. attorney in Washington, D.C., from 1990 to 1994, first under 

U.S. Attorney Jay Stephens, and then for 2 years under U.S. Attorney Eric Holder. Before leaving, I handled about 45 criminal jury 

trials and argued appeals and conducted grand jury investigations. 

In 2002, I was elected State’s Attorney for Prince George’s County, Maryland, a jurisdiction of about 850,000 people that covers the 

eastern border of Washington, D.C. During my two terms there, we 

handled a variety of high-profile investigations that sometimes 

overlapped with the U.S. Department of Justice. I also became a 

founding chairman of the Association of Prosecuting Attorneys. 

Finally, for the past 17 years I have taught courses on advanced 

criminal procedure, white collar crime, and others at the University 

of Maryland School of Law. With respect to the length of the investigation, I understand from my review of statements by subcommittee members and hearing testimony that there is concern 

about the length of this investigation. While I was State’s attorney, 

my office conducted several investigations, in fact many, that took 

long periods of time to complete. Sometimes I was accused of taking longer than I should. But as my father used to say, you measure twice and cut once. It’s critical for prosecutors to be extremely 

careful and thorough in conducting their investigation because they 

might not get a second chance to do it right. Certainly, when it 

comes to a matter as sensitive as this one, there should be no rush 

to judgment and no pressure to cut corners. It is more important 

to do it right than to do it fast. Moreover, I also had the experience 

of waiting for the Department of Justice to complete investigations 

my office had referred to the Department. In one case, an accused 

cop killer was found dead in his prison cell just 2 days before he 

was arrested for the murder. And in another, a college student was 

beaten by local police officers when a college celebration spun out 

of control. In these and other cases, my office sometimes waited 

months or even years before the Federal investigation was completed. 

So I understand that there can be frustration in waiting for the 

results of Department of Justice investigations, especially in highprofile matters that have captured a good deal of public attention. 

Sometimes long investigations lead to public questions about how 

the prosecutors are conducting the investigation or whether it could 

have been completed more quickly. Nevertheless, I think it is critical to give prosecutors the time they need to conduct a careful and 

thorough investigation, particularly in matters with this degree of 

sensitivity. 

30 

With respect to confidentiality, I know from personal experience, 

there can be a great deal of pressure on prosecutors to release information while an investigation is ongoing. But it is important for 

prosecutors to control the flow of information made public during 

the course of their investigations for several reasons: First, prematurely disclosed information can undermine an investigation by 

tipping off potential witnesses about the scope, direction, and details of the investigation. Second, individuals who might be named 

in the course of an investigation but ultimately cleared of wrongdoing should be shielded from the negative impact of disclosing incorrect information about them. Finally, any information that is 

gathered pursuant to the laws that require secrecy, like rule 6(e), 

might require a court order to be released. That reflects the longstanding view held by both Congress and the courts that matters 

before a grand jury should largely remain secret before trial. In the 

short run, these secrecy rules may conflict with the goal of transparency and disclosure. Elected officials want updates; the public 

and the media want real time information. But in the long run, it 

usually makes more sense to allow the criminal investigation to 

run its course before public disclosures are made that might undermine or even preclude a criminal prosecution. 

With respect to the politics issue, a hallmark of the Justice Department is that it allows its line prosecutors to do their jobs without forcing them to disclose their political views or bend to political 

considerations. That is why the department has career prosecutors 

who have sometimes spent decades in office despite the changes in 

Presidents and Attorneys General. This provides consistency in the 

handling of cases, helps to retain top talent, and preserves institutional memory. It also helps to reassure the public that regardless 

of who is at the top, the line prosecutors will wield their power and 

handle their cases based solely on the merits. 

I know the committee has received letters from the professors 

that the ranking member mentioned a moment ago, so I won’t 

speak to that. But I do want to say that with respect to my personal experience, I saw these principles in action while I worked 

at the Department. Fortunately, during the transition that I was 

present for from the Bush administration to the Clinton administration, line prosecutors were insulated from the politics of the day 

and allowed to conduct their work in an apolitical environment. 

After my election, I brought that approach to my State office. I 

worked hard to reduce the politics that swirled around the office, 

where line prosecutors had been expected, essentially as a condition of employment, to donate to their bosses’ campaigns and to 

work for their reelections as well. Eventually, my line prosecutors 

came to understand that they did not have to contribute to my 

campaign, and I was not going to check whether they worked on 

political campaigns or made political contributions. My line prosecutors learned that they did not have to sacrifice their constitutional rights to work for me and that they could handle their cases 

based solely on the merits. That is the way it ought to be, even in 

high-profile matters like this. So thank you again for giving me a 

chance to testify today. I look forward to questions. 

Mr. JORDAN. Thank you, Mr. Ivey. We appreciate you being here. 

[Prepared statement of Mr. Ivey follows:] 

31 


Insert offset folio 16 here 87350.016

Mr. Chairman and Members of the Subcommittee, thank you for the 

opportunity to testify before you today. My name is Glenn Ivey and I am a partner 

at the Washington law firm of Leftwich & Ludaway, where I specialize in civil and 

criminal litigation. I am a former Federal prosecutor, an elected state prosecutor, 

and an adjunct professor of law. I am very familiar with the types of issues you are 

considering today in this oversight hearing. 

Introduction 

By way of introduction, I spent about half of my career as a prosecutor. 

served as an Assistant U.S. Attorney in Washington, DC from 1990-1994, first 

under U.S. Attorney Jay Stephens, and then for two years under U.S. Attorney Eric 

Holder. Before leaving, I handled about 45 criminal jury trials, argued about a 

dozen appeals and conducted numerous grand jury investigations. 

In 2002, I was elected State's Attorney for Prince George's County, 

Maryland, a jurisdiction of about 850,000 people that covers the eastern border of 

Washington, DC. I was elected to two terms, during which we handled a variety of 

very high profile investigations that sometimes overlapped with investigations 

conducted by the U.S. Department of Justice. I also became the founding 

chairman of the Association of Prosecuting Attorneys (APA), a private non-profit 

entity which supports and enhances prosecutors in their efforts to create safer 

communities. AP A is the only national organization to include and support all 

2 
32 


Insert offset folio 17 here 87350.017

prosecutors, including appointed and elected. Finally, for the past 17 years, I have 

taught courses on advanced criminal procedure, white collar crime, Congressional 

investigations and federal criminal law at the University of Maryland School of 

Law. 

Length of the Investigation 

I understand from my review of statements by Subcommittee members and 

hearing testimony that there is concern about the length of this investigation. 

While I was State's Attorney, my office conducted several investigations that took 

long periods of time to complete. Sometimes I was accused of taking longer than I 

should. But, as my father used to say, you measure twice and cut once. It is 

critical for prosecutors to be extremely careful and thorough in conducting their 

investigation, because they might not get a second chance to do it right. Certainly, 

when it comes to a matter as sensitive as this one, where the public confidence in a 

federal agency has been shaken, there should be no rush to judgment, and no 

pressure to cut comers. It is more important to do it right than to do it fast. 

Moreover, I also had the experience of waiting for the Department of Justice 

to complete investigations my office had referred. In one case, an accused cop 

killer was found dead in his prison cell just two days after he was arrested for the 

murder. In another, a college student was beaten by local police officers when a 

college celebration spun out of control. In these and other cases, my office 

3 
33 


Insert offset folio 18 here 87350.018

sometimes waited months, or even years, before the federal investigation was 

completed. So I understand there can be frustration in awaiting the results of 

Justice Department investigations, especially in high profile matters that have 

captured a good deal of public attention. Sometimes, long investigations lead the 

public to question how the prosecutors are conducting the investigation or whether 

it could be completed more quickly. Nevertheless, I think it is critical to give 

prosecutors the time they need to conduct a careful and thorough investigationparticularly in matters with this degree of sensitivity. That is especially true when 

the investigation is complex, involves a large number of witnesses, and potentially 

implicates criminal laws where intent is the primary issue in detennining whether 

criminal charges are appropriate. 

Confidentiality 

I know from personal experience that there can be a great deal of pressure on 

prosecutors to release information while an investigation is ongoing. But it is 

important for prosecutors to control the tlow of information made public during the 

course of their investigations for several reasons. First, prematurely disclosed 

information can undennine an investigation by tipping off potential witnesses 

about the scope, direction and details of the investigation. Second, individuals who 

might be named in the course of an investigation, but ultimately cleared of 

wrongdoing, should be shielded from the negative impact of disclosing incorrect 

4 
34 


Insert offset folio 19 here 87350.019

information. In this age where everything lives forever on the Internet, protecting 

the reputations of the innocent is especially important. 

Finally, any information that is gathered pursuant to laws that require 

secrecy, like Rule 6(e) of the Federal Rules of Criminal Procedure, might require a 

court order to be released. That reflects the longstanding view, held by both 

Congress and the courts, that matters before a grand jury should largely remain 

secret before trial. 

In the short run, these secrecy rules may conflict with the goal of 

transparency and disclosure. Elected officials want updates. The public and the 

media want real-time information. But in the long run, it usually makes more 

sense to allow the criminal investigation to run its course before public disclosures 

are made that might undermine or even preclude a criminal prosecution. At this 

point, I believe that is the case with the Justice Department's investigation of how 

the IRS handled this matter. 

Politics and Prosecutors 

A hallmark of the Justice Department is that it allows its line prosecutors to 

do their jobs without forcing them to disclose their political views or bend to 

political considerations. That is why the Department has career prosecutors who 

sometimes have spent decades in office, despite the changes in Presidents and 

Attorneys General. This provides consistency in the handling of cases, retains top 

5 
35 


Insert offset folio 20 here 87350.020

talent and preserves institutional memory, It also helps to reassure the public that, 

regardless of who is at the top, the line prosecutors will wield their power and 

handle their cases based solely on the merits, 

I know the Committee has received letters from Fordham law Professor 

Bruce Green and Columbia Law School Professor Daniel Richman explaining the 

legal nuances of recusal and conflict of interest. I want to take a more personal 

approach, I saw these principles in action while 1 worked at the Department. 

Fortunately, during the transition from the first Bush administration to the Clinton 

administration, line prosecutors like me were insulated from the politics of the day, 

and allowed to conduct our work in an apolitical environment. 

After my election, 1 brought that approach to my state office, I worked hard 

to reduce the politics that swirled around the office-where line prosecutors had 

been expected, essentially as a condition of employment, to donate to their bosses' 

campaigns and to work for their re-election as well. Eventually, my line 

prosecutors realized that they did not have to contribute to my campaign, and that I 

was not going to check whether they worked on political campaigns or made 

political contributions, My line prosecutors learned that they did not have to 

sacrifice their constitutional rights to work for me, and that they could handle their 

cases based solely on the merits. That's the way it oUght to be, even in highprofile matters like this, 

6 
36 


Insert offset folio 21 here 87350.021

Conclusion 

Thank you again for allowing me to testifY at this hearing today. I would be 

more than happy to answer any questions the Members may have. 

7 
37 

Mr. JORDAN. Mr. Painter, you are recognized for 5 minutes. 

STATEMENT OF RICHARD W. PAINTER 

Mr. PAINTER. Thank you, Mr. Chairman. 

I teach corporate law, securities law, lawyers ethics, and government ethics at the University of Minnesota. For 2 and a half years, 

I was the chief White House ethics lawyer under President Bush. 

For the vast majority of Americans, the burden of Federal and 

State and local taxes is excessive, and the regulations under which 

taxes are collected are excessively complex. Taxpayers are entitled 

to competence and impartiality from the government agencies that 

collect our taxes. It is unacceptable for the Internal Revenue Service to use politicized search terms to single out individuals and organizations for additional scrutiny. Whether such actions result 

from gross incompetence or from political motivation of IRS employees, it is serious misconduct. 

This misconduct took place in one of the most powerful agencies 

in the executive branch. The President must accept responsibility 

for it and make sure that it never happens again. 

Now let me discuss for a moment the 501(c)(4) organizations and 

the issues related to campaign finance. These organizations are 

growing in number, and they have proliferated since the Supreme 

Court’s decision in the Citizens United case. I discuss them extensively in my own book on government ethics that was actually written before that case was decided. I share the concerns of many 

Americans who are disgusted with the current state of affairs in 

campaign finance. And I believe that the future of our republican 

form of government depends on finding some way for ordinary 

Americans, the vast majority of us who cannot afford to set up our 

own 501(c)(4) or fund it, to have a meaningful voice in our government. 

There are many options, including enactment of constitutionally 

acceptable campaign finance reform legislation, enhanced disclosure obligations, and additional taxpayer funding of political campaigns. 

Close IRS scrutiny of 501(c)(4) applications to discern so-called 

political purpose of an organization, however, is not the way to arrive at a better system of campaign finance. The notion that social 

welfare is somehow distinguishable from politics is in my view unworkable, particularly in a society where politics is the process by 

which we choose our government, and social welfare is to a great 

extent help or hindered, I believe usually hindered, by government 

taxation, expenditure, and regulations. 

Now, the IRS needs focus on its mission, which is collecting taxes 

from people who owe the taxes. And if the statutes and regulations 

invite the IRS to inquire into the political opinions or political purpose of persons or organizations in determining an organization’s 

tax status, those regulations and statutes need to be changed. 

Now, more specifically with respect to the IRS, American taxpayers are entitled to an IRS which responds promptly to their requests. And delay in the response to a 501(c)(4) application for any 

reason is unacceptable. And I believe Congress should impose on 

the IRS specific deadlines for taking action with respect to applications for particular taxpayer matters. And if they can’t meet their 

38 

deadlines, perhaps they should be paying us penalty and interest 

like we have to pay them when we can’t meet our deadlines. As for 

the DOJ investigation, the Department has opened an investigation, but I believe that it has been compromised by the controversy 

over the staffing of the investigation. No particular ethics rule explicitly prohibits a career prosecutor who has made campaign contributions from participating in or even directing an investigation 

such as this one. Not knowing the present scope of the DOJ investigation or where it might lead, however, I cannot be certain that 

such a conflict would not arise. I discuss in my written testimony 

the impartiality rule at 5 CFR. 2635.502 that I believe should have 

led to a discussion within the Department of Justice about the 

staffing of this investigation. If I had been a senior official at the 

Department of Justice, I would have chosen in this instance to 

choose someone to lead the investigation who did not have a strong 

affiliation with either of the two major political parties. 

Finally, I want to point out that there are serious Hatch Act 

issues here if—and I emphasize if because I do not know the facts 

in this matter—if IRS employees were politically motivated in the 

conduct that occurred. If there was an attempt here to influence an 

election, these 501(c)(4) organizations do have an enormous impact 

on the outcome of elections. We all know that. And if IRS employees were politically motivated in these decisions, there are serious 

Hatch Act concerns. And I believe the Office of Special Counsel 

should be involved in this, whether they conduct their own investigation or whether they review the Inspector General’s investigations and determine that no further action is required. But they 

cannot, in my view, responsibly remain silent. Thank you, Mr. 

Chairman. 

Mr. JORDAN. Thank you, Mr. Painter. 

[Prepared statement of Mr. Painter follows:] 

39 


Insert offset folio 22 here 87350.022

Testimony of Richard W. Painterl before the United States House of 

Representatives Committee on Oversight and Government Reform, 

Subcommittee on Economic Growth, Job Creation and Regulatory Affairs 

Wednesday, February 26, 2014 

Mr. Chainnan and Members ofthe Committee: 

Thank you for inviting me to testify here today. 

For the vast majority of Americans, the burden of federal, state and local taxes is 

excessive and regulations under which taxes are collected are excessively complex. 

Taxpayers are entitled to competence and impartiality from the government agencies that 

collect our taxes. 

It is unacceptable for the Internal Revenue Service (IRS) to use politicized search terms 

to single out individuals and organizations for additional scrutiny. Whether such actions 

result from gross incompetence or from political motivation of IRS employees, it is 

serious misconduct. This misconduct took place in one of the most powerful agencies in 

the Executive Branch. The President must accept responsibility for it and make sure that 

it never happens again. 

From 20] 0 through 2012, the IRS apparently searched for certain terms in 501(c)(4) taxexemption applications and placed on hold the processing of applications of 

organizations with phrases such as "Tea Party," "patriots," or "9/]2" in their names. We 

are entitled to know who ordered this to happen and why. We are also entitled to know 

about any other IRS misconduct in connection with similar applications from any groups, 

both liberal and conservative. And we are entitled to know what concrete steps are being 

taken to prevent future abuses. 

And the American people are entitled to a timely response to this matter. The deadline I 

suggest for the Executive Branch agencies investigating these incidents of IRS 

misconduct and for Congressional committees doing the same is the same deadline that 

the rest of us have in the back of our minds: April IS, 2014. Ifwe are expected to 

comply with our obligations to the government by that date, the government should by 

then have told us what happened and why and how similar abuses will be avoided in the 

future. 

I S. Walter Richey Professor of Corporate Law, University of Minnesota 2007-present; Associate Counsel 

to the President and chief White House ethics lawyer 2005-2007. 
40 


Insert offset folio 23 here 87350.023

50l(c)(4) Organizations and Campaign Finance 

Organizations organized under Section 501 (c)(4) of the Internal Revenue Code have 

proliferated in recent years. Even before the Supreme Court's decision in Citizens 

United,2 there were many of them, and there were many abuses.3 The Citizens United 

decision then opened the floodgates through which private money - from corporations, 

individuals and unions - flows into the political process. 

I share the concerns of many Americans who are disgusted with the current state of 

affairs in campaign finance. The future of our republican form of government depends 

upon finding some way for ordinary Americans - the vast majority of citizens who 

cannot afford to set up or fund a 501(c)(4) - to have a meaningful voice in our 

government. There are many options including enactment of constitutionally acceptable 

campaign finance reform legislation, enhanced disclosure obligations, and additional 

taxpayer funding of political campaigns.4 

Close IRS scrutiny of 50 I (c)(4) applications to discern a "political purpose" of an 

organization, however, is not the way to arrive at a better system of campaign finance. 

The notion that "social welfare" is somehow distinguishable from "politics" is in my 

view unworkable, particularly in a society where politics is the process by which we 

choose our government and social welfare is to a great extent helped or hindered -

usually hindered -- by government taxation, expenditure and regulation. 

The IRS needs to focus on its mission, which is collecting taxes from people who owe 

taxes. Tax statutes and regulations should not invite the IRS to inquire into the political 

opinions or political purpose of persons or organizations in determining an organization's 

tax status. These ineffective regu lations are no excuse for the conduct that occurred at 

the IRS in 20 10-2012, but the regulations should be revised and if necessary the 

underlying statute should be amended. 

American taxpayers are entitled to fair, respectful and legal treatment from the federal 

agency that collects our taxes. We are also entitled to competence from IRS employees 

and timely review of applications submitted under particular provisions of the Internal 

Revenue Code. Timely IRS response in all particular taxpayer matters should be a top 

priority. Delay of an IRS response to a 501 (c)(4) application for any reason, whether or 

not politically motivated, is unacceptable. 

2 Citizens United v. Federal Election Commission, 558 U.S. 310 (2010). 

3 See Richard W. Painter, Getting the Government America Deserves: How Ethics Reform Can 

Make a Difference (Oxford U. Press 2009), Chapter 9 (titled "Off-the-Books Lobbying, 

Electioneering and the Special Purpose Entities that Do It") (discussing 50 I (c)(4) and other 

groups and potential abuses in the years immediately before Citizens United). 

4 See Id, Chapter I I (titled "Campaign Finance"). 
41 


Insert offset folio 24 here 87350.024

Congress should either impose on the IRS specific deadlines for taking action with 

respect to applications and other particular taxpayer matters or require the IRS to 

promulgate regulations that set specific deadlines for its staff. If taxpayers are required to 

pay penalties and interest when we delay taking necessary action with respect to our 

taxes, perhaps the IRS should be required to pay us penalties and interest when they don't 

do their job on time. 

The DOJ Investigation 

The Departmcnt of Justice (DOJ) has opened an investigation of the misconduct at the 

IRS during the 20 I 0- 2012 time frame. The scope and purpose of this investigation is 

unclear. The staffing ofthe investigation, however, has apparently introduced yet more 

controversy into an already controversial situation. 

No particular ethics rule explicitly prohibits a career prosecutor who has made campaign 

contributions from participating in, or even directing, an investigation such as this one. 

Not knowing even the present scope ofthe DOJ investigation, and where it might lead, 

however, I cannot be certain that such a conflict would not arise. 

The impartiality rule -- 5 CFR 2635.502 -- has catch-all language5 that government 

employees, including career prosecutors, should consider in these situations. The rule's 

standards, however, are subjective unless a government employee falls into one of the 

specific categories of relationships set forth in the rule, and campaign contributions do 

not alone create a relationship falling into one of these categories.6 The purpose of the 

rule is not necessarily to disqualify an employee from a particular assignment but to 

encourage and in some instances require that the employee consult with agency ethics 

officials and his or her superiors before making a decision about whether going forward 

with a particular assignment is in the best interest ofthe agency. 

55 CRF 2635.502(a) reads: "Ca) Consideration of appearances by the employee. Where an 

employee knows that a particular matter involving specific parties is likely to have a direct and 

predictable effect on the financial interest of a member of his household, or knows that a person 

with whom he has a covered relationship is or represents a party to such matter, and where the 

employee determines that the circumstances would cause a reasonable person with knowledge of 

the relevant facts to question his impartiality in the matter, the employee should not participate in 

the matter unless he has informed the agency designee of the appearance problem and received 

authorization from the agency designee in accordance with paragraph (d) of this section.( I) In 

considering whether a relationship would cause a reasonable person to question his impartiality, 

an employee may seek the assistance of his supervisor, an agency ethics official or the agency 

designee.(2) An employee who is concerned that circumstances other than those specifically 

described in this section would raise a question regarding his impartiality should use the process 

described in this section to determine whether he should or should not participate in a particular 

matter." (emphasis added) 

6 The language in section (a)(2) of the rule above thus determines whether the covered 

relationship rule applies at all to the situation of a federal employee who was a campaign 

contributor or otherwise supported a political campaign or party. 
42 


Insert offset folio 25 here 87350.025

Given the enormous controversy about alleged politicization of the IRS, I hope such a 

conversation about staffing this investigation occurred at the DOl. If I were a senior 

official at the DOl, I would not put the leadership of an investigation such as this into the 

hands of any employee who appeared to have a strong allegiance to onc political party or 

the other. Others might disagree. I feel strongly, however, that such a conversation 

about appearances of impartiality should have taken place in the DOl and I hope it did. 

Finally, I am frustrated at not knowing the purpose and scope of the DOl investigation. 

Which specific criminal statutes are potentially involved in the investigation, and what 

evidence is there to date of violations of such provisions and by whom? If there is 

evidence of criminal activity the DOl should investigate thoroughly and swiftly, but if 

not the DOl should stand down and allow other government officials, including the 

Inspector General and Congressional oversight committees, to do their job of 

investigating alleged misconduct that falls short of criminal violations. We learned from 

the Clinton White House's unfortunate experience with a DOl investigation after the 

suicide of Deputy White Housc Counsel Vincent Foster, that DOl investigations should 

not be organized to provide "negative assurances" or "political cover." A DOl 

investigation should be a real investigation when it occurs, and should be aggressive and 

impartial, but it should only occur at all if it is appropriate under the circumstances. 

The Hatch Act 

My initial reaction to this scandal was that it raised serious concerns under the Hatch Act, 

which prohibits any use of official position to affect the result of an election.7 During 

the two years leading up to the Presidential election of 2012, IRS delay of Section 

501(c)(4) applications from groups idcntified with "Tea Party," "patriots," or "9/12" at 

least raises a prima facie case of a Hatch Act violation. Given the prominent role that the 

many 501 (c)(4) organizations already approved by the IRS have in influencing public 

opinion prior to elections,S politically motivated IRS denial or delay of 501 (c)(4) 

applications from other groups could affect the result of an election. 

The Office of Special Counsel (OSC) is charged with investigating alleged violations of 

the Hatch Act. In view ofthe enormous power of the IRS and the potential for abuse, the 

OSC should aggressively investigate this and any other evidence of Hatch Act violations 

at the IRS. The OSC may determine that it is appropriate to rely on an Inspector General 

investigation rather than conduct its own investigation, provided the Inspector General 

invcstigation addresses the Hatch Act issues. The OSC, however, should not remain 

silent. I am not claiming that there necessarily were Hatch Act violations at the IRS - I 

don't know. However, the American people are entitled to a definitive answer to this 

question, and the OSC has a responsibility to playa central role in finding it. 

7 See 5 U.S.C. Section 7323 (providing that "an employee may not- (1) use his official 

authority or influence for the purpose of interfering with or affecting the result of an election") 

8 See Painter, Getting the Government America Deserves supra Chapter 9 (discussing the 

influence of these and similar groups on elections). 
43 

Mr. JORDAN. I want to thank all our witnesses for their testimony. 

We go now to the vice chairman of the committee, Mr. DeSantis. 

Mr. DESANTIS. Thank you, Mr. Chairman. 

Thank you, witnesses, for your testimony. 

I think there is a little confusion here with what I am hearing 

from the other side in terms of, yeah, you can give to a political 

candidate and be perfectly fair and do your job. And the idea that 

that should disqualify you I don’t think is what anyone up here on 

this side is saying. 

But I think what I am saying and what I think some of my colleagues are saying is this is not like you are just investigating corruption at the Department of HUD for someone lining their pockets. You are talking about a misuse of one of the most potent agencies we have in this government to target dissent from the administration in power seeking to be returned to office in 2012. So that 

really strikes at the heart of what the First Amendment is all 

about, what limited government is meant to ensure. And I think 

the American people need to have the utmost confidence in the investigation. 

And so what do we know right now? Well, we know that Jay 

Sekulow came in front of this committee a couple weeks ago, and 

he has 40 clients who have been targeted by the IRS in one form 

or another. Not one of them, as of a couple weeks ago, had been 

interviewed by anyone associated with this investigation. What do 

we also know? We know the President went on national TV and 

said there is not a smidgen of corruption involved with any IRS 

targeting. It is amazing how he would know that, but nevertheless, 

you know, that is what he said. And of course, we haven’t gotten 

even rudimentary cooperation from the Department of Justice and 

the department of FBI. So it may not be against the regulations 

to have Barbara Bosserman. Look, she is a loyal Obama supporter, 

and there is nothing wrong with that. And it may not be proscribed 

exactly. Maybe someone makes the argument it is. Just because it 

is not, doesn’t mean it is the right thing to do. So I would say, in 

this situation, given the sensitivities involved, why would you not 

steer clear of any appearance of impropriety, particularly given 

what we have seen over the last several months. 

I think, turning to all these other career people in the Department of Justice would have made probably a lot more sense, who 

maybe just don’t have any bone in this either way. But to go with, 

you know, you give $7,000 to the Democratic Party and President 

Obama, you are a loyal foot soldier in the Army of Hope and 

Change. Let’s just be clear about what we are talking about here. 

So I think—and so, from my perspective, what I see now is I think 

we need a special prosecutor to look into this just to avoid any of 

this. Because guys like me, guys like the chairman, if this keeps 

going on and it just ends with a whimper, we are not going to have 

a lot of confidence in what happened. 

And I know the people who have testified in this committee, they 

are not going to have any confidence if that one ends up being the 

outcome. And also, how are you supposed to react when your boss, 

the President, says there is no corruption? I mean, what kind of 

44 

signal does that send to these folks? So I think what we need is 

some independence here. 

So let me just go down, Mr. Terwilliger, do you think that a special prosecutor would be in order given these facts? 

Mr. TERWILLIGER. I do. 

Mr. DESANTIS. Okay. 

Ms. O’Connor? 

Mr. CONNOLLY. I do. 

Mr. DESANTIS. Mr. von Spakovsky? 

Mr. VON SPAKOVSKY. I do. 

Mr. DESANTIS. Mr. Ivey? 

Mr. IVEY. I guess I have mixed views about it. 

Mr. DESANTIS. Let me ask you this. So are you still elected, or 

you had served two terms? 

Mr. IVEY. No, I am in private practice. 

Mr. DESANTIS. Okay. And you probably had people who were 

prosecutors who would be handling cases. You weren’t micromanaging everything. People were probably doing their job. It is a little 

bit different for you because you were a politician, whereas in the 

bureaucracy, you are not supposed to. But I mean if you would 

have come out and said, Oh, well, there is nothing doing here, 

there is no corruption there, then probably your line prosecutors 

aren’t going to then think that is a good signal for them to go and 

pursue that matter. I mean don’t you think there was a little bit 

of a problem for the President to say that there is not a smidgen 

of corruption, given that we are supposedly in the middle of this 

investigation? 

Mr. IVEY. No. I actually had a similar kind of scenario with the 

case I mentioned in my testimony in which the police officer who 

had been killed, the guy who killed him was allegedly found dead 

in his prison cell. The county executive at the time announced that 

this was a lynching. And I had other elected officials who made 

similar kinds of statements, including some statements from police 

officials who, as you can imagine, grieving about the loss of a comrade, had strong feelings. 

Mr. DESANTIS. But in that instance, you are independently elected from the county executive, correct? So in other words, you didn’t 

report to the county executive like someone in the Justice Department. Ultimately, in our Federal Constitution, you know, you have 

one person in the executive branch that is elected, and everyone— 

ultimately, the buck stops with the President. So I take that point, 

and I think that is a good point, but I think the difference that I 

would just draw is ultimately you had an independent duty to your 

voters. You were not somebody who was dependent on any of those 

elected officials. Is that correct? 

Mr. IVEY. That is correct. Although I will say this, the police who 

actually reported directly to the county executive and many of my 

prosecutors who had just finished working for him still had strong 

allegiances. 

But with respect to the point about the Federal level of independence issue, unlike the independent counsel statute that Mr. 

Terwilliger mentioned, you would still have a prosecutor, even a 

special prosecutor appointed by the Attorney General, and still subVerDate Aug 31 2005 11:52 Apr 09, 2014 Jkt 000000 PO 00000 Frm 00048 Fmt 6633 Sfmt 6633 C:\DOCS\87350.TXT APRIL
45 

ject to the same kind of chain of command essentially that is raising concerns here. 

Mr. DESANTIS. No, absolutely. 

Mr. IVEY. So the only reason I kind of hesitated about it is because the special prosecutor statute and regs looks a lot like, you 

know, the sort of just sort of setting it up. And I don’t know that 

it gives you the type of screen that your concerns address. I am not 

saying it is not appropriate here, but I don’t know that it really 

gets to the heart of the problem that you have outlined. 

Mr. TERWILLIGER. Let me be clear, Mr. Chairman, if I may, just 

quickly, when I said I do to the vice chairman’s question, I was addressing not an appointment under the independent counsel regulation, but the use of the Attorney General’s plenary authority to 

appoint a special counsel to whom all the powers of the Attorney 

General could be delegated if the Attorney General believed that 

was the right thing to do. 

Mr. JORDAN. Unbiased special prosecutor, in light of the circumstances, in light of the fact pattern, unbiased special prosecutor 

makes sense in this case. Yes, yes, yes. 

And Mr. Ivey, you are a maybe. 

Mr. IVEY. Maybe. 

Mr. JORDAN. Mr. Painter, could you answer? 

Mr. PAINTER. If there is evidence of criminal activity, significant 

evidence of criminal activity, the Justice Department should conduct an investigation. And in this type of situation, I think the investigation should be led either by a career prosecutor who is not 

affiliated with either political party or by an independent prosecutor. If there is no evidence of criminal activity right now, what 

I would do is let the inspector general finish their job, and the Office of Special Counsel and have DOJ pick up from there. 

Mr. DESANTIS. Thank you, Mr. Chairman. 

Yield back. 

Mr. JORDAN. Thank the gentleman. 

Mr. Cartwright. 

Mr. CARTWRIGHT. Thank you, Mr. Chairman. 

Well, we have had a wide ranging discussion, and I appreciate 

the presence of all the witnesses here today. I always like to say 

here in Congress people don’t realize we agree on a lot more than 

what we disagree about. And I want to talk about what we can 

agree on. You know, the chairman and I had a colloquy right before 

we went to go vote about whether it was—it would be illegal, 

whether it would be against the rules for a person who gave a political donation, such as Ms. Bosserman. And I believe the chairman was quite forceful in saying it would be illegal. Am I correct 

in that? 

Mr. JORDAN. No, I simply read the rule, which said if there is 

an appearance of—the appearance to the public that there might 

be bias, then that person should not be heading an investigation. 

I read the rule. 

Mr. CARTWRIGHT. Okay. So what I want to do is I want to make 

sure we are all on the same page. 

Are any of the witnesses here today able to confirm or deny that 

Barbara Bosserman is leading this investigation? Just go ahead 

and raise your hand if you can say yes or no. 

46 

Seeing no hands, I see that no light is shed on this question here. 

In fact, Attorney General Holder has testified that Ms. Bosserman 

is, in, fact not leading the investigation. 

Mr. JORDAN. Would the gentleman yield for a second? 

Mr. CARTWRIGHT. Certainly. 

Mr. JORDAN. Do you know something we don’t know? Do you 

know who is leading the investigation? Because we have asked. 

What we do know is Mr. Sekulow testified under oath in front of 

this committee that the highest ranking official he has interacted 

with in the limited interaction he has had, the highest ranking official at the Justice Department who has interacted with him is Barbara Bosserman. 

Mr. CARTWRIGHT. And reclaiming my time, as is absolutely crystal clear from all of this discussion, we do not have evidence that 

Barbara Bosserman is leading this investigation or any other. And 

all we are doing is stabbing around in the dark and making suppositions here and there, which I suggest, respectfully to everyone involved, is an inappropriate use of our time and energy, making 

suppositions like that. I also want to follow up on the question of 

asking line prosecutors about their political donations. We have a 

number of people here who have worked for the Justice Department, people who know about this. And I will start with you, Mr. 

Terwilliger, when you were at the DOJ, did you ever check the political donations of line prosecutors before assigning them cases? 

Yes or no. 

Mr. TERWILLIGER. No, but I certainly would consider removing—— 

Mr. CARTWRIGHT. I only have limited time. 

Ms. O’Connor, did you ever check into the past political donations of line prosecutors before assigning them cases? 

Mr. CONNOLLY. I did not, but I did have a trial attorney who was 

criticized by a conservative columnist on the basis that he believed 

he was a Democrat attacking Republicans. 

Mr. CARTWRIGHT. I have to make use of my time. Mr. Ivey, what 

about you? Did you ever check prosecutors’ past political donations 

when you were the State’s Attorney for Prince George’s County? 

Mr. IVEY. No. 

Mr. CARTWRIGHT. No. In fact, quite the opposite. You made it 

very plain to them that you didn’t care about their political donations, you wanted them to operate in a politics-free environment, 

didn’t you? 

Mr. IVEY. Absolutely. 

Mr. CARTWRIGHT. All right. In fact, doing so, asking about past 

political donations, I think Professor Painter has brought up, would 

raise some serious legal and ethical concerns under the Hatch Act, 

as well as under civil service laws. 

Professor Painter, is it appropriate for DOJ officials to look up 

career prosecutors’ political donations in order to identify potential 

conflicts of interest before assigning cases? 

Mr. PAINTER. No. I wouldn’t do that. 

Mr. CARTWRIGHT. Let me follow up. 

Professor Painter, what are some of the problems with DOJ, or 

any other prosecuting agency, searching the past political donations of career employees, such as line prosecutors? 

47 

Mr. PAINTER. Well, once you get into that you get into a situation, where you could create the appearance of retaliation against 

someone because they donated to a political campaign, usually 

campaigns that opposed the President. That is not where you want 

to go. And that is why the applicable ethics code that I referred to 

puts the onus on the employee to identify those situations where 

they think there could be a question about impartiality. 

Mr. CARTWRIGHT. Thank you. 

Mr. PAINTER. It is the employee’s job. 

Mr. CARTWRIGHT. Thank you, Professor Painter. 

I suppose I should call you Professor Ivey as well. Did you also 

teach trial advocacy at Harvard? 

Mr. IVEY. I do, yes. 

Mr. CARTWRIGHT. So you are in the Ivy League as well. You have 

anything to add to the discussion? 

Mr. IVEY. With respect to this issue, I do think that one concern 

should be the potential of a chilling effect. You know, so I get the 

point about Ms. Bosserman, and there is thoughts that, you know, 

maybe if you had it to do over again you wouldn’t put her in place. 

But now that she is there, if you remove her, you really do send 

a message to all the other prosecutors out there that if you have 

given contributions, you better stop. And if you have been thinking 

about doing it, you better stop because you might not be able to be 

assigned to these types of cases. 

Mr. CARTWRIGHT. Dangerous precedent. Thank you, Mr. Ivey. I 

appreciate it. 

Mr. JORDAN. Mr. Terwilliger, I just want to give you a chance to 

respond fully. You were going to say more. While you indicated it 

is not appropriate to examine political contributions prior to assigning cases, once you have discovered the facts, once you know she 

is a maxed out contributor to the President of the United States, 

who may be a potential target of the investigation, would it then 

be appropriate to look at saying, Hey, she should be removed after 

the fact? After you learn that fact? I agree with my colleague, no, 

you can’t be looking that information up ahead of time. But once 

you know, particularly a case of this sensitive nature where your 

most fundamental First Amendment political rights, your right to 

speak out in a political nature is what was the issue at hand, then 

is it appropriate to say she should be removed from the case? 

Mr. TERWILLIGER. Of course, it is. 

Mr. JORDAN. And not just from her, but from her superiors as 

well. 

Mr. TERWILLIGER. Absolutely. 

Mr. JORDAN. Did you do that at your time at the Justice Department? 

Mr. TERWILLIGER. Of course. I will use an example to take it out 

of the political realm. I wouldn’t bar a lawyer from being hired at 

the Justice Department because in that lawyer’s career, he or she 

may have represented mafioso in the past. But I wouldn’t necessarily put them in charge of a large organized crime case either. 

And it is—even if they were—— 

Mr. JORDAN. Or if they got assigned a large Mafia case and you 

found out after the fact in their past, they had represented people 

there, would you remove them? 

48 

Mr. TERWILLIGER. Of course. 

Mr. JORDAN. Of course. 

Mr. TERWILLIGER. And the reason you would do that, and the 

reason it is not only proper and not only an exercise in good judgment, but is required, because there is a duty to avoid even the appearance of impropriety. A duty that has been recognized by the 

Attorney General himself in recusing himself from other matters. 

It has been recognized by Preet Bharara, the United States attorney in New York, who is a highly reputable and accomplished attorney, who has removed himself from cases. I have removed myself from cases for that reason. And if the circumstances require, 

in order to assure the public of the integrity of the investigative 

process, no matter what kind of case it is, a superior has an obligation to do that. 

Mr. JORDAN. So the way this really should have worked is Ms. 

Bosserman should have said you know what, Mr. Attorney General, 

or you know what, Mr. Tom Perez, who headed the Civil Rights Division, when she was assigned this case, you know what, I may 

have a conflict. We need to talk about this. They talk about it, and 

he says, Oh, for goodness sakes, you certainly do. We are going to 

have to let someone else head this investigation. 

Mr. TERWILLIGER. That is what one would hope would happen. 

Mr. JORDAN. Ms. O’Connor, would you agree with that analysis 

we just went through with Mr. Terwilliger? 

Mr. CARTWRIGHT. Would the gentleman yield for one question? 

Ms. O’CONNOR. Absolutely. 

Mr. JORDAN. Sure. Sure. I am letting Ms. O’Connor answer because you didn’t give her a chance, and then I will come to you. 

Ms. O’CONNOR. I agree completely. 

Mr. JORDAN. Okay. 

Mr. Cartwright? 

Mr. CARTWRIGHT. Okay. Again, one of the reasons I am here is 

to try to help protect the integrity of this outfit, the House Government and—Oversight and Government Reform Committee. And to 

protect the integrity of this committee, I say, again, we should stop 

referring to Barbara Bosserman as the lead investigator on this investigation. We have no evidence of that. 

Mr. JORDAN. Does the gentleman from Pennsylvania know who 

the lead investigator is? 

Mr. CARTWRIGHT. I will read the testimony from Eric Holder. 

Mr. JORDAN. No, no, no. I asked a specific question. Do you know 

who it is? 

Mr. CARTWRIGHT. It is the Criminal Division of the Public Integrity Section that has actually got the lead, quote-unquote, from the 

Attorney General of the United States. 

Mr. JORDAN. Do you know who the individual is? 

Mr. CARTWRIGHT. I do not. Not Barbara Bosserman. I ask that 

we stop referring to her as the lead if we want to preserve our own 

integrity. 

Mr. JORDAN. Jay Sekulow under oath confirmed she is the highest ranking official at the Justice Department who he has 

interacted with. Again, we had a chance; we invited Barbara 

Bosserman to come here and testify. And you sent me a letter saying don’t subpoena her. We gave the opportunity to the number two 

49 

at the Justice Department to answer my question 3 weeks ago, who 

is heading the investigation? He wouldn’t answer me. So all we 

know is what we have heard from witnesses who say she is the 

highest ranking official, and from Jay Sekulow, who testified under 

oath saying she is the highest ranking official. Mr. von Spakovsky. 

Mr. CARTWRIGHT. All well and good, but you can’t refer to her as 

the lead investigator. 

Mr. JORDAN. The highest ranking official in this investigation is 

Barbara Bosserman, who gave $6,750 to the President of the 

United States. Reclaiming my time, reclaiming my time, Mr. von 

Spakovsky, do you agree with the analysis we went through with 

Mr. Terwilliger and Ms. O’Connor that under the circumstances, 

Mrs. Bosserman should have been recused from the case? 

Mr. VON SPAKOVSKY. Yes. And in fact, every lawyer at Justice 

knows, back to this question of whether the supervisor should be 

inquiring about their political donations, look, every lawyer there 

knows that if you are assigned to a case, you have an absolute professional duty to raise with your supervisor any potential conflicts 

that could bring this into question. And I would point out that in 

fact, prior to what the administration said currently, this administration certainly agrees with this because a couple of years ago, 

when evidence came out that a lawyer in the Office of Professional 

Responsibility at the Justice Department had given almost the 

same amount of money to the Obama campaign, she was removed 

by the administration from the IG OPR investigation of the dismissal of the New Black Panther Party case. 

Mr. JORDAN. Thank you. That was supposed to be 1 minute, but 

it turned into 5, so I will have to go to the gentleman from Virginia, and then we will come to Mr. Meadows. 

The gentleman from Virginia is recognized for 5 minutes. 

Mr. CONNOLLY. Thank you, Mr. Chairman. 

Mr. von Spakovsky, based on what I just heard you respond to 

the chairman, your view is that Ms. Bosserman, as an employee of 

the civil rights division, should be removed from the case because 

of her political activity. Is that correct? 

Mr. VON SPAKOVSKY. She should be removed because her involvement raises in the public a perception about the integrity of the investigation. And that is one of the regulations at the Justice Department. 

Mr. CONNOLLY. But the nature of that taint is that she had partisan political activity of some sort. Is that correct? 

Mr. VON SPAKOVSKY. Specifically, she supported and gave a large 

number of donations to the administration, which itself is being accused of wrongdoing in this particular matter. 

Mr. CONNOLLY. I understand. Now, you have some expertise in 

this field because you served as counsel to the Assistant Attorney 

General of the Civil Rights Division from 2002 to 2005. Is that correct? 

Mr. VON SPAKOVSKY. That is correct. 

Mr. CONNOLLY. And one of the Deputy Assistant Attorney Generals that you worked with a was a man named Bradley 

Schlozman. Is that correct? 

Mr. VON SPAKOVSKY. That is correct. 

50 

Mr. CONNOLLY. He was a political appointee under the Bush administration. Is that correct? 

Mr. VON SPAKOVSKY. That is correct. 

Mr. CONNOLLY. Are you familiar with the Department of Justice’s inspector general report on Mr. Schlozman? 

Mr. VON SPAKOVSKY. Oh, certainly I am aware of it. 

Mr. CONNOLLY. And that it concluded he violated Federal law 

and department policy by considering political affiliations in hiring 

decisions and other personnel actions such as the assignment of 

cases for career attorneys. Are you aware of that finding by the inspector general? 

Mr. VON SPAKOVSKY. I am aware of the findings of that report. 

I wouldn’t characterize them quite the way you have. 

Mr. CONNOLLY. Well, let me quote. ‘‘We concluded,’’ meaning the 

IG, ‘‘that Schlozman inappropriately used political and ideological 

affiliations in managing the assignment of cases to attorneys in the 

sections of the division he oversaw. According to Sections Chiefs 

Flynn, Cutler, and Palmer, Schlozman placed limitations on the assignment of cases to attorneys whom he described as libs or pinkos, 

and he requested that important cases be handled by conservative 

attorneys he had hired instead.’’ Were you aware of those comments by Mr. Schlozman? 

Mr. VON SPAKOVSKY. Not all of them, no, I wasn’t. 

Mr. CONNOLLY. Any of them? 

Mr. VON SPAKOVSKY. I read the report. 

Mr. CONNOLLY. Based on your sworn testimony here today, I 

would assume that you would conclude those were inappropriate 

remarks by Mr. Schlozman. And based on what you just said to Mr. 

Jordan, you would have reported them as inappropriate, and requiring his recusal from making such decisions because they are so 

blatantly partisan. Or are you not consistent when it comes to a 

Republican administration? 

Mr. VON SPAKOVSKY. No, I am consistent in saying that lawyers 

who are assigned to specific cases—— 

Mr. CONNOLLY. Could you answer my question, Mr. von 

Spakovsky? 

Mr. VON SPAKOVSKY. I am answering it. 

Mr. CONNOLLY. No, sir, you are not. Did you or did you not find 

those comments—Mr. Chairman, I insist on reclaiming my time. I 

insist on reclaiming my time. We don’t have filibusters here in the 

House, Mr. von Spakovsky. 

Mr. JORDAN. He is trying to answer your question. 

Mr. CONNOLLY. No, sir, he is trying to filibuster my question. Did 

you or did you not report those comments as inappropriate based 

on what you just said to Mr. Jordan? 

Mr. VON SPAKOVSKY. There is nothing in the IG report that says 

that I did anything wrong. In fact, you can—— 

Mr. CONNOLLY. I didn’t ask that. I didn’t ask that. 

Mr. VON SPAKOVSKY. You can go through the entire report. I was 

not accused of making any statements of any kind like that, and 

I was not—I was not accused of knowing about any statements like 

that. 

Mr. CONNOLLY. Were you asked to be interviewed by the Attorney General, Mr. von Spakovsky? 

51 

Mr. VON SPAKOVSKY. I was. 

Mr. CONNOLLY. And did you agree to it? 

Mr. VON SPAKOVSKY. I set out and said I would be happy to 

speak with them if they told me what the questions were and if I 

was able to review my testimony. They refused to allow that to be 

done. 

Mr. CONNOLLY. So you did not in fact allow yourself to be interviewed. 

Mr. VON SPAKOVSKY. Because they did not afford me the basic 

due process rights that are given to anyone who is interviewed in 

a case like that. 

Mr. CONNOLLY. Mr. Schlozman sent you a number of emails, and 

one of which I will quote from. ‘‘If I recall correctly, a certain Voting Section attorney is a crazy lib, Hans,’’ meaning you, ‘‘am I 

right? A detail would be a great way to get him out of our hair for 

6 months.’’ Were you aware of that email to you from Mr. 

Schlozman? 

Mr. VON SPAKOVSKY. I recall the email, yes. 

Mr. CONNOLLY. Did you think it was appropriate? 

Mr. VON SPAKOVSKY. Well, appropriate is very different from 

whether or not a conflict of interest arises over assignments to a 

particular case. And that has nothing to do with what we are discussing here today. 

Mr. CONNOLLY. Well, I will decide that Mr. von Spakovsky. You 

are a witness. 

Mr. VON SPAKOVSKY. Tell me, are you aware of the IG report 

from last year? 

Mr. CONNOLLY. Did Mr. Schlozman not have a conflict, being a 

political appointee, in determining the assignment of cases based 

on someone else’s perceived political affiliations? ‘‘Crazy lib,’’ is that 

a professional epithet at the Department of Justice in the Bush administration? 

Mr. VON SPAKOVSKY. I am not going to characterize what the IG 

has said. The report speaks for itself. And if you want another one, 

you should look at the IG report from March of last year that 

talked about the harassment and intimidation of conservative employees that has occurred in this administration, including the fact 

that an employee within the Civil Rights Division lied and committed perjury to the IG, and that employee—— 

Mr. CONNOLLY. Mr. Chairman, I didn’t ask about that. And the 

witness is answering questions that he was not asked. 

I will ask, however, Mr. Chairman, without objection, that a letter regarding the possible appointment of Mr. von Spakovsky to the 

FEC, opposing that nomination signed by the chief of the Voting 

Section, the deputy chief of the Voting Section, the senior trial attorney of the Voting Section, the senior trial attorney of the Voting 

Section, the senior trial attorney of the Voting Section, and the political geographer of the Voting Section, dated June 11th, 2007, and 

enumerating the reasons why Mr. von Spakovsky was not qualified 

because of his partisan political activities be entered into the record 

at this time. 

Mr. JORDAN. Without objection. 

Mr. CONNOLLY. I thank the chairman. 

52 

Mr. VON SPAKOVSKY. Mr. Chairman, could I ask that it be entered into the record the report of the inspector general from 

March of last year about the Civil Rights Division? 

Mr. JORDAN. We can get that report and have a committee member enter that into the record. 

To view the document, please visit www.justice.gov/oig/reports/ 

2013/S1303.pdf 

Mr. CONNOLLY. Mr. Chairman, I have July 2008 inspector general report, and am happy to put that in the record as well. 

Mr. JORDAN. Okay. Without objection. 

To view the document, please visit www.justice.gov/opr/oig-opriaph-crd.pdf. 

Mr. JORDAN. Now turn to the gentleman from North Carolina, 

Mr. Meadows. 

Mr. MEADOWS. Thank you, Mr. Chairman. 

Thank each of you for your appearance here today and for your 

testimony. I guess the American people want to trust their government again. And the true problem that we have right now is that 

many do not trust their government and specifically do not trust 

the IRS. And the only avenue to do that is truly to investigate, to 

make sure that justice prevails and that a thorough investigation 

happens. I would ask very quickly each of you, do you not find it 

surprising that over 40 different individuals that have supposedly 

been targeted have not been interviewed by an investigative body 

of this government? Do you not find that surprising? 

Mr. TERWILLIGER. I guess if we are going to go in order, Mr. 

Meadows, I mean, I think from at least from a distant perspective, 

yes, it is surprising. I think the public would be more reassured if 

the government were, and the Justice Department with the FBI, 

were able to at least say this is what we are doing generically, 

without being specific about it. 

That being said, however, and having been on the other side of 

some of these hearings over the years, the manner in which an investigation, a vigorous investigation, is conducted may be staged in 

such a way that there are valid reasons not to have known that. 

Mr. MEADOWS. Sure. 

Mr. TERWILLIGER. But I think what is missing here more than 

anything, and that your question goes to, is at least some reassurance of the public by disclosure to this committee and elsewhere 

that in fact a vigorous investigation is being conducted and that 

there is a strong effort that is appropriate to these what are really 

serious allegations, to get to the bottom of it. 

Mr. MEADOWS. Okay. Very good. 

Ms. O’Connor? 

Mr. CONNOLLY. I agree. As I said earlier, justice must not only 

be done, it must also be seen to be done. And it would seem that 

actually contacting the victims—we know who the victims are—it 

would seem as though contacting the victims would not tip off anyone’s hand about the direction that the investigation is taking, and 

would therefore not harm its integrity. 

Mr. MEADOWS. Okay. On down the line. 

Mr. VON SPAKOVSKY. I agree. Particularly in this case because, 

look, I coordinated investigations of probably hundreds of cases 

when I was at the Justice Department, and you talk to the victims 

53 

first because you want their information, what they can tell you before you go and you confront the individuals who are accused of 

wrongdoing because you use that information to check what they 

are saying, to cross-examine them. And to not have talked to any 

of the victims after 9 months, like I said, I just find that incredible. 

Mr. MEADOWS. Okay. 

Mr. Ivey, I can tell by your response that you have a different 

take on it. Mr. Ivey, go ahead. 

Mr. IVEY. Well, I would at least say I think I need more information along the lines of what Mr. Terwilliger suggested. You want 

to know what the investigative strategy is. Other things I would 

like to know is if these individuals have already given other statements, whether it is to this body or to the inspector general or whoever, because of the prosecutor. 

Mr. MEADOWS. Yeah, but in your testimony, you were talking 

about the fact that we shouldn’t rush to a conclusion, that sometimes these investigations should take a long time and may very 

well take a long time and that we should keep them private. That 

is what you said in your opening testimony, I believe. 

Mr. IVEY. Yes. 

Mr. MEADOWS. So, would you say when the President on Super 

Bowl Sunday made a conclusion to what the investigation outcome 

already is, do you think that undermines the process? 

Mr. IVEY. I would hope not. I would hope that the Attorney General statement and beyond that—— 

Mr. MEADOWS. So the President of the United States making a 

comment—— 

Mr. IVEY. With the understanding within the Department of Justice—— 

Mr. MEADOWS. I didn’t mean to interrupt. I am sorry. 

Mr. IVEY. That they can go forward with the investigation but to 

still be protected. 

Mr. MEADOWS. So the President of the United States making a 

definitive statement, there is no corruption, wouldn’t influence anybody. Is that your understanding? 

Mr. IVEY. We hope not. That is correct. 

Mr. MEADOWS. I know we hope not, but that is your testimony, 

you believe that it did not. 

Mr. IVEY. If that is not the case, and I know there is a call for 

a special prosecutor, then that wouldn’t work either. 

Mr. MEADOWS. Right. 

Mr. IVEY. We are sort of left with the return of the independent 

counsel here, and I share Mr. Terwilliger’s that that would be a 

bad idea. 

Mr. MEADOWS. So let me follow up with you, Mr. Ivey, one question, in terms of political contributions. Do you think it affects the 

way that people view other people, political contributions? 

For example, you have donated to the Obama and Victory campaign. You ran—— 

Mr. IVEY. I am pretty sure I did. 

Mr. MEADOWS. I know you did. 

Mr. IVEY. Okay. 

Mr. MEADOWS. You donated to a Democrat that ran against me 

in North Carolina, and you ran—— 

54 

Mr. IVEY. Okay. Sorry. 

Mr. MEADOWS. So you think it would—so do you think it would 

affect the way that I would view you? 

Mr. IVEY. I hope not. 

Mr. MEADOWS. I would hope not, too. 

Mr. IVEY. Yeah. 

Mr. MEADOWS. All right. 

But in that, even if it gave the appearance that my questions 

were more directed toward you or more definitive because of that, 

do you not think that would be good to recuse—if you had a prosecutor that just, just the appearance that it might be a problem, 

don’t you think it would be smart? 

Your clinical students there at Harvard, don’t you tell them, 

wouldn’t it be a good idea if it is just the appearance that you 

ought to recuse yourself? Now, be careful because you are going to 

have lots of students answering your question that may be following this. 

Mr. IVEY. I am sure this will be on the internet, but I mean, the 

scenario, for example, the U.S. attorney who is of one party in a 

State where the leadership is dominated by another party, I would 

never say that that U.S. attorney is incapable of leading an investigation against—— 

Mr. MEADOWS. Right. 

Mr. IVEY. —the Governor or someone like that. 

Mr. MEADOWS. But this is different. This is the IRS. This is the 

very foundations of freedom. This is reaching in and actually taking—do you not think that this requires a higher standard? 

Mr. IVEY. Doesn’t it sort of depend on the scenario? I mean, the 

Governor of Illinois—— 

Mr. MEADOWS. I think it does. That is what I am saying. Even 

with the higher standard? 

Mr. IVEY. The Governor of Illinois, who was alleged to be selling 

Senate seats, I would say, goes to the heart of democracy, and nevertheless, you know, the automatic strategy of the people that represented him was to accuse the U.S. attorneys of—— 

Mr. MEADOWS. I would conclude that the IRS reaching in on our 

liberties and our freedoms goes to the heart of what we are about, 

and there is no higher calling. I appreciate the patience of the 

chair. I yield back. 

Mr. CONNOLLY. Would my colleague yield? 

Mr. JORDAN. The gentleman is recognized briefly. 

Mr. CONNOLLY. I just want to confess. I may have contributed to 

your opponent, too, I am sorry. 

Mr. MEADOWS. And I will forgive you there. 

Mr. JORDAN. He expected it out of you but not Mr. Ivey. 

Let me just pick up real quickly before going to Mr. DesJarlais, 

and we have got votes coming, I think, in about 15 minutes. 

Mr. Ivey, in your testimony, you talked—well, first of all, you 

talked about the concern about the length. I don’t know anyone is 

concerned—at least, I know I have not expressed concern about the 

length of the investigation. My concern is about the quality. And 

later in your testimony, you said this, ‘‘It usually makes more 

sense to allow the criminal investigation to run its course before 

55 

public disclosures are made that might undermine or even preclude 

a criminal prosecution.’’ 

Mr. IVEY. Yes. 

Mr. JORDAN. I want to go right back to where Mr. Meadows—I 

mean, the President said there is no corruption. The FBI has 

leaked to the Wall Street Journal no one is going to be referred for 

prosecution. So do you think those public disclosures undermine 

the investigation at the Justice Department of targeting of political—targeting of groups for their political beliefs? 

Mr. IVEY. Well, I would honestly say I don’t think so, and I think 

if we want to talk about sort of historical scenarios where a President says something—— 

Mr. JORDAN. Tell me what kind of public disclosures are you referencing here then if the head of the government, who is a potential target of the investigation, says—— 

Mr. IVEY. What is the actual disclosure that the President’s 

statement contains? 

Mr. JORDAN. It was definitive. It was absolute. It was, There is 

not a smidgeon of corruption. I am head of the executive branch 

and—— 

Mr. IVEY. As a defense lawyer, what I would be looking for for 

statements from the government, which we seek in every case, is 

information that I can use to try and figure out what is the scope 

of the investigation, where is it going, what questions are they asking about my client, what other—who are—which other individuals 

their investigating—— 

Mr. JORDAN. Let me see if people have a different opinion than 

you, Mr. Ivey. 

Mr. Terwilliger, do you think those public disclosures by the 

President of the United States and someone at the Justice Department who leaked to the Wall Street Journal that no one was going 

to be referred for prosecution, do you think those help? 

Mr. TERWILLIGER. Let me take those separately and address. The 

President’s statement is most unfortunate. I really like to believe 

he didn’t intend to have that effect, but even if he didn’t intend to 

have the effect and even if it doesn’t have the effect of changing 

one iota of how the investigation is conducted, that doesn’t mean 

it doesn’t affect public confidence in the investigation. 

Mr. JORDAN. Sure. 

Mr. TERWILLIGER. And confidence in the government. When the 

President of the United States, can you imagine if Ronald Reagan 

in the middle of Iran Contra, an investigation going on, had come 

out publicly and said, Well, there is nothing to all this. Of course, 

it is going to shake public confident because it is telling the public 

that this is all a big waste of time, there is—there is nothing really 

here to look at. 

Mr. JORDAN. Right. 

Mr. TERWILLIGER. In terms of the leak from the FBI, that—that 

is particularly devastating because I think, you know, objectively, 

and I hope Mr. Cartwright would agree with this, that what we are 

really looking for here, we the public, that is, are really looking for 

here is confidence that a thorough investigation, a law enforcement 

investigation will be conducted. And when you have the principal 

law enforcement agency in the United States, if in fact that that 

56 

is the real view, saying, well, nothing is going to result from this 

before the investigation is completed, that shakes public confidence 

in the integrity of that process. 

Mr. JORDAN. Ms. O’Connor or Mr. Painter, would you, and Mr. 

von Spakovsky, would you agree with Mr. Ivey’s statement, it 

makes more sense to allow criminal investigations to run their 

course before public disclosures are made that might undermine 

the prosecution, do you think that would make—do you agree with 

Mr. Ivey’s statement in that what took place here is a direct contradiction to his statement? 

Ms. O’CONNOR. Investigations do need to be permitted to run 

their course with the appropriate confidentiality so that they can 

be run with integrity. 

I would like to address your point about the President’s statement, if I might. President’s statements carry a lot of weight. They 

do a lot of good or a lot of harm. Markets can rise and fall on the 

statement by the President, and not only did this President say 

that there was not a smidgeon of corruption, but back in 2010, he 

started bashing conservative groups and suggesting that they were 

shadowy and had questionable contributions. And the Internal Revenue Service started opening unprecedented audits of donors that 

contributed to conservative groups, so certainly the statements of 

a President have a tremendous impact on the people who work for 

the Federal Government. 

Mr. JORDAN. Thank you. 

Allow you to go quickly, Mr. von Spakovsky and Mr. Painter, if 

you could. 

Mr. VON SPAKOVSKY. Of course, a criminal investigation should 

be allowed to run its course, but that does not prevent the Justice 

Department from providing general information on the status of 

the—— 

Mr. JORDAN. Sure. 

Mr. VON SPAKOVSKY. —investigation to you because of your oversight functions. 

Also, look, the President is the chief law enforcement officer, everybody else reports to him, and it is completely inappropriate for 

him to be telling the people working for him, here is what your conclusions—— 

Mr. JORDAN. But we got—you use that—we got the worse of everything here. We couldn’t get the basics from the Justice Department: Who is heading the investigation? How many agents? Have 

you talked to any of the victims? We couldn’t get the basics, but 

we get definitive public disclosures from the President of the 

United States and leaks to the Wall Street Journal saying, No 

harm, no foul here, no one is going to be prosecuted, not a smidgeon of corruption, so we got the worst of everything. 

We couldn’t get the basics that when you all worked at Justice, 

you gave all the time, but we get definitive statements saying no 

one is going to be prosecuted, nothing is wrong here. 

So it was exactly backwards what we got from this Justice Department. 

With that, I went over time so I have to yield to the gentleman 

from Tennessee. I apologize. The gentleman is recognized for 5 

minutes. 

57 

Mr. DESJARLAIS. No problem. Thank you, Mr. Chairman. 

And thank you all for being here today. 

The title of today’s hearing, ‘‘Is the Obama Administration Conducting a Serious Investigation of IRS Targeting?’’ Based on the 

testimony, what we have heard here today, let me just go down the 

line and say, just yes or no, do you feel like there is a serious investigation going on? 

Mr. TERWILLIGER. Honestly, sir, I can’t tell, and the fact that I 

can’t tell is exactly the problem, because the public needs to understand that in fact a serious investigation is going on. 

Mr. DESJARLAIS. Okay. 

Ms. O’Connor. 

Ms. O’CONNOR. That is exactly right. I have no basis on which 

to form an opinion, and the public does deserve to know that there 

is a serious investigation under way if there is. 

Mr. DESJARLAIS. Okay. 

Is everyone’s opinion the same, we really can’t tell. 

Mr. VON SPAKOVSKY. We really can’t tell, and that in itself is a 

real problem. 

Mr. DESJARLAIS. Okay. 

Ms. O’Connor, do you think that there is any reason that this 

targeting took place other than to affect the political outcome? 

Ms. O’CONNOR. Well, I certainly can’t speak to the motivations, 

but that was the result. 

Mr. DESJARLAIS. Okay. Do you think that—that rogue agents 

within an agency like the IRS would be capable of independently 

constructing a targeting scheme of this magnitude without direction from higher up? 

Ms. O’CONNOR. That is highly unlikely. 

Mr. DESJARLAIS. Okay. So, you know, the President was very 

upset when he learned of this. Well, everybody was, both sides of 

the aisle were extremely upset, but now as time has passed, it is 

turned into, you know, more of a joke, either that or this side of 

the aisle in this committee is the only one that doesn’t have as 

much information as the President and everyone else because they 

seem to have already concluded that there is not going to be any 

criminal charges, that there is not a smidgeon of corruption, but 

yet a political election could have been impacted and probably was 

by the actions of these agents in the IRS. So, in your opinion, there 

had to be somebody giving direction, and therefore, this is something that should be investigated seriously. 

Ms. O’CONNOR. We have seen the consequences of the misconduct. We know that it happened. What needs to be found out 

is how and why did it happen. 

Mr. DESJARLAIS. Okay. Is there any—I mean, really, can anyone 

sit there and think that there is any other reason that it happened 

other than to prevent people from expressing their political opinions? 

Mr. PAINTER. I don’t think we know. We are entitled. The American people are entitled to answers to this, but we just don’t know. 

Mr. DESJARLAIS. But yet we are getting the attitude now that 

there is nothing to see here, we need to move on. I think there was 

a President a few years ago that claimed he was not a crook, and 

we all know how that turned out. 

58 

Mr. Ivey, you know, I agree that an investigation should be thorough, but would you be the first one in line to say this President 

should be impeached if he was involved in this? 

Mr. IVEY. I have no reason to think that impeachment should be 

even part of the conversation with respect to this issue. 

Mr. DESJARLAIS. But this President is competent that there was 

not a smidgeon of corruption, yet he was outraged when this broke, 

and now all of a sudden he seems to have answers that we don’t 

have. So, going back to President Nixon, who was not a crook, if 

President Obama knows what was going on here, should he be impeached? 

Mr. IVEY. I wouldn’t think that impeachment is really a viable 

part of the discussion on this at this point. 

I did want to say quickly though with respect to President 

Reagan. I do recall him making a statement with respect to Iran 

Contra that he wasn’t aware of any wrong—I believe it was a statement from the Oval Office because I remember watching it, and as 

we know, the investigation took its course. I think that is what is 

going to happen here, too. 

Mr. DESJARLAIS. Okay. Well, we hope that we get answers because that is why we are here today. We are trying to have a serious investigation, but yet, for some reason, we can’t seem to get answers. We can’t get Lois Lerner back here. Hopefully, that will 

change because there is certainly something that was going on. The 

IRS admitted that they wrongfully targeted these groups, and we 

know that these groups were probably going to be in opposition to 

this President, and we know that it went to a political appointee 

from the White House, so we have learned all these things through 

the process of the investigation, but yet we are sitting here today 

with basically the Attorney General and an anonymous source saying that there is not going to be any criminal charges, so it is hard 

to think that there is a serious investigation going on when this is 

the kind of runaround that we are getting here. It is getting to look 

like somebody really wants us to move on from this. It is not much 

unlike Benghazi. It seems to be there is a pattern going on here. 

So, at any rate, you know, we are going to continue to push. We 

are going to continue to look for answers, and you know, this is not 

going to go away so—— 

Mr. TERWILLIGER. If I may. 

Mr. DESJARLAIS. Yes, sir. 

Mr. TERWILLIGER. Before you yield your time, sir, respond to Mr. 

Ivey’s comment about President Reagan. 

If President Obama had come out and said, I was out of the loop, 

I didn’t know what happened in any of this IRS business, that 

would be perfectly fine. He has a political base to cover and so 

forth, and that is what my recollection, as with Mr. Ivey’s, is basically what President Reagan said. 

But that is not what President Obama said. What President 

Obama said was a definitive statement that there was no corruption, not his personal involvement but everybody else. And what 

kind of message does that send to the American people about a 

commitment to the kind of investigation that we all seem to agree 

is needed? 

Mr. DESJARLAIS. I appreciate that observation. 

59 

Thanks to all the witnesses. 

I yield back. 

Mr. DESANTIS. [Presiding.] The gentleman yields back. 

I recognize the ranking member. 

Mr. CARTWRIGHT. Thank you, Mr. Chair. 

So, Mr. Terwilliger, you are recommending the President say, I 

was out of the loop; is that what you are recommending? 

Mr. TERWILLIGER. Well, if he was going to say anything at all, 

all I am saying is that that kind of statement would not be—would 

not be inappropriate. The statement that he did make is ill advised, at best. 

Mr. CARTWRIGHT. Thank you, sir. 

Ms. O’Connor, you are now in the private sector, I take it? 

Ms. O’CONNOR. Yes, I am. 

Mr. CARTWRIGHT. And you are with a private firm providing tax 

advice and assistance? 

Ms. O’CONNOR. I wouldn’t exactly call it tax advice, but yes, 

I—— 

Mr. CARTWRIGHT. Tax law advice. 

Ms. O’CONNOR. I am in private practice. 

Mr. CARTWRIGHT. Very good. Do you represent any progressive or 

liberal groups that were applying for (c)(4) status? 

Ms. O’CONNOR. I do not, nor conservative. 

Mr. CARTWRIGHT. Well, the reason I ask you that is we were 

here—I am sorry Dr. DesJarlais has left, but we were here on this 

committee when the inspector general of the Treasury came, Mr. 

Russell George, and he had authored something like a 28-page report which blew the lid off of the BOLOs, the ‘‘be on the lookout’’ 

for Tea Party and conservative groups, concerning liberty—groups 

with conservative sounding names, and the whole report detailed 

the discussion of the conservative groups, and there was a footnote 

that said, and some other groups were involved as well. But he 

never mentioned that—that progressive or liberal groups were also 

on the ‘‘be on the lookout’’ list, that the searches included progressive and liberal groups; in other words, the opposite end of the political spectrum. He never revealed that to us, so we were here in 

this full committee in a high state of outrage. In fact, Ranking 

Member Cummings went through the roof when he—when Russell 

George was first here testifying to that report. And I was outraged 

myself personally because it is fundamentally un-American the 

kinds of things he was talking about to say that one particular type 

of political group would be targeted by civil servants in the IRS. 

And it was only after that that we found out that both ends of the 

political spectrum were targeted, and that is why I ask you that 

question, Ms. O’Connor. 

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

Mr. DESANTIS. I thank the gentleman. 

Ms. O’CONNOR. Might I comment? 

Mr. DESANTIS. Sure. 

Ms. O’CONNOR. The—you said that Mr. George hid from you the 

fact that some progressive sounding groups had also been targeted, 

but you did have the report, and it was in the report. 

60 

I might add that the number of conservative groups caught in 

that filter versus the number of progressive groups was something 

like 100 to 2. 

Mr. CARTWRIGHT. I am glad you mention that because when we 

start talking statistics and bandying about numbers, one of the 

things you wonder is, well, as a percentage, how many—how many 

of the progressive groups got targeted, how many of the conservative groups—is it a fact that there are just way more conservative 

groups who were applying for (c)(4) status? I think that is an appropriate inquiry at some time we ought to engage in. Thank you, 

Ms. Connor. 

Ms. O’CONNOR. Happy to. 

Mr. DESANTIS. Mr. von Spakovsky, just—this is a little bit tangential, but you have time at the FEC? 

Mr. VON SPAKOVSKY. Yes. 

Mr. DESANTIS. Is that correct? 

Mr. VON SPAKOVSKY. Two years. 

Mr. DESANTIS. Okay. And I am curious because there is this 

issue that has come up recently where maybe the most vicious of 

the President’s critics in terms of books and movies, Dinesh 

D’Souza was indicted for potentially illicit campaign contributions. 

And what caught my eye and actually some members of the Senate 

Judiciary Committee, Republicans have written to ask about what 

the process is because it just seemed weird that that would just be 

a routine review to see that there were $20,000 that I guess the 

allegation is he reimbursed those. So, how did it go? How would 

these reviews take place at the FEC, and would the FBI come in 

and do routine reviews? Can you just give us a brief snapshot on 

how you understood the process when you were there? 

Mr. VON SPAKOVSKY. Well, I don’t recall the FBI coming in for 

routine reviews when I was there. The odd thing about that statement is, what—the accusation against Dinesh D’Souza is a conduit 

contribution; in other words, that he reimbursed other individuals 

for contributions they made. A routine review of donation records 

would not turn that up. 

Mr. DESANTIS. Exactly. 

Mr. VON SPAKOVSKY. Because the donations that he supposedly 

reimbursed folks for would have been made by other individuals in 

their names, so just reviewing the records isn’t going to show that. 

The only way you can discover that is if you get some kind of information, a witness or somebody, who calls you and says, I know 

that this person was reimbursing these contributions. So a routine 

review would not reveal that. 

Mr. DESANTIS. Great. And so do you think that it is worth writing, as the Senators did, to ask about what the typical review consists of, and given that that was the explanation that we have gotten, which is not really sufficient? 

Mr. VON SPAKOVSKY. I think that is fully within the oversight responsibilities of Congress. 

Mr. DESANTIS. Very good. 

And then, Ms. O’Connor, this is my final. I mean, you mentioned 

the auditing of donors, how that is kind of—and I just anecdotally, 

I have had people come up to me and just say, I have been in business 20, 30 years, started writing checks for Romney, and now I 

61 

have gotten audited. Now, that is just—you know, correlation does 

not equal causation, but I have heard it enough to where it is 

just—it is something that—so can you speak to that? Is that something that you have dealt with in your practice. 

Ms. O’CONNOR. It is not something that I have personally dealt 

with in my practice, but I was aware of the fact because I was getting calls about it, that whereas the Internal Revenue Service had 

never before audited contributors for 501(c)(4)s for gift tax obligations, they began doing that, and I think it was 2010, and again, 

it was after the President had made public statements in his weekly radio address, in speeches bashing contributors to conservative 

organizations, challenging that they were shadowy, that they were 

questionable, just making—you know, encouraging the IRS, whose 

obligation it is to look into these things, to look into these things. 

And so it was unprecedented. There were letters from Congress to 

the Commissioner of the Internal Revenue saying why are you all 

of a sudden looking at the gift tax obligations arising from contributions to 501(c)(4)s. Steve Miller as deputy commissioner at the 

time wisely told everybody at the IRS to stand down on this issue, 

that before the IRS started enforcing laws in this fashion, it was 

going to have to have some notice and public comment. 

So this, again, is an outgrowth of public statements letting the 

Internal Revenue Service know what they ought to be doing. 

Mr. DESANTIS. Well, thank you for that. 

And I thank the witnesses for your time and your thoughtful testimony. 

I thank the ranking member for your participation. 

And I would just say, I think, you know, we can disagree about— 

even amongst Republicans. Democrats, Republicans have different 

views on some of this stuff, but I think it is true that at this point, 

you know, there is at least an appearance that this investigation 

is not going the way that we would hope an investigation would go, 

and given the sensitivities involved, I think that we really do need 

to move in a different direction. And I would just agree with the 

witnesses who have said the Attorney General can appoint a special prosecutor, and let’s just get to the bottom of this because, ultimately, whatever accountability is there, there has got to be a 

sense amongst the public that they have some confidence in what 

happened, given this situation. 

And so I thank the chairman, who had to leave, for holding this 

committee. 

And right now, we have votes, so I will excuse all the witnesses. 

Thanks, again, and we are adjourned. 

[Whereupon, at 4:02 p.m., the subcommittee was adjourned.] 

(63) 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

64 


Insert offset folio 26 here 87350.026

June 11,2007 

The Honorable Diane Feinstein 

The Honorable Bob Bt;nnett 

Senate Committee on Rules and Administration 

SR-305 Russell Senate Office Building 

Washington, DC 20510 

Deal' Chairperson Feinstein and Ranking Member Bennett: 

As former career professionals in the Voting Section of the Department of Justice's Civil 

Rights Division, we urge you to reject the nomination of HallS A. von Spakovsky to the 

Federal Election Commission (FEC). Prior to his current role as a recess appointee to the 

FEC, Mr. von Spakovsky oversaw the Voting Section as Voting Counsel to the Assistant 

Attorney Oeneral of the Civil Rights Division from early in 2003 until December, 2005. 

While he was at the Civil Rights Division, Mr. von Spakovsky played a major role in the 

implementation of prclCtices which injected partisan political factors into decision-making 

on enforcement matters and into the hiring pr9<;ess, and included repeated efforts to 

intimidate career staff. Moreover, he was the point person for undermining the Civil 

Rights Division's mandate to protect voting rights. Foremost amongst his actions was his 

central decision-making role 011 a matter where he clearly should have recused himself. 

We urge you to use this confirmation process as an opportunity to thoroughly examine 

Mr. von Spakovsky's tenure at the Department of Justicc and how his commitment to 

party over country will affect his decision making at the FEC. 

Each of us came to the Voting Section to participate in the crucial role the Department of 

Justice plays in protecting all Americans without fem' 01' favor. We saw this as an honor. 

OUf commitment to public se1'vice was grounded ill the belief that every American should 

have an equal opportunity to participate in our political process. We sought to work for 

the Civil Rights Division because of our patriotism, because of the honor of service and 

because of our commitment to the bistoric and heroic work of our predecessors in the 

Division. We are deeply disturbed that the tradition of fair and vigorous enforcement of 

this nation's civil rights laws and the reputation for expertise and professionalism at the 

Division and the Department has been tarnished by partisanship. Ovel' the past five 

ycars, the priorities of the Voting Section have shifted from its historic mlssion to enforce 

the nation's civil rights laws without regard to politics, to pursuing an agenda which 

placed the highest priority on the partisan political goals of the political appointees who 

supervised the Section. We write to urge you not to reward one of the architects of that 

unprecedented and destructive change with another critical position enforcing our 

country's election laws. 
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During his three years in the front office of the Civil Rights Division, Mr. von Spakovsky 

assumed primary responsibility for the day to day operation of the Voting Section. His 

supeliors gave him the authority to usurp many of the responsibilities of the career 

section chief and institute unprecedented policies that have led to a decimation of the 

Section and its historic and intellectual resources. 

Personnel management decisions in place at the Justice Department were abandoned 

during Mr. von Spakovsky's tenure. Rules designed to shield the civil service from 1he 

political winds of changing administrations were cast aside in favor of a policy designed 

to permit partisanship to be inserted into career hiring decisions. In the past, career 

managers took primary responsibility for 1he hiring decisions of the civil service. During 

Mr. von Spakovsky's tenure that changed. Career managers were shut out of the process 

and criteria for hiring career staff shifted from rewarding legal capacity. experience and 

especially commitment to civil rights enforcement, to prioritizing a candidate's 

demonstrated fidelity to the partisan interests of the front office. Mr. von Spakovsky 

vigorously carried out this policy in hiring interviews he conducted. 

Mr. von Spakovsky also corrupted the established persormel practices that led to a 

productive working environment within the Section. He demanded that 1he Chief of the 

Section alter peliormance evaluations for career professionals because of disagreements 

with the legal or factual conclusions of career attorneys and differences with the 

recommendati()ns they made, not the skill and professionalism with which these attorneys 

did their jobs. Such changes in performance evaluations by political appointees had 

never occulTcd in 1he past. There is good reason for giving deference to the section 

chief's judgment in performance given that political appointees lack the day to day work 

experience that a section chief possesses in his work with all members of the section. 

Not surprisingly, actions such as these und~11llined Section morak. 

The matter which best demonstrates Mr. von Spalcovsky's inappropriate behavior was his 

supervision of the review of a Georgia voter ill law in the summer of 2005. It 

demonstrates ilie unprecedented intrusion of partisan political factors into decision, 

making, the cavalier treatment of established Section 5 precedent of the Voting Section, 

and 1he ullwananl.ed and vindictive retaliation against Voting Section personnel who 

disagreed with him on this matter. 

Prior to his coming to the Civil Rights Division in 200 I, Mr. von Spakovsky had 

vigorously advocated the need to combat the ~pecter of voter fraud through restrictive 

voter identification laws. In testimony before legislative bodies and in his writings, Mr. 

von Spakovsky premised his conclusions upon the notion - not well-supported at the time 

and now discredited - that there was a widespread problem with ineligible voters 

streaming into 1he polling place to influence election outcomes. In this same period, 

starting in 1994, ilie Voting Scction had on several occasions reviewed other voter ID 

laws pursuant to its responsibility under § 5 of the Voting Rights Act, to determine if they 

had a negative impact on the ability of minority voters to participate in elections. 

Precedent from these prior reviews was clear: changes requiring voters to provide 

government-issued photo identification without permitting voters to attest to their identity 

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if they did not have the required ID have a greater negative impact on minority VOtCl'S 

than white voters because minority voters are less likely to have the government issued 

photo identification required by these laws. 

Despite his fIrm position on voter ID laws and his partisan ties to his home state of 

Georgia, Mr. von Spakovsky refused to recuse hlmselffrom considering a Georgia law 

that would be the most restrictive voter identification law in the country. To the contrary, 

he was assigned the task of managing the process by the front office. Most disturbing 

was that just before the Department began consideration of the Georgia law, Mr. von 

Spakovsky published an article in a Texas law journal advocating for restrictive 

identification laws. Possibly understanding the impropl'iety of a government official 

taking a firm stand on all issue where he was likely to playa key role in the 

administrative decision concerning that issue, as the Department does under §5, Mr. von 

Spakovsky published the article under a pseudonym, calling himself "Publius." Such a 

situation -- where the position he espoused in an article that had just been published is 

directly related to the review of the Georgia voter ID law -- requires recusal from Section 

5 review of this law, either by Mr. von Spakovsky or by his superiors. No such action 

was taken. 

After careful review of t}le Georgia voter ID law, career staff responsible for thc review 

came to a near unanimous decision, consistent with the precedent established by the 

Department in previous reviews; that the Georgia provision would negatively affect 

minority voting strength. FOUl' of the five career professionals on the review team agreed. 

The one who did not had almost no experience in enforcing §5 and had been hired only 

weeks before the review began through the political hiring process described above. The 

recommendation to object to the law, detailed in a memo exceeding 50 pages was 

submitted on August 25,2005. The next day, Georgia submitted corrected data on the 

number of individuals who had state-issued photo identification. The career review team 

was prevented by Mr. von Spakovsky from analyzing this data and incorporating the 

con'ected data into their analysis. Instead, there was an unnecessary.rush to judgment and 

the law was summarily precleared on August 26, the same day the COITected data had 

been submitted. Subsequent analysis of this data by a Georgia political scientist revealed 

that htmdreds of thousands voters did not have the required voter ID, a disproportionate 

number of whom were poor, elderly and, most importantly for the Voting Rights Act 

review, minOlities. In short, this data provided further evidentiary suppoli for the 

objection recommended by professional staff. Subsequently, a federal court in Georgia 

found that this law violated the poll tax provision of the Constitution. 

The personnel fallout after this review is at least as disturbing as the decision-making 

process. The Deputy Chief for the Section 5 unit who. led the l'eview, a 28 year Civil 

Rights Division attorney with nearly 20 years in the Voting Section, was involuntarily 

transfefl'ed to another job without explanation. The three other professionals who 

recommended an objection left the Voting Section after enduring criticism and 

retaliation, while the new attorney who was the only one not to recommend an objection 

received a cash award. The Section 5 unit suffered serious morale problems and it has 

lost at least foul' analysts with more than 25 yem's of experience, all of whom are African~ 

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Americans. In addition, more than half of the Section's attorneys have left the Section 

since 2005. 

Of equal conpern, is an action taken against one of the career professionals on the 

Georgia review team, a career professional who had participated in the recommendation 

to object to the Georgia voter ID law. After the decision to preclear in Augnst, 2005, this 

career employee filed a complaint with the Office of Professional Responsibility (OPR) 

directed at the inappropriate actions taken during this review, a complaint that remains 

pending, more than 18 months since it was filed. About three months later, Mr. von 

Spakovsky, along with Deputy Assistant Attomey General Bradley Schlozman, filed an 

OPR complaint against this employee. The complaint was based solely on emails that 

they had obtained from this person's records without his authorization. Such an inttusion 

of privacy is unprecedented in our experience and caused an increased level of distrust in 

the Voting Section. OPR recognized the frivolous nature of this complaint and dismissed 

it within three months. 

Other decisions reflect similar inappropriate behavior. A unanimous recommendation to 

object to the unprecedented mid-decade redistricting plan that 1;exas submitted in 2003 

by career staff was rejected by a team of political appointees that included Mr. von 

Spakovsky. Subsequently, the plan was found by the Supreme Court to violate the voting 

rights of Latino voters. Mr. von Spakovsky also rushed through a preclearance of the 

harsh and discriminatory Arizona voter ID and proof of citizenship law over the 

recommendation by career staff to seek more information to determine its impact on 

minority voters. 

Mr. von Spakovsky's involvement concerning enforcement of the Help America Vote 

Act (HHA V A") raises several other concerns. He violated decades-long traditions and 

policies of the Voting Section against issuing advisory opinions by sending a series of 

letters to state officials which had the effect of forcing states to implement HA V A in an 

exceedingly restrictive way. For example, in one letter, he advocated for a policy 

keeping eligible citizens off the voter rolls for typos and other mistakes by election 

officials. When Washington State followed this advice, the rule was struck down by a 

federal court. He also usurped the role explicitly set forth in Section 214(a)(l3) of 

HA V A that the Voting Section chief serve on the EAC Advisory Board, and exclusively 

handled, with no consultation of the section chief, all communications for the Division 

with the EAC. According to e-mailsthathavebeenmadepublic.Mr. von Spakovsky 

tried to pressure the Chairman of the EAC, Paul deGregorio, to rescind a letter stating 

that Arizona had to accept federal voter registration forms that did not include 

documentary proof of citizenship. The emails further indicate that he proposed to the 

Chahman "trading" the EAC's rescinding the letter mentioned above for the 

Department's rescinding a Jetter the Civil Rights Division had earlier issued which 

improperly stated that Arizona voters had to provide identification before they could cast 

a provisional ballot. Mr. von Spakovsky's attempt to bargain over the interpretation of 

federal law was specifically criticized by Mr. DeGregorio. 

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Mr. von Spakovsky adopted the same restrictive approach during the 2004 election cycle 

when he once again broke with established Department policy by getting involved with 

contentious and partisan litigation on the eve of an election. Mr, von Spakovsky drafted 

legal briefs in lawsuits between the Republican and Democratic parties in three 

battleground states, Ohio, Michigan and Florida, just before the election, all in favor of 

the Republican party's position and included a position that the Civil Rights Division had 

never taken before with regards to statutes it enforces, i.e. that there was no private right 

of action to enforce HA V A, These briefs ran counter to the well-established practice of 

the Civil Rights Division not to inject itself into litigation or election monitoring on the 

eve of an election where it could be viewed as expressing a political preference or could 

have an impact on a political dispute. Moreover, in another case between the Republican 

and Democratic parties which concerned an Ohio law that pemritted political parties to 

challenge voters, he drafted a letter that was sent to the court which supported the 

Republican Party position even though the law did not implicate any statute that the 

Department enforces. 

He also changed the enforcement direction of the Department regarding the National 

Voter Registration Act. In 2005, Mr. von Spakovsky introduced a new initiative to target 

states to demand that they purge their voter lists under Section 8 of the Act. This was 

done despite a lack of evidence that registration deadwood leads to invalid votes and 

instead of enforcing important federal requirements that states make voter registration 

more accessible to all its citizens. Moreover, thc cases filed seeking large-scale purges 

were in states with a tight partisan split -like Missouri and New Jersey - rather than 

states like Texas and Utah where the rolls were equally or more inflated. A federal court 

in Missoml recently threw out the Department of Justice's complaint because the 

Department insisted on suing on only the (Democratic) Secretary of State, instead of 

those counties with actual deadwood problems, also noting that there was no evidence of 

voter fraud or evidence that any voter was denied the right to vote. 

Finally, Mr. von Spakovsky never appeared to understand that his role as a bepartrnent of 

Justice attorney was to represent the "United States of America." Instead, on several 

occasions he took actions indicating a stubborn view that the Department represented the 

Bush Administration, the Republican Party 01' the Assistant Attorney General, For 

example in the Georgia v. Ashcroft litigation, Mr. von Spakovsky took a leading role in 

the case on remand. In that case, he proposed that the United States sign ajoint cocounsel agreement with the defendant-intervenors - who were represented by top lawyers 

for the Georgia Republican Party -- 'which would have been an unprecedented and 

inappropriate political action. At a court hearing in the case he insisted on sitting at 

counsel with the Voting Section's attorneys but refused to ftIe a notice of appearance for 

the United States, bizarrely claiming that he represented the Assistant Attorney General, 

Such a gross misunderstanding of the proper role of a ~partrnellt of Justice attorney 

typifies his shortcomings 

We have served the Department through Democratic and Rep~lblican administrations, 

consistently seeking to pl'Otect minority voters regardless of the impact of these actions 

on the political parties. While the priorities of the fTont offices in these administrations 

5 
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change based on the results of the elections, never before has professionalism given way 

to partisanship. We may have disagreed with our front office colleagues, but those 

disagreements were given a fOlUm and, between professionals, we found resolution. Mr. 

von Spakovsky and otbel's in this front office violated the sacred rule that partisanship 

should be checked at the door of the Justice Department so the business of protecting the 

American people through federal law enforcement can be honored without prejudice. We 

urge you to explore Mr. von Spakovsky' s role in this unfortunate endeavor and refuse to 

reward him for this dubious stewardship. 

Sincerely, 

11c\~ sephD.Rich 

hief, Voting Section, 1999-2005 

Civil Rights Division Attorney, 1968-2005 

Robert A. Kengle 

Deputy Chief, Voting Section, 1999-2005 

Voting Section Attorney. 1984-2005 

Jon Greenbaum 

Senior Trial Attorney, Voting Section, 1997-2003 

David J. Becker 

Senior Trial Attomey, Voting Section, 1998·2005 

Bruce Adelson 

Senior Trial Attorney, Voting Section, 2000-2005 

Toby Moore 

Political Geographer, Voting Section, 2000-2006 

6