Politics
Lois Lerner, former director of the Tax Exempt and Government Entities Division at the Internal Revenue Service, is re-sworn-in for a continuation of a hearing of the House Oversight and Government Reform Committee on Capitol Hill March 5, 2014 in Washington, D.C. (BRENDAN SMIALOWSKI/AFP/Getty Images) Lois Lerner, former director of the Tax Exempt and Government Entities Division at the Internal Revenue Service, is re-sworn-in for a continuation of a hearing of the House Oversight and Government Reform Committee on Capitol Hill March 5, 2014 in Washington, D.C. (BRENDAN SMIALOWSKI/AFP/Getty Images)  

Lerner was in contact with DOJ about prosecuting tax-exempt groups

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Caroline May
Political Reporter

Former head of the IRS tax-exempt division Lois Lerner communicated with the Justice Department about the possibility of criminally prosecuting certain tax-exempt groups, new documents reveal.

According to the conservative government accountability group Judicial Watch, email exchanges between Lerner and Nikole C. Flax, the Chief of Staff to then-Acting IRS Commissioner Steven T. Miller, reveal there were discussions about possible prosecution of tax-exempt groups that were believed to have “lied” about political activities.

I got a call today from Richard Pilger Director Elections Crimes Branch at DOJ … He wanted to know who at IRS the DOJ folks could talk to about [Rhode Island Democratic Sen. Sheldon] Whitehouse idea at the hearing that DOJ could piece together false statement cases about applicants who “lied” on their 1024s — saying they weren’t planning on doing political activity, and then turning around and making large visible political expenditures. DOJ is feeling like it needs to respond, but want to talk to the right folks at IRS to see whether there are impediments from our side and what, if any damage this might do to IRS programs.

I told him that sounded like we might need several folks from IRS …

I think we should do it — also need to include CI [Criminal Investigation Division], which we can help coordinate. Also, we need to reach out to FEC. Does it make sense to consider including them in this or keep it separate? 

Judicial Watch, which obtained the documents as a result of a Freedom of Information Act lawsuit initiated after the IRS failed to respond to their inquiry, reports Lerner then had IRS senior technical adviser Nancy Marks deal with the scheduling.

On May 9, 2013, Whitehouse held a hearing on the enforcement of campaign finance laws and noted the possibility of prosecuting such tax-exempt groups that were believed to have been deceitful on their tax filings.

The documents obtained by Judicial Watch show that on March 27, 2013, Lerner offered some background about the hearing in an email to top IRS staff:

As I mentioned yesterday — there are several groups of folks from the FEC world that are pushing tax fraud prosecution for c4s who report they are not conducting political activity when they are (or these folks think they are). One is my ex-boss Larry Noble (former General Counsel at the FEC), who is now president of Americans for Campaign Reform. This is their latest push to shut these down. One IRS prosecution would make an impact and they wouldn’t feel so comfortable doing the stuff.

So, don’t be fooled about how this is being articulated — it is ALL about 501(c)(4) orgs and political activity

Lerner noted in a follow-up email that such alleged activity would be difficult to prosecute under current law.

Whether there was a false statement or fraud regarding an [sic] description of an alleged political expenditure that doesn’t say vote for or vote against is not realistic under current law. Everyone is looking for a magic bullet or scapegoat — there isn’t one. The law in this area is just hard.