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Impact of House Oversight Committee hearing on DOJ and Olson

Deputy AG Cole at Oversight Committee hearing on IRS scandal
Deputy AG Cole at Oversight Committee hearing on IRS scandal
Photo by Mark Wilson/Getty Images

On July 17, 2014 as Deputy Attorney General James Cole spoke to the House Oversight and Government Reform Subcommittee on Economic Growth, Job Creation and Regulatory Affairs. For those that may have listened to any of the prior Oversight Committee's hearings on the IRS scandal and Lois Lerner, the lack of a legal dictionary surely has made its impression known. We would feel quite safe in stating that at points (especially once Rep. Gowdy gets on a roll) the average American can become quite lost as various legal precedents, rules and regulations, and legal opinions are cited.

A substantial portion of the more than 3 hour long hearing on July 17th was dedicated to what the Department of Justice (DOJ) is, can, and must do in regard to the investigation of the IRS abusing its power and targeting Americans based on their political beliefs. The simple summary of the hearing was that the DOJ cannot and will not discuss any part of the investigation not already known by the public - which is incredibly little.

Expanding beyond that oversimplified summary, there was a long debate - still unresolved - over the issue if the Attorney General (a political appointee) is being impartial and fulfilling his duties to the full extent of the power of the DOJ. Democrats on the Committee cited questions and testimony trying to support AG Eric Holder and the DOJ as being lambs stalked by the political aspirations of the Republicans. For their part, Republicans cited the disbelief the American public has with regard to the IRS abuse (and sudden loss of emails), President Obama's assertion that there was not a "smidgen" of wrong-doing, and that the DOJ has apparently done nothing to get to hold wrong-doers accountable.

Before we go further, let's clarify where the American people appear to be. In May 2013, a Quinnipiac University national poll found

"American voters say 76 - 17 percent, including 63 - 30 percent among Democrats, that a special prosecutor should be appointed to investigate charges the Internal Revenue Service targeted conservative groups..."

More recently a Fox News poll asked,

"Do you think Congress should continue to investigate the Internal Revenue Service’s targeting of hundreds of conservative and tea party groups until someone is held accountable, or not?
Jun 21-23 2014: Yes-74%, No-21%, Don't Know-5%"

Thus, according to polls and not the partisan preferences of Dems in Congress, the IRS hearings are on target. Equally, the DOJ seems to be remiss in their duty to take action. The public wants accountability, and so far a contempt charge has been the only visible example of holding anyone accountable.

Which brings us to Lois Lerner and the contempt charge from Congress. On May 7th the House of Representatives voted 231 to 187 in favor of charging Lerner with contempt. To date the DOJ has taken no action to bring the contempt charge to a grand jury. The reasoning that Deputy AG James Cole stated was the May 30, 1984 Office of Legal Counsel opinion written by Ted Olson. The opinion, called Olson by Cole and several members of the Committee during the testimony, asserts prosecutorial discretion.

At this point more than a few following the hearing got lost. Even several of the Committee members, including ranking Democrat Rep. Cummings was confused. A continuous debate went on for the rest of the hearing focused on a single word "shall".

So lets focus on this and why it is important.

First is prosecutorial discretion. In effect it means that a prosecutor has the right to pick what cases they may bring to trial. In the most broad sense, as used by President Obama, this was the means used to rewrite immigration law in 2012 and allow tens of thousands of illegal aliens to avoid deportation. Regardless of a crime being committed or not, a prosecutor can choose to not bring a case to trial that they think they cannot win - or in the case of President Obama, that political partisanship would prefer not to occur. Prosecutors cannot be forced to go to trial.

A congressional contempt citation - 2 U.S. Code § 192 - Refusal of witness to testify or produce papers - is when any person before Congress or a Committee "refuses to answer any question pertinent to the subject under inquiry". This is what Lois Lerner did when she answered some questions and then enacted her 5th Amendment right on other questions. The penalty

"...shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months."

The enforcement of the contempt citation is found under 2 U.S. Code § 194, and states

" shall be the duty of the said President of the Senate or Speaker of the House, as the case may be, to certify, and he shall so certify, the statement of facts aforesaid under the seal of the Senate or House, as the case may be, to the appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury for its action."

So to summarize, Lois Lerner initially spoke to Congress and professed her innocence. She then took the 5th when asked about what she did or did not do that seemed to conflict with that claim of innocence. Because of this seesaw of answers, Lerner was held in contempt. The United States attorney, who works for the Department of Justice, is required (that is where the "shall" comes in) to bring this to a grand jury, and if they believe a case can be won, to trial. This has not been done, and Deputy AG Cole claims this is because of prosecutorial discretion via the opinion of Olson.

So what is Olson? It states

"As a matter of statutory construction and separation of powers analysis, a United States Attorney is not required to refer a congressional contempt citation to a grand jury or otherwise to prosecute an Executive Branch official who carries out the President's instruction to invoke the President's claim of executive privilege before a Committee of Congress."

In other words, in the opinion of Ted Olson, 30 years ago, high ranking political appointees of the President cannot be brought before a grand jury. Thus AG Eric Holder, who also was held in contempt of Congress, was not brought before a grand jury - he is a political appointee with Executive privilege. But Lois Lerner was not.

Thus, what Deputy AG Cole tried to present as a reason not to place Lois Lerner in front of a grand jury is a fiction. Not only is this opinion of Ted Olson not law (though it is legally binding on the Executive Branch), more importantly it does not apply. Lerner did not serve at the pleasure of the President, but was an employee of the IRS - which is part of the Executive Branch. If the contempt charge was placed against IRS Director John Koskinen then Olson might apply, but that is not the case.

So why does this matter? What does all the boring legalese come down to in the end?

It matter because this is about accountability. This is about an abuse of power by the IRS, against American citizens who were exercising their 1st Amendment rights. If any Agency or Branch of the Government is allowed to silence any amount of speech based solely on political preferences, and there is no accountability for that violation, then in effect the 1st Amendment ceases to exist.

The rule of law must apply to Lois Lerner, and the IRS. That's why a majority of Americans want a special prosecutor and people held accountable. If the DOJ does nothing, they violate the purpose of the DOJ and the freedoms all Americans enjoy every day. Using a legal opinion that does not apply, to subvert law, even as the President tries to divert the public's attention and opinion, is just a very long-winded way to take freedoms from the people and give that power to the Executive Branch.

It may be boring, but in our non-legal opinion this is a critical issue that most of the mainstream media is ignoring at the detriment of the masses.

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