Issa wants more answers from the administration about a previously unreleased email between a DOJ official and former IRS official Lois Lerner about potential prosecutions of conservative groups that had applied for tax-exempt status.
In the email, Richard Pilger, director of the Election Crimes Branch of the DOJ's Public Integrity Section, noted to Lerner, “When you have a moment, will you call me? I've been asked to run something by you.”
Pilger doesn't say who had asked him to contact Lerner but provides some context for the prospective conversation, saying he wanted to know who at the IRS “DOJ folks could talk to” about ways to target 501(c)(4) nonprofit groups that are heavily involved in politics and may be pushing the boundaries of the law with their political activity.
Pilger sent the note two days before Lerner disclosed the targeting of conservative groups and apologized during remarks at a conference sponsored by the American Bar Association. The email was part of a trove Judicial Watch, a conservative watchdog group, released last week showing Lerner in contact with DOJ about the potential for prosecuting tax-exempt groups.
Issa argues that the email shows that the DOJ was considering prosecuting these groups for actions that are legal for 501(c)(4) nonprofits under federal tax law – “that is, engaging in political speech.”
The California Republican sent a letter to Attorney General Eric Holder asking him to produce documents and allow the committee to interview Pilger on why his office was considering prosecuting the tax-exempt groups already improperly targeted by the IRS.
“Mr. Pilger's communications with Ms. Lerner are also striking for their timing,” Issa argued in the letter. “They show that the IRS and the Justice Department were actively considering efforts to target tax-exempt organizations just two days before Ms. Lerner's public apology for the targeting.”
The information undermines the “sincerity of Lerner's apology,” he wrote, and calls into question Holder's reaction when the story first broke that the targeting was “outrageous” and “unacceptable.”
“These comments ring hollow in light of evidence that your subordinates apparently colluded with the IRS to target nonprofit groups less than a week before,” he continued.
A Justice Department spokesman said the “alleged misconduct by the IRS” predated the phone call mentioned in the email between Pilger and Lerner and noted that the Justice Department didn't pursue any investigations.
“The fact of the May 2013 conversation does not interfere in any way with the current investigation of the IRS,” DOJ spokesman Peter Carr said in an email. “The alleged misconduct by the IRS that is currently under investigation pre-dated that call by more than a year.
“Even after the May 2013 conversation, the IRS did not refer any groups to the Justice Department for possible prosecution, nor did the Department launch any such investigations,” he said.
At the time Pilger sent the email to Lerner, Democrats on Capitol Hill were trying to find ways to limit 501(c)(4) nonprofits' political activity after the Supreme Court's 5-4 decision in the Citizens United case.
The decision allowed corporations and unions to spend directly on elections. They were previously prohibited from doing so, and these tax-exempt groups weren't allowed to take corporate and union money unless they disclosed their donors to the Federal Election Commission.
After Citizens United, 501(c)(4) groups can accept unlimited funds from corporations and unions without being forced to disclose the donations.
In the wake of the decision, Democrats believed Republicans had an unfair election advantage because most of the 501(c)(4) groups were funded by corporate, not union money.
Lerner later explained the context for the email she received from Pilger in a separate email to Nikole Flax, then-chief of staff to acting IRS Commissioner Steve Miller.
She said Pilger was trying to follow up on an idea Sen. Sheldon Whitehouse, D-R.I., expressed at a 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 [sic] to talk to the right folks at the IRS to see whether there are impediments from our side and what, if any damage this might do to IRS programs,” she said in the email to Flax.
Lerner then asked IRS official Nan Marks to arrange a meeting. Issa said it is unclear what additional steps the Democrat took to coordinate with the IRS about the targeting of tax-exempt applicants.
The IRS adid not immediately respond to a request for comment.
This story was published at 10:24 a.m. and has been updated.
Editor's note: Judicial Watch is representing the Washington Examiner in the newspaper's federal lawsuit seeking access to Consumer Financial Protection Bureau records under FOIA.