DOJ official named in FBI politicization allegations played role in Lois Lerner IRS scandal

A senior Justice Department official recently flagged by a U.S. senator in an FBI whistleblower probe into alleged politicization of prosecutions played a key role in the Lois Lerner IRS scandal a decade ago in which conservative Tea Party groups were improperly targeted for scrutiny, government emails and congressional evidence shows.

Richard Pilger, the current chief of the DOJ Elections Crime Branch of the department's Public Integrity Section, engaged in discussions in 2010 and 2013 with Lerner and other IRS officials about ways to pursue criminal prosecutions of conservative nonprofits, the records show.

The discussion led the FBI, with Pilger's direct help, to obtain and review 1.1 million pages of documents from conservative groups and even ponder charging the groups with making false statements on their IRS applications as nonprofits because they had engaged in political speech activities, according to congressional investigators.

The House Oversight and Government Reform Committee, chaired then by Rep. Darrell Issa (R-Calif.), concluded in 2014 that Pilger's discussions were part of a larger effort by the Obama administration to criminalize political speech by conservative groups that opposed the administration's agenda.

"These documents suggest that the Department actively considered prosecuting non-profit groups for their political activities," the final report concluded. "The Department went so far as to meet with the IRS about the investigation and to gather a 1.1 million-page database of information as potential evidentiary material. Even more astounding, the Department considered prosecuting non-profit groups for actions that are legal for 501(c)(4) groups under federal tax law — that is, for engaging in political speech."

The committee made public emails showing that in spring 2013 Pilger and Lerner discussed an idea Pilger had heard raised by a Democrat in Congress of bringing false statement cases against the conservative groups for the ways they filled out their IRS applications as 501c3 and 501c4 nonprofits.

"I got a call today from Richard Pilger, Director Election Crimes Branch at DOJ," Lerner wrote IRS colleagues in a May 8, 2013 email obtained by congressional investigators and Just the News. "I know him from contacts from my days there. He wanted to know who at IRS the DOJ folks could talk to about 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 may do to IRS programs." 

The emails were first brought to light by a lawsuit a decade ago by Judicial Watch.

A DOJ spokesperson did not immediately respond to a call Thursday seeking comment on behalf of Pilger.

But in an interview with congressional investigators in 2014, Pilger revealed he actually began discussing strategies with Lerner for pursuing the conservative nonprofits for prosecution back in fall 2010, a few months after the Supreme Court opened up political spending through its landmark Citizens United ruling, the final report stated.

Pilger sent an email in October 2010 asking for a "good IRS contact re criminal tax enforcement against tax exempt organizations," the emails show.

Nancy Marks, an IRS criminal investigator, wrote an email back identifying a contact Pilger's team could use, but she also cautioned that there was no evidence of criminality known to the agency.

"Let him know that because this has not been an area which we've seen activity that rises to the level of criminal investigation it is pretty unfamiliar ground for anyone in the criminal tax enforcement area," Marks wrote in response to Pilger's inquiry.

Eventually, according to the congressional report and FBI emails, Pilger asked the IRS to provide him copies of the groups' tax filings and worked with Lerner to forward the evidence to the FBI.

"Thanks Lois. FBI says Raw format is best because they can put it into their systems like Excel," Pilger wrote Lerner in early October 2010.

Emails showed Pilger's boss in the Public Integrity Section, Jack Smith, started the entire process when he reacted to a New York Times article.

"Check out [the] article on front page of ny times [sic] regarding misuse of non-profits for indirectly funding campaigns," Smith wrote. "This seems egregious to me — could we ever charge a [18 U.S.C. §] 371 conspiracy to violate laws of the USA for misuse of such nonprofits to get around existing campaign finance laws + limits? I know 501s are legal but if they are knowingly using them beyond what they are allowed to use them for (and we could prove that factually)? IRS Commissioner sarah ingram [sic] oversees these groups. Let's discuss tomorrow but maybe we should try to set up a meeting this week."

The House committee sharply criticized the IRS-DOJ collaboration, concluding it wasn't driven by evidence of wrongdoing but rather by President Barack Obama's anger over the Citizens United court decision and bureaucrats' desire to show the president they could take some form of action.

"The Committee has uncovered evidence that the IRS sought to use its tremendous power to unilaterally rein in politically active non-profits soon after Citizens United," the final report stated. "From 2010 until 2013, the IRS planned and even attempted several methods of measuring and curbing the political activities of tax-exempt groups. These plans and attempts went beyond the IRS's duties as a neutral administrator of tax law, amounting to the informal regulation of non-profit political activity. Succumbing to the political pressure it faced, the IRS sought ways to make its actions public — in essence, to show that it was cracking down."

The committee's conclusions were backed up by numerous emails showing what the IRS and DOJ talked about during the time of Pilger's approach to Lerner. The emails referenced the "practicalities of criminally enforcing non-profit political speech" and the possibility that prosecutors might go "6103 fishing," a term meaning reviewing privacy-protected tax documents in hopes of finding evidence of wrongdoing, the congressional report concluded.

Jason Foster, a former Senate investigator who investigated the IRS scandal a decade ago and now heads the Empower Oversight whistleblower group, said the "fishing" reference was one of the more damaging pieces of evidence to emerge in the congressional investigations.

"So 6103 is this section of the tax code that's supposed to make sure that your tax records are protected from political abuse by bureaucrats like this," Foster told the "Just the News, Not Noise" television show Thursday night. "But that's exactly what they sort of explicitly talk about. That's what they were doing: fishing."

In the end, the Obama administration repudiated the efforts of its own IRS to target conservative nonprofits as "inexcusable," and Lerner invoked her 5th amendment right against self-incrimination to avoid testifying before Congress.

The House also voted to find her in contempt of Congress. But the Obama DOJ chose not to pursue criminal charges against Lerner, unlike the prosecution the department recently completed of former Trump adviser Steve Bannon.

And while the IRS scandal has now mostly been relegated to the history books, Pilger's name resurfaced Monday when Sen. Chuck Grassley (R-Iowa), Foster's old boss in the Senate, revealed in a letter to FBI Director Chris Wray and Attorney General Merrick Garland that multiple FBI whistleblowers have raised concerns that agents and DOJ officials are politically tampering with investigations.

Grassley's letter mentioned Pilger, and he also cited the DOJ official in an official statement from his Senate office.

"Whistleblowers allege that Washington Field Office Assistant Special Agent in Charge Timothy Thibault disregarded agency guidelines requiring substantial factual predication to trigger investigations, while declining to move forward with other investigations despite proper predication," the senator wrote.

"Thibault and Richard Pilger, director of the election crimes branch within the FBI's public integrity section, reportedly were instrumental in the opening of an investigation into the Trump campaign and its associates based in substantial part on information from left-aligned organization," he added. "Whistleblowers claim that Thibault, Pilger and others didn't always adhere to agency policies in their supervision of various election-related matters, including campaign finance investigations across multiple presidential election cycles."