DOJ Will Not Seek Indictment of Lois Lerner (10/26/15)

All readers are familiar with the Lois Lerner brouhaha who became the focus of claims that of politicization of the IRS.  The DOJ has decided not to seek indictment of Ms. Lerner.  The letter advising the House Judiciary Committee of that decision is here.  The letter speaks for itself.  The second paragraph summarizes the conclusions:

In collaboration with the FBI and Treasury Inspector General for Tax Administration (TIGTA), the Department's Criminal and Civil Rights Divisions conducted an exhaustive probe. We conducted more than 100 witness interviews, collected more than one million pages of IRS documents, analyzed almost 500 tax-exemption applications, examined the role and potential culpability of scores of IRS employees, and considered the applicability of civil rights, tax administration, and obstruction statutes. Our investigation uncovered substantial evidence of mismanagement, poor judgment, and institutional inertia, leading to the belief by many tax-exempt applicants that the IRS targeted them based on their political viewpoints. But poor management is not a crime. We found no evidence that any IRS official acted based on political, discriminatory, corrupt, or other inappropriate motives that would support a criminal prosecution. We also found no evidence that any official involved in the handling of tax-exempt applications or IRS leadership attempted to obstruct justice. Based on the evidence developed in this investigation and the recommendation of experienced career prosecutors and supervising attorneys at the Department, we are closing our investigation and will not seek any criminal charges.

The letter is consistent with the facts as I have observed them in the public sources.  Of course, the DOJ investigation team had much more "evidence" than I have from public sources.  But, based on what I know and infer from the letter, while DOJ could likely have obtained an indictment for some crime (the old ham sandwich phenomenon), DOJ would not have been able to convict -- certainly, there was not the reasonable likelihood of conviction to meet DOJ standards for  prosecution.  The U.S. Attorney Manual (USAM), ¶ 97-220, here, says in relevant part:

9-27.220 - Grounds for Commencing or Declining Prosecution

A. The attorney for the government should commence or recommend Federal prosecution if he/she believes that the person's conduct constitutes a Federal offense and that the admissible evidence will probably be sufficient to obtain and sustain a conviction, * * * * 

* * * * 

B. Comment. USAM 9-27.220 expresses the principle that, ordinarily, the attorney for the government should initiate or recommend Federal prosecution if he/she believes that the person's conduct constitutes a Federal offense and that the admissible evidence probably will be sufficient to obtain and sustain a conviction. Evidence sufficient to sustain a conviction is required under Rule 29(a), Fed. R. Crim. P., to avoid a judgment of acquittal. Moreover, both as a matter of fundamental fairness and in the interest of the efficient administration of justice, no prosecution should be initiated against any person unless the government believes that the person probably will be found guilty by an unbiased trier of fact. * * * *

Some Republicans of course took issue.  The current chair of the House Ways and Means Committee and heir apparent to the House Speakership, Paul Ryan, pronounced himself unhappy because the DOJ determination did not fit his narrative.  In his statement, here, he says that, "Despite the DOJ closing its investigation, the Ways and Means Committee will continue to find answers and hold the IRS accountable for its actions.”  So, I guess that portends further investigations by the House, perhaps even an investigation of the DOJ for the determination that it made not to seek indictment.  Maybe even a select committee because the Benghazi Committee has been such a valuable tool to unlocking the real truth.  And, if there is a further investigation, the Republicans can force Lerner to testify by giving her  immunity which many, including myself, felt that they should have done all along because they were claiming that she was simply a minion doing Obama's bidding and immunity would out the truth.  But, now that she will not be prosecuted for the events in issue, giving her immunity to force her testimony is giving up nothing and will unlock the truth to test against the narrative.  (If her testimony does not fit the narrative, perhaps the claim will be that the narrative is true and the testimony false.)

Now, let's see how many Government servants have been labeled corrupt in this process -- at a minimum, Lerner (of course), Obama who, directly or indirectly signaled (so the imagination goes) to Lerner to go after the tea party, any number of IRS personnel working with Lerner in the exempt organizations unit, Koskinen (the current IRS Commissioner who was not even there when the events occurred), various individuals in the IRS Chief Counsel's office (including the Chief Counsel), and now the DOJ personnel (including the FBI) making and involved in the DOJ determination not to prosecute Lerner.

It would have been easy to indict Lerner and let the chips fall where they may in a criminal trial.  Of course, the likelihood on the evidence I have seen is that the prosecution would not have gotten past a Rule 29 motion to dismiss but if it could it probably would not obtain a conviction by an unbiased jury properly guided by an unbiased judge.  And, if there were a dismissal or not guilty verdict, then of course there would be more players in the saga that some would claim are corrupt because the verdict does not fit the narrative.

I just say we all should be proud of DOJ for taking the USAM guideline seriously and not bringing a prosecution where the prosecutors were not convinced that a crime had been committed and with high risk of failure.