We wrote here and here about the IRS’s transfer of 1.1 million pages of documents about 501(c)(4) organizations to the FBI in October 2010. We now know that the documents included confidential taxpayer information, which means that it was a criminal offense for Lois Lerner to transmit them to the FBI. Presumably this is one reason (not necessarily the only one) why Lerner sought refuge in the privilege against self-incrimination.
Within a few days of transmitting the documents, Lerner met with Department of Justice officials to encourage them to prosecute 501(c)(4) groups and individuals associated with them. In view of these events, an obvious question is: what did the FBI do with the materials it got from the IRS?
On June 11, FBI Director James Comey testified before a House oversight committee and was asked that question. His answer was: nothing. Comey didn’t have first-hand knowledge, but based on discussions with others at the Bureau, a single FBI employee looked at the index to the documents and then did nothing, waiting for instructions from DOJ that never came. On this account, the documents sat in FBI headquarters for more than 3 1/2 years without anyone looking at them. Comey said that within the past week, the Bureau had sent them to DOJ.
The key questioning was by Darrell Issa and lasted for around five minutes. Here it is. I can’t tell from Comey’s testimony whether the FBI employee could see from the index that the disks included confidential taxpayer information, or not. If so, one would think that the IRS’s wrongful transmission of the confidential material should have been reported.
Is this account accurate? It may be, but it sounds odd in view of the emails that the IRS and DOJ exchanged relating to the documents. Richard Pilger, the Director of the Justice Department’s Elections Crimes Branch, discussed the documents with Lerner and knew they were going to the FBI. In one email to an unidentified person at the FBI, he referred to the disks as “incoming data re 501c4 issues.” It seems peculiar, given Pilger’s role, that the disks should sit untouched in an FBI office awaiting instructions–from Pilger, presumably. But at this point, there is no hard information to contradict Comey’s account.