Deputy Attorney General James Cole told the House on Thursday that the U.S. Attorney for the District of Columbia has "prosecutorial discretion" on whether to bring Lois Lerner before a grand jury for refusing to testify before Congress.
The House found Lerner in contempt of Congress back in May, for refusing to answer questions about her role in the IRS targeting scandal. Under the law, the U.S. Attorney for the District of Columbia has a "duty… to bring the matter" before a federal grand jury.
If the matter were brought before a grand jury, it could lead to prison time for Lerner of up to a year, and a fine.
But Cole told members of the House Oversight and Government Reform Thursday that despite the law, the administration believes it has some wiggle room. Cole was asked by Rep. Ron DeSantis (R-Fla.) whether he believes the law requires the U.S. Attorney to bring the issue to the grand jury.
"My understanding of the law is that it does not strip the U.S. Attorney of the normal discretion that the U.S. Attorney has," Cole answered. "He proceeds with the case as he believes it is appropriate to do so."
"So, 2 U.S.C. 194 says it shall be the duty to bring the matter before the grand jury," DeSantis pressed. "So you're saying that actually, even though Congress mandated a duty, a prosecutor would essentially be able to trump that language by exercising discretion?"
"I believe that there's aspects of it that give any prosecutor prosecutorial discretion on how to run a case and how to review a matter," Cole answered.
Republicans have criticized the Obama administration for failing to take any action against Lerner in the more than two months since the contempt vote. Many have said openly that they doubt U.S. Attorney Ronald Machen, Jr., who was appointed by President Barack Obama, will take any action in the Lerner case.
Cole did stress that his understanding is that the issue is "under review," but said he's not allowed to disclose whether or not it has been presented to a grand jury.
The IRS told Congress in June that it lost more than two years' worth of Lerner's emails when her hard drive crashed. The GOP has also complained that it took the IRS about two months to reveal this information after it first suspected some emails may have been lost.
And while the Department of Justice is also investigating the IRS, Cole said Justice also was not told by the IRS about the lost emails.
"I think we learned about it after that, from the press accounts that were in the paper following the IRS's notification to the Congress," Cole said in response to another question from DeSantis.