Will Lerner contempt charges make any difference?

House committee votes to formally ask the DOJ consider criminal charges against ex-IRS official Lois Lerner in the targeting scandal

This is a rush transcript from "On the Record," April 9, 2014. This copy may not be in its final form and may be updated.

GRETA VAN SUSTEREN, FOX NEWS HOST: Should Lois Lerner be worried tonight that she is going to jail? Today, the House Ways and Means committee voting to formally ask the Justice Department to consider criminal prosecution against the former IRS official. Lerner is considered the key witness in the IRS targeting scandal but so far she has refused to answer any questions.

BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Laws were broken.

LOIS LERNER, FORMER IRS OFFICIAL: I have not broken any laws.

UNIDENTIFIED MALE: Constitutional rights were violated.

LERNER: I have not done anything wrong.

UNIDENTIFIED MALE: This was definitely a political decision.

UNIDENTIFIED MALE: Lois Lerner targeted conservative groups because of their conservative beliefs.

LERNER: On the advice of my counsel.

UNIDENTIFIED MALE: She was not truthful with Congress.

LERNER: I respectfully exercise my Fifth Amendment right and decline to answer that question.

UNIDENTIFIED MALE: This is part of the Republican campaign.

UNIDENTIFIED MALE: If Lois Lerner would come forward and testify, we might know the answer.

(END VIDEO CLIP)

VAN SUSTEREN: And get this, included in the evidence the Ways and Means committee sent to the Justice Department, an email Lois Lerner sent to IRS colleagues. In the email, Lerner saying, and this was in January of 2013, she was hoping to get a job at the DC office of President Obama's advocacy group, Organization for Action. And then tomorrow, the House will -- oversight committee will vote on whether to hold Lerner in contempt.

Oversight committee member, Representative Trey Gowdy, joins us. Good evening, sir.

REP. TREY GOWDY, R-S.C.: Yes, yes, ma'am. How are you?

VAN SUSTEREN: Well, I don't know if you've seen this email, is that this was three months before this story broke. She said in response to something about Organizing for America. She says, "Oh, maybe I can get a D.C. office job." I don't know if she is being flip and funny or she's trying to curry favor. Your thought?

GOWDY: Well, it would be a whole lot funnier if she wasn't targeting Crossroads at the same time she was, in essence, applying or amusing about applying for a job with a left-leaning entity. One of the allegations of Ways and Means is that she violated people's rights under cover of law. That's one of the criminal statutes. And the evidence that she targeted Crossroads, which is a conservative advocacy group, frankly, Greta, is overwhelming. And all I have seen is just the letter. But it's overwhelming from my judgment that she targeted a conservative group.

VAN SUSTEREN: Is she going to jail?

GOWDY: You are going to have to ask Attorney General Holder. I will stay this. The notion that there is not one smidgen of criminality or corruption, which is what the president told us on Super Bowl Sunday, has been totally debunked by what Ways and Means has done. I have to trust that the career prosecutor is going to look at this seriously. And I think that at least a prima facie case has been made for two separate criminal violations.

VAN SUSTEREN: You know, what I don't get. I mean, it's got to get around Attorney General Eric Holder; I mean he can pull the plug on it and stop it from there. But when you've got -- look, you have got President Obama saying the smidgen comment. That basically that it's over. That there is nothing there. That was in February of this year.

And then just today we get this email that she says maybe can I get a job in the D.C. office job with Organizing for America. I mean it really is -- enough is enough. I don't know how Eric Holder cannot at send this to a grand jury for investigation. Maybe there is no criminal involvement but there sure is enough to send it to a grand jury. Or I think there is.

GOWDY: I do, too. And yesterday there was exchange between the Attorney General and Louie Gohmert where the Attorney General made it very clear, at least to me, I was sitting ten feet away from him, that he did take being held in contempt of Congress seriously. He didn't agree with it, and he thought he was treated unfairly, but he took it seriously. Well, hopefully he also takes his legacy as this nation's top law enforcement official seriously.

And when you have Ways and Means -- I mean it's one thing to kind of minimize oversight as a bunch of former crazy prosecutors. This is Ways and Means, which is a very well respected, venerable committee. And they sent three separate referrals to the Department of Justice.

VAN SUSTEREN: You know, I guess it must frustrate you as a former assistant United States attorney. I can hear in your voice. We have had conversations, that it's like pulling teeth to try to get information. This is the most frustrating, you know, it's like you can't get the information out of the IRS. And in order for you to get a subpoena, you have got to beg from a bub -- I mean, you know, it's just incredible.

GOWDY: And then you have Commissioner Koskinen saying we will get you emails in a couple of years. Can you imagine if you told a judge that you were going to do something for him or her in a couple of years? Or if you sent a grand jury subpoena and private citizen said, yes, I will get around to that when I feel like it. Yes, it is very frustrating. And, yes, I miss my old job, but I'm sure some days you miss your old job too.

VAN SUSTEREN: Some days actually, some days I do. You know, though, that whole business about the emails. If someone drops a subpoena on Fox News Channel -- and I have been here 12 and some change -- if you drop and ask for all emails, a lawful subpoena, I bet that the -- and I'm a big emailer -- I bet Fox could get together all 12 years of my emails and deliver them by 9:00 tomorrow morning.

GOWDY: Oh, at a minimum, they would have them by the end of the week or, you know, maybe worse case scenario, the end of the month. But nobody would say I will get them to you in a couple of years.

But, Greta, the problem is, whatever remedies or tools that we have at our disposal for ensuring compliance, we won't use. We won't make Koskinen sit there until there is a document produced. We won't John Kerry sit there until they give us what we want on Benghazi. We have certain tools at our disposal. We just won't use them. And as a former prosecutor, it is frustrating.

VAN SUSTEREN: Is that leadership? Is that -- I know you want it, and I know you have tried -- is that leadership?

GOWDY: I think if Speaker Boehner were here, he would tell you that he has to weigh and balance a lot of factors that a backbencher from South Carolina does not have to weigh and balance. I think that's what he would tell you.

VAN SUSTEREN: Representative, nice to see you, sir.

GOWDY: Yes, ma'am, you too.