Lost Lerner Emails More Evidence Justice Department Not Taking IRS Investigation Seriously

As usual, the Obama administration used its “release-bad-news-late-on-Friday” routine for its latest jaw dropper: a claim by the IRS that it has lostexternal emails to and from Lois Lerner during the critical period of January 2009 to April 2011.

For this period of time, according to a June 13 letter from Treasury to Rep. Dave Camp, R-Mich., chairman of the House Ways and Means Committee, along with other members of Congress, the IRS says it has only Lerner’sinternal emails.

Any emails between Lerner and the White House, Treasury, the Justice Department, the Federal Election Commission or Democratic offices on Capitol Hill ordering, seeking or directing the IRS to target conservative organizations apparently have disappeared into digital oblivion.

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This wasn’t even obvious in the letter the IRS sent; you have to look at an enclosure to the letter to figure it out. In other words, as Oversight Subcommittee Chairman Charles Boustany Jr., R-La., said, the IRS buried this startling claim “deep in an unrelated letter on a Friday afternoon.”

With the arrogance that the IRS and the administration have displayed throughout this scandal, the same letter urged Congress to end its investigation, which is a little hard to do when Congress has just been told that evidence that may be crucial to its investigation is missing.

I have worked at two federal agencies—the Department of Justice and the Federal Election Commission. At both agencies, I was involved in internal investigations of employees accused of wrongdoing in which we had to obtain all of their email records.

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The “loss” of emails the IRS is describing is hard to fathom: Both agencies where I worked backed up all email communications every day, and those backups were separately stored so there could be no loss of these records. And neither the main server nor the backup tapes differentiated between internal emails and external emails that I’m aware of.

Even if Lois Lerner’s computer hard drive crashed, as the IRS claims, there should be backup tapes. But there, the IRS’s claim gets even more bizarre. The IRS says that the “back-up tapes from 2011 no longer exist because they have been recycled (which [is] not uncommon for large organizations in both the private and public sectors).”

The IRS is not an organization in the private sector. It is a government agency subject to federal records preservation requirements. IRS officials knew the agency would be under scrutiny and obligated to preserve all of its records related to the inappropriate targeting of conservative organizations by May 2013, when the Inspector General report was released and Attorney General Eric Holder announced he was opening a criminal investigation.

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Yet now the IRS is saying it has no backup tapes of Lerner’s external emails for a period of from four to two years before May 2013.

In other words, the IRS apparently recycles its backup tapes so quickly that it does not even maintain its records for more than two years. Compare that to the fact that the IRS requires us to maintain our tax records for at least three years, which is the applicable statute of limitations if the IRS comes after you with an audit or an additional assessment. That three-year time period can be extended to give the IRS up to six years to come after you under certain circumstances, and it has 10 years to collect outstanding tax liabilities.

So the IRS is telling the world that it does not hold itself to the same standard for maintaining records as it holds everyone else. And it never explains how it is that it has records of internal emails but not external emails.

Can anyone who has dealt with the IRS in a tax dispute imagine what the IRS would do to you if you told them you couldn’t produce key emails and electronic documents that are only a few years old because you recycle all of your backup tapes?

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The IRS announcement also brings up another issue—the DOJ criminal investigation that Holder announced in May of last year.

The first thing the DOJ investigators should have done is seized all of Lerner’s records, including her emails. Did they even try to do so? If not, why not? Have the FBI’s computer forensics experts—who are some of the best in the country—tried to fix the problem? Why are we only learning now, more than a year later, that these emails have disappeared?

Lerner has been the focal point of this scandal and the investigation from the very beginning. For all of the IRS’s lamentations in its June 13 letter to Congress about all of the time, personnel and resources it has spent responding to this investigation, all of Lerner’s emails and documents should have been the first thing the IRS recovered. Yet only now are we finding out about this.

It is difficult not to be highly suspicious about the disappearance of these emails. And the apparent lack of involvement of DOJ in getting these records immediately seems to be even more evidence that it is not conducting a serious investigation.

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