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WASHINGTON – David Ferriero, the Archivist of the United States for the National Archives and Records Administration, testified before Congress Tuesday that the IRS “did not follow the law” when it failed to report the loss of two years of Lois Lerner’s emails that investigators had subpoenaed.
Under questioning by Congressman Tim Walberg, R-Mich., the archivist testified before the House Oversight Committee that he believed the IRS fell short of meeting the requirements of the Federal Records Act, which requires agencies to notify the National Archives of disposal or destruction of federal records.
The National Archives and Records Administration, or NARA, sent a letter to the IRS on June 17, requesting an investigation into the potentially illegal disposal of Lerner’s emails.
Ferriero testified on Tuesday that NARA was not made aware of Lerner’s hard drive crash that the IRS claims happened on, or around, June 13, 2011.
NARA was also not informed about the IRS’ inability to recover her emails, or that her hard drive was later recycled.
Walberg began by asking Ferriero, "At any time in 2011, through last Monday, did the IRS report any loss of records related to Lois Lerner?"
"No," he replied.
"Is it fair to say that the IRS broke the Federal Records Act?" the congressman asked.
"They are required, any agency is required to notify us when they realize they have a problem that could be destruction or disposal, unauthorized disposal," replied the archivist.
Walberg asked, "But they didn’t do that?" and Ferriero responded, "That’s right."
"Did they break the law?" asked the congressman.
"I’m not a lawyer," said the archivist.
"But you administer the Federal Records Act."
"I do," replied Ferriero.
Walberg asked, "They didn’t follow it, can we safely assume they broke the law?
"They did not follow the law," the archivist replied.
In earlier testimony, the woman who directed the IRS's response to congressional investigators from May to November in 2013 described an agency under the kind of disarray and duress that taxpayers feel when audited by the tax-collecting department.
White House Counsel Jennifer O'Connor was counsel to former Acting IRS Commissioner Danny Werfel for six months.
O'Connor said that when she arrived in May last year she found an overwhelmed agency with staffers complaining that they did not have the resources to deal with all the subpoena requests from Congress.
She testified at the beginning of a second round of a marathon hearing into the missing emails of Lois Lerner, a hearing that actually got underway the night before, when Oversight Committee members grilled IRS Commissioner John Koskinen for nearly four hours.
O'Connor was hired by the IRS specifically to coordinate the agency's response to the IRS scandal.
After her stint in 2013, she was promoted to the White House Counsel’s office.
O'Connor testified that when she arrived in May last year, it was her understanding that Lerner's material had already been collected.
She said IRS employees explained to her that agency emails were so heavily encrypted they had to be processed before they could be read, and that often caused errors.
Describing a laborious, time-consuming process, she said after the encrypted material was processed it was moved to a review tool before the emails even could be viewed.
O'Connor said she wasn't there earlier this year when the IRS claimed to discover 28 months of Lerner's email, from 2009 to 2011, was actually missing.
Issa wanted to know why the IRS was not aware of so many of missing emails as late as February, even though the investigation had been underway for almost a year and the emails had been subpoenaed in August 2013, but O'Connor was not able to answer that.
The emails the IRS claimed to have lost were between Lerner and outside agencies, such as the White House and Justice Department.
Lerner's emails to people outside the IRS are particularly important because she contacted members of the Department of Justice about the possibility of criminally prosecuting conservatives for their political activities.
In April, the IRS informed the Treasury Department about Lerner's missing emails, which then informed the White House.
However, Congress was not informed until 11 days ago, a fact that caused infuriated GOP committee members to blast IRS Commissioner Koskinen during his testimony on Monday night.
Issa had to subpoena O'Connor to appear, after her boss, White House Counsel W. Neil Eggleston, wrote Issa to say she would not appear.
Lerner, the former IRS tax-exempt division chief, admitted last year that the IRS improperly targeted conservative groups.
The House Ways and Means Committee has recommended the Justice Department file criminal charges against her.