Judge orders IRS to explain missing emails

By Garth Kant

WASHINGTON – The IRS will have to explain exactly what happened to Lois Lerner’s missing emails to a judge and under oath.

Federal Judge Emmett Sullivan ordered the IRS to make a sworn declaration in writing describing how Lerner could have lost all the emails she sent to other departments from mid-2009 to mid-2011. The declaration is due by August 10.

The judge also assigned federal magistrate John Facciola, an expert in e-discovery, to find out if there is another way to retrieve the emails.

Lerner claims her emails were lost when her hard drive crashed on July 13, 2011. The IRS claims her hard drive was then recycled and destroyed.

The missing emails were sent during the very period in which Lerner, the former tax-exempt division chief, improperly targeted conservative groups.

The judge’s ruling was a significant victory for Judicial Watch, the non-profit government watchdog group which had filed a Freedom of Information Act, or FOIA, request for Lerner’s emails from 2010 to the present.

Judicial Watch has been seeking the emails since May 2013 and requested today’s hearing to have the IRS explain what happened to Lerner’s emails, and to explain why the group was never informed they were missing.

Judicial lawyer Ramona Cotca said the IRS never informed the group or the court about the lost emails, even though, she noted, the judge had ordered the department to produce requested documents monthly.

Representing the IRS, Justice Department attorney Geoffery Klimas cited a series of precedents to argue the agency was not legally obligated to inform Judicial Watch about the missing emails because they had disappeared before the group requested them.

Judicial Watch grew so frustrated with the IRS it filed a lawsuit in October, stating the agency had produced no documents related to the group’s request.

Judge Sullivan did not grant a request from Cotca to conduct a limited discovery into what happened to Lerner’s emails, which could have compelled IRS officials to testify, saying that would be premature.

However, the judge did authorize Judicial Watch to submit a request for limited discovery into the missing IRS records after September 10.

Klimas revealed that the Treasury Department’s inspector general has begun an investigation into the missing emails, and has asked the IRS not to question witnesses, so as not to interfere with the investigation.

Lerner is not the only IRS employee under investigation whose emails are missing.

Incredibly, the IRS says the hard drives of six other employees also lost their emails due to hard drive crashes.

When Judge Sullivan asked the IRS attorney if they had all lost their emails at the same time, a smattering of laughter rippled through the courtroom.

The judge isn’t the only one who may be skeptical about the extraordinary timing of the lost emails.

Judicial Watch President Tom Fitton said after the hearing, “In our view, there has been a cover-up that has been going on.”

“The Department of Justice, the IRS, had an obligation, an absolute obligation … to alert the court and alert Judicial Watch as soon as they knew when these records were supposedly lost.”

Fitton said Judicial watch attorneys were encouraged and very pleased with the judge’s actions, and call the assignment of a magistrate, “extraordinary.”

When a reporter asked if it were not better to let Congress continue its investigations before taking legal action against the IRS, Fitton noted that Congress had only learned of numerous emails crucial to the investigation because of FOIA requests made by Judicial Watch.

Just one month ago, the IRS belatedly informed congressional committees that Lerner’s emails were missing.

The IRS then informed Congress that Lerner’s computer hard drive was recycled and apparently destroyed.

The IRS also then informed Congress that it did not keep backup copies of emails for more than six months, because they were stored on a on old-fashioned tape that is re-used every six months.

Members of Congress were incredulous that the IRS, which requires tax-payers to save records going back seven years, did not save emails for more than six months.

As WND reported, when asked by members of the House Oversight Committee on June 23 why the IRS used such an antiquated system, IRS Comissioner John Kokinen testified that the estimated cost of $10-to-30 million was too much.

Expressing disbelief, Chairman Darrell Issa,R-Calif., said, given the IRS’s $1.8 billion IT budget, should that not have been a priority?

“If we had the right resources, there would be a lot of priorities,” testily retorted Koskinen.

However, Rep. Scott Desjarlais, R-Tenn. pointed out that $10-to-30 million was not much compared to the $89 million the IRS paid in bonuses last year, including $1 million to employees who actually owed back taxes.

Lerner has admitted the IRS improperly targeted conservative groups applying for tax-exempt status, and testimony from others has revealed the agency asked such as invasive questions as what books their members read and what prayers they said.

However, Lerner refused to testify before Congress, twice invoking her Fifth Amendment right against self-incrimination.

After she pleaded the fifth a second time, Issa told WND that without Lerner’s testimony, investigators might never find out who ordered the IRS to target conservatives.

Investigators had hoped Lerner’s emails might reveal that information.

IRS chief Koskinen testified he’d learned of a problem with Lerner’s computer in February but didn’t learn of the missing emails until April.

Members of the Oversight committee were livid that not only did the IRS not inform Congress about the missing emails until June, someone at the IRS informed the White House in April.

GOP lawmakers demanded that Koskinen find out who at the IRS leaked the information to the White House.

Thursday’s court action follows Wednesday’s revelation of more key emails from Lerner, during an Oversight hearing, unrelated to the IRS scandal, that was actually called to look at improper government payments.

An email Lerner sent on  April 9, 2013, warned colleagues to be careful about what they wrote in emails because Congress could end up reading them.

The IRS first became aware that Congress was looking into potential targeting of conservatives on Jun 3, 2011, when chairman of the House Ways and Means Committee, Rep. Dave Camp, R-Mich., sent a letter to the IRS.

“I was cautioning folks about email and how we have had several occasions where Congress has asked for emails and there has been an electronic search for responsive emails — so we need to be cautious about what we say in emails,” Lerner wrote in April.

She also asked whether the IRS instant message communications were stored automatically.

When a tech staffer said they were not unless employees copied them, she replied, “Perfect.”

Less than a month later, Lerner would use a planted question at a conference event to admit the IRS had improperly targeted conservatives.

Oversight committee members were yet again incensed it took so long for them to learn about Lerner emails requested for more than a year.

Follow Garth Kant on Twitter @DCgarth

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