IRS claims six more computers conveniently crashed, wiping out scandal-related emails
Don’t tell me nobody in Washington works hard. The homework-eating dog who snaffled up Lois Lerner’s emails is putting in some serious overtime.
If you’re going to claim that one key official’s email was mysteriously wiped out years ago, in a previously unreported computer crash that somehow bypassed every imaginable backup system, you might as well go for broke and say everyone involved in the scandal suffered a similar misfortune. Nobody believed the Lerner story anyway, and the point of the exercise is to drag out the investigation, until the bones of this scandal collapse into dust.
Rep. Dave Camp, chairman of the House Ways and Means Committee, brings us the latest news on the wave of hard drive failures plaguing a very specific group of IRS employees:
Today, Congressman Dave Camp (R-Midland), Ways and Means Committee Chairman, and Oversight Subcommittee Chairman Charles Boustany Jr., M.D. (R-LA) revealed that the Committee’s early work into “lost” IRS emails show the problem is much bigger than the IRS initially admitted to.
In addition to Lois Lerner’s emails, the IRS cannot produce records from six other IRS employees involved in the targeting of conservative groups. One of those figures is Nikole Flax, who served as Chief of Staff to Steve Miller, who at the time of the targeting was Deputy Commissioner and would later serve as Acting Commissioner of the IRS – a position from which he was fired for his role in the targeting of conservative groups. The timeframe for which Ms. Flax’s communications are purportedly unrecoverable covers when the Washington, DC office wrote and directed the Cincinnati field office to send abusive questionnaires, including inappropriate demands for donor information, to conservative groups.
Camp and Boustany also uncovered that the IRS has been keeping secret for months the fact that the Agency lost these critical records. Ways and Means investigators have confirmed that the Agency first knew of the destroyed emails as early as February 2014 – nearly three months prior to newly installed Commissioner John Koskinen telling the Committee the IRS would produce all of Lois Lerner’s emails.
Camp and Boustany are not amused:
“It looks like the American people were lied to and the IRS tried to cover-up the fact it conveniently lost key documents in this investigation. The White House promised full cooperation, the Commissioner promised full access to Lois Lerner emails and now the Agency claims it cannot produce those materials and they’ve known for months they couldn’t do this.
“Even when the IRS does admit something, they are not fully honest with us. Despite their attempt to bury the missing Lerner emails on page 15 of a 27 page letter that arrived late Friday, we now know documents from other central figures, like Nikole Flax, are missing. The fact that Ms. Flax was a frequent visitor to the White House and the Eisenhower Executive Office Building only raises more questions. Who was she visiting at the White House and what were they talking about? Was she updating the White House on the targeting or was she getting orders? These are answers we don’t yet have, because – surprise, surprise – a few computers crashed. Plot lines in Hollywood are more believable than what we are getting from this White House and the IRS.
“This entire investigation has been slow-walked by the Administration while they denied any wrongdoing and tried blaming ‘low-level’ workers in Cincinnati – all of which we have proven to be wrong. This entire case started with the White House and top Democrats in the Senate using the bully pulpit to bully law-abiding Americans because they dared to stand up for their own political beliefs. The only way for Democrats to have any credibility on this issue is to immediately give an independent prosecutor full access and full authority to investigate every angle of this case.”
That’s the same point I made yesterday about the overall strategy here. It doesn’t matter how ludicrous the excuses become, as long as this already elderly scandal is pushed closer to its unmarked grave. The new argument in Washington is all about the crazy “everybody’s hard drive crashed” story, which will keep everyone nice and distracted while sand slips through the hourglass, and maybe a few more inconvenient computers hit the ol’ Blue Screen of Death. The outrage is framed in entirely partisan terms – “Republicans” say this, “Republicans” are outraged about that – so next year’s left-wing editorial writers can say only GOP partisans and conspiracy theorists are still asking questions about those missing IRS emails.
One person whose questions are rather pointed is Cleta Mitchell, attorney for True the Vote, one of those groups that was given no quarter when the Internal Hard Disk Error Revenue Service wanted their information. She wrote a letter to the Justice Department lawyers representing the IRS, reprinted at the PowerLine blog, in which she reminded them the missing records are part of the discovery phase in pending litigation, and the court system has a few ideas about how to deal with “dog ate my homework” excuses:
Late Friday, the IRS apparently advised the Ways & Means Committee that the IRS has “lost” Lois Lerner’s hard drive which includes thousands of Defendant Lerner’s e-mail records. However, several statutes and regulations require that the records be accessible by the Committees, and, in turn, must be preserved and made available to TTV in the event of discovery in the pending litigation. Those statutes include the Federal Records Act, Internal Revenue Manual section 18.104.22.168 (which refers to the IRS’s preservation of electronic mail messages), IRS Document 12829 (General Records Schedule 23, Records Common to Most Offices, Item 5 Schedule of Daily Activities), 36 C.F.R. 1230 (reporting accidental destruction,) and 36 CFR 1222.12. Under those records retention regulations, and the Federal Records Act generally, the IRS is required to preserve emails or otherwise contemporaneously transmit records for preservation.
Therefore, the failure for the IRS to preserve and provide these records to the Committees would evidence either violations of numerous records retention statutes and regulations or obstruction of Congress.
Federal courts have held, in the context of trial, that the bad faith destruction of evidence relevant to proof of an issue gives rise to an inference that production of the evidence would have been unfavorable to the party responsible for its destruction. See Aramburu v. The Boeing Co., 112 F.3d 1398, 1407 (10th Cir. 1997). The fact that the IRS is statutorily required to preserve these records yet nevertheless publicly claimed that they have been “lost” appears to evidence bad faith. 18 U.S.C. § 1505 makes it a federal crime to obstruct congressional proceedings and covers obstructive acts made during the course of a congressional investigation, even without official committee sanction. See, e.g., United States v. Mitchell, 877 F.2d 294, 300–01 (4th Cir. 1989); United States v. Tallant, 407 F. Supp. 878, 888 (D.N.D Ga. 1975).
Further, by letters dated September 17, 2013, TTV provided notice to counsel for the individual IRS Defendants in this litigation. The “Individual Defendants” are: Steven Grodnitzky, Lois Lerner, Steven Miller, Holly Paz, Michael Seto, Douglas Shulman, Cindy Thomas, William Wilkins, Susan Maloney, Ronald Bell, Janine L. Estes, and Faye Ng. TTV’s September 17, 2013 correspondence reminded you and your clients of the Individual Defendants’ obligation “not to destroy, conceal or alter any paper or electronic files, other data generated by and/or stored on your clients’ computer systems and storage media (e.g. hard disks, floppy disks, backup tapes) or any other electronic data, such as voicemail.” We identified the scope as encompassing both the personal and professional or business capacity of your clients and involving data “generated or created on or after July 15, 2010.” See Attached Letters to Ms. Benitez and Messrs. Lamken and Shur.
As Mitchell points out, one of the defendants’ lawyers “took great offense” at the suggestion anything untoward might happen to correspondence relevant to the case, and asserted that all of the IRS officials would receive good legal counsel about the importance of keeping their records in good order. And here we are, with the sudden revelation that all of their computers have crashed, and no backups of the sensitive emails were made.
Mitchell echoes some of the documentation requests suggested by reporter Sharyl Attkisson earlier this week, including details on these enigmatic computer failures, attempts made to recover the lost data, and some explanation for why no one seemed to know about it before last Friday’s afternoon news siesta. Naturally, everyone investigating this fiasco wants all computer systems and backup media seized and examined immediately… but we all know that won’t happen. The requests will be fought, and there will be fights about whether they had the right to fight the requests, and then the Democrat political circus will roll in to declare the whole thing a partisan witch hunt, and so forth.
If the Beltway crowd and the media are going to pretend to take this cover-up seriously, may we ask what it says about the integrity of the IRS, their ability to handle sensitive data, the immense non-negotiable reporting requirements they place upon the rest of us… and why the biggest, richest, most indebted government in history can’t seem to do anything right?
Update: House Oversight has already subpoenaed IRS Commissioner John Koskinen to testify about Lois Lerner’s missing emails next week. Now he’ll have seven times as much fun!
Update: I’ve heard Commissioner Koskinen’s appearance before the House has been pushed up to this Friday. One gets the impression that some last straws have broken.
Update: One of the six new “hard drive crash” victims, Nikole Flax, was a remarkably frequent visitor to the White House. No doubt Obama apologists will blow this off as part of the IRS effort to gear up for ObamaCare enforcement – that’s what they said when it was discovered that the IRS commissioner at the time was spending an unprecedented amount of time on White House visits. It’s comforting to know the agency that can’t manage to comply with minimal record-keeping standards, and claims to have incredibly convenient computer failures that it doesn’t bother to mention to Congressional investigators for over a year, will be enforcing the insanely complicated health-care boondoggle, isn’t it?
House Oversight Committee Chairman Darrell Issa didn’t just subpoena the current IRS commissioner over the computer-crash epidemic – he also issued a broad subpoena for all of the computer equipment involved, relevant files from the agency’s mail servers, and basically every internal IRS communication related to production of the emails that have now gone swirling off into the digital void. I suspect what he’s looking for in those communications would be some contemporaneous mention of the incredible computer crash epidemic – in an age when computers very rarely crash like that, and hard drive data is almost never unrecoverable – since everyone involved would have known the highly specific data loss pertained directly to documents subpoenaed by Congress. Don’t you suppose you’d say something to your co-workers and supervisors if a freak disk error wiped out several years’ worth of documents that you were under orders to provide to Congress?
As I’ve said before, I suspect compliance with Issa’s new subpoenas will be contemplated no sooner than 2017. Unless, of course, there are more hard drive crashes that wipe out all the emails related to the previous hard drive crashes. As Lois Lerner remarked when asked about the alleged destruction of all her subpoenaed correspondence, “Sometimes stuff just happens.”