Everybody knows computer crashes don’t typically result in permanent destruction of emails, which is probably why a poll from Fox News found that just 12 percent of Americans believe Lois Lerner’s emails were accidentally destroyed. Only 11 percent of independents and just 20 percent of Democrats are buying the accident story. As the Department of Justice keeps playing along with this charade, it’s time for a special prosecutor.
The most feared and hated federal agency targeted political opponents of the current administration, at one point going so far as to demand from pro-lifers the content of their prayers. Now they claim to have lost critical evidence by accident, but the timeline suggests otherwise.
The first publicly reported evidence of the IRS inappropriately targeting conservatives came in the spring of 2011, when five donors to the conservative group Freedom’s Watch received letters indicating the IRS intended for the first time in history to assess gift taxes for contributions to a nonprofit group, and they intended to audit the five donors to do so. According to the Wall Street Journal, Lois Lerner’s unit led the audits and was the only entity within IRS that had access to the names of the conservative donors who were targeted.
On June 3, 2011 House Ways and Means Committee Chairman Dave Camp sent a letter about the gift tax issue to then-IRS Commissioner Doug Shulman, inquiring more broadly: “the IRS appears to have selectively targeted certain taxpayers who are engaged in political speech. Not only does this threaten political speech, it casts doubt on the IRS’s credibility as an impartial enforcer of the nation’s tax law.”
Ten days later, on June 13, 2011, Lois Lerner claimed that her hard drive crashed, destroying what she described as “documents in the files that are irreplaceable.”
The IRS claims that the only backups were intentionally destroyed in accordance with an IRS policy that only retains backups for six months (which the national archivist has indicated is not compliant with federal records laws).
As purported evidence of good faith, the IRS observes that Lerner went to the “extraordinary length” of sending her hard drive to criminal investigations specialists to determine if any data could be recovered. But in a recent hearing, Rep. Jason Chaffetz of Utah asked why they didn’t at least restore the six months they had backed up at the time of the alleged crash.
Chaffetz asked: “You got a forensic team to try to extract this but they were backed up on tape and you didn’t do it?”
Current IRS honcho John Koskinen claimed it would have been difficult and expensive to do a backup restoration before confessing: “I don’t know why they didn’t do it.”
In this context, it looks more like Lerner shipped her hard drive off to the criminal investigators to be absolutely certain the incriminating documents could never be recovered than in a good-faith attempt to restore them.
At a minimum, she should explain herself – but of course she is refusing to testify on the grounds that doing so would be incriminating.
There was a lot happening inside the IRS when Camp’s letter hit. The targeting of tea party groups had begun the previous April, and had placed hundreds of applications improperly in limbo. According to the audit report by the Treasury Inspector General for Tax Administration, on June 2, 2011 – one day before Camp’s letter – the agents implementing the tea party targeting scheme sent a report on their criteria they were using up to management.
Did Camp’s letter cause Lerner to panic and permanently destroy incriminating documents?
Some of the specifics in the Camp letter certainly suggest it’s possible, including:
- “How are tax-exempt organizations generally selected for audit?”;
- “How did employees in the Exempt Organizations Division [run by Lois Lerner] assist in the sharing of the Form 990 information with other IRS employees?”;
- and the request for all relevant records, which an appendix clarified “means any written, recorded, or graphic matter of any nature whatsoever … including but not limited to … electronic mail (e-mail).”
The reply came from Deputy Commissioner Stephen Miller on July 1, 2011. “The IRS is apolitical and non-partisan,” Miller told Camp. “All decisions made and actions taken with respect to the matter were performed by career employees in the normal course of their duties.”
Of course we now know the principal career employee involved was Lois Lerner, whose records had already been destroyed by that time – or so she thought.
An email IRS did provide to Congress from the “lost” period was one of the most revealing of the whole investigation to date. In it, Lerner said: “Tea Party Matter very dangerous. This could be the vehicle to go to court on the issue of whether Citizen’s United overturning the ban on corporate spending applies to tax exempt rules… Cincy should probably NOT have these cases.”
Lerner probably thought that email had been successfully destroyed when she offered the lie that the whole targeting scheme was run by a couple of rogue agents in Cincinnati. Fortunately that email still existed in the account of one of its recipients.
But how many others, similar or worse, were sent to email addresses outside of the IRS?
More than a year ago President Obama told the country: “Americans are right to be angry about it, and I am angry about it.” But his anger has since dissipated. He also said: “I’ll do everything in my power to make sure nothing like this happens again by holding the responsible parties accountable,” but Lois Lerner has retired to her beautiful Bethesda home with a full pension.
When a person destroys evidence, lawyers up and takes the Fifth, it’s reasonable to believe she committed a crime. Yet the Department of Justice refuses to act on a criminal referral from Congress. It’s long past time for President Obama to appoint a special prosecutor to hold Lois Lerner accountable.
Phil Kerpen is the president of American Commitment.