It’s Time For AG Holder To Appoint A Special Counsel To Investigate The IRS

Sen. Rob Portman U.S. Senator (R-OH)
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You may have heard that the Internal Revenue Service has lost some emails. We are going to help the agency find them — either on their own, or through an investigation by a Special Counsel.

These aren’t just any emails. They are emails from 2009 through 2011 that Lois Lerner sent as head of the division of the IRS responsible for targeting conservative groups based on their political beliefs. In March, the IRS promised to turn over these emails as part of the ongoing congressional investigations into political targeting. Now the agency says they are lost, the result of an untimely crash of Lois Lerner’s hard drive. Other key employees’ emails are lost too, apparently the result of the coincidental demise of additional IRS hard drives.

The timing of the emails’ disappearance, during a critical time period for the investigation, seems unusual. In 2011, rumors of improper political bias in the IRS were already circulating, and House Ways and Means Committee Chair Dave Camp wrote a letter expressing concern that “the IRS appears to have selectively targeted certain taxpayers who are engaged in political speech.” Chairman Camp requested that the IRS turn over to the committee all communications related to potential targeting.

Ten days later, Lois Lerner reported that her hard drive had crashed, her emails apparently lost. Other emails apparently vanished around the same time.

The IRS would have us believe that the loss of these emails was all an unavoidable and unfortunate coincidence, a combination of bad email retention policies and limited resources for storage and backups. With all due respect to the leaders of the IRS, we aren’t ready to give up as easily as they are.

Last week, I sent a letter to the Commissioner of the IRS, John Koskinen. In that letter, I explained to Commissioner Koskinen what he should already know — Ms. Lerner’s emails may very well still exist. In fact, I offered two sources from which the IRS may be able to recover those emails. The first is the White House itself.

My understanding is that all emails sent to or from the Executive Office of the President are archived using a system known as EmailXtender, which “[a]utomatically captures messages … including messages sent or received via Blackberries, in near real time.” There is no evidence that the IRS has attempted to recover the emails in question from the EmailXtender system. Now is the time to try.

If that route proves unfruitful, the IRS could look to transaction logs created by Mail Transfer Agents (MTAs) used by the Department of the Treasury and other federal agencies. Such logs record a unique identifier for every email sent to or from a particular person. It is my understanding that email forensic experts can use the unique identifiers recorded in the logs to locate an individual’s emails even if they have been deleted from the individual’s computer and from the email backup system used by the agency hosting the individual’s email account.

These are just two methods by which the IRS might recover some of Lois Lerner’s lost emails. I have no doubt that IT experts could likely propose others. If the IRS is serious about getting to the bottom of this scandal, they will look into the EmailXtender programs and IRS transaction logs as I have requested.

Unfortunately, based on their past conduct and recent comments by the commissioner, I am not convinced the IRS will provide the information needed to get to the bottom of this scandal.

More than a year ago, I called on the Attorney General to appoint a Special Counsel with full powers to conduct an investigation into the IRS. Had the administration headed my call, we could have gotten to the bottom of this scandal by now, punished those responsible, and begun the hard work of rebuilding the American people’s trust in their government. Instead, we have faced a year of stonewalling and obfuscation.

We cannot repeat that mistake, and we have no more time to waste. The IRS has proven it cannot police itself. The Attorney General must appoint a Special Counsel, and he must do so soon.

Whether the result of incompetence or malice, the targeting scandal has dealt a serious blow to the reputation of the IRS and to the trust the American people have in this administration. Washington must do all it can to restore that trust. The IRS is simply too powerful — and the political freedoms threatened by IRS coercion and intimidation too precious — to do otherwise.

That process begins by finding Lois Lerner’s emails.