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Federal Judges Press IRS In Missing Emails

In an unexpected twist to the ongoing scandal over the missing IRS emails, two federal judges came down hard on the tax agency last week in separate hearings connected to the computer fiasco.

The judges ordered the agency to explain under oath how the agency lost thousands of emails from the files of now-retired Lois Lerner, who headed the IRS unit that reviews applications for tax-exempt status. The IRS claims her computer suffered a crash in 2011 that wiped out her hard drive.

Held in two different Washington, D.C. courtrooms, the hearings followed motions by two non-profit groups, Judicial Watch and True the Vote, which were among hundreds targeted by the IRS for illegal harassment during election campaigns in 2010 and 2012.

 

These groups “faced multiple inquiries and special scrutiny from the IRS, and often the FBI and other federal agencies,” FOX News reported.

 

Both groups have filed lawsuits against the IRS to obtain evidence and documentation that would unravel the mystery of who authorized that harassment, and how thousands of emails that might disclose that information could have simply vanished.

 

True the Vote is now seeking a motion to “preserve and prevent further destruction” of IRS emails and missing documents. The group also wants its own forensic expert to determine how the emails were lost and examine whether the data is recoverable. 

 

Government attorneys argued in court last Thursday and Friday that the litigation by these groups is unnecessary and premature since an investigation by the Treasury’s Inspector General into the lost emails is already in progress.

 

But in Friday’s hearing, part of a case brought by True the Vote, U.S. District Court Judge Reggie Walton, a Clinton appointee, questioned the reliability of this process. He appeared concerned about the qualifications of the IG investigators conducting the probe and how long their investigation will last.

 

TIGHTENING THE SCREWS

 

In his ruling, he gave the IRS officials only five days to produce a sworn affidavit that reveals who handled the hard drive at the time of the crash as well as the qualifications of the specialists currently assigned to examine it. He asked for a date by which the current investigation will be complete.

 

Among other things, Judge Walton said he wanted to know the serial number, if any, assigned to the hard drive and if that number is known, “why the computer hard drive cannot be identified and preserved.”

 

A day earlier, in a separate case brought by Judicial Watch, U.S. District Judge Emmet Sullivan, a Bush appointee, gave the IRS until August 10 to file a declaration by an “appropriate official” to address the computer issues involving Lerner. 

 

Judicial Watch filed a Freedom Of Information Act last October, after IRS officials failed to respond to a FOIA petition seeking the Lerner emails. The tax agency failed to disclose even the minimum information that the emails were allegedly lost due to an alleged computer crash two years earlier.

 

The bombshell about the crash was dropped only this May, sparking a wave of criticism and disbelief.

 

The hard drive fiasco was not even mentioned in the IRS status report to Judge Sullivan in the months prior to the hearing – a glaring omission the agency will have to explain in its affidavit, writes New York Observer.

 

Judicial Watch had asked that the court compel IRS officials to testify under oath in court about the lost emails. Judge Sullivan didn’t grant that request, instructing the IRS to submit a written report instead.

 

But he tightened the screws by ordering that the IRS work with a federal magistrate judge who is an expert in electronic discovery, to find out how many of Lerner’s emails can be recovered through other methods.

 

Judge Sullivan’s ruling was viewed as a victory by many monitoring the case. Calling the ruling “extraordinary,” Judicial Watch president Tom Fitton described it as “a victory for public accountability.”

 

TURNING POINT AFTER 4-YEAR BATTLE

 

A recent federal ruling that broke new ground in the effort to wrest these many secrets from the IRS came in a case brought by Z Street, a staunchly pro-Israel group whose application for tax exemption status, like those of Tea Party groups, was sidelined by the IRS.

 

Z Street fought a four year battle with the IRS after learning it had been targeted for “special scrutiny” for holding views at odds with the Obama Administration’s foreign policy regarding Israel, in particular its endorsement of a two-state solution. Z Street opposes appeasement of terrorists.

 

A major breakthrough in the case came three weeks ago when federal judge Katanje Jackson denied the government’s request to dismiss the lawsuit, and cleared the way for the lawsuit to move ahead to the discovery phase.

 

As part of the discovery stage, Z Street founder Lori Lowenthal Marcus told Yated, “we’ll be meeting with government lawyers this week, asking among other things, for evidence that the IRS put ‘a litigation hold’ as required by law, on all documents that might be potential as evidence in the lawsuit.”

 

Had such a litigation hold with its multiple safeguards been in place, “all relevant documents would have survived a computer crash,” Lowenthal-Marcus noted.

 

Z Street is seeking the back story to why it was targeted by the IRS. Who crafted this policy and why? Was it part of a broader below-the-radar campaign to stifle dissent with the Administration? Did it all begin with Lois Lerner? Or was she merely carrying out orders, and if so, from whom?

 

Lowenthal-Marcus said that the Z Street’s litigation began four years ago, long before the public was aware of the IRS being used as a weapon to stifle dissent. But the case was forced to stagnate while waiting in vain for the IRS to respond to it briefs.

 

“Four years of silence and stone-walling is outrageous, she added. “Under a normal process of litigation, we should have had discovery a long time ago. All the documents were in IRS hands…Had we had “due process,” it’s likely none of them would be missing today.”

 

Discovery empowers Z Street to subpoena IRS officials, place them under oath, and take depositions, asking detailed questions about how they acted and under whose direction. They can cross examine witnesses closely. They can also subpoena documents and require their production.

 

“The process can still be impeded by government efforts to narrow the scope of discovery,” Z Street’s founder told Yated. “But if the courts and the justice department work as they should, the truth will ultimately come out.”