In the second part of a hearing about the Internal Revenue Service’s targeting of conservative groups, the nation’s top archivist said the agency did not follow the law regarding the loss of a top executive’s emails after her computer crashed.
On Tuesday, the House Oversight and Government Reform Committee held its second day of hearings on IRS obstruction over the loss of former division head Lois Lerner’s emails from 2009 to 2013. Congress is interested in the messages during that time, in the hopes that they will help explain the agency’s decision to target conservative political groups for audits, putting them under extra scrutiny during the months leading up to the 2012 presidential election. Organizations that used words including “tea party” or “patriot” in their applications for tax-exempt status were flagged. Some were asked for their list of financial donors, a flagrant violation of IRS policy, although none of the approximately 75 groups had their tax-exempt status revoked.
Lerner, who retired from the IRS last fall after being placed on administrative leave, is at the center of the auditing controversy because of her refusal to answer congressional questions, citing her Fifth Amendment right not to incriminate herself. Lawmakers subpoenaed IRS records relating to the targeting to attempt to determine if the Obama administration had any knowledge or involvement in the scheme that Lerner said was started by low-level employees in Cincinnati, Ohio and did not involve top IRS officials.
But the IRS says that Lerner’s hard drive crashed in June 2011, and that many of her emails – those that did not include other IRS officials – are unrecoverable. The agency has been able to generate 24,000 of her emails from 2009 to 2011, as well as an additional 43,000 Lerner emails from 2011 to 2013, according to the Associated Press.
When the hard drive crashed and technical experts, including IRS forensic specialists, couldn’t recover the data, the agency should have notified the National Archives and Records Administration, US Archivist David Ferriero told the House Oversight Committee on Tuesday. The Federal Records Act requires agencies to notify the National Archives whenever documents or emails have been lost, regardless of whether it was done intentionally or accidentally.
"Any agency is required to notify us when they realize they have a problem," Ferriero said.
Rep. Tim Walberg (R-Mich.) asked Ferriero if the IRS broke the law, to which he responded, “I’m not a lawyer.” Walberg repeated the question, and this time the archivist answered, “They did not follow the law.”
Ferriero was not the only person to testify about the emails on Tuesday. The committee subpoenaed White House attorney Jennifer O’Connor, a former IRS counselor to the acting commissioner, who said her tenure predated the loss of emails. Oversight Chair Darrell Issa (R-Calif.) called her a “hostile witness,” which he amended to “non-cooperative witness.”
During the first part of the hearing on Monday, the congressional committee peppered IRS Commissioner John Koskinen over whether he told the White House about the missing emails and how the word spread about them.
“I didn’t tell anybody,” Koskinen said. “I was advised. I had no one I was going to tell.”
Issa sought to clarify. “Did you cause someone to find out at the White House, or Treasury or your [inspector general]?” he asked.
“I did not,” Koskinen responded. “And if you have any evidence of that, I’d be happy to see it.”
The Republicans on the Oversight Committee also blasted the commissioner for not providing all of Lerner’s emails, reminding him with a video of his previous promise.
“I said I would provide all the e-mails — we are providing all the e-mails,” Koskinen said, adding, “I never said I would provide e-mails we didn’t have.”
Issa was indignant. “I have lost patience with you,” he said.
Koskinen suggested that the loss of e-mails could have been avoided with additional funding for the IT upgrades, saying the IRS’s computers and backup systems are dated. He said Congress has reduced the agency’s budget by $850 million over the past four years and that the House has proposed cutting it by another $350 million for 2015.
“Well, surely that will change in light of our deep and profound concern for what happened to Lois Lerner’s hard drive,” Rep. Gerry Connolly (D-Md.) said sarcastically.
Republicans told Koskinen that the agency should have used the money spent on conferences and bonuses – paid to IRS employees who hadn’t paid taxes – on updating its computer technology instead.