Federal judge orders IRS to explain lost emails

BY Stephen Ohlemacher, Associated Press  July 10, 2014 at 5:19 PM EDT

WASHINGTON — A federal judge on Thursday ordered the IRS to explain under oath how it lost a trove of emails to and from a central figure in the agency’s tea party controversy.

U.S. District Judge Emmet G. Sullivan gave the tax agency a month to submit the explanation in writing. Sullivan said he is also appointing a federal magistrate to see whether the lost emails can be obtained from other sources.

Sullivan issued the order as part of a Freedom of Information Act lawsuit by Judicial Watch, a conservative watchdog group. He said the IRS declaration must be signed, under oath, by the appropriate IRS official.

“I’m going to hold tight to that Aug. 10 declaration,” Sullivan said.

The IRS says it lost the emails in 2011 when Lois Lerner’s computer crashed. At the time, Lerner headed the IRS division that processes applications for tax-exempt status. She has since retired.

Lerner, who refused to answer questions at two House committee hearings, has become a central figure in several congressional investigations over the handling of tea party applications. At both hearings, Lerner cited her Fifth Amendment right not to incriminate herself.

IRS Commissioner John Koskinen has testified on the lost emails before Congress at least three times. Each time he was under oath.

Koskinen said he first learned there was a problem with Lerner’s computer in February but didn’t learn that emails were lost until April. The IRS notified Congress June 13.

Judicial Watch lawyer Ramona Cotca complained that the IRS never informed her group or the court about the lost emails, even though Sullivan had ordered the IRS to produce documents related to the information request on a monthly basis.

Geoffrey Klimas, a Justice Department lawyer representing the IRS, said the agency had no legal obligation to tell Judicial Watch about emails that may have been destroyed two years before the group filed its request for information.

Judicial Watch filed a series of requests with the IRS shortly after the tea party controversy erupted in May 2013. Among its requests, the watchdog group wanted communications Lerner had with others concerning the handling of applications for tax-exempt status since Jan. 1, 2010.

Judicial Watch filed a lawsuit against the IRS in October, saying the agency didn’t produce any documents. Since then, the IRS started to produce some documents in February, Cotca said.

On Thursday, Cotca asked Sullivan to conduct a limited discovery to determine what happened to the emails, perhaps compelling testimony from IRS officials. But Sullivan said that would be premature.

Klimas noted that the tax agency’s inspector general is conducting an investigation into the lost emails. Klimas said the inspector general has asked the IRS not to question witnesses that may have information about the lost emails to avoid interfering with its investigation.

Sullivan said the sworn IRS statement should include information about the inspector general’s concerns.

Sullivan said he would assign federal magistrate John Facciola to look into ways of obtaining the IRS records from other sources, though it is unclear how much information could be recovered.

In 2011, the IRS had a policy of backing up emails on computer tapes, but the tapes were recycled every six months, Koskinen told Congress. He said Lerner’s hard drive was recycled and presumably destroyed, after technicians in the agency’s criminal investigations unit tried unsuccessfully to restore it.

The IRS was able to generate 24,000 Lerner emails from the 2009 to 2011 period because she had copied in other IRS employees, Koskinen said. As part of the congressional investigations, the IRS said it is producing a total of 67,000 emails to and from Lerner, covering the period from 2009 to 2013.

IRS lawyers are due back in federal court Friday before a different judge for a hearing on the lost emails in a separate lawsuit filed by a group called True the Vote. The group, which says it advocates for the integrity of elections, sued the IRS over delays in its application for tax-exempt status.