Lerner emails obtained last summer from the House Ways and Means Committee.

Lerner emails obtained last summer from the House Ways and Means Committee. Susan Walsh/AP

IRS Did Not Willfully Destroy or Hide Lerner Emails, Watchdog Finds

Commissioner is faulted for weak effort to turn over every stone.

An inspector general’s probe of the missing emails involving former Internal Revenue Service executive Lois Lerner “provided no evidence that the IRS employees involved intended to destroy data on the tapes or hard drives in order to keep this information from Congress,” the Justice Department or the inspector general’s staff, the IG said.

Nor did it uncover any evidence “that any IRS employees had been directed to destroy or hide information,” according to a new technical report from the Treasury Inspector General for Tax Administration.

 “However, the investigation revealed that the IRS did not put forth an effort to cover additional responsive emails,” wrote TIGTA in an unreleased report posted July 2 by Rep. Elijah Cummings, D-Md., ranking member of the House Oversight and Government Reform Committee.

Reactions from both sides in the polarized debate over alleged IRS political targeting of mostly conservative groups suggest that the new report will not end the two-year-old controversy.

As previewed at a hearing late last month, the inspector general has been investigating the difficulties the tax agency had producing all of the thousands of emails related to Lerner’s work as head of the Exempt Organizations Division processing applications by nonprofits seeking tax-exempt status.  TIGTA’s own investigators found relevant emails after Commissioner John Koskinen had assured Congress that every effort was being made to locate them, while uncovering the fact that many tapes containing documents relevant to congressional subpoenas had been destroyed as part of normal electronic housecleaning.

Koskinen told the TIGTA investigators he had cooperated fully, that he relied on information from others who erroneously said the missing Lerner emails were irretrievable, and said he even encouraged expansion of the probe.

The new redacted report summarizes interviews with 118 witnesses and forensic searches of Lerner’s records by federal and contractor specialists in six forms, including laptops, BlackBerries, hard-drives, servers and back-up tapes made necessary because her hard-drive crashed in 2011. After checking for duplication with emails already provided to Congress and others, TIGTA determined that somewhere between 1,300 and 24,000 emails may still be missing.

The report noted that instant messages used by Lerner and many IRS employees were not recorded on a server, under an agreement with the National Treasury Employees Union. And it quotes Paul Wester, chief records officer of the National Archives and Records Administration, saying that in terms of records management with technology in place in 2010, “The IRS did nothing wrong as far as safeguarding records.” The Archives does not require agencies to report every hard-drive crash until they have determined what data was lost, Wester added.

But, as the inspector general and his deputy told the House Oversight panel last month, the employees who erased tapes in violation of an agency directive may still face consequences.

“The IRS is now reviewing TIGTA's findings and we plan to promptly make improvements and take corrective actions as warranted,” a spokesman said.  

In response to the report on Tuesday, Sen. Orrin Hatch, R-Utah, chairman of the Senate Finance Committee, joined with ranking member Sen. Ron Wyden, D-Ore., to say they “appreciate the inspector general’s commitment to seeing this investigation through and getting to the bottom of what exactly happened to Lois Lerner’s emails. Given the committee’s ongoing commitment to ensuring a complete and thorough investigation into this issue, the senators will review TIGTA’s report in its entirety and expect to issue a final report regarding the IRS’s treatment of tax-exempt groups by the August state work period.”

Cummings’ statements were more barbed. “After spending more than $20 million and three years investigating, the inspector general’s conclusions remain the same: There is no evidence to substantiate Republican claims of political motivation, White House involvement, or intentional destruction of evidence,” said Cummings, who resurrected statements from Republican lawmakers accusing the IRS of lying. “It’s time to stop this political witch hunt and focus on investigations that impact American’s lives.”

The Democrat also criticized Republicans for attacking Catherine Duval, a former IRS attorney now at the State Department, for allegedly stonewalling on Congress’ document demands when the new IG report says her statements to Congress were based on information given her by IRS’ deputy chief information officer.

But Oversight panel member Rep. Jim Jordan, R-Ohio., said in an email to Government Executive that the new report does not get the IRS off the hook. “TIGTA found that back-up tapes for Lois Lerner were destroyed a month after Commissioner Koskinen’s counsel, [Catherine] Duval, realized there was a problem with Ms. Lerner’s emails. These back-up tapes were destroyed in spite of a preservation order that had been in place since May 22, 2013,” he said. “As a result of this, we will never see what was on up to 24,000 e-mails relevant to our investigation. This is a travesty, and warrants the Oversight committee’s continued review.”

The conservative-leaning legal group Cause of Action, which has sued the Treasury Department to obtain missing Lerner mails, is also undeterred. “This report does not prove that no intentional destruction or White House involvement occurred,” Executive Director Epstein told Government Executive. “The report concerns an investigation, and TIGTA does not have authority to make legal conclusions.” Questions that remain, he said, include whether the NTEU agreement with IRS to not record instant messages violated the Federal Records Act, an area, he said, TIGTA has no authority to investigate.

Judicial Watch, the conservative legal group that is also an active litigant in the Lerner controversy seeking to force IRS disclosure of withheld emails, is similarly skeptical. “If the IRS had done what it’s supposed to do, those records would be there,” its president, Tom Fitton, said in an interview. “Koskinen did testify falsely that email records were not on backup tapes and not retrievable, and this report confirms that he made the decision to withhold information from Congress.”

Fitton faulted the IRS for a slow response in providing his group with emails sought through the courts, and for not searching more broadly in IRS’ general email system. “They had zero interest in complying, obstructed Congress” and redacted names from this report to avoid media scrutiny, he said. “If a corporate CEO, having had these issues specifically raised with him, didn’t take steps to recover the emails, they would be hauled in on obstruction of justice charges sooner than you can say indictment. It’s well past time for the resignations of Koskinen” and IRS Chief Counsel William Wilkins, Fitton said.

Paul Streckfus, an attorney and IRS veteran who edits a newsletter on tax-exempt organizations, wrote on Tuesday, “While I think House Republicans used the IRS ‘scandal’ for political reasons (I doubt if any of them really believed we had Watergate the Sequel), the ‘scandal’ was largely the result of IRS stupidity and it was kept alive for the past two years by more IRS stupidity, like erasing and not finding emails. For the future, the Republican Congress must insist on more accountability and openness from the IRS without making every investigation into a witch hunt or bashing exercise.”

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