The excuse of “the hard drive ate my homework” flies just as well in federal court as it does in any middle school, it seems. After Judicial Watch filed a complaint over the lack of notice on their FOIA demand that the Lois Lerner e-mails no longer existed, a federal judge ordered the IRS to explain what happened within 30 days — and that explanation has to come under oath:
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.
Sullivan also ordered the IRS to come up with some plan over the next 60 days to recover whatever data might still be accessible:
In addition to the written declaration, the judge also ordered that the government and Judicial Watch meet with Magistrate Judge John Facciola until Sept. 10 to discuss how the IRS can possibly obtain or recover the lost emails and documents from other sources. Judicial Watch is seeking information on what kinds of efforts the IRS has gone to in order to recover the lost information as well as how the agency is identifying additional sources, such as Lerner’s assistant, to try to find them.
Judicial Watch has had success using FOIA to get emails in other controversies, including the killings in Benghazi.
Following the judge’s order, Judicial Watch President Tom Fitton told reporters that it was “an extraordinary hearing” that shows Sullivan was “obviously interested on behalf of the public” in getting the IRS on the record about the emails. Fitton also said that appointing a magistrate as Sullivan did “rarely happens” in FOIA cases.
After the process with Facciola, Fitton said he is interested in limited discovery and then may ask for more testimony. The group is also looking at the new information concerning the use of in-office instant messaging as “another area of potential discussion with the government.”
House Oversight chair Darrell Issa called Lerner’s memo on the use of the OCS system and warning to keep from discussing certain topics on e-mail a “smoking gun” yesterday:
“[This is] a smoking gun, this is Lois Lerner clearly cautioning people not to say things on email and be delighted to find out that the local instant chat they have, this Microsoft product, wasn’t tracking what they said,” Issa, a California Republican said on Fox News. …
“I think the important thing is she was trying to make sure that on April 9 of 2013 that, in fact, her people weren’t being tracked and she was still using words like ‘caution,’” said Issa, who is chairman for the House Oversight Committee, which is in charge of the IRS investigation. “Why? She didn’t want an audit trail of what they’d been doing and what they were doing was targeting conservatives for their views, no question at all.”
During the interview, “Fox and Friends” host Brian Kilmeade read correspondence between Lerner and Maria Hooke, the director of business systems planning for the tax-exempt division. After asking Hooke if the agency’s internal instant message conversations, called OCS, were searchable, Hooke responded, “OCS messages are not set to automatically save, parties involved in an OCS conversation can copy and save the contents of their conversation on an email or file.”
“Perfect,” Lerner responded on April 9, 2013.
But is this memo from 2013 really a “smoking gun”? The Christian Science Monitor wonders about the timing, but still thinks it looks suspicious:
Pivotal events in the IRS affair had been unspooling long before the e-mail about instant messaging. Key revelations about who was telling whom to do what may stem from that earlier period.
Lerner’s computer had a hard-drive crash – Republicans say a suspiciously convenient malfunction – in June 2011. …
Although they stem from a later time period, the newly released e-mails are fresh evidence suggesting Lerner was interested in covering her division’s tracks. And it’s worth noting that this particular e-mail exchange took place just as the Treasury’s Inspector General was preparing a damaging report. April 9, the day of the e-mails, was barely four weeks from when Lerner first publicly admitted – ahead of the Inspector General’s report – that inappropriate behavior had occurred.
She was soon placed on administrative leave. She retired later in 2013 and has used the Fifth Amendment to avoid answering questions from House Republicans.
The responses from the IRS have been so disingenuous, and in Lerner’s case so uncooperative, that they’ve long since ceased to deserve the benefit of the doubt. Let’s also not forget that Lerner’s “apology” in May 2013 was a staged event, part of a strategy to minimize the more serious allegations from the initial Inspector General report. The IRS has been attempting to manipulate public reaction literally from Day One of this scandal.
This order from a federal judge escalates the stakes significantly in that effort. The AP points out that previous IRS testimony has come under oath, but that was before Congress, and Congress has limited power to hold witnesses accountable without cooperation from the Department of Justice. A federal judge can level contempt charges that can keep uncooperative witnesses in jail, sometimes indefinitely, and perjury in federal court will be a lot more difficult for the DoJ to ignore than perjured testimony before Congress.