Judge orders IRS to come up with better explanation of missing Lerner e-mails

The dog-ate-my-homework — er, excuse me, hard-drive-ate-our-emails excuse did just about as well in federal court as it would during an IRS audit. Judge Emmet Sullivan rejected the IRS’ response to the Judicial Watch complaint about missing e-mails from Lois Lerner and other IRS employees involved in the targeting scandal yesterday. Sullivan in effect took steps to conduct his own independent probe, issuing an order demanding specific answers — and demanding them by one week from today:


A federal judge asked the U.S. Internal Revenue Service for more information on efforts it made to recover missing e-mail from the computer of an agency official at the heart of a quarrel between Congress and the Obama administration over scrutiny of Tea Party organizations.

U.S. District Judge Emmet Sullivan’s order today giving the IRS until Aug. 22 to come up with further details on what it did to retrieve e-mail from the malfunctioning computer of Lois Lerner signals his dissatisfaction with the agency’s earlier explanation, contained in an Aug. 11 filing.

The order comes in a Freedom of Information Act lawsuit filed by the activist group Judicial Watch. The complaint seeks Lerner’s e-mail and other communications concerning the processing of applications for tax-exempt status.

“Asked” is a bit too generous. Legal Insurrection has the actual document from Sullivan, in which “asked” is replaced by “ORDERED” — caps in the original, although Bill Jacobson has added other emphasis and formatting:

MINUTE ORDER. In light of [26] the Declarations filed by the IRS, the IRS is hereby ORDERED to file a sworn Declaration, by an official with the authority to speak under oath for the Agency, by no later than August 22, 2014.

In this Declaration, the IRS must:

(1) provide information about its efforts, if any, to recover missing Lois Lerner emails from alternate sources (i.e., Blackberry, iPhone, iPad);

(2) provide additional information explaining the IRS’s policy of tracking inventory through use of bar code property tags, including whether component parts, such as hard drives, receive a bar code tag when serviced. If individual components do not receive a bar code tag, provide information on how the IRS tracks component parts, such as hard drives, when being serviced;

(3) provide information about the IRS’s policy to degauss hard drives, including whether the IRS records whose hard drive is degaussed, either by tracking the employee’s name or the particular machine with which the hard drive was associated; and

(4) provide information about the outside vendor who can verify the IRS’s destruction policies concerning hard drives.


“ORDERED.” “Must.” “Speak under oath.” These are not really requests, and the time frame isn’t an expression of curiosity, either. Giving the IRS a single week to meet these demands after months of wrangling over Judicial Watch’s challenge implies that (a) Sullivan’s pretty convinced the IRS has these answers, which then suggests that  (b) Sullivan’s getting angry over the IRS’ intransigence and opacity in dealing with the court. Either Judge Sullivan has run out of patience, or he wants the IRS to think he has.

Needless to say, this makes Judicial Watch pretty happy:

In an extraordinary step, U. S. District Court Judge Emmett Sullivan has launched an independent inquiry into the issue of the missing emails associated with former IRS official Lois Lerner.

Previously, Judge Sullivan ordered the IRS to produce sworn declarations about the IRS email issue by August 11. Today’s order confirms Judicial Watch’s read of this week’s IRS’ filings that treated as a joke Judge Sullivan’s order.

Judge Sullivan, in his earlier ruling, appointed Magistrate Judge John M. Facciola to manage and assist in discussions between Judicial Watch and the IRS about how to obtain any missing records from other sources. Magistrate Facciola is an expert in e-discovery, and authorized Judicial Watch to submit a request for limited discovery into the missing IRS records after September 10.


The demand to produce testimony under oath in court sets up an interesting moment, too. The IRS has provided conflicting answers to Congress about the status of e-mail and the ongoing efforts to retrieve the records of Lerner and others. At different times, the IRS has told the House Ways and Means and Oversight committees that they had the records, that the records were lost, that some of the records may still be retrievable, and that they never knew Lerner had a Blackberry — even though some of her extant communications showed clearly that she used it for e-mail. How will the IRS resolve all of those contradictions in sworn testimony, under penalty of perjury?

We’ll have to wait until at least next week to see. Whatever they come up with is likely to differ yet again from what’s come before it, and it’s doubtful that will make Judge Sullivan any happier than he is at the moment.

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Jazz Shaw 8:30 AM | February 25, 2024