The congressional investigation of the Internal Revenue Service for improper scrutiny of conservative groups has sputtered to a stall. Faced with the loss of key emails to and from Lois Lerner, who recused herself on Fifth Amendment grounds from the investigation last year, the investigative committee, and the American public, are receiving an education in computer crashes and IRS backup policy.
It’s a series of events that allows for two narratives, each compelling in its own right. It seems that the repercussions of this very convenient computer error, only confessed to a year after the investigation began—a poor move by any standard—can either be blamed on incompetence and indifference or on malice and deceit. Answers in the near future appear unlikely. Whether actual laws were broken, or just the laws of common sense, is being debated.
The Washington Post has posted an accessible explanation of the digital debacle. In brief: Lois Lerner’s computer crashed in 2011, wiping out her email and records going back to 2009, the beginning of the period under investigation for what she admitted was the inappropriate examination of Tea Party-affiliated groups. The IRS records policy prior to the investigation was to keep six months of files at a time, then write over them with six months of new information, meaning no IRS server backups from the time exist. The IRS also had a limit on email inbox size, further restricting their recordkeeping. Whatever backups Lerner had on her own computer died with it, but not without a fight; she did apparently ask IT and computer forensics to try and recover information from her hard drive.
Today, 24,000 Lerner emails have been recovered because they were copied to, or sent to or from, other IRS employees. Add those emails sent after the crash and the IRS says it can produce 67,000 Lerner emails for the investigation. There are six other IRS employers with missing emails related to the period, however, and the emails most sought by investigators, those tying Lerner to figures outside the IRS, cannot be accessed under the parameters of the current investigation.
Until the investigation is opened to the records of other federal departments and even the White House, as it stands, there is no way to know what was communicated from the IRS officials to others outside via email. That is, unless Congress compels Lerner to testify. Retired Harvard law professor Alan Dershowitz has said that Lerner’s earlier comments in regards to this case, including her protestation of innocence of any wrongdoing, precludes her, at least in precedent, from pleading the Fifth Amendment.
Regardless of where the investigation proceeds, the agency's behavior so far has been unprofessional, if not unethical. Despite knowledge of the computer crash and missing emails, IRS official John Koskinen promised Congress repeatedly that all emails needed for the investigation would be produced, and waited to inform the investigative committee of the computer crash. Besides, it looks like, whether by accident or deliberately, federal record law has been violated. Time, and plenty of patient gumshoeing by Darrell Issa, will tell.
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