Judge demands IRS explain lost emails

A federal judge on Thursday ordered the IRS to detail under oath how some of former agency official Lois Lerner’s emails went missing, as well as any potential methods for recovering them.

Judge Emmet Sullivan of the U.S. District Court in Washington gave the Internal Revenue Service exactly a month — until Aug. 10 — to file a report, which he demanded as part of a lawsuit from a conservative watchdog, Judicial Watch, against the agency.

Judicial Watch is seeking a wide range of documents from the IRS, including Lerner’s emails, as part of a Freedom of Information Act request. It has complained that the IRS didn’t tell it that the agency couldn’t recover all of Lerner’s emails from 2009 to 2011.

ADVERTISEMENT
Sullivan cast his ruling as a compromise, and a potential way for Judicial Watch to get answers without the court wading any deeper into the matter. Judicial Watch had asked the court to potentially compel IRS officials to testify about the lost emails, through a process called limited discovery.

The IRS has said that Lerner’s hard drive crashed in the middle of 2011, leaving the agency unable to recover all of her emails. That admission breathed new life into the congressional investigations into the IRS.

Lerner has been a central figure of the IRS’s Tea Party controversy since May, 2013, when she became the first agency official to acknowledge the improper scrutiny of conservative groups.

The IRS told lawmakers in June that it couldn’t locate a collection of Lerner’s emails. John Koskinen, the IRS commissioner, later said that Lerner’s hard drive had been destroyed, and that the agency first found out there was a problem with her emails in February.

Koskinen first found out that emails were missing in April, and Judicial Watch said the agency had a duty to tell both the group and the district court about those problems.

As part of his ruling, Sullivan also ordered Judicial Watch and the IRS to work with another federal judge, John Facciola, to find out how many of Lerner’s emails can be found through other methods.

The IRS has said that it would turn over to Congress some 24,000 emails either to or from Lerner between 2009 and 2011 that the agency found through the accounts of other agency staffers.

After Thursday’s hearing, attorneys for Judicial Watch said the IRS hadn’t disclosed that fact to them.

Geoffrey Klimas, a Justice Department attorney representing the IRS, argued in the hearing that the court should only weigh in after Treasury’s inspector general for tax administration finishes its investigation into the missing emails.

Klimas also argued that the IRS didn't have to tell Judicial Watch about the missing emails, because Lerner's hard drive crashed roughly two years before the group's FOIA request.

Koskinen has said that the inspector general, which first outlined the agency’s treatment of Tea Party groups, asked the IRS not to interview witnesses or turn over documents until its investigation is complete. Sullivan said the IRS's explanation due next month should outline how that investigation affects the court proceedings.

But Sullivan said the inspector general’s investigation shouldn’t stop the IRS from detailing under oath what happened to Lerner’s emails, leaving Judicial Watch to claim victory after the hearing.

“In our view, there has been a cover-up going on,” Tom Fitton, Judicial Watch’s president, said after the hearing. “The government needs to be transparent. And part of transparency is telling people when there’s a problem.” 

--This report was updated at 3:30 p.m.