The IRS didn’t follow the law by failing to report it lost emails when former official Lois Lerner’s computer crashed, the top official at the National Archives told a House panel on Tuesday.
But those actions could have limited consequences for the agency.
U.S. Archivist David Ferriero cast the IRS’s email problems as part of a broader government issue at the House Oversight Committee hearing on Tuesday, a point latched onto by Democrats.
The goal of the Archives in these situations, Ferriero also noted, is to “ensure that the circumstances that may have led to the loss of federal records are corrected and not repeated.”
“It’s not an enforcement statute,” Paul Wester, the Archives’ chief records officer, said about the Federal Records Act.
There are criminal statutes for the willful destruction of official records. But even aides to House Oversight Chairman Darrell Issa (R-Calif.) suggested the harshest penalties IRS officials could face would be internal discipline or firing for violating the Federal Records Act, which tries to ensure the safekeeping of official documents.
The latest IRS flare-up came as part of the third hearing in five days on Lerner’s emails. Tuesday’s featured subpoenaed testimony from a White House lawyer who used to work at the IRS, but who said she didn’t know Lerner’s emails had been lost during her tenure at the agency.
Lerner, who retired from the IRS last year, is at the center of the controversy over the IRS’s improper scrutiny of Tea Party groups seeking tax-exempt status. She has twice refused to testify in front of Congress, and Republicans are now seeking any records of her correspondence they can find.
Ferriero said he only learned of the missing Lerner emails this month, in a letter the IRS sent to lawmakers. The IRS had known there were issues with the emails since at least February, according to Commissioner John Koskinen.
Pressed by Rep. Tim Walberg (R-Mich.) at Tuesday’s hearing about whether the IRS had broken the law, Ferriero said: “They did not follow the law.”
He faulted the agency for not quickly reporting that the documents were gone but also acknowledged the problem is systemic.
Agencies are striving to manage all email records electronically by the end of 2016, but many of them now require employees to print and save emails that could be official documents.
“This is 2014, and we’re printing and saving?” Ferriero said. “This is embarrassing.”
The IRS says that even the agency’s criminal investigations division was unable to recover archived emails on Lerner’s hard drive after it crashed in 2011.
The IRS has produced around 24,000 of Lerner’s emails from 2009 to mid-2011 by checking the accounts of other agency officials, and the White House and Treasury have both checked their records for Lerner emails. In all, the IRS says congressional investigators will get 67,000 emails.
Jennifer O’Connor, the White House lawyer subpoenaed to testify by Issa on Tuesday, told the Oversight panel she was unaware that some of Lerner’s emails couldn’t be recovered when she worked for the IRS in 2013.
But O’Connor acknowledged that the IRS struggled to keep up with records requests from congressional investigators examining the agency.
She also insisted that the agency was still in the midst of a first examination of Lerner’s emails when she left in November 2013, months before the IRS discovered the problems with recovering all of the emails.
O’Connor’s answers did little to assuage House Republicans. Issa, for instance, called O’Connor a “hostile witness” just seconds after he started questioning her. The Oversight Committee chairman later clarified that he should have termed O’Connor “a noncooperative witness” who only testified under subpoena.
“I am definitely not a hostile witness,” O’Connor said at one point.
The exchange illustrated just how testy the back and forth between GOP lawmakers and the IRS has gotten in recent days.
“While I appreciate his time and effort, our relationship with the IRS and the commissioner was not improved by his disappointing performance,” Issa said on Tuesday morning, less than 12 hours after Koskinen wrapped up his rare Monday evening appearance.
Speaker John BoehnerJohn Andrew BoehnerLobbying world A new kind of hero? Last week's emotional TV may be a sign GOP up in arms over Cheney, Kinzinger MORE (R-Ohio) suggested Republicans should be careful in their questioning on Tuesday morning, even as he insisted that White House officials “haven’t done a damn thing to help us get to the truth of what really happened.”
“We invite people to come and provide testimony, and frankly, they should be treated with respect,” BoehnerJohn Andrew BoehnerLobbying world A new kind of hero? Last week's emotional TV may be a sign GOP up in arms over Cheney, Kinzinger MORE told reporters.
Democrats questioned why O’Connor had to appear at all and suggested the GOP interest in O’Connor was more about her current employer than her tenure at the IRS.
“Today’s hearing is not about policy or substance. It’s about politics and press,” said Rep. Elijah Cummings (Md.), the top Democrat on the Oversight panel.
This story was updated at 8:18 p.m.