Policy: Law

Another federal judge tells IRS to explain itself on lost emails

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IRS attorneys will be even busier than normal next week, because another federal judge has told them to show up in court July 11 to defend the federal tax agency.

They will have to explain to U.S. District Court Judge Reggie Walton why the IRS shouldn't be required to let an outside expert evaluate whether emails on the computer hard drives of former IRS official Lois Lerner and six colleagues really are lost forever, as the agency recently told Congress.

Responding to a motion filed Monday by True the Vote, a Houston-based conservative nonprofit at the center of IRS targeting during the 2010 and 2012 campaigns, Walton issued an order Tuesday to hear arguments next week.

The IRS recently told Congress that a mysterious crash of the hard drives last year irretrievably destroyed nearly two years of emails to and from Lerner and the others to and from people in other federal agencies, including the White House.

But True the Vote wants a digital forensics expert from outside the IRS to assess the evidence.

“Even if the ill-timed hard drive ‘crash’ was truly an accident, and even if the IRS genuinely believes that the emails are ‘unrecoverable,’ the circumstances of the spoliation at issue cry out for a second opinion,” True the Vote's attorneys told Walton in the motion filed late Monday.

“It may well prove to be the case that a computer forensics expert could recover evidence that the IRS has been unable to retrieve.

"At the very least, such an expert could preserve whatever evidence has not already been wiped clean from the IRS’s computers along with whatever is stored on the Individual Defendants’ home computers, cell phones, and other PDAs.”

IRS attorneys will be in the federal District Court on July 10 to explain why the government failed to tell Judicial Watch about the lost emails for months despite their being evidence in the nonprofit's Freedom of Information Act lawsuit.

Judicial Watch, a government watchdog nonprofit, filed its lawsuit last October after IRS officials failed to respond adequately to a May 2013 FOIA request for the Lerner emails.

The government asked Walton on Monday night to dismiss the motion for an outside digital forensics expert. But True the Vote argued that merely asking for the dismissal “does not give them carte blanche to destroy or permit the destruction of documents and discoverable information that are relevant to the IRS Targeting Scheme in general and the application of True the Vote for exempt status.

“If the IRS’s public statements about ‘recycling’ Ms. Lerner’s hard drive are true, that alone establishes spoliation of evidence that violates federal statutes and regulations, the Federal Rules of Civil Procedure, and professional ethics and responsibility.

“These statements, coupled with the refusal of Defendants’ counsel, to provide any assurances about what has been and will be done to preserve evidence underscore the need for the relief that True the Vote seeks."

An IRS spokesman has been asked for comment on True the Vote's motion and the July 11 court date.

Editor's note: Judicial Watch is representing the Washington Examiner in the newspaper's federal lawsuit seeking access to Consumer Financial Protection Bureau records under FOIA.

Mark Tapscott is executive editor of the Washington Examiner.
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