Policy: Technology

Federal judge orders IRS to swear that it can't recover Lois Lerner's lost emails

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IRS officials were ordered to make a sworn declaration explaining how critical emails from Lois Lerner disappeared and what can be done to recover them during a hearing Thursday.

Judge Emmet G. Sullivan of the U.S. District Court for the District of Columbia ordered agency officials to produce a sworn affidavit by Aug. 10 explaining how the emails were lost and how they may retrieved from other sources. The order comes as part of a Freedom of Information Act lawsuit seeking Lerner's emails filed last October by the nonprofit watchdog group Judicial Watch.

Those same emails are being sought by a trio of congressional committees.

Lerner was the head of the IRS division that processed applications for tax-exempt organizations, which the agency has acknowledged inappropriately targeted conservative groups for scrutiny.

IRS officials now claim they cannot retrieve large batches of Lerner's emails prior to 2011 because her computer crashed, and the hard drives were subsequently destroyed. That is the critical time period since the improper targeting occurred, as Tea Party organizations and other conservative groups sought nonprofit status during the 2010 and 2012 election cycles.

The lost records include exchanges between Lerner and individuals outside the IRS, potentially including the White House or Justice Department, according to congressional critics skeptical of the claims they cannot be retrieved.

Sullivan also ordered the two sides in the case to meet in September in front of Magistrate Judge John M. Facciola, an expert in electronic discovery, to determine other avenues to recover the emails.

Lerner first disclosed the improper targeting in May 2013, just before the release of an inspector general's report criticizing the agency for its tactics. That same month she invoked her Fifth Amendment right against self-incrimination and refused to testify in front of the House Committee on Oversight and Government Reform. She again refused to answer the committee's questions in March of this year.

Lerner retired last September.

The IRS also is battling efforts by another outside group trying to get Lerner’s emails.

True the Vote, a conservative nonprofit targeted for heightened scrutiny, is asking a federal judge to allow an outside expert evaluate whether Lerner's emails can be retrieved. A hearing in that case is scheduled for Friday.

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.

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Mark Flatten

Senior Watchdog Reporter
The Washington Examiner

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