Even if accidental, the loss of Lois Lerner’s e-mails is evidence of problems at the IRS

June 17

Last Friday it was revealed that approximately two-years worth of Lois Lerner’s e-mails at the Internal Revenue Service were lost due to a hard drive failure.  This revelation would have raised eyebrows even were the timing not incredibly convenient.  The hard drive crash occurred approximately ten days after Congress first inquired about the targeting  of conservative non-profits.  And, despite dozens of Congressional inquiries, the loss of e-mails relevant to multiple congressional investigations was not revealed until last week.    Were that not enough, subsequent reports suggest the IRS has lost e-mails from six others also implicated in the alleged targeting of conservative groups.  One need not be skeptical hippo to be skeptical.

Are there potentially innocent explanations? Yes, if by “innocent” one means that the e-mail loss is due to incompetence and bureaucratic short-sightedness rather than malfeasance.  Megan McArdle explains:

As it happens, I used to administer just the sort of e-mail systems that the IRS seems to be using. So I fired off a set of queries to the IRS about its e-mail system, its archiving policies and how the loss of data happened. Many of those queries remain unanswered, but I was given some documents that explain how the files could have been lost. My conclusion: It is plausible that this was an innocent coincidence. But it is only plausible if the IRS is managing its IT systems so badly that it is very easy to lose critical records — or for abusive employees to destroy the evidence of their misbehavior. A private company under investigation that responded to regulators, or a judge, with this sort of explanation rather than producing the requested documents would rightly expect to be handed an adverse judgment or a whopping fine. This incident should be thoroughly investigated, and steps should be taken throughout the government to make sure that no similar incident can ever happen again. . . .

To believe the IRS requires a pretty low opinion of government competence. My friends who work in regulated sectors such as finance are outraged by the IRS’s description of how it was running its backup process, because the government subjects them to constantly ratcheting standards for document retention — specifying how long, and on what format, they have to keep every communication ever generated by their firms. How dare they demand higher standards of regulated companies than they do of the regulators?

In 2014, every government agency should be storing every e-mail that goes in or out in an easily accessible format. That they weren’t bothering suggests that the IRS does not expect to deliver the kind of accountability that it routinely demands of taxpayers. That’s potentially a much bigger problem than anything Lois Lerner stands accused of — and it should be rectified, government-wide, with all due speed.

As always, TaxProf Paul Caron has compiled the latest news and commentary on the IRS scandal, as he does every day.  By his count, this is day 404 of the IRS scandal.  How many more will there be before we know what really happened?

UPDATE: As this WSJ editorial details, the latest disclosures demonstrate that the IRS has failed to comply with congressional document requests.

 in its letter on Friday the IRS slipped in the following: “In early 2014, Chairmen Camp and Issa reiterated their requests for all of Lois Lerner’s email, regardless of subject matter . . . Fulfilling the request,” said the IRS, meant it had to compile Lerner emails that went beyond the “search terms” it had “originally loaded for review.” By mid-March, the agency admitted, it had produced for Congress only the Lerner emails that it—the IRS—considered “related” to the scandal.

In other words, the IRS has from the start been picking and choosing which of Ms. Lerner’s emails it deigned to show Congress. And it did so despite knowing that Congress wanted everything.

This IRS filter has delayed the investigation and denied Congress access to important information. Congressional investigators learned only last week that Ms. Lerner corresponded with the Justice Department about potentially prosecuting conservative nonprofits. Congress had to subpoena Justice to obtain that Lerner correspondence. Only after Congress demanded the IRS explain why it hadn’t provided this Lerner-Justice correspondence did the IRS suddenly confess in its Friday letter that it had been picking and choosing emails.

Jonathan H. Adler teaches courses in constitutional, administrative, and environmental law at the Case Western University School of Law, where he is the inaugural Johan Verheij Memorial Professor of Law and Director of the Center for Business Law and Regulation.
Comments
Show Comments
Most Read National
Next Story
Eugene Volokh · June 17