Cold Case: Can Congress Unravel the IRS Targeting Scandal?

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Thousands of emails detailing years of government communications between officials intimately involved in the Internal Revenue Service’s targeting of conservative nonprofit groups have been lost, IRS officials informed the members of the congressional committees investigating the controversy last week. While a number of Democratic lawmakers attempted to downplay the scandal in its early days as the wrongdoing of one misguided individual, it speaks to a larger truth about the IRS.

Taking into account other recent scandals, including excess spending on agency conferences and the inappropriate awarding of employee bonuses, it appears greater oversight is needed and that problems within the agency extend further than how 501(c)(4) status is awarded to social welfare groups that engage in political activity.

As part of the congressional inquiry, lawmakers sought to examine emails sent from former IRS Director Lois Lerner and other ranking agency officials. Last week during a meeting of the House Ways and Means Committee, agency technicians told lawmakers that IRS officials knew that Lerner’s emails had been lost three months before they informed the committee that the documents would be released.

Lerner allegedly lost two years’ worth of files when her computer crashed in 2011. Sources told Politico that her hard drive has since been recycled, meaning the lost emails will likely never be recovered.

“We’ve been informed that the hard drive has been thrown away,” Sen. Orrin Hatch of Utah, the ranking Republican on the Finance Committee, told Politico. Just days after lawmakers learned Lerner’s emails were out of reach, congressional investigators were told that six additional IRS workers lost emails when their computers crashed. Among those is Nikole Flax, who served as the chief of staff to IRS Deputy Commissioner Steven T. Miller. After the scandal broke, Miller became acting commissioner, but he later resigned.

A former IRS official told Politico that computer crashes were not that unusual at the tax agency. Transparency advocates and experts in the retrieval of emails from antiquated government computer systems explained to the publication the flaws in the tax agency’s archival strategies. For many years, the IRS’s record-keeping procedures — particularly its practice of erasing backups every six months — have been singled out as a point of weakness.

Lawmakers are still less than convinced. “If the IRS truly got rid of evidence in a way that violated the Federal Records Act and ensured the FBI never got a crack at recovering files from an official claiming a Fifth Amendment protection against self-incrimination, this is proof their whole line about ‘losing’ e-mails in the targeting scandal was just one more attempted deception,” House Oversight and Government Reform Committee Chairman Darrell Issa, a California Republican, said in a Wednesday press release. “Old and useless binders of information are still stored and maintained on federal agency shelves; official records, like the e-mails of a prominent official, don’t just disappear without a trace unless that was the intention.”

Similarly, Dave Camp of Michigan, the Republican chair of the House Ways and Means Committee, and Charles Boustany Jr. of Louisiana, the Republican chair of the House Ways and Means Oversight Subcommittee, said in a Tuesday press release: “Plot lines in Hollywood are more believable than what we are getting from this White House and the I.R.S.” Both lawmakers wrote a letter to Attorney General Eric Holder, requesting an independent prosecutor be appointed to examine any potential misconduct.

Democratic lawmakers aren’t pushing as hard to continue the investigation. Elijah Cummings of Maryland, the ranking Democrat on the House Oversight Committee, told CNN’s Candy Crowley earlier this month that “the case is solved and if it were up to me, I would wrap this case up and move on.” Controversy followed that statement, and in an interview with Politico, he explained he was referring to the “witch hunt” that has surrounded the inquiry.

The disappearance of these key emails has prompted many lawmakers to return to comments made by President Barack Obama earlier this year, which now seem more incongruous with how the investigation has progressed. Speaking with to Fox News in February, well before any results of the investigation had been released, he asserted that there was not a “smidgen of corruption” in the IRS scandal.

Thus far, investigators have determined that the IRS processed applications for tax-exempt status filed by Tea Party-affiliated organizations at an extremely slow rate. But the question of whether the White House or another agency directed the IRS to act so slowly has yet to be answered.

Current IRS Commissioner John Koskin will testify before the oversight committee on Monday and the House Ways and Means committee on Tuesday. Both panels are examining whether the loss of the emails constitutes a violation of the Federal Records Act.

For the IRS, it has proved difficult to pen new rules for the awarding of 501(c)(4) status under the U.S. tax code to social welfare groups that engage in political activity. In the wake of the targeting scandal and at the behest of the federal government, the IRS wrote new regulations intended to limit political activities by tax-exempt organizations and provide guidance on how much political activity such groups can engage in without risking the loss of their special status.

The period of public comment, which closed at the end of February, produced more than 15,000 comments, the largest public response to any proposed rule in the agency’s history. Those comments ran the gamut from positive to negative, forcing the IRS to delay a public hearing and the implementation of the rules.

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