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Resurrection of the Lerner Emails: IRS Commissioner Says Some May Be Recovered

WASHINGTON – Internal Revenue Service Commissioner John Koskinen has acknowledged that some documents relevant to several investigations into the agency’s controversial handling of conservative groups seeking tax-exempt status, long thought lost, may instead prove to be recoverable.

Koskinen told the House Subcommittee on Economic Growth, Job Creation and Regulatory Affairs that investigators have uncovered documents that may contain information regarding emails authored by Lois Lerner, the former director of the Exempt Organizations Unit within the IRS who is a central figure in the ongoing probes.

Several legislative committees, including the House Committee on Oversight & Government Reform, sought Lerner emails over the space of several years to gain insight into the agency’s handling of conservative groups seeking exempt status under Section 501(c)(4) of the Internal Revenue Service Code. A Treasury Department inspector general’s report determined that Lerner’s office inappropriately subjected Tea Party and other conservative applicants to heightened scrutiny, resulting in extended delays in determining the status, sidelining some applicants during the 2012 election cycle.

But lawmakers were told in March that the IRS was unable to recover about 24,000 emails that Lerner exchanged with other administration officials from 2009 to 2011 as a result of what has been characterized as a “computer crash,” that the computer hard drive had been discarded and that back-up tapes no longer existed, a revelation that drew derision from congressional Republicans.

Now the possibility exists that at least some emails can be recovered. Koskinen told the subcommittee that he has no information regarding how investigators found the documents or “whether there’s anything on them or not.” The Treasury Department’s Office of the Inspector General is going through tapes to determine if any of them contain recoverable material.

“At this point, I have no information as to whether there’s anything usable on those tapes,” he said.

Lerner was subpoenaed to testify before the House Oversight and Government Reform Committee but she refused, invoking her Fifth Amendment rights, but only after declaring that she has done nothing wrong.

Reports that back-up tapes may have shown up first surfaced on Monday when the House Oversight & Government Reform Committee released portions of an interview it conducted with IRS Deputy Associate Chief Counsel Thomas Kane, who indicated that some back-ups of Lerner’s e-mails may still exist.

That testimony conflicted with a memo sent by the IRS to Sen. Ron Wyden (D-Ore.) and Sen. Orrin Hatch (R-Utah), dated June 13, which “confirmed that back-up tapes from 2011 no longer exist because they have been recycled.”

Rep. Darrell Issa (R-Calif.), chairman of the House Oversight and Government Reform Committee, found the revelation from Kane, in wake of the IRS declaration asserting that the back-ups had been destroyed, curious.

“I’m struck by the fact that the IRS attempted to keep a key witness like Mr. Kane away from investigators and only agreed to his appearance after I issued a subpoena for his testimony,” Issa said. “Finding out that IRS Commissioner Koskinen jumped the gun in reporting to Congress that the IRS ‘confirmed’ all back-up tapes had been destroyed makes me even more suspicious of why he waited months to inform Congress about lost Lois Lerner e-mails. Commissioner Koskinen has repeatedly blamed the reporting delay on an effort to be sure what he said was correct, we now know that wasn’t the case.”

On Tuesday, Rep. Dave Camp (R-Mich.), chairman of the House Ways and Means Committee – yet another panel looking into the situation – declared that, based on investigator interviews, the hard drive on Lerner’s computer was only scratched and the data was recoverable. In-house professionals recommended the agency seek outside assistance in recovering the data – a suggestion that was ignored.

Camp said it remains unknown whether the scratch was accidental or deliberate.

“It is unbelievable that we cannot get a simple, straight answer from the IRS about this hard drive,” Camp said. “The committee was told no data was recoverable and the physical drive was recycled and potentially shredded. To now learn that the hard drive was only scratched, yet the IRS refused to utilize outside experts to recover the data, raises more questions about potential criminal wrongdoing at the IRS.”

Questioned about the claim that the hard drive was only scratched, Koskinen said he knew very little about it.

Republicans also continued to press Koskinen about what they consider to be an unnecessary delay in informing the House Oversight & Government Reform Committee about the lost Lerner emails. Issa and Rep. Jim Jordan (R-Ohio), the subcommittee chairman, have asked the Justice Department to appoint a special prosecutor to look into the matter.

The issue was raised anew as a result of Kane telling investigators that IRS officials learned that Lerner’s communications were lost in early February. Koskinen didn’t inform the committee that it would not be receiving the requested documents until a March 26 hearing.

At the subcommittee hearing, Jordan told Koskinen that he believes the IRS only revealed the information when they were forced to.

“My theory is this, Mr. Koskinen -- you guys were never going to tell us until we caught you.”

Koskinen responded that he was advised in February that there was a problem with Lerner’s computer and that investigators had not found all of her emails. He was not made aware of the hard drive crash until April.

Democrats on the subcommittee, meanwhile, complained about the continued focus on the IRS, maintaining the probe is going nowhere and failed to establish any White House involvement.

Rep. Matt Cartwright (D-Pa.), the subcommittee’s ranking member, said the only reason Republicans are proceeding is to draw headlines.

“I believe these repeated hearings are both an abuse of authority and a dereliction of this committee’s duties,” he said.