The Never Ending Story (IRS Version)

For John, BLUF:  The IRS "Non-Scandal" just goes on and on.  I blame the lawyers.  Nothing to see here; just move along.

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The reported loss of the EMails of former IRS employee Lois Lerner has prompted action by lawyer Cleta Mitchell, who represents True the Vote.  She has sent a letter to the attorneys at the Department of Justice representing the IRS in True the Vote’s pending lawsuit.  And, she also addressed Ms Brigida Benitez, partner in the firm Steptoe & Johnson, who represents the IRS defendants who are sued in their individual capacity.  This issue of Lois Lerner♠ is not yet over, notwithstanding the assertions of various supporters of the Administration.

RE: TTV v. IRS et al, 1:13-cv-00734 (D.D.C.), Litigation Hold – Preservation of Responsive Evidence

Dear Counsel:

As you know, True the Vote (“TTV”) filed its lawsuit in the above-referenced matter on May 21, 2013.  By the time TTV filed its suit, the Internal Revenue Service (“IRS”) and its employees and officials were on notice of the commencement of several congressional investigations.  The House Committee on Oversight and Government Reform (“Oversight”), the House Committee on Ways and Means (“Ways and Means”) and the Senate Finance Committee (“Senate Finance”) (collectively, “the Committees”) have each provided notice to the IRS of their ongoing investigations into the IRS, and specifically, Defendant Lois Lerner and her activities related to the issues involved in the TTV litigation for over a year now.

Late Friday, the IRS apparently advised the Ways & Means Committee that the IRS has “lost” Lois Lerner’s hard drive which includes thousands of Defendant Lerner’s e-mail records.  However, several statutes and regulations require that the records be accessible by the Committees, and, in turn, must be preserved and made available to TTV in the event of discovery in the pending litigation.  Those statutes include the Federal Records Act, Internal Revenue Manual section 1.15.6.6 (which refers to the IRS’s preservation of electronic mail messages), IRS Document 12829 (General Records Schedule 23, Records Common to Most Offices, Item 5 Schedule of Daily Activities), 36 C.F.R. 1230 (reporting accidental destruction,) and 36 CFR 1222.12.  Under those records retention regulations, and the Federal Records Act generally, the IRS is required to preserve emails or otherwise contemporaneously transmit records for preservation.

And so it goes for many paragraphs, in language only a lawyer would like.  You can read the whole thing at this Powerline blog post.

Regards  —  Cliff

♠  Funnily enough, on Wikipedia "Lois Lerner" goes to a page titled "2013 IRS controversy".  This has not been recently updated, as it does not mention the "loss" of EMails to and from Ms Lois Lerner.