Time’s Up for Lois Lerner and the IRS

Judge Sullivan Gave Them A Chance. What’s next?

 Judge Emmet G. Sullivan (Photo Credit DOMINIC BRACCO II)

Judge Emmet G. Sullivan (Photo Credit DOMINIC BRACCO II)

On July 10, D.C. federal judge Emmet Sullivan gave the IRS thirty days to provide him sworn declarations in the Freedom of Information Act suit filed by Judicial Watch, seeking much of the same information the IRS has effectively kept from Congress. After an “extraordinary” hearing, Judge Sullivan ordered the IRS to tell him under oath exactly what happened to Lois Lerner’s hard drive. He demanded sworn declarations specifying what the agency had done to recover the thousands of emails missing. Time’s up.

The IRS filed its “declarations” yesterday. As an attorney who has read the filings and who has written extensively about this dedicated judge in my book Licensed To Lie, I could not in good conscience sign those filings. It’s not that they are false. Oh no, . . .each is very carefully worded to be literally true (hence, not perjurious). But, each says little, answers less, and reveals nothing that would actually lead to recovery of the emails or to anyone’s accountability for their disappearance in any form. In fact, the few pages say less than has already been revealed elsewhere.

Judge Sullivan may be quite impressed with IRS declarations—but not favorably. He’s the kind of judge who expects forthrightness and good faith, along with truth from the government. He wants to know what every citizen who gave any thought to the issues would want to know—real answers. Those emails have not disappeared. Remember, Emmett Sullivan is the no-nonsense and gutsy judge who held DOJ lawyers in contempt for their gamesmanship. He later named an independent special prosecutor of his own choosing to investigate the Department upon discovery that it had hidden evidence favorable to the defense in its corrupt prosecution of US Senator Ted Stevens.

Judge Sullivan knows better than to trust the government’s blanket, bald, and rote denials of wrongdoing and the existence of evidence. He’s seen the difference between an internal investigation’s results and the fresh report of an independent prosecutor who has neither a job, nor power, nor a personal or political agenda to protect.

While Judge Sullivan might appreciate the details of the tests IRS technicians ran on Lois Lerner’s laptop, like us, he will probably have more questions than ever upon reading the IRS’s flaccid verbiage.

Who among us doesn’t receive and send emails from more than one device—each of which often has a different server? Did Lois Lerner have a desktop computer? Did she have any other device on which she could or did receive office emails? Did she have a Blackberry, a smartphone, an iPad or other similar devices? Where are those now and what servers did each use?

Lois Lerner, feeling the heat (BRENDAN SMIALOWSKI/AFP/Getty Images)

Lois Lerner, feeling the heat (BRENDAN SMIALOWSKI/AFP/Getty Images)

As AIM reported earlier, an American Center for Law and Justice complaint cites Lerner—and her comrades Douglas Shulman, Sarah Hall Ingram, Nikole Flax and Judith Kindell—for “repeatedly us[ing] nonofficial, unsecure, personal email accounts to conduct official IRS business, including sending tax return information and official classified documents to non-agency email addresses. . ..” Did their home computers crash too?

And what about Sara Hall Ingram, who was Commissioner of the tax-exempt section of IRS from 2009 to 2012? She made 165 trips to the White House . . . then was promoted to head the IRS division managing Obamacare. Clearly, since the IRS’s competence in record retention is so stunning, it should be entrusted with the nation’s healthcare. Was that promotion payback for Hall’s and Lerner’s work targeting political opposition to the president and illegally sharing taxpayer information with the White House?

Speaking of the White House, who among the staff there received emails from Lerner, Hall, and friends? It’s already been disclosed that Hall was talking with the White House about lawsuits attacking the controversial contraceptive mandate in Obamacare—the recent Supreme Court reversal in Hobby Lobby poking yet another hole in the incomprehensible legislation.

Like many of us, Judge Sullivan just might have already read that Deputy Associate Chief Counsel of the IRS, Thomas Kane, admitted to Congress on July 21 that the number of hard drive crashes had not only expanded from one (Lerner’s) to seven, but had risen to just fewer than twenty; and, there might be copies of the emails on back up devices, but they weren’t sure yet. How long does that take? It’s been weeks—actually years.

Yesterday’s declarations mention nothing of these facts. Apparently, Mr. Kane, who is not even in the Treasury’s Office of the Inspector General, but rather, has coordinated the IRS’s painful and pathetic “response” to multiple Congressional inquiries, believes that his superficial representations are all that Judge Sullivan should need.

Mr. Kane obviously hasn’t read Licensed to Lie. Judge Sullivan won’t be fooled again by a “just-trust-us” internal investigation—especially when Mr. Kane and his colleagues provided no details and no timeline. Of course, the IRS says it will give Judicial Watch the documents that it has already foundafter it reviews them. No IRS official has even asserted to Judge Sullivan that he was trying to find the emails elsewhere.

And someone in the IRS recommended that Lerner’s hard drive be given to an outside technician to retrieve the emails, but instead, it was destroyed. Who made that recommendation? Who over-rode it? Who authorized the destruction of a hard drive containing evidence of correspondence with the White House? How would that excuse work for a taxpayer’s records? Oooops, sorry. That’s a felony.

When these few pages of declarations were written, Mr. Kane must have forgotten that Defendant Lerner alone “accumulated more than 1,600 pages of emails and documents related to official IRS business in a nonofficial, unsecure, personal email account, including almost 30 pages of confidential taxpayer information.”

What about her “personal” email accounts, other devices, the multiple devices of others—not to mention the servers? That’s right—no declaration mentioned the servers. Yet, everyone knows emails reside on servers, and there had to have been multiple servers.

It looks like Magistrate Judge John Facciola, who has expertise in electronic discovery, will indeed have to provide substantial assistance to the parties to locate the emails and perhaps issue some subpoenas to have devices brought into court, get data from servers, or open discovery for depositions. The parties have until September 24 to resolve it with the Magistrate’s help.

The IRS claims it has found about 24,000 of Lerner’s emails on the computers of others. Why weren’t hard copies retained as was required by the Federal Records Act? Whose computers in the White House have been checked? Did they all crash at the same time too—just losing the emails with the IRS?

There are far more questions than answers from the IRS declarations. And law-abiding citizens want to know.

The only thing these miserly declarations prove is that IRS has abdicated all responsibility and has no interest in finding the emails. But Judge Emmet Sullivan does.

Sidney Powell worked in the Department of Justice for 10 years and was lead counsel in more than 500 federal appeals. She served nine U.S. Attorneys from both political parties and is the author of Licensed to Lie: Exposing Corruption in the Department of Justice.