TaxProf Blog

Paul L. Caron
Dean





Friday, March 6, 2015

The IRS Scandal, Day 666

IRS Logo 2The Fiscal Times, Hillary Clinton Is the Republicans’ Newer, Bigger Lois Lerner:

Clinton has morphed into a hybrid of everything Republicans deplore about the Clintons, reminiscent of the conduct of IRS official Lois Lerner.

Many in the conservative movement smelled an administration plot to suppress Republican activists during the 2012 presidential election, and when Lerner famously refused to testify before Congress, she only cemented that perception. But the real reason conservatives have never let go of Lerner is her emails. The IRS claimed that Lerner and six other employees’ official IRS computers suffered hard drive crashes that rendered much of the information on it unrecoverable. It was impossible, therefore, for the IRS to credibly claim that it had turned over all relevant emails involving Lerner to Congressional committees investigating the targeting of non-profit groups. In fact, Lerner emails are still being uncovered.

A similar search for Clinton’s emails was launched Wednesday, when Rep. Trey Gowdy (R-SC), the chairman of the House Select Committee that is investigating the attack on the U.S. diplomatic compound in Benghazi, Libya in September 2012, announced that his committee would subpoena Clinton’s emails. ...

Clinton’s situation is arguably worse that Lerner’s because the wound is completely self-inflicted. At the time Lerner’s computer failed, the agency claimed that the back-up system they did have only kept data for 6 months before overwriting the digital tapes. IRS workers, including Lerner, were expected to identify all the emails they sent or received that could be classified as a “federal record” and to print out hard copies.

In fact, the records were backed up, and investigators were able to recover more than 30,000 emails as well as tapes from servers within two weeks dating back to 2001. As a result, the possibility of criminal activity is being probed by the Treasury Inspector General for Tax Administration.

Nevertheless, the procedure in place at the IRS left open the possibility that an employee guilty of wrongdoing might simply decline to save incriminating emails in hard copy. Taking things a step further – as many conspiracy-minded commentators did – one can imagine a staged hard drive “crash” that permanently eliminates evidence.

There is no evidence to suggest that Lerner was derelict in observing the rules on record retention, and certainly none to suggest that she engineered a fake hard drive crash. But you can’t prove a negative, and the system in place at IRS, making Lerner the arbiter of what was and was not a federal record, left ample room for doubt that there had been a cover up.

While the conditions that created doubt about Lerner’s emails were largely the fault of the IRS’s internal systems, Hillary Clinton has no such defense. She could have used the official email system, which archives messages. Her successor, John Kerry, does just that. But she didn’t.

Putting aside the apparent risk of placing all of her official communications outside the protection of the secure State Department email system (a major issue according to this Bloomberg report), the decision effectively put Clinton in the same position that IRS rules created for Lerner. It made her the arbiter of what emails were and were not considered public records.

  • The American Spectator, If David Petraeus Were Hillary Clinton:  "Think Lois Lerner with a server in her basement and what would have happened if Lerner and Lerner alone had 100% control on who saw her e-mails and which would or would not be erased as investigators closed in."
  • Town Hall, White House Squirms Over Hillary's Email Scandal, Forgets Embrace of Regular Law Breaking:  "Former head of tax exempt groups at the IRS Lois Lerner, who was a key player in targeting conservatives between 2010 and 2012, used a personal email account to conduct official government business. "Through the course of the investigation, we have learned that you sent documents related to your official dendrites from your official IRS e-mail account to an msn.com e-mail account labeled 'Lois Home.' This raises some serious questions concerning your use of a non-official e-mail account to conduct official business. Accordingly, we write to request documents related to your official duties that are housed in non-official e-mail accounts," former Chairman of the House Oversight Committee Darrell Issa and former Subcommittee Chairman Jim Jordan sent in a letter to Lerner last year. "The use of non-official e-mail accounts to conduct official business implicates federal records requirements. Use of a non-official e-mail account to conduct government business raises the prospect that records -- as defined by the Federal Records Act -- are not captured by official government e-mail archiving systems. It also creates difficulties in fulfilling the IRS' obligations under the Freedom of Information Act and other litigation requests. You use of non-official e-mail account also frustrates congressional oversight obligations." Are we really surprised she plead the fifth?"

https://taxprof.typepad.com/taxprof_blog/2015/03/the-irs-1.html

IRS News, IRS Scandal, Tax | Permalink

Comments

"Many in the conservative movement smelled an administration plot to suppress Republican activists during the 2012 presidential election, "

Yes, and they uncovered that the program of persecution had been going on for years before and after 2012.

"In fact, the records were backed up,"

Yes, the IRS perjured itself in congressional testimony.

"There is no evidence to suggest that Lerner was derelict in observing the rules on record retention"

Then where are the hard copies of her emails?

Posted by: wodun | Mar 6, 2015 12:33:14 PM

For liberal fascists like Hillary and her defenders, the rule of law is for the little people. But as the bumper sticker says, "Want to see REAL hate? Disagree with a liberal"

Posted by: Andrew Russell | Mar 6, 2015 9:11:22 AM