Who knew that the Obama administration had a penchant for black humor? Earlier this year, in February, President Obama told Bill O’Reilly during an interview on Fox News that there was “not even a smidgen of corruption” in the IRS scandal involving the targeting of conservative nonprofit groups. In July 2013, Treasury Secretary Jack Lew foreshadowed his boss’s nonchalance by insisting that there was “no evidence” that any political appointee had been involved in the scandal.
Now we may know why. After months of delay in responding to congressional inquiries, the IRS now claims that, for the period of January 2009 to April 2011, all e-mails between Lois Lerner — the IRS official at the center of the scandal — and anyone outside the IRS were wiped out by a “computer crash.” As House Ways and Means chairman Dave Camp wrote in a statement, this loss means that “we are conveniently left to believe that Lois Lerner acted alone.” After all, there isn’t a “smidgen” of e-mail evidence to suggest otherwise.
In March of this year, John Koskinen, the new IRS commissioner, testified before Congress that all the e-mails of IRS employees are “stored in servers.” The agency’s own manual specifies that it “provides for backup and recovery of records to protect against information loss or corruption.” The reason is simple. It is well known in legal and IT circles that failure to preserve e-mails can lead to a court ruling of “spoliation of evidence.” That means a judge or jury is then instructed to treat deletions as if they were deliberate destruction of incriminating evidence.
Why is the loss of the Lerner e-mails particularly important? Last year’s report by the IRS inspector general set out a timeline of the IRS’s targeting of conservative groups. A full 16 of the 26 non-redacted events in the inspector general’s timeline took place during the period for which all of Lerner’s e-mails were “lost,” and these 16 instances refer to “e-mail” as the source for information on that event. As tax expert Alan Joel points out, much of the context about how the IRS scandal developed and who may have known about it is now “lost” in the black hole the Lerner e-mails are supposed to have been sucked into.
She shipped a database of 12,000 nonprofit tax returns to the FBI, the investigating agency for Justice’s Criminal Division. The IRS, in other words, was inviting Justice to engage in a fishing expedition, and inviting people not even licensed to fish in that pond. The Criminal Division (rather than the Tax Division) investigates and prosecutes under the Internal Revenue Code only when the crimes involve IRS personnel.
If there is an ongoing cover-up of the IRS scandal, it’s obvious why some folks would be desperate to continue it. Last year, Time magazine’s liberal columnist Joe Klein wrote that the IRS scandal placed President Obama “on the same page as Richard Nixon.” Article II of the Articles of Impeachment by the House Judiciary Committee in 1974 included a charge that Nixon had caused, “in violation of the constitutional rights of citizens, income tax audits or other income tax investigations to be initiated or conducted in a discriminatory manner.” The Judiciary Committee was also deeply disturbed by the Nixon administration’s apparent efforts to conceal evidence. When investigators found a crucial “18-and-a-half-minute gap” from a Watergate break-in conversation involving Nixon and his aides, the administration implausibly claimed that Rose Mary Woods, Nixon’s longtime secretary, had accidentally erased that portion of the tape. Later, Woods herself said she could have been responsible for no more than five minutes of the gap.
Now we have the “IRS server ate the e-mails” excuse. “Barack Obama has brought us Jimmy Carter’s economy and Richard Nixon’s excuses,” Steve Stockman (R., Texas) waggishly observed Friday. At a minimum, the House committees investigating the IRS scandal should demand that everyone involved in the search for the Lerner e-mails appear before them and testify under oath. I strongly suspect that if anything is amiss, one or more employees will not want to commit perjury to protect political higher-ups.
Normally, an independent prosecutor would be appointed to get to the bottom of all this. But don’t expect such a move from Attorney General Eric Holder. When he was the No. 2 official at Justice during President Clinton’s second term, he was instrumental in blocking the appointment of any new special prosecutors for various Clinton scandals. Holder himself has mastered the art of withholding documents from Congress. In 2012, the House of Representatives (including 17 Democrats) voted to hold Eric Holder in contempt for ignoring a subpoena for documents in the Fast and Furious gun-running scandal.
As yet more evidence of this administration’s seeming tendency toward black humor, the current Justice Department investigation of the IRS scandal is being headed by Barbara Bosserman, a trial attorney who was a large donor to both of Barack Obama’s presidential campaigns, with her first donation dating all the way back to the primary season in 2008. But, of course, Justice says there’s no conflict of interest. Not even a smidgen.
— John Fund is national-affairs columnist for NRO and co-author of the recently released Obama’s Enforcer: Eric Holder’s Justice Department.