Today, the IRS is on the hot seat, and Lois Lerner has added fuel to the fire. This morning, the IRS will appear before Judge Emmet G. Sullivan to explain two things: Why it failed to tell him thousands of its e-mails were “lost” or “missing;” and why it filed a status report that was demonstrably false. The case seeks documents expected to reveal the truth about the IRS’s “target hunting” of political opposition.
In what looks likely to be a feckless attempt to explain the inexplicable loss of crucially important e-mails that connect the dots between the White House and the IRS, we can expect the IRS to claim it was “just a mistake” or an “oversight” or “an accident” that its status report to the judge failed to mention the loss of thousands of e-mails. They may say that they were “rushed” or “overworked” or were not finished with their own “investigation.”
Icing the now multi-layered cake of suspicion, Lois Lerner’s retention of “some” e-mails put the IRS in an even worse position, combined with the fact that seven computers supposedly crashed simultaneously, eradicating apparently only the e-mails that might implicate the White House in the IRS’s target-shooting.
It is unlikely, given Judge Sullivan’s extensive experience, that he will tolerate the dubious explanations of which the IRS seems so fond. He’s heard it all before, in the corrupt prosecution of former United States senator Ted Stevens by the Department of Justice, and he responded by appointing a special prosecutor. Once again, he will demand the truth. He shouldn’t stop until he gets it.
He won’t be surprised or impressed (at least not favorably) with the IRS’s pleas. Keep in mind that theirs are the very same sort of excuses the DOJ repeatedly made in the Stevens case. Lady Justice may be blind, but I can assure you that Judge Sullivan is not.
Judge Sullivan publicly excoriated the Department for hiding evidence from the defense in its prosecution of Senator Stevens. The thrashing made the headlines of every major newspaper. Stating his inability to trust the Department, he appointed a special prosecutor he personally knew and could trust to do the investigation needed to determine if the prosecutors could be held in contempt of court or prosecuted. He ordered the Department to preserve all evidence and cooperate in the investigation. He also gave the prosecutor subpoena power and the ability to question witnesses under oath.
The special prosecutor’s 500-plus page report revealed systematic and intentional concealment of evidence favorable to the defense that the prosecutors had been constitutionally, legally, and ethically required to disclose. What will it take for Judge Sullivan to do the same for the IRS?
Today’s case brought by Judicial Watch is civil — not criminal. Some people are speculating that Judge Sullivan will be hesitant to intervene in what they characterize as a “political process working itself out.”
However, the real issue in the case is destruction of evidence and documents that the IRS was legally required to keep, and that has criminal implications. It should not be considered a “political controversy.” The law has certain requirements. Either the IRS met them or it didn’t — regardless of which political party occupies the White House, or controls the Senate or the House.
Emmet Sullivan has seen political controversy before, and he can read the law. It’s hard to imagine anything more political than the contrived and circus-like conviction of Senator Ted Stevens. For this dedicated and principled judge, if the IRS has violated the law, that’s all the more reason to demand accountability and find the truth.
The first thing to expect is a very clear message from Judge Sullivan, expressing his extreme displeasure with the inaccurate status report that the IRS filed with the court and a demand for a correct report, which could result in sanctions if it were inaccurate again.
Judge Sullivan may enter a very specific order instructing the IRS to produce the e-mails to which Judicial Watch is entitled. He could also order the IRS to provide the hard drives, all other devices, access to the servers, or anything else he can determine from the hearing would facilitate revelation of the e-mails themselves. He can give Judicial Watch discovery powers, enabling the attorneys to question — under oath — everyone who touched those computers.
If the IRS can’t or won’t comply with that order, or needs assistance or further motivation to find the e-mails, Judge Sullivan can certainly provide that in the form of a court-appointed expert, required access to the servers and any other devices, and/or the appointment of a special prosecutor to investigate the IRS — just as he did with the DOJ.
One thing is certain: Mr. Koskinen and Ms. Lerner won’t need to pack any bags — not even a toothbrush — to go where they could be going if they try to put one over on Judge Sullivan.
I’d pay admission to be in that courtroom. As for Mr. Koskinen, Ms. Lerner, and friends, they must “hear that train a comin’ . . . rollin’ round the bend.”
— Sidney Powell worked in the Department of Justice for ten 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.