The Corner

Judge Orders Feds Involved in Lerner E-mail Investigation to Testify

Today, a court will order federal employees connected to the investigation of IRS official Lois Lerner’s lost e-mails to issue affidavits under oath over the next week.

Judge Reggie Walton, a federal judge in Washington D.C.’s district court, heard voter-watchdog True the Vote’s motion this morning to allow an outside forensic investigator to conduct an independent examination of the e-mail situation. This afternoon, he’ll issue an order requiring persons with firsthand knowledge of the technical aspects of the e-mail investigation to issue under oath an affidavit, which will help the court decide whether an independent investigator is appropriate.

The court order will require testimony on three different topics: a projected timeline of an investigation of Lerner’s messages currently underway by the Treasury Inspector General for Tax Administration (TIGTA), the qualifications of TIGTA and IRS data-recovery experts who have participated in the investigation, and information about the whereabouts of Lerner’s physical hard drive, which reportedly crashed in 2011. If the hard drive boasted a serial number or some other positive marker, it may be able to be identified and further examined.

Attorney Cleta Mitchell, who represented voter-fraud watchdog True the Vote in the courtroom, called Judge Walton’s decision “a step in the right direction.”

“It’s clear,” she says, “that he is not taking everything the government says at face value.”

The IRS’s counsel argued this morning that no e-mails are actually missing, because the recovery process has already retrieved 24,000 messages sent to or from Lerner, who was head of the IRS’s Exempt Organizations division.

But IRS commissioner John Koskinen recently told Congress that some e-mails are missing. Mitchell says that this is further evidence that “the IRS is telling different things to different people.” Supervision of the investigation by the court, she says, is crucial to ensure the integrity of the investigation.

Part of the explanation for the contradiction is that the investigation conducted by the IRS recovered e-mails between Lerner and IRS employees only. Neither the IRS not TIGTA are known to have reached out to the Treasury Department or the White House, whose staff may have been in contact with Lerner. And it’s possible that the e-mails on the White House’s or Treasury’s end have been destroyed, which, along with Lerner’s having lost her e-mails, could mean they’re gone forever. An order to preserve these messages could have been issued by the president, the attorney general, or the FBI, but “those individuals have been remarkably quiet,” Mitchell says.

Once the appropriate IRS employees file an affidavit (or affidavits), Judge Walton will likely rule on True the Vote’s motion to grant an independent forensic investigator.

True the Vote contends that its application for tax-exempt status was subject to “viewpoint discrimination.” If any of True the Vote’s four claims survive, the lawsuit will proceed to the discovery phase, in which both sides will have the opportunity to present evidence of their claims to the court. ​

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