The IRS's stunning and shameful record-keeping hypocrisy
The IRS's recent claim that two years' worth of emails from Lois Lerner — the official at the center of the scandal regarding the tax agency's apparent targeting of conservative groups — evaporated due to a computer crash seems too convenient to accept at face value. It's so ridiculous that since the announcement, a fantasy sequence has kept playing out in my head.
Imagine IRS agents descending on a company or perhaps even a lone One Percenter to review tax records, suspecting some sort of fraud or other crime. "We're from the IRS," says an agent dressed straight out of a Mad Men episode, "and we need to see the last seven years' worth of your tax return records and receipts."
"I'd love to help you, old sport," says the corporate raider with the Thurston Howell accent, "but we had a computer crash in 2012 and it wiped out all of my records. Besides, I only keep six months of receipts at a time before recycling the paper to save costs."
"Darn the luck!" the agent replies. "Sorry to have bothered you."
Yes, that's a fantasy. But it's not that much more fanciful than the actual excuse from the IRS in response to a congressional demand for all emails related to Lerner's work at the tax-exempt unit, and her alleged persecution of opponents to the Obama administration.
More than 400 days ago, Lerner apologized for the actions of a few low-level employees in the Cincinnati office who had inappropriately put groups with conservative views under heightened scrutiny. The surprise apology turned out to be a strategy to pre-empt an Inspector General report that revealed more depth and breadth to the practice than Lerner first indicated. Subsequent testimony showed that senior IRS officials knew of the practice as early as 2011, even though Congress was repeatedly told that no such targeting had taken place.
Within days, the House Oversight Committee and Way and Means Committee began investigations into the scandal at the IRS, as did the Senate Finance Committee. The two committees, both with jurisdiction for legislative-branch checks on IRS activity, demanded testimony from Lerner and other IRS officials. On May 22, 2013, Lerner refused to testify. Her invocation of the Fifth Amendment resulted in a contempt charge against Lerner on which the Department of Justice has yet to act.
Both the House and Senate committees demanded Lerner's email records. A letter sent to acting IRS Commissioner Steven Miller on May 20, 2013, from the chair and ranking member of the Finance Committee requested copies of "any and all questions, questionnaires, and information requests used by the IRS" to tax-exempt applicants, all documents "between any IRS employee and anyone else, including, but not limited to, individuals outside of the IRS" that related to the first set of documents, and especially "documents relating to communications between any and all IRS employees and any and all White House employees including, but not limited to, the president" that related to any targeting strategy. The House Ways and Means Committee subpoenaed the same records, and the IRS fought for months to keep them private.
In March, the IRS supposedly had a change of heart. They promised Ways and Means chair Dave Camp that his panel would receive the entirety of Lerner's email correspondence. One staffer on the committee offered up a bleak prediction at the time that there wouldn't be much left to search. "Whether that's because Lerner covered her tracks or because the IRS is shredding documents," the staffer told the Daily Mail's David Martosko, "we're probably never going to know."
Three months later, we have the answer. The IRS contacted Camp late on Friday afternoon to claim that a hard drive failure on Lerner's computer wiped out two years of Lerner email data in precisely the time frame that investigators were interested in. Not only that, but the IRS then claimed it recycled its backup tapes so that it only had six months of server backups available.
This is laughable. While people send and receive emails via client programs on their computers, the messages go through databases on servers, which is where records are stored and duplicated for backup. A local hard-drive failure would have nothing to do with that record retention in a professional IT environment. The data would still reside on the servers and could be easily reconstituted from the backup. In fact, IRS Commissioner John Koskinen testified in March that the data existed on the agency's servers, and not the local hard drives.
The claim that the IRS recycles its backup tapes every six months is equally ludicrous. The federal government has more strict expectations for publicly held corporations. Sarbanes-Oxley regulations passed more than a decade ago specifically require retention of email data for five years, and make the kind of destruction claimed by the IRS in this instance a crime punishable by 20 years in prison.
The IRS claim raised eyebrows at the National Archives and Records Administration, which is tasked with preserving important federal records, calling itself "concerned" that a hard drive failure would wipe out two years' worth of what should be permanent records. The IRS's own manual made it clear that the storage of email was important enough to have permanent backups of their data. "IRS offices will not store the official recordkeeping copy of email messages that are federal records ONLY on the electronic mail system," and even went so far as to require hard copies "for record-keeping purposes."
This gives the scandal new and legitimate legs, for a couple of reasons. First, despite having demanded these records from the IRS for over a year, the agency waited until now (and in a Friday afternoon document dump, no less) to inform Congress of the supposed loss of emails. That makes it look very suspicious, and put together with Lerner's refusal to testify, even more so.
The second reason is that the IRS is the one agency that demands everyone else keep spotless records for seven years or more on their returns. Now we find out that they're only keeping their own documentation for six months? For a nation founded on the rule of law and equality under it, this retention for thee but not for we will likely offend a lot more people than extra scrutiny for conservative tax-exempt applicants did, and the lame dog ate my homework excuse will offend the rest.
Sadly, the rule of law seems to be the biggest fantasy of all in the case of the IRS targeting scandal and the abuse of power it represents.