Government Watch

Conservative Groups Take the IRS to Court


from – The Hill – by Bernie Becker

Legal experts say grassroots conservative groups shouldn’t expect too much out of a pair of IRS hearings in federal district court this week.

Two conservative organizations – Judicial Watch and True the Vote –won hearings over the missing emails of Lois Lerner, shifting the center of action on the IRS investigation this week from the Capitol to a federal district courthouse.

Conservatives call the hearings an early step to getting IRS officials under oath to discuss why the agency was unable to recover all of Lerner’s emails from 2009 to 2011, something the IRS chalks up to a hard drive crash.

Lerner, the former chief of an IRS division overseeing tax-exempt groups, kicked off the Tea Party controversy in May 2013 by apologizing for the agency’s treatment of Tea Party groups.

Some conservatives also see the hearings as a path to getting a special prosecutor to investigate the IRS, a step they’ve unsuccessfully sought for months from Attorney General Eric Holder.

But Michael McKay, a former U.S. attorney under President George H.W. Bush, said he expected the judges hearing the two cases this week would take a cautious approach to the 14-month controversy.

Democrats and Republicans continue to clash over whether the IRS’s improper scrutiny of the Tea Party groups was driven by political motivation, or by bureaucratic mismanagement.

GOP investigators are looking into how Lerner’s emails went missing, and whether the IRS violated a law dealing with the safekeeping of records. Treasury’s inspector general for tax administration is also looking into the emails, according to a letter this month from IRS commissioner John Koskinen.

“This is as much a political case as a true legal case,” said McKay, now a partner at McKay Chadwell in Seattle. “Most good judges don’t like to force themselves into a process where the political process is working itself out.”

True the Vote, which was granted a hearing on Friday, is asking the court to allow outside experts to examine IRS computers and records – so, as they put it in court filings, to keep the agency “from engaging in and permitting any further destruction of evidence.”

The group says it is among the conservative organizations the IRS targeted and sued the agency in May 2013, shortly after Lerner’s apology.

In its court filings, True the Vote says that lawyers for the IRS and former and current agency officials have yet to answer their questions about what happened to Lerner’s emails. The agency, sued in 2010 by a pro-Israel group that sought tax-exempt status, should have known better when it came to protecting documents, the group added.

Judicial Watch, granted its own hearing on Thursday, says the IRS failed to tell the group and the court that it couldn’t retrieve all of Lerner’s emails.

The IRS has been handing over documents to the group, after Judicial Watch filed a freedom of information request last year.

But Judicial Watch says it only heard about Lerner’s missing emails through the media, after the IRS told lawmakers this month. Koskinen has said he learned there was an issue with Lerner’s emails in February, and that some were missing in April.

“This will be an important hearing, as any representations to the court by the Obama administration will have ramifications way beyond misleading Congress,” said Jill Farrell, a spokeswoman for Judicial Watch.

Conservatives have also noted that Judge Emmet Sullivan, who granted the hearing in the Judicial Watch case, appointed a special prosecutor to investigate government lawyers that handled the late Sen. Ted Stevens’s (R-Alaska) corruption trial.

Sullivan said that the federal prosecutors deliberately and improperly withheld information from the defense in that case.

But legal analysts have long said that Sullivan’s appointment of a special prosecutor in the Stevens case was an extraordinary step, and McKay said there was no reason yet to believe it would be repeated with the IRS.

“That was an egregious case, and Ted Stevens was an aggrieved party,” McKay said.

With that in mind, McKay and other lawyers say they believe that the IRS will get a stern talking-to about their records-keeping habits – but perhaps little else.

Marcus Owens, who also directed the IRS division on exempt divisions, said that the agency’s process for dealing with documents “is just a mess. It’s been a mess for years.”

“I think the judge will spank the IRS lawyers for that,” said Owens, now at Caplin and Drysdale.

Owens added that the IRS, which has to protect taxpayer information, can have good reasons for producing documents more slowly.

The IRS declined to comment on the two hearings this week, saying it didn’t comment on pending litigation.

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Eagle Scout
7 years ago

I joined AMAC after doing some research about them. I like what they do in Washington and appreciate the accurate news articles. About the IRS email scandal, I am an IT professional and work for a bank that is highly ranked nationally. The emails still exist. But it really does not matter. It is evident the IRS has corruption issues. We as voters need to get out and VOTE for a President who will appoint a honorable commissioner who will run this part of the Department of the Treasury as it should be.

7 years ago

The IRS is now just another arm of the ACLU! … The next president should layoff all employees of the IRS that are not accountants … That should reduce their staff 85%!!! They can stand in the unemployment line behind the American people and all the illegals!

7 years ago

Another story perpetuating the technology myth that e-mails only reside on one’s laptop or desktop computer and that a crash of that device wipes out any and all trace of any associated e-mails. What utter and complete nonsense. Here’s a simple, high-level overview of how any modern (any enterprise (large scale), commercially sold e-mail solution which is what the IRS runs) e-mail solution put in place in the last 15 to 20 years works:

What exists on any end user’s device, whether it be a laptop, desktop, iPad, IPhone or any other end user medium is a COPY of what resides on the main e-mail servers. Those servers, due to existing federal laws on data retention, have to be essentially fully redundant in their operating configurations. The data has to be retained anywhere from 7 to 10 years depending on the type of data and the industry that data is associated with. So even if you have a hard drive failure on the servers, which the IRS is NOT claiming, e-mail service is NOT effected due to hot standby redundant hardware being in place. Those email servers are also fully backed up weekly and most likely also monthly as well. In between, there are daily incremental backups of the servers as well. The backups are routinely shipped to off-site data storage facilities, like Iron Mountain, where those backups have to be preserved for 7 to 10 years. So there are, at a minimum, at least a dozen complete backups that contain most, if not ALL the missing e-mails the IRS does not want to produce.

So to continue down this red herring road of a crashed hard drive on a laptop wiping out all traces of these e-mails is a colossal waste of time and energy. At least the True to Vote people are trying to get access to hopefully the IRS’ main computers and not just focused solely on this laptop nonsense. At least that’s the way I read it. If they are just going to focus on looking at a laptop, then this is all a waste of time.


I agree with McKay on the point that if anyone thinks a judge is going to order a special prosecutor, when Holder refuses to, then there are going to be a lot of disappointed people. Washington is not a place known for people taking bold actions, even in the best of times. While I would like to see a special prosecutor named, the likely result will merely be the “slap on the wrist” rebuke to the IRS lawyers.

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