Confusion Over Lost Emails, Recycled Hard Drives Mark House's IRS Probe

Whether genuine or 'convenient,' equipment issued to a former IRS employee is gone, complicating an investigation into an allegedly discriminatory practice she spearheaded.

In the continuing drama of the House's investigation of the IRS's alleged targeting of conservative social welfare groups and of Lois Lerner, former director of the Exempt Organization Division of the IRS, the group responsible for the discrimination, a matter of routine housekeeping has become a major issue.

Rep. Darrel Issa, chairman of the House Oversight and Government Reform Committee, subpoenaed 'all hard drives, external drives, thumb drives and computers' and 'all electronic communication devices the IRS issued to Lois G. Lerner.' Included in this request were the hard drives damaged in a computer crash in 2011. At the time, efforts to restore the hard drives were unsuccessful, and accordingly, the equipment was destroyed.

This revelation has led to IRS officials conceding that the emails stored on the hard drives were lost forever. This undercut the House Republicans' hopes that the emails could have been recovered by data reconstruction experts. As the alleged Tea Party targeting started in the spring of 2010, the emails could have offered insight into the initial planning behind the segregation of the Internal Revenue Code section 501(c)(4) applications.

Under federal tax law, the IRS allows groups and corporations organized to promote the common good to be recognized as a tax-exempt 'social welfare' group under IRC section 501(c)(4). These organizations are allowed to support or oppose candidates for public office, as long as this campaign activity does not constitute the group's primary function. As it is not required for these groups to disclose their donors publicly and because a group does not need to formally apply for the status before declaring itself a 'social welfare' group, the sharp increase in 501(c)(4) applications raised red flags within the IRS. The Exempt Organization Division correctly guessed that a number of groups were using the 'social welfare' identifier as a cloak to funnel undisclosed or 'dark' monies into the campaigns.

The IRS inappropriately used keywords to segregate problematic applications for additional review from the rest of the workflow. As this segregation represented discrimination based on political view - a violation of federal statute - the process came under heavy criticism despite its benign intentions and the fact that the IRS targeted both liberal and conservative groups.

Some, such as Rep. Issa, believe that the disappearance of the hard drives is too convenient.

'If the IRS truly got rid of evidence in a way that violated the Federal Records Act and ensured the FBI never got a crack at recovering files from an official claiming a Fifth Amendment protection against self-incrimination, this is proof their whole line about 'losing' e-mails in the targeting scandal was just one more attempted deception,' Issa said in a statement provided by Fox News. 'Official records, like the e-mails of a prominent official, don't just disappear without a trace unless that was the intention.'

'The [Federal Records Act] requires agencies to make and preserve records of agency decisions, policies, and essential transactions, and to take steps to safeguard against the loss of agency records,' Issa has also said.

The IRS has recovered 24,000 of Lerner's emails from the requested time scale of 2009 to 2011 from the computers of 83 other IRS employees. While the investigation of Lerner has been underway for more than a year, the agency only informed Congress of the lost emails last week.

'We believe the standard IRS protocol was followed in 2011 for disposing of the broken hard drive. A bad hard drive, like other broken Information Technology equipment, is sent to a recycler as part of our regular process,' an IRS spokesman told Politico.

Prior to May 2013, the IRS only maintained backups of emails for six months on magnetic tape before the tapes were recycled. Email users, at the time of Lerner's departure from the IRS, also had a quota of about 1,800 messages, meaning that mailbox clean-ups occurred regularly.

The loss of emails is not a unique phenomenon in the federal government. The George W. Bush White House reportedly lost 5 million emails that were subpoenaed by Congress in the investigation into the dismissals of eight U.S. Attorneys.

'Was the IRS intentionally trying to hide evidence, or was this just an e-mail slip-up? We can't get inside anybody's mind or know what somebody's intention was, and I would not presume to,' said Nancy Flynn, founder of the ePolicy Institute. 'It could be plain old e-mail mismanagement, which I'm here to tell you happens every day.'

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