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Judicial Watch Statement on Discovery of Backups for “Missing” Lois Lerner IRS Emails
AUGUST 25, 2014
(Washington, DC) – Judicial Watch announced the
following developments in the IRS’ missing emails investigation.
Judicial Watch President Tom Fitton stated:
Department of Justice attorneys for the
Internal Revenue Service told Judicial Watch on Friday that Lois
Lerner’s emails, indeed all government computer records, are backed up
by the federal government in case of a government-wide catastrophe. The
Obama administration attorneys said that this back-up system would be
too onerous to search. The DOJ attorneys also acknowledged that the
Treasury Inspector General for Tax Administration (TIGTA) is
investigating this back-up system.
We obviously disagree that disclosing the
emails as required would be onerous, and plan to raise this new
development with Judge Sullivan.
This is a jaw-dropping revelation. The
Obama administration had been lying to the American people about Lois
Lerner’s missing emails. There are no “missing” Lois Lerner emails – nor
missing emails of any of the other top IRS or other government
officials whose emails seem to be disappearing at increasingly alarming
rate. All the focus on missing hard drives has been a diversion. The
Obama administration has known all along where the email records could
be – but dishonestly withheld this information. You can bet we are going
to ask the court for immediate assistance in cutting through this
massive obstruction of justice.
Here is the second set of sworn declarations by IRS officials in response
to Judge Emmet G. Sullivan’s investigation into the missing emails of
Lois Lerner and other IRS officials. The declarations were provided
after close of business on Friday, August 22.The first meeting was held this afternoon by Magistrate Judge John M. Facciola, who was appointed by Judge Emmet G. Sullivan to manage and assist in discussions between Judicial Watch and the IRS about how to obtain any missing records which have been the subject of longstanding Judicial Watch Freedom of Information Act (FOIA) requests and lawsuit (Judicial Watch v. IRS (No. 1:13-cv-1559)).
Judge Sullivan has encouraged Judicial Watch to submit a request for limited discovery into the missing IRS records after September 10.
IRS Admits to Court it Hasn’t Searched for Missing Lerner Emails
NOVEMBER 05, 2014
“…it has become apparent
that the IRS did not undertake any significant efforts to obtain the
emails from alternative sources following the discovery that the emails
were missing”
(Washington, DC) – Judicial Watch announced today
that the Internal Revenue Service (IRS) admitted to the court that it
failed to search any of the IRS standard computer systems for the
“missing” emails of Lois Lerner and other IRS officials. The admission
appears in an IRS legal brief opposing the Judicial Watch request
that a federal court judge allow discovery into how “lost and/or
destroyed” IRS records relating to the targeting of conservative groups
may be retrieved. The IRS is fighting Judicial Watch’s efforts to force
testimony and document production about the IRS’ loss of records in
Judicial Watch’s Freedom of Information Act (FOIA) litigation about the
IRS targeting of Tea Party and other opponents of President Obama(Judicial Watch v. IRS (No. 1:13-cv-1559)). The lawsuit is before U.S. District Court Judge Emmett G. Sullivan.In its September 17 Motion for Limited Discovery, Judicial Watch argues that, despite two orders, the IRS had consistently failed to provide information detailing how “the missing emails could be retrieved from other sources and produced to Judicial Watch.” On October 17, IRS attorneys asked the court to deny the Judicial Watch request, even while admitting that additional Congressional requests “could result in additional documents being located ….”
In its October 27 Reply in Support of Motion for Limited Discovery, Judicial Watch argued that declarations submitted by the IRS in response to the Judge Sullivan’s orders “fail to answer important questions about the missing emails:”
[I]t has become apparent that the IRS did
not undertake any significant efforts to obtain the emails from
alternative sources following the discovery that the emails were
missing. The emails are potentially responsive to Plaintiff’s FOIA
requests, and the IRS’s failure to search for them in other
recordkeeping systems raises material questions of fact about whether
the agency has conducted a reasonable search.
Judicial Watch lawyers reviewed the IRS court filings and concluded
that the agency “did not undertake any significant efforts to obtain the
emails.”IRS attorneys conceded that they had failed to search the agency’s servers for missing emails because they decided that “the servers would not result in the recovery of any information.” They admitted they had failed to search the agency’s disaster recovery tapes because they had “no reason to believe that the tapes are a potential source of recovering” the missing emails. And they conceded that they had not searched the government-wide back-up system because they had “no reason to believe such a system … even exists.”
The IRS admitted to Judge Sullivan that the agency failed to “submit declarations about any of the foregoing items because it had no reason to believe that they were sources from which to recover information lost as a result of Lerner’s hard drive failure.” [Emphasis added] Department of Justice attorneys for the IRS had previously told Judicial Watch that Lois Lerner’s emails, indeed all government computer records, are backed up by the federal government in case of a government-wide catastrophe. The Obama administration attorneys said that this back-up system would be too onerous to search. In the October federal court filing, the IRS does not deny that the government-wide back-up system exists, and acknowledges to the court that 760 other email “servers” have been discovered but had not been searched. The IRS also refuses to disclose the names of the IRS officials who may have information about the IRS scandal, citing unspecified threats. The IRS says it pulled documents about the scandal from various employees into a “Congressional database” and that it has only searched this one “database” for missing records. Incredibly, the IRS has not searched any of the IRS’s regular computer systems for any missing records and admits that it has only searched a “database” that it knows does not contain the missing records being sought by the court, Judicial Watch, and Congress.
Rather than provide information to Judicial Watch and the court under oath about the missing records, the IRS intends for Judicial Watch to wait indefinitely for its production of the records. Judicial Watch argues the IRS’ continuing “failure to provide complete information highlights the need for limited discovery. Neither Judicial Watch nor the court should have to rely on incomplete transcripts, out-of-court conversations, or the other, limited information Judicial Watch’s attorneys have been able to glean from congressional correspondence, media reports, and the internet to determine what system of records the IRS should reasonably search to recover the missing emails. As in all FOIA litigation, an “asymmetrical distribution of knowledge” exists between the IRS on the one hand, and Judicial Watch and the court on the other. It is precisely because the IRS has refused to provide pertinent, complete information that limited discovery is necessary.”
“The Obama IRS couldn’t care less about the federal court’s orders to provide full information about the ‘missing’ Lois Lerner emails,” said Judicial Watch President Tom Fitton. “Instead, the IRS, with the help of a compromised Justice Department, has engaged in a series of transparently evasive distractions. The IRS would have Judicial Watch wait for years before we can ask questions about the cover-up that is going on now. The IRS thinks it can game a federal court, Congress, and the American people. Having delayed accountability for over two years, the Obama administration is prepared to stonewall on the IRS targeting of Obama’s ‘enemies list’ until after the 2016 presidential election. Judicial Watch’s lawsuit can continue to break through this obstruction of justice, especially if the court approves our effort to put select Obama officials under oath.”
New IRS Documents Show Lerner Did Not Need Conservative Group Donor Lists – Emails Mention “Secret Research Project” by Top IRS Official
SEPTEMBER 04, 2014
Documents also reveal that 75% of targeted non-profit groups were conservative, just 5% were liberal
(Washington, DC) – Judicial Watch today released a new batch
of Internal Revenue Service (IRS) email documents revealing that under
former IRS official Lois Lerner, the agency seems to acknowledge having
needlessly solicited donor lists from non-profit political groups.
According to a May 21, 2012, memo
from the IRS Deputy Associate Chief Counsel: “such information was not
needed across-the-board and not used in making the agency’s
determination on exempt status.” Later, in her May 10, 2013, remarks in
which Lerner first revealed in response to question she planted about
the IRS targeting of conservative groups, she conceded that the requests
for donor names was “not appropriate, not usual.”
The new documents obtained by Judicial Watch also reveal that 75% of
the groups from whom the lists were solicited were apparently
conservative, with only 5% being liberal.
The documents came in response to an October 2013 Judicial Watch Freedom of Information Act (FOIA) lawsuit (Judicial Watch, Inc. v. Internal Revenue Service (No. 1:13-cv-01559))
filed against the IRS after the agency refused to respond to four FOIA
requests dating back to May, 2013. The emails are contained in the sixth
batch of documents the IRS has been forced to produce in response to
the Judicial Watch FOIA lawsuit.
Contained in the newly released IRS documents is an email
from Deputy Associate Chief Counsel Margo L. Stevens that was sent in
response to a question from Lerner concerning attempts to return donor
lists the IRS had controversially obtained. In Stevens’ May 21, 2012,
email to Lerner, she wrote:
Lois, I wanted to get back with you with
respect to your question whether TEGE [Tax Exempt & Government
Entities] could return to those organizations from whom donor names were
solicited in questionnaires following their submission of applications
for recognition of their tax exempt status (under 501(c)(4)), now that
TEGE has reviewed those files and determined that such information was
not needed across-the-board and not used in making the agency’s
determination on exempt status.
Key parts of this email and other documents the IRS produced to
Judicial Watch have been blacked out. (Many of the documents are
completely blacked out (or partially redacted) seemingly because the
documents contain “pre-decisional” or “deliberative” material that might
be exempt from disclosure under FOIA. The Obama administration’s
decision to withhold this information is completely discretionary and is
not required by law.)A subsequent IRS email thread on June 27, 2012, revealed that inappropriately obtained donor lists were being used for a “secret research project” and that a top official wanted then-Acting IRS Commissioner Steve Miller to decide how to handle the issue. The email exchange, with the Subject line “donor names,” included the following:
- June 27, 2012: 8:59 AM — David L. Fish, IRS acting director of Exempt Organizations Rulings and Agreements, to Holly Paz:
Joseph Urban
[IRS Technical Advisor, Tax Exempt and Government Entities] had
actually started a secret research project on whether we could,
consistent with 6104, argue that [REDACTED] Joe was quite agitated
yesterday when I told him what we were doing. (He was involved when the
initial question was raised, but we didn’t continue reading him in). At
one point he started saying that this was a decision for Steve Miller–I
told him we were already doing it, and that I didn’t know whether Lois
had already talked to Nikole [former IRS Chief of Staff to IRS
Commissioner Steve Miller] about this. Would not be surprised if he
already started working on Lois.
- June 27, 2012 9:02 AM — Holly Paz to David L. Fish:
Thanks for the heads up. The decision was made by Steve, based on advice from P and A. [Procedure and Administration]
Lerner’s and other IRS officials’ concerns about how to handle these
donor lists came on the heels of an advisory from the Treasury Inspector
General for Tax Administration (TIGTA) to her and other IRS officials
in late March 2012 of “an audit we plan to conduct
of the IRS’s process for reviewing applications for tax exemption by
potential section 501(c)(4), 501(c)(5), and 501(c)(6) organizations.”
The documents produced do not detail the “secret research project” nor
disclose how the IRS used the donor names the agency improperly
obtained.Then-IRS Commissioner Miller initially testified to Congress on May 17, 2013 that “instructions had been given to destroy any donor lists,” but donor lists were actually produced to the House Ways and Means Committee four months later. The House Ways and Means Committee also announced at May 7, 2014 hearing that, after scores of conservative groups provided donor information “to the IRS, nearly one in ten donors were subject to audit.” In 2011, as many as five donors to one conservative (c)(4) organization were audited, according to the Wall Street Journal. And this past June, the IRS admitted wrongdoing in releasing the conservative National Organization for Marriage’s (NOM) confidential tax return and donor list, which were published in March 2012 by the Human Rights Campaign. The Human Rights Campaign is the chief political rival to NOM; its outgoing president had been named a national co-chair of the Obama Reelection Campaign. The IRS reportedly agreed to pay NOM $50,000 to settle the lawsuit.
The documents obtained by Judicial Watch also include a July 18, 2012, email to Lerner from Judith Kindell, senior technical adviser to Lois Lerner, showing that 75% of the nearly 200 non-profit 501 (c)(4) political activist groups targeted by the IRS were conservative, and only 5% were liberal:
Of the 199 (c)(4) cases, approximately
3/4 appear to be conservative leaning while fewer than 10 appear to be
liberal/progressive leaning groups based solely on the name. The
remainder do not obviously lean to either side of the political
spectrum.
Shortly after this email exchange, another email chain on June 28 between Lerner and Holly Paz, the former director of the Office of Rulings and Agreements,shows that Lerner believed that the TIGTA and congressional inquiries into the IRS’s practices were “dangerous”:- June 28, 2012 8:57 AM — Paz to Lerner: “Now TIGTA wants to talk to me. I am guessing they read this morning’s paper. [Apparent reference to Wall Street Journal article concerning IRS scrutiny of Karl Rove’s Crossroads GPS tax exempt status]Will keep you posted.”
- June 28, 2012 9:13 AM — Lerner to Paz: “Not alone. Wait til I am there.”
- June 28, 2012 09:17 AM — Paz to Lerner: “Sorry. Too late. He already called me. It was not about WSJ. Just him trying to get better understanding of the scope of the [House Ways and Means Committee Chairman Dave] Camp [R-MI] request.”
- June 28, 2012 8:22 AM — Lerner to Paz: “Just as dangerous. I’ll talk to you soon. Be there in half hour.”
The new documents also include emails further contradicting President Obama’s February 2014 excuse that the IRS targeting was entirely the fault of “bonehead decisions in local offices.” Obama was parroting Lois Lerner’s May 2013 claim that the targeting of conservative groups was the fault of “low-level” employees in Cincinnati for the targeting of conservative groups. In the months leading up to the 2012 presidential election, Lerner and other top IRS officials made it clear that no “advocacy” applications should be approved or denied without express approval from Lerner’s office in Washington, DC:
- June 20, 2012: — Email from IRS attorney Michael C. Seton to managers in Exempt Organizations division defining targeted groups’ approval procedures:
Please inform the reviewers and staff in
your groups that before issuing any favorable or initial denial rulings
on any cases with advocacy issues, the reviewers must notify me and you
[Lerner and other senior IRS staffers] via e -mail and get our approval.
No favorable or initial denial rulings can be issued without your and
my approval. The e-mail notification includes the name of the case, and a
synopsis of facts and denial rationale. I may require a short briefing
depending on the facts and circumstances of the particular case.
- June 29, 2012: — Email from Lois Lerner to Nikole Flax apparently criticizing the IRS Exempt Organizations Determinations Unit for taking too long to categorize non-profits as political and directing that top Washington IRS official Holly Paz would settle disputes over who was to be targeted:
Although Quality was on board and
involved with the training, we are seeing some tendency for Determs
staff to continue to over -develop political activity issue. When asked
why, they say they are concerned that if they don’t, Quality will ding
them. If can’t reach agreement, it comes to Holly.
- June 26, 2012: — Email from Lerner to Holly Paz and Cindy Thomas in which Lerner notes that TIGTA asked for files directly from the Federal Records Center and warns that this makes sense in “context of a really sensitive investigation alleging political bias by the IRS.” The Federal Records Act (FRA) requires the preservation of official e-mails at the National Archives Federal Record Center. This email from Lerner was dated during the same time period during which the IRS claims her emails were lost and her Blackberry was “wiped clean” and “removed as scrap for disposal …” In violation of Section 3106 of the FRA, the IRS failed to notify the Archives that Lerner’s emails were missing.
- April 2, 2012: 7:00 PM — Lerner to Patterson:
Importance: High. As you can see below
[email from TIGTA Audit Manager Thomas Seidell], we are meeting with
TIGTA later this week. They have given us a list of topics they want to
discuss. I am not familiar with the Roll Call article he sites –can you
shoot us a copy please? Thanks
- April 3, 2012: 8:59 AM — IRS Public Affairs Specialist Burke Anthony to Lerner :
Lois, per your request, here is the Roll Call article. I put Dean’s quote in bold; it’s about 17 graphs into the story:
“Dean Patterson, a spokesman for
the IRS, denied the existence of a special committee but said the IRS
has a “companion process that administers the same provisions of the tax
law in the context of new applications for tax-exempt status. The legal
issues and the information that will inform our discussions will be
similar in both contexts.”
- April 3, 2012: 9:26 AM — Lerner to Anthony:
Thanks–sorry, but I really have no clue
what he means by a companion process that “administers the same
provisions of the tax law in the context of new applications for tax
-exempt status. The legal issues and the information that will inform
our discussions will be similar in both contexts.” As I will need to
talk to TIGTA about this on Thursday, perhaps you can give me a better
sense of what he is referring to? I could guess, but don’t want to be
guessing in this context.
On October 9, 2013, Judicial Watch filed a FOIA lawsuit
against the IRS asking the District Court for the District of Columbia
to compel the agency to produce records of all communications relating
to the review process for organizations seeking 501(c)(4) non-profit
status since January 1, 2010. The lawsuit also asked the court to order
the IRS to provide records of communications by former IRS official Lois
Lerner concerning the controversial review and approval process. The
IRS failed to respond to the four FOIA requests at issues in this
lawsuit dating back to May 2013.The communications sought by Judicial Watch covered portions of the same period for which the IRS on June 13, 2014, notified the Senate Finance Committee that Lerner’s emails had been lost or destroyed but did not notify the Court or Judicial Watch about these missing emails. In response to our request for more information, U.S. District Court Judge Emmett Sullivan held a July 10 hearing and order the IRS to produce sworn declarations about its efforts to find and restore Lerner’s allegedly missing emails.
And then on August 25, Department of Justice attorneys for the IRS conceded to Judicial Watch that Lerner’s “missing emails” (and all government records) had been backed in case of catastrophe but that it would be too “onerous” to search this backup system for Lerner’s emails. The Justice Department has since put out anonymous statements alleging Judicial Watch “misheard” what its lawyers said and that the agency did not disclose “new” information about a back-up system.
It is not in dispute that the existence of any back-up system was withheld from the court despite two orders (order 1, order 2) demanding specifically sworn declarations about where Lerner’s emails may be residing and effort to obtain them. The Obama administration has refused Judicial Watch’s requests to amend the sworn declarations and finally inform Judge Sullivan directly about this back-up system. Administration lawyers have steadfastly refused and subsequently submitted a “status report” to the Court on August 29 that, again, makes no mention of any back-up system.
Judicial Watch lawyers are preparing now to ask the Court for relief in light of the Obama administration’s continuing obstruction and contempt for Judge Sullivan’s orders.
“Again, Judicial Watch has uncovered more shocking emails from the IRS, forced out by a lawsuit and a federal court,” said Judicial Watch President Tom Fitton. “Now we learn the stunning news that Obama’s IRS had a ‘secret research program’ using illicitly-obtained confidential donor lists of conservative and Tea Party organizations that opposed President Obama’s agenda or reelection. With all this IRS abuse, it is no wonder Lois Lerner said that questions by Congress and others were ‘dangerous.’ And it is well past time that President Obama should be held to account about his repeated and recent falsehoods about his IRS scandal. Next up: Judicial Watch will ask Judge Sullivan for help in requiring the Obama IRS to stop its obstruction and disclose the no-longer-missing emails of Lois Lerner and other IRS officials.
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