IRS didn't follow law on e-mails, archivist says. Is probe gaining traction?

The Republican investigation into whether the IRS discriminated against conservative groups got another boost Tuesday. But the probe hasn't been able to break out of a now-familiar pattern.

Jonathan Ernst/Reuters
Former IRS counsel Jennifer O'Connor (l.), currently of the White House Counsel's Office, and Archivist of the US David Ferriero (c.) testify about e-mails of former IRS official Lois Lerner during a House Oversight and Government Reform Committee hearing on Capitol Hill in Washington Tuesday.

The chief archivist of the United States on Tuesday said that the Internal Revenue Service "did not follow the law" with regard to lost e-mails by former official Lois Lerner.

The accusation has again added fresh momentum to investigations into an alleged coverup of political favoritism at the agency. But it does not appear to have changed the essentials.

The development Tuesday follows a clear pattern. The continued drip-drip of fresh allegations against the IRS and White House has fueled calls for further inquiry. Indeed, 57 percent of Americans favor continued investigations, according to a recent Rasmussen Reports poll.

But the dynamics of the scandal have long remained unchanged, with Democrats largely dismissing the issue as political theater and many moderates not terribly energized by the issue.

Further investigations could yield definitive evidence that the IRS willfully discriminated against conservative groups seeking tax-exempt status in 2010 and 2012 – and that the White House was involved. For now, however, a recent Gallup poll suggests that Americans' attention to the IRS investigation is below average for a big news story.

On Tuesday, nothing that emerged appeared likely to turn the IRS controversy, which has been simmering for more than a year, into a Watergate-style problem for the Obama administration. Yet what did emerge appeared likely only to encourage further digging. 

The House Oversight Committee is seeking answers into the disappearance of two years' worth of e-mails to and from Ms. Lerner, a central figure in the controversy because of her oversight of tax-exempt groups. News of the loss became public this month.

Tuesday’s hearing raised the prospect that the IRS may have broken a federal law by not informing the National Archives when it became clear that important e-mails may have been lost.

“They did not follow the law,” said archivist David Ferriero. “I’m not a lawyer,” he added, saying that the agency’s silence didn't appear to comply with the Federal Records Act.

The e-mails went missing after the agency destroyed the broken hard drive on Lerner's computer in 2011.

IRS Commissioner John Koskinen, who arrived to head the agency after the controversy erupted, has defended Lerner and the agency. He said she sought tech support to recover data, unsuccessfully. He also said hard drive crashes are not unusual at the agency.

“Since Jan. 1 of this year, for example, over 2,000 IRS employees have suffered hard drive crashes,” he told the Oversight Committee Monday.

The IRS says destroying broken hard drives is standard practice in such cases, but technology experts say it’s unusual for nothing to be recoverable after a hard drive fails, some experts say.

At the Tuesday hearing, familiar story lines unspooled. Republicans voiced their incredulity not only about the how the e-mails disappeared but also about why it has taken so long for the problem to become public. Administration officials, meanwhile, painted a picture of an agency still trapped in antiquated technology and trying in good faith to deal with the Republicans' requests for information.

Jennifer O’Connor, a White House attorney who worked with the IRS in 2013, detailed a Byzantine process by which encrypted IRS correspondence was decoded, searched, and reviewed. 

"We didn't have the staff in place to do this kind of document review production," she said in the agency's defense.

Committee Chairman Darrell Issa of California had been hopeful that Ms. O'Connor had information about Lerner's missing e-mails. But O'Connor said Tuesday, “I did not know that her e-mails were missing and unrecoverable, or that her computer crashed.”

The hearing also saw Republicans and Democrats offer conflicting evidence over whether the IRS singled out tea party groups and other conservative applicants, thus delaying decisions on tax-exempt status. Democrats argue that the IRS scrutiny encompassed liberal groups, as well.

The two sides could at least agree on one thing: the need for better records-management, including the backup of e-mails.

Archivist Mr. Ferriero lamented that, even in the era of “cloud computing,” much of the federal government is still printing important documents and saving them in boxes.

IRS Commissioner Koskinen said that financial constraints have kept the agency from spending the $10 million it would cost “to begin saving and storing all e-mail.”

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