GOP touts newly found Lerner e-mails in IRS scandal: Any smoke in this 'gun'?

In a 2013 e-mail exchange that Rep. Issa is calling a 'smoking gun,' former IRS official Lois Lerner indicates she cautioned colleagues about congressional interest in their internal communications.

Lauren Victoria Burke/AP/File
Former IRS official Lois Lerner testifies before Congress in Washington, March 5.

A newly uncovered e-mail from Lois Lerner of the IRS – one that congressional Republicans profess is yet another “smoking gun” in their ongoing investigation – will certainly add fuel to claims that the agency targeted conservative groups seeking tax-exempt status.

But it’s not at all clear the new fuel is enough to bring this long-simmering issue to a full boil, just as previous GOP-labeled “smoking guns” have not.

In the e-mail exchange from 2013, Ms. Lerner, the former director of the Exempt Organizations Unit at the Internal Revenue Service, says she is “cautioning folks” at the IRS about how “we need to be cautious about what we say in e-mails.” She mentions how members of Congress have been asking for e-mails. She says she flagged colleagues about how e-mails can be electronically searched.

All that was by way of wind-up to asking a practical question to an IRS tech worker: Lerner sought to know if use of an instant-messaging service would be safe from investigative probes. After the tech worker said such messages “are not set to automatically save,” Lerner’s response was one word: “Perfect.”

To Rep. Darrell Issa of California, this exchange qualifies as a “smoking gun.” In a moment we’ll get to the rationale behind the words of Congressman Issa, the Republican who chairs the House Oversight Committee. But here’s some context for judging the importance of this new information: In the timeline of Lerner-related events, the April 2013 e-mails come nearer the end than the beginning.

The disproportionate auditing of conservative groups had been well under way during the 2012 election year. And Republicans cite evidence – including statements by Cincinnati IRS employees and e-mails released recently to the group Judicial Watch under the Freedom of Information Act – suggesting that the agency’s Washington office encouraged targeting conservative groups starting in 2010. That was not long after a Supreme Court ruling served to heighten the political fundraising role of certain tax-exempt groups called 501(c)(4) “social welfare” organizations.

The upshot: Pivotal events in the IRS affair had been unspooling long before the e-mail about instant messaging. Key revelations about who was telling whom to do what may stem from that earlier period.

Lerner’s computer had a hard-drive crash – Republicans say a suspiciously convenient malfunction – in June 2011.

The House Ways and Means Committee – another panel investigating Lerner and the IRS – scheduled a mark-up Thursday of a resolution requesting the White House to hand over any e-mails in its possession to or from Lerner between January 2009 and April 2011.

Although they stem from a later time period, the newly released e-mails are fresh evidence suggesting Lerner was interested in covering her division’s tracks. And it’s worth noting that this particular e-mail exchange took place just as the Treasury’s Inspector General was preparing a damaging report. April 9, the day of the e-mails, was barely four weeks from when Lerner first publicly admitted – ahead of the Inspector General’s report – that inappropriate behavior had occurred.

She was soon placed on administrative leave. She retired later in 2013 and has used the Fifth Amendment to avoid answering questions from House Republicans.

In the April e-mail exchange, the IRS tech employee gave a nuanced response to Lerner’s question about instant messaging. The employee noted that the “functionality” to save instant messages exists within the software, and that text from the messages could be cut and pasted from the messaging service into a regular e-mail that would be potentially searchable in an investigation.

Lerner’s critics say her response of “perfect” appears focused on the general point that the messaging service does not generally save communications automatically.

Issa called the e-mails a “smoking gun.” He said in a televised interview that “this is Lois Lerner clearly cautioning people not to say things on e-mail and be delighted to find out that the local instant chat they have … wasn’t tracking what they said.”

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