With the Obama Administration withholding production of emails from former head of the IRS Tax Exempt Organization Division Lois Lerner to officials in the White House, Department of Justice, Federal Election Commission, and Department of the Treasury, the Chairman of the House Oversight and Government Reform Committee Darrell Issa was very nearly at his wits end, but then two United States District Court Judges arrived on the scene. Judge Emmet G. Sullivan and Judge Reggie B. Walton, both of the United States District Court for the District of Columbia, apparently had enough of this Administration’s doubletalk and obfuscation.
On July 10, in the case of Judicial Watch v. IRS, Judge Sullivan ordered the IRS to file a sworn declaration on or before August 11, by an IRS official with authority to speak under oath explaining the facts and circumstances surround the “crash” of Lerner’s hard drive in 2011 and the efforts undertaken to recover the hard drive and the lost emails.
One day later, on July 11, in the case of True the Vote, Inc. v. IRS, Judge Walton likewise ordered that the IRS submit to the Court an affidavit signed under oath by a person with firsthand knowledge that explains the nature and extent of IRS efforts to recover information from Lerner’s hard drive and the date by which the Inspector General’s investigation of the crash will be completed along with the serial number of the computer hard drive and, if the serial number is known, an explanation of why the computer hard drive cannot be identified and preserved.
Fortunately for America, these two federal court judges are compelling the IRS to be accountable. Until this point, despite grilling from Congress and subpoenas for emails, IRS Commissioner John Koskinen has been unable or unwilling to explain why it is that all emails preceding 2011 to and from Lois Lerner and other officials in the Obama Administration have been so incredibly difficult to produce to Congress.
As those of us who litigate on the federal level know well, it is very hard for emails to disappear from the universe and production of emails these days occurs at lightening speed in the federal system (not infrequently volumes of hundreds of thousands of them in a matter of months, not years). Although Lerner’s hard drive may be destroyed, the emails she sent and the email chains that were a part of those emails are undoubtedly on other computers at the IRS, the White House, the Department of Justice, the Department of the Treasury, and the Federal Election Commission. Moreover, forensic experts frequently retrieve emails from crashed hard drives, even when they have been deleted. One would have thought that over the course of a year, the IRS Commissioner would have assigned competent personnel to obtain the emails and supply them to Congress. Indeed, the failure to do so is highly suspicious, suggesting plainly that efforts are underway to obstruct justice.
Anyone who has had the privilege of appearing before Judges Sullivan and Walton, as I have, can appreciate that neither one of these jurists is going to accept the kind of nonsense the IRS has served up to Congress as an appropriate response to their court orders. Judges Sullivan and Walton expect, and demand, direct answers. They will likely place maximum pressure on the IRS to explain precisely what searches have been, and are being, conducted and will demand more thorough efforts and, ultimately, production of the missing emails. Neither Judge Sullivan nor Judge Walton will accept incomplete compliance with their orders, and the lawyers at the Department of Justice and the IRS know that.
We should all be grateful for the orders issued against the IRS in these two cases. Without them, the truth would eventually come to the fore but much later, likely after this Administration leaves office. With these court orders in place, the Administration’s political calculus will have to change and, while no doubt more obfuscation and deception will occur before the truth finally rears its ugly head, the truth will out (and thankfully sooner rather than later) because ofthe actions taken by Judges Sullivan and Walton.
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