Archivist: IRS didn’t follow law with lost emails

The Internal Revenue Service did not follow the law when it failed to report the loss of records belonging to a senior IRS executive, the nation's top archivist told Congress on Tuesday.

"Any agency is required to notify us when they realize they have a problem," David Ferriero, archivist of the U.S. during a House Oversight and Government Reform committee hearing.

In June 2011, former IRS executive Lois Lerner's computer crashed, resulting in the loss of records that are sought in investigations into the agency targeting conservative groups seeking tax-exempt status. At the time, the agency tried to recover the records, but without success.

Republicans have questioned the timing of the hard drive crash, suggesting key records sought in the investigation have conveniently gone missing.

In a rare evening hearing before the same committee Monday, IRS Commissioner John Koskinen said that he has seen no evidence anyone committed a crime when the agency lost emails that might shed light on the targeting of tea party and other political groups before the 2010 and 2012 elections.

Pressed by a congressman, Tuesday, Ferriero would not state that the IRS broke the law. He would only say that the agency didn't "follow" the law.

"Federal agencies are responsible for preventing the unauthorized disposition of federal records, including their unlawful or accidental destruction, deletion, alteration, or removal from federal custody," he said. "When an agency becomes aware of an incident of unauthorized destruction, they must report the incident to us."

The National Archives and Records Administration did not learn about the lost records until earlier this month, Ferriero said.

Tuesday's was the third hearing held since it was disclosed on June 13 that some of Lerner's emails were missing due to a hard drive failure. Lerner has refused to answer questions, citing her Fifth Amendment right not to incriminate herself.

Monday night, committee chairman Darrell Issa, of California, subpoenaed White House counsel Jennifer O'Connor to testify about her time at the IRS from May to November 2013. While at the IRS, O'Connor helped the agency gather documents related to the congressional investigation.

On Tuesday, Issa called O'Connor a "hostile witness."

O'Connor disagreed. "I'm definitely not hostile," she said.

Later in the hearing, Issa said he consulted with another member who is a former prosecutor and the proper term to describe O'Connor is a "non-cooperative witness."

House Speaker John Boehner, a Republican, on Tuesday said the Obama administration is not helping Congress get to the truth over the IRS' close scrutiny of conservative groups and the agency's recent revelation that it lost emails related to that probe.

"They've not only not fully cooperated, they haven't done a damn thing to help us get to the truth of what really happened," Boehner, of Ohio, said. "Lois Lerner refuses to tell us the truth, and then all of sudden, 'Oh my goodness, we lose two years' worth emails.' Listen, I grew up in a bar, this doesn't pass the straight face test."

Lerner headed the division that processes applications for tax-exempt status. The Oversight Committee is investigating the handling of applications from tea party and other political groups. In May, the House voted to hold Lerner in contempt of Congress. Congressional investigators want Lerner's emails to see if there is evidence that anyone outside the IRS was involved.
 Koskinen said there was no evidence that Lerner intentionally destroyed the emails. To the contrary, he said the IRS went to great lengths trying to retrieve lost documents on Lerner's computer, even sending it to the agency's forensic lab.

In 2011, the IRS had a policy of backing up emails on computer tapes, but the tapes were recycled every six months, Koskinen said. He said Lerner's hard drive was recycled and presumably destroyed.

The IRS was able to generate 24,000 Lerner emails from the 2009 to 2011 period because she had copied in other IRS employees. Overall, the IRS said it is producing a total of 67,000 emails to and from Lerner, covering the period from 2009 to 2013.

The IRS inspector general is investigating the lost emails, Koskinen said.