Even as Congressman Paul Ryan ripped into IRS Commissioner John Koskinen during an appearance before Congress last Friday, for not being forthcoming, the Commissioner failed to mention how the agency used the services of an email archiving company even after former IRS official Lois Lerner’s computer crashed.
Lerner’s computer supposedly crashed in June 2011, but it was not until the end of August 2011 that the agency nixed its contract with email archiving company Sonasoft. The missing emails in question are from January 2009 to April 2011, which is well within the time frame Sonasoft was employed.
Then during Monday night hearing, Congressman Trey Gowdy lowered the boom on Koskinen asking about the “spoliation of evidence,” a legal phrase meaning the jury can draw a negative inference if a party fails to preserve evidence that could be damaging.
Backed into a corner, Koskinen deflected by asking, “Is this a trial? Is this a jury?”
“If you want to go down that road, I’ll be happy to go down that road with you, Commissioner,” Gowdy exclaimed. “In fact, I’m glad you mentioned it. You have already said multiple times today that there was no evidence that you found of any criminal wrongdoing. I want you to tell me what criminal statutes you’ve evaluated.”
“I have not looked at any,” Koskinen replied.
“Well then how can you possibly tell our fellow citizens that there’s not criminal wrongdoing if you don’t even know what statutes to look at?” asked Gowdy.
“Because I’ve seen no evidence that somebody consciously…” Koskinen started but was cut-off.
“Common sense? Instead of the criminal code, you want to rely on common sense?” Gowdy asked.
Koskinen is a 1964 graduate of Yale University School of Law, most recently serving as the Non-Executive Chairman of Freddie Mac from September 2008 to December 2011. He has shelled out nearly $100,000 to Democratic candidates and groups since 1979.
During the same meeting, Congressman Darrell Issa also wasted no time going after Koskinen. The chairman of the House Oversight and Government Reform Committee pressed Koskinen about why all Lerner’s emails weren’t backed up on the server – but kept on the C-drive of her computer.
“All emails are not official records under any official records act,” Koskinen said, seeming to contradict IRS rules that require printing all emails and a backup of all systems.
Koskinen then blamed a budget shortfall, saying it would cost $30 million to overhaul the backup systems.
That’s a drop in the bucket for the IRS’s $1.8 billion IT budget, Issa pointed out.
“On $1.8 billion, isn’t the retention of key documents that the American people need to count on, like whether or not they’re being honestly treated by your employees?” Issa asked. “Isn’t that, in fact, a priority that should’ve allowed for full retention?”
Issa, frustrated with Koskinen’s refusal to directly answer his questions, finally snapped, “My time has expired and I’ve lost my patience with you.”
Under questioning from Congressman Jason Chaffetz, Koskinen said that the IRS made no effort to recover Lerner’s email archive from the six month backups after her initial computer problems in June of 2011.
“My understanding is that the backup of emails only lasted for six months, that’s correct?” Chaffetz asked.
“Yes,” answered Koskinen, “it’s actually a disaster recovery system and it backs up for six months in case the entire system goes down.
Chaffetz then asked, “And that was in place in 2011?”
“That was the rule in 2011,” Koskinen replied. He quickly corrected himself saying,” Policy.”
“So when Lois Lerner figured out on June 13th that her computer crashed, and there have been emails showing that she was going to great lengths to try to get that recovered, why didn’t they just go to that six month tape?” continued Chaffetz.
“Because that six month tape is a disaster recovery tape that has all of the emails on it and is a very complicated tape to actually extract emails for, but I have not seen any emails to explain why they didn’t do it, so it would be difficult, but I don’t know why,” answered Koskinen.
“But you said the IRS was going to extraordinary lengths to give it to the recovery team, correct?” Chaffetz reminded Koskinen.
Koskinen answered, “That’s correct.”
“But it’s backed up on tape,” Chaffetz stated.
“For six months,” Koskinen responded, “yes.”
“And that was within the six month window, so why didn’t you get them off the backup?” Chaffetz redirected.
“All I know about that is that the backup tapes are disaster recovery tapes that put everything in one lump and extracting individual emails out of that is very costly and difficult. And that was not the policy at the time,” claimed Koskinen.
Chaffetz questioned, “Did anybody try?”
“I have no idea or indication that they did,” Korkinen said.
“So you have multiple emails showing she was trying to recover this, it’s the testimony of the IRS that they were trying desperately, in fact you got a forensic team to try to extract this, you went to great lengths, you made a big point over the last week about all the efforts you’re going through, but they were backed up on tape, and you didn’t do it?” asked Chaffetz.
Korkinen answered, “As far as I know they did not, but they did have, as I noted, the emails, she had three months worth of emails at that time.”
Now it appears the IRS violated federal record-keeping laws. This after the IRS failed to notify the National Archives of the computer crash that reportedly wiped out the emails in question.
The Oversight and Government Reform Committee heard testimony from United States National Archives and Records Administration archivist David Ferriero on Tuesday, who said he did not learn of the missing emails until the IRS sent a letter about them this month to Senators Ron Wyden and Orrin Hatch.
“They are required, any agency is required, to notify us when they realize they have a problem that could be destruction or disposal, unauthorized disposal,” said Ferriero.
“They did not follow the law,” he added, after being pressed by GOP lawmakers.
The White House dismissed the charges that Koskinen erred by not informing Congress in April, when he first learned of the lost emails.
“What would Congress have done if they’d known about this in April or May, or whenever the commissioner first learned about it?” White House press secretary Josh Earnest challenged reporters.