That's Sir Walter Scott's way of saying "the chickens will come home to roost". No one believes the IRS lost Lois Lerner's emails. On June 23, IRS Commissioner John Koskinen will have an opportunity to either recant that story or to perjure himself. Presumably he could also elect to invoke the fifth but since he was not at the IRS when crimes occurred that possibility is pretty remote. One suspects the IRS and the White House are playing for time. They know they can ignore congressional subpoenas with impunity because this Congress refuses to enforce them. Darrell Issa has drawn more red lines than Barack Obama. The mischief is there are smarter people than Rep. Issa on the trail. Washington lawyer Cleta Mitchell -who is a damn site smarter than Issa- represents Catherine Engelbrecht of True the Vote in a lawsuit against the IRS and employees of the IRS specifically Steven Grodnitzky, Lois Lerner, Steven Miller, Holly Paz, Michael Seto, Douglas Shulman, Cindy Thomas, William Wilkins, Susan Maloney, Ronald Bell, Janine L. Estes, and Faye Ng."Oh! What a tangled web we weave, when first we practice to deceive"
In a blistering letter to Justice Department lawyers which you may read here or here Mitchell cites federal statutes and case law that demand that evidence be preserved. She produces a copy a letter to Brigida Benitez who represents the defendants who are being sued in their personal as well as their professional capacities. The upshot of the letter is once a litigation hold letter was received by the DOJ losing emails was not an option. Destruction of evidence is a felony. Mitchell's letter asks:
We are deeply troubled by this news and are concerned about the spoliation of information and documents pertaining to this case and the apparent failure on your part to (a) protect and preserve all potentially relevant information and (b) to advise us of such failure and spoliation when you first learned of it. We are even more concerned after receiving your assurances that you would “abide by your legal and ethical obligations.”What if Lerner's emails cannot be produced? It may let Lerner off the hook but don't try telling congress or Mitchell that all the defendants lost their emails too. Issa can, if he has not, begin subpoenaing the email of the other defendants. Steven Miller-Lois Lerner's boss, Holly Paz-another attorney at the tax exempt division, Douglas Shulman-former IRS Commissioner who visited the White House 157 times, William Wilkins-Chief Counsel of the IRS who defended Jeremiah Wright pro bono in a tax dispute.
Accordingly, we hereby request that you advise us of the following:
1. What steps did each of you, as counsel for the Defendants, each of them, take to ensure that any and all documents as described in the litigation hold letter and as required by federal law were, in fact, preserved?
2. When did you learn that the destruction, loss or spoliation of emails of Defendant Lois Lerner had occurred?
3. What steps have you, each of you, taken to restore Ms. Lerner’s “lost” emails?
4. Were the “lost” emails from Ms. Lerner’s computer at the IRS or her home computer?
5. Are there documents or records, as described in the Litigation Hold letter or the subpoenas issued to the IRS from any of the Committees, belonging to other defendants that have been “lost”?
We are most disturbed to learn this information from media reports and, in particular, after being chastised by Ms. Benitez regarding the fact that she “will abide by her legal and ethical obligations.” To Ms. Benitez in particular, were you aware of and/or did you participate in, authorize or otherwise sanction the destruction or “loss” of the Lois Lerner emails?
The puported loss of Lois Lerner's emails does not kill the investigation but it should renew pressure for a special prosecutor. Cleta Mitchell can't do it all.
Update: Until Speaker Boehner mans up and slaps someone in the House's holding cell for contempt of congress someone else will have to do the heavy lifting. Fortunately Judicial Watch is coming to the aid of Cleta Mitchell, doing the work that your paid representatives cannot. It has filed a FOIA suit against the IRS asking the court to compel the IRS to furnish:
- Any and all records concerning, regarding or related to the number of applications received from organization seeking tax exempt status under 501(c)(4).
- Any and all records concerning, regarding, or related to communications between the IRS and members of the U.S. House of Representatives or the U.S. Senate regarding the review process for organizations applying for tax exempt status under 501(c)(4);
- Any and all records concerning, regarding, or related to communications between the IRS and any other government agency regarding the review process for organizations applying for tax exempt status under 501(c)(4);
- Any and all records concerning, regarding, or related to communications between the IRS and any office of the Executive Branch regarding the review process for organizations applying for tax exempt status under 501(c)(4).
- Any and all records concerning, regarded, or related to the preparation of questionnaires sent to organizations applying for 501(c)(4) tax exempt status;
- Copies of any questionnaires sent to organizations applying for 501(c)(4) tax exempt status.