In a previous post I noted that July 10 might be a dark day for IRS lawyers. That is the day they must explain to Judge Emmet Sullivan why they did not inform the court that the IRS had lost Lois Lerner's email. I noted that Judge Sullivan is not disposed to look kindly on the government's withholding of evidence and went so far as to appoint a special prosecutor to investigate the prosecution of the late Senator Ted Stevens.
"When the government does not meet its obligations to turn over evidence, the system falters,” roared Judge Sullivan.
By Friday, July 11 IRS lawyers may remember the previous day as the high water mark of their careers as they stand before Judge Reggie Walton to convince yet another federal judge that everything at the IRS is on the up and up. Judge Walton is hearing True the Vote's lawsuit against the IRS and Cleta Mitchell will ask the court to allow her digital forensic expert to have crack at recovering the lost emails. The IRS will, of course, ask that the motion be dismissed but True the Vote will argue " that merely asking for the dismissal “does not give them carte blanche to destroy or permit the destruction of documents and discoverable information that are relevant to the IRS Targeting Scheme in general and the application of True the Vote for exempt status.
“If the IRS’s public statements about ‘recycling’ Ms. Lerner’s hard drive are true, that alone establishes spoliation of evidence that violates federal statutes and regulations, the Federal Rules of Civil Procedure, and professional ethics and responsibility.
“These statements, coupled with the refusal of Defendants’ counsel, to provide any assurances about what has been and will be done to preserve evidence underscore the need for the relief that True the Vote seeks."
Yes, explain to his honor why you threw away the hard drive when you knew doing so was illegal.
As bad as the outcome from Judge Sullivan's court may be the potential downside from Judge Walton will probably be worse. The case in Sullivan's court concerns the IRS's refusal to furnish emails requested by Judicial Watch but in Walton's court discovery will go well beyond the IRS. Readers will remember that Catherine Engelbrecht was the target of a coordinated attack by the IRS, the FBI, the ATF, and OHSA and it is indeed probable that Judge Walton will allow True the Vote's digital forensic expert to track down the email to each agency involved in the affront to Engelbrecht's civil rights.