WASHINGTON — 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, in the latest development in the congressional probe of the agency’s targeting of conservative groups seeking tax-exempt status.
In June 2011, IRS executive Lois Lerner’s computer crashed, resulting in the loss of records that are sought in investigations into the agency’s actions. At the time, the agency tried to recover Lerner’s records, but with no success.
When it was determined later in the summer of 2011 that the records on the hard drive were gone forever, the IRS should have notified the National Archives and Records Administration, U.S. Archivist David Ferriero told members of the House Oversight and Government Reform Committee. But Ferriero learned of the lost records June 13 when the IRS notified Congress.
“Any agency is required to notify us when they realize they have a problem,” Ferriero said.
Lerner is at the center of the investigation and has refused to answer questions from Congress, citing her Fifth Amendment right not to incriminate herself. In May, the House voted to hold Lerner in contempt of Congress. She retired from the IRS last fall after having been placed on paid leave.
To determine whether President Barack Obama’s administration had any knowledge or involvement in the activities of the IRS division that reviews applications for tax-exempt status, lawmakers have sought and received thousands of IRS records — none of which has implicated the White House.
But when it was revealed that some of the emails sought were unrecoverable, Republicans questioned the timing of the hard drive crash, suggesting key records related to the investigation had conveniently gone missing.
IRS Commissioner John Koskinen said he has seen no evidence anyone committed a crime when the agency lost the emails.
Pressed by a congressman Tuesday, Ferriero would not say the IRS broke the law. He said only that the agency didn’t “follow” the law, referring to the Federal Records Act.
In an evening hearing before the same committee Monday, Koskinen said there was no evidence that Lerner intentionally destroyed the missing 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.
Republicans have said the Obama administration has not been cooperative with Congress’ investigation.
“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,” said House Speaker John Boehner, R-Ohio. “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.”
On Monday night, House Oversight Committee Chairman Darrell Issa, R-Calif., subpoenaed White House counsel Jennifer O’Connor to testify about her time at the IRS from May to November last year. While at the IRS, O’Connor helped the agency gather documents related to the congressional investigation.
On Tuesday, when he questioned O’Connor, Issa called her a “hostile witness.”
O’Connor disagreed. “I’m definitely not hostile,” she said.
Later in the hearing, Issa said he consulted with another member of Congress who is a former prosecutor and that the proper term to describe O’Connor was a “noncooperative witness.”
White House spokesman Josh Earnest said the White House has been cooperating throughout the investigation.
“Our commitment to cooperating with legitimate congressional oversight and in some cases illegitimate congressional oversight is pretty well documented,” Earnest said.
Asked whether the House Oversight Committee’s investigation was “illegitimate,” Earnest said, “I’m saying that there are legitimate questions that can be raised about the partisan motivation of some of those who are conducting oversight in this circumstance.”
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.
Information for this article was contributed by Nedra Pickler and Stephen Ohlemacher of The Associated Press.