IRS Scandal: Lies, Damned Lies, and Missing Hard Drives

If ever a federal agency has made ineptitude into an art form, it has to be the IRS. After months of stonewalling and grandstanding and Fifth Amendment privilege pleading before congressional committees, Lois Lerner and the IRS are now the subject of a federal lawsuit. In response to charges that they unfairly impeded the tax-exempt application of the organization "True the Vote," for political reasons, the IRS is invoking "the dog ate my homework" defense.

In sworn affidavits filed in court by top IRS muckety-mucks, the IRS maintains that Lois Lerner's computer was sent out to be fixed by a private contractor because of an alleged problem with its hard drive. When the contractor was unable to retrieve the lost data, the computer was forwarded to the IRS's criminal unit forensics lab, which was also unable to recover any data. At that point the computer's hard drive was "degaussed" and batched with other defunct computer components for destruction and/or recycling by an outside contractor. And since the IRS doesn't assign serial numbers to internal computer parts, there's no way to track it down.

In short, the same group that requires private citizens to retain financial records for up to seven years under penalty of law is saying that they are unable to produce two years' worth of electronic correspondence relating directly to an active legal investigation, and furthermore that even if backup tapes of Ms. Lerner's emails did exist at one point, they most likely have been erased since the IRS only retains email records for six months. Six months! The IRS's six months to Joe Taxpayer's seven years. Apparently what's good for the citizen goose is not good for the government gander.

In the law, there is a doctrine called "spoliation of evidence" which basically says when a litigant has destroyed relevant evidence that is sought by the other side, the fact finder may infer that the evidence would have been adverse to the position of the one who destroyed it. This makes sense, as there would be no rational motive for someone to destroy evidence that would prove their innocence in the court of law and the court of public opinion.

Thus, The IRS's failure to produce Lois Lerner's emails implies much more than a mere coincidence or accident, and it is reasonable to conclude that those emails contained damning evidence. If, as President Obama and his proxies continue to insist, this whole thing is a "phony scandal" and a GOP witch hunt, you can be certain that Ms. Lerner's emails records would have been paraded before Congress months ago. Ms. Lerner, for her part, has offered no explanation for what happened aside from asserting her innocence moments before invoking her Fifth Amendment right to remain silent in order to avoid self-incrimination. Taken as a whole, Ms. Lerner's conduct in this case and that of the IRS appear not only damnable, but also criminal.

Only time will tell if those responsible for the misconduct and subsequent destruction of evidence will be called to account criminally. If not, then may God help the American taxpayer. If the IRS is allowed to get away with such behavior even once, a dangerous precedent will be established by which one of the government's most powerful arms will become a tool for political retribution by the party in power.

This is not a Republican or Democrat issue, it's a question of whether or not the American people can trust their government to treat them fairly and without prejudice in the eyes of the law. It's about whether or not our Constitution is worth the paper it's written on. It's about whether or not the American government remains an institution of, by, and for the people, or an unaccountable Leviathan concerned only with the propagation of its own power.

Ken Connor is the Chairman of the Center for a Just Society in Washington, DC, the former President of the Family Research Council, and a nationally recognized trial lawyer.

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