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Cause of Action Director Dan Epstein also blasted the IRS on Monday for failing to run basic searches on Lerner’s Blackberry for the lost emails.

 

“The IRS knew Lerner’s hard drive was not recoverable while the blackberry was operating,” he said. “This should have triggered a search and preservation of the blackberry contents – but the IRS failed to do that.”

 

This op-ed originally appeared in the Washington Times on July 29, 2014.

EPSTEIN: All IRS roads lead to the archivist

The nation’s record-keeper may know what happened to the missing emails

The Internal Revenue Service is the House of Representatives’ public enemy No. 1. The agency has quietly admitted that it has lost emails for seven employees at the center of the agency’s targeting of conservative groups, including the former employee at the heart of the scandal, Lois Lerner. The admission of a loss of records during the course of a congressional investigation hints at either gross bureaucratic negligence or a federal agency gone legally astray — perhaps both.

However, Congress may be barking up the wrong tree in its search for answers. Currently, the Committee on Oversight and Government Reform has focused its investigation on the White House and the IRS. Both have avoided or delayed disclosure in response to the committee’s requests, giving the public little information on whether there was collusion between the agency and the administration.

That’s why Congress should invite David Ferriero, the archivist at the National Archives and Records Administration, to testify again. He may have the answers that Congress is looking for.

Mr. Ferriero’s involvement with the IRS began on Nov. 28, 2011. On that date, President Obama signed a presidential memorandum instructing both the archivist and the Office of Management and Budget to update the federal government’s records-management policies. The two agencies responded on Aug. 24, 2012, with a directive authorizing agencies to “eliminate paper and use electronic record-keeping.” This dictum was “applicable to all executive agencies and to all records.”

The directive almost certainly conflicts with the Federal Records Act, which instructs agencies to create their own regulations regarding document retention. IRS’ regulations, for instance, required Ms. Lerner to print and file her emails and her attachments. By following the archivist’s order, the IRS may have violated its own regulations — and therefore the Federal Records Act.

To date, Mr. Ferriero has not testified to Congress about the apparent inconsistencies between the directive, which he signed, and the Federal Records Act, which he enforces. Nor has he testified whether the IRS actually has the printed copies of Ms. Lerner’s correspondence, per the agency’s requirements.

These aren’t the only questions he must answer. The archivist is also uniquely knowledgeable about the White House’s record-keeping procedures.

Shortly after Ms. Lerner’s emails were revealed by the IRS to be “lost,” the White House flatly denied involvement. White House spokesman Jay Carney responded to Congress’ accusations by stating, “We found zero emails between Lois Lerner and anyone within the [executive office of the president] during this period.”

This language may be intentional — particularly the phrase “during this period.” The Presidential Records Act allows the president, at any time during his term of office, to “dispose of those records that no longer have administrative, historical, informational or evidentiary value .”

The archivist has the only real check on this power. When the president requests that certain records be thrown in the trash, the Presidential Records Act requires that the archivist present his “views, in writing” to the White House. If he disagrees with any of the president’s requests, he is required by law to inform no fewer than three congressional committees, including one in the Senate and two in the House. He need not notify anyone in Congress when he consents to a records request.

Congress must ascertain whether the White House consulted Mr. Ferriero regarding the disposition of any White House communications during this time and what issues those communications mentioned. Without knowing this information, we cannot know if the archivist consented to the disposition of email communications between Ms. Lerner and the White House.

Without Mr. Ferriero’s testimony, the truth behind the IRS’ — and the White House’s — actions may never be known. No other federal official has been so intimately involved in the various changes to record-keeping policies at federal agencies. Nor is anyone else outside the White House so knowledgeable about the integrity of the administration’s correspondence. Quite simply, the archivist may be the key to unlocking the entire investigation.

Congress must hear the archivist’s testimony on these questions. By all appearances, the IRS has perpetrated a great crime against the American people — and may have done so at the White House’s bidding. However, we can’t know any of this with complete certainty until Congress starts asking the right people, starting with Mr. Ferriero.

Dan Epstein is the executive director of Cause of Action.