06.18.2014 20

House must enforce Lerner email subpoenas in federal court


By Robert Romano

In 1974, then-special prosecutor Leon Jaworski issued a subpoena for the infamous White House tapes. Those tapes were the critical bit of evidence that might prove Richard Nixon was involved in the Watergate scandal and cover-up.

Nixon refused, claiming an absolute executive privilege against judicial proceedings.

It led to a landmark Supreme Court ruling, U.S. v. Nixon, which compelled the President to turn over the tapes. On one tape, eighteen minutes were missing — the White House claimed that Nixon’s secretary Rose Mary Woods accidentally deleted it. We’ll never learn what was contained. But fifteen days later, facing an imminent impeachment, Nixon resigned.

Today, there is another instance of the executive branch withholding key information from a potential criminal investigation, this time supposedly losing over two years of Lois Lerner emails relevant to continued Congressional investigations of the agency targeting of tea party and other 501(c)(4) non-profit groups.

The missing emails cover the critical inception of the targeting, dating from January 2009 to April 2011, when a supposed computer crash led to the data loss. Now, the New York Times reports that, additionally, “because of financial and computing constraints, some emails had been stored only on individuals’ computers and not on servers, and that ‘backup tapes’ from 2011 ‘no longer exist because they have been recycled..”

This, despite the fact, as Americans for Limited Government President Nathan Mehrens, a former official at the Labor Department, notes, “every federal government agency operates under recordkeeping requirements that mandate the agency preserve records that contain proper documentation of the functions, policies, and decisions made by the agency and its officials.”

Mehrens added, “It would take a massive, concerted cover up in order to delete those emails.”

Cleta Mitchell, a counsel representing True the Vote (TTV), a non-profit that was targeted, wrote in a letter to Justice Department attorneys representing the IRS in pending federal litigation that “several statutes and regulations require that the records be accessible by the Committees, and, in turn, must be preserved and made available to TTV in the event of discovery in the pending litigation. Those statutes include the Federal Records Act, Internal Revenue Manual section (which refers to the IRS’s preservation of electronic mail messages), IRS Document 12829 (General Records Schedule 23, Records Common to Most Offices, Item 5 Schedule of Daily Activities), 36 C.F.R. 1230 (reporting accidental destruction,) and 36 CFR 1222.12. Under those records retention regulations, and the Federal Records Act generally, the IRS is required to preserve emails or otherwise contemporaneously transmit records for preservation.”

Mitchell continued, “the failure for the IRS to preserve and provide these records to the Committees would evidence either violations of numerous records retention statutes and regulations or obstruction of Congress.”

Which, Mitchell noted, would be a crime: “18 U.S.C. § 1505 makes it a federal crime to obstruct congressional proceedings and covers obstructive acts made during the course of a congressional investigation, even without official committee sanction.”

Mitchell is now requesting access to the IRS computers in question, and is prepared to get a court order to furnish the computers for forensic investigation.

House Ways and Means Committee Chairman Rep. Dave Camp (R-Mich.) for his part has called on the Department of Justice and the Treasury inspector general’s office to immediately investigate and engage in a forensic audit of the hardware in question to recover the lost data.

But he probably should not hold his breath. Or waste any more time.

The Justice Department has not lifted a finger to get to the bottom of the IRS scandal, and Attorney General Eric Holder is nowhere near appointing a special prosecutor. And now, the agency’s cooperation itself in the investigation is very much in question. Are they destroying evidence?

House Republicans cannot afford to wait to find out.

First, Camp, and his colleague House Oversight Committee Chairman Rep. Darrell Issa (R-Ind.), need to immediately expand their subpoenas to every federal department, agency, or office that Lerner might have sent an email to or received one from, including the White House, which as we learned from U.S. v. Nixon is not immune to oversight.

Even if the IRS was not following the requirements of the Federal Records Act in maintaining email records, it would strain believability that every federal department, agency, and office Lerner emailed was similarly derelict in its duties. So, even if the missing Lerner emails are not on the IRS’s server, they may yet be located on other federal servers.

Second, time is of the essence. If there is a cover-up, it may take a court order to put a stop to it before it is too late. The House should immediately adopt a resolution directing the legislative body to file a civil action in the U.S. District Court for the District of Columbia to enforce all outstanding Congressional subpoenas related to the IRS investigation, including any necessary forensic audits. The evidence needs to be preserved.

Similar legislation, H.Res.442, was proposed by Rep. Tom Rice (R-S.C.) in December. It would order the House to sue in federal court challenging certain Obama executive actions, including delaying implementation of Obamacare. The bill generated 118 cosponsors, a majority of the House majority, who support in principle the idea of the House taking the lead in a federal court case.

It took an order from the Supreme Court to produce the Nixon White House tapes. And that may be what it takes to unearth the missing Lerner emails.

As the Bard once said, the truth will out, but in the case of the IRS targeting scandal, it may take broader subpoenas to every federal department, agency, and office, and on top of that, a court order to enforce them. With at the very least the appearance of the Nixonian destruction of evidence, the House cannot afford to waste another minute expecting the Obama administration to cooperate in this investigation.

Robert Romano is the senior editor of Americans for Limited Government. 

  • FloridaJim

    Obama is delaying this until after the 2014 midterm elections. Am I the only conservative to understand this? Please get a sense of urgency or this election will be stolen as the last two were.

  • daveveselenak

    We are no longer a nation ruled by law but rather a “Dick-taker-N-Thief” if these e-mails are not recovered and entered as evidence; thus if this lawlessness is allowed to continue by this Muslim-Marxist jihadist and his merry band of homo and lezbo commie minions then revolution must come into play as it was required when this nation was founded because if this lawlessness is allowed to continue there won’t be a country to find as we know it but rather a Third World Totalitarian Oligarchy which is only the confiscation of our guns from being enacted!

  • Edward Perkins

    Call your Congressman and Senators NOW and demand that they take actions to (1) force this matter of missing evidence/ emails into the federal courts and (2) start & support impeachment proceedings. They can start yacking about “We need impeachment proceedings to proceed NOW.”

  • Just when you think you heard the worst lie coming from Washington, you get more lies, and more lies, every day another crisis which WE THE PEOPLE are being lied to about. The only thing this liar in chief is transparent about is his constant lying. PERIOD

  • shadowmerlin

    I don’t think Obama is delaying only until after the midterm elections. He’s delaying until he can crash the entire system via illegal aliens a la Cloward-Piven, or find another excuse to declare martial law.

  • SirWilhelm

    Mehrens added, “It would take a massive, concerted cover up in order to delete those emails.”

    Obama, and his administration, have been a massive, concerted cover-up, since he was nominated for the Presidency. This IRS cover-up is the tip of the ice berg, compared to that. A piece of cake, to pull off, compared to what’s been done for around six years, now.

  • I completely agree . Every thing this guy doies is a distortion or created event that is simply orchestrated to suit their purposes.

    In other words it is all a giant illusion to control you and defeat you ! I explain it all in great detail at my site for all to see for free ! and many other topics as well. like how important you health and fitness are in todays world

  • Probably all of the above . I agree with your overall thesis . Pretty obvious they completely don’t care about any laws , those just get in the way? So they do exactly what they want and so far Boehner and crew are quite worthless as a counter balance of power. Our system of government is NOT working at all as intended because the men that are running it are cowards and idiots. And the people have NOT raised their voices anywhere near loud enough! we need to protest and boycott and all are completely doable easily.Mnay companiesw are working against us in consortium with the Obamaites and we can easily stop buying anything from them and make a huge statement.

  • regulus30

    what a disgrace this imposter from kenya has created as a government;; he IS A FASCIST;; HELLO.

  • cherokeeman

    Who believes the SCOTUS will do this? I don’t because they are afraid of Obama, and are part of the problem.

  • Whatzrname

    I have no confidence this will happen because o has them or at least some of them either blackmailed or threatened including Roberts, thus obamacare.

  • wired2comment

    best way to get the truth now is to offer a big no questions asked reward for Emails proving the obvious. Bet there are some disgruntled IT workers who have the goods on this coverup.

  • J. Harp

    Good luck to the House investigation of the IRS. This e-mail business is a cover-up by the most lawless presidential administration ever to hold the office and led by the most lawless president ever to hold the office. Obama will not let something as insignificant as the United States Constitution or any federal law stand in his way of converting this country from a Constitutional Republic to a Communist led dictatorship. With the Senate firmly in the hands of the Democraps, there will never be any redress through the impeachment process. Obama is driving this country to a confrontation between the patriots who believe in the Constitutional Republic as founded by our forefathers and the darkest of forms of government, a communist dictatorship. With the political process virtually dead in this country, such a clash will be violent and deadly, the outcome of which will destroy this country regardless of who might win.

  • DAY8293A

    This bunch of criminals are not like the semi honest Republicans involved with watergate,,, They have destroyed every possible piece of evidence with this IRS scandal and every thing else to do with this illegal alien mooslim terrorist! Even weeks of flight records into Hawaii have been destroyed to cover up the fact that he entered the country in his mother’s arms, not in her womb!! We can no longer fight them on their terms or fairly!! Lois Lerner needs to be in jail forever if it takes it, until we get those E mails!!

  • Death2Unions

    The Marxist regime of Puppet Boobama and his Puppet Master Valerie Jarrett are brisling in fear that their “mission” is not fully completed. That mission is to slam the steel boot of their Marxist State on top of America. Their blender speed is on frappe’ mode. In the meantime, their ship is sinking. ALL of them are committed to The Goal. At some point, the blood of citizens begins to flow. Our blood. Their mission.

  • al003

    It is time to IMPEACH OBAMA AND ALL OF THE OTHER THIEVES AND CROOKS IN HIS THUGGOCRACY… Not next week or the week after…. We need to do it right now and start from his day one and put every illegal action in the Impeachment Document…. Start with the AG and the dropping of the Charges on the Thugs in Philadelphia with their clubs at the polling place…. Put it all together step by step and do not leave out one issue… No one in Congress can, under any circumstances whatsoever, refuse in good conscious to sign and remove this person and his thugs from office….. GET IT DONE AND DO IT RIGHT….

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