This much is clear after IRS Commissioner John Koskinen’s testimony on Friday: Republicans believe a lot of unanswered questions remain about what happened to Lois Lerner’s emails.
Republicans on the House Ways and Means Committee said they believed Koskinen wasn’t forthcoming about a range of issues at Friday’s hearing, including who at his agency told the Treasury Department that there was a shortage of Lois Lerner’s emails.
“It’s just not believable, it’s not credible and it doesn’t make sense,” Ways and Means Chairman Dave Camp (R-Mich.) said about the IRS’s explanation for how a chunk of Lerner’s emails over a more than two-year span went missing.
The loss of those emails has breathed new life into the congressional investigations into the IRS, which admitted that it singled out Tea Party groups seeking tax-exempt status in May 2013.
House Oversight Chairman Darrell Issa (R-Calif.) is scheduled to get into the action on Monday, with his panel set to question Koskinen about the computer crash and the policies that left investigators without a stash of Lerner’s emails.
While Republicans say they don’t know enough to begin to guess who at the IRS might have violated protocol, records experts also maintain it’s a high bar to prove that government officials were criminally liable for the willful destruction of records – a charge that could lead to up to three years in jail.
The IRS also says that it’s handed over around 43,000 Lerner emails from between May 2011 and May 2013, when Lerner was suspended from the agency. The agency was able to reconstruct around 24,000 emails of Lerner’s emails from other IRS employees from January 2009 to April 2011, meaning that thousands of others have not been uncovered.
Both the White House and the Treasury Department have given Ways and Means information about emails between their staff and Lerner between 2009 and mid-2011, the period in question.
Issa’s hearing on Monday is expected to concentrate on whether the IRS violated the Federal Records Act, which mandates how the government offices keep track of official documents. The IRS says that it’s unable to recover Lerner’s emails because, in addition to the hard drive crash, it only backed up emails for six months until last year.
GOP aides at the Oversight panel say they have every reason to believe that someone’s at fault for scrapping Lerner’s hard drive in 2011, and for not ensuring that back-ups of her emails were kept.
Koskinen’s statement at Friday’s hearing that Lerner’s hard drive had been “recycled and destroyed” drew audible gasps from Republicans, though the agency and other GOP lawmakers had been saying for days that was the case.
But Issa’s staffers also say that it’s too early to know whether the real culprit was the IRS rules for overseeing documents, or if information technology staffers or other agency officials hadn’t correctly followed those guidelines.
And while Republicans believe that the IRS was slow to inform them of the missing emails, Koskinen was also more than two years away from joining the agency when Lerner’s hard drive was destroyed. Koskinen stressed on Friday that the IRS hadn’t lost any emails since the investigations began more than a year ago.
Either way, Republican aides say, it’s more likely that any IRS staffers found to have wrongly handled documents would face internal discipline or even firing rather than criminal charges.
Anne Weismann, the chief counsel for Citizens for Responsibility and Ethics in Washington, said that’s because it would be very difficult to prove that the IRS had willfully destroyed documents some three years ago.
As Koskinen points out, Lerner’s hard drive was destroyed long before anyone knew she’d be the center of a congressional investigation.
“Short of purposeful destruction, it’s hard to see any legal consequences,” Weismann told The Hill.
CREW, which went to court over emails lost during the U.S. attorneys flap in the George W. Bush administration, has cast the problem with Lerner’s email as a more systemic, government-wide problem. Federal offices, CREW says, have still not figured out how to adapt record keeping to the digital age.
“I think it’s outrageous, but I think it needs to be looked at in the broader context,” Weissman said about the IRS’s loss of Lerner’s emails.
With all that in mind, Camp and other Republicans renewed their call for Attorney General Eric HolderEric H. HolderTrust Women opposes Sen. Session's nomination Former AG launches redistricting effort to help Dems reclaim power The racism inquisition over Jeff Sessions MORE to appoint a special prosecutor to investigate the IRS.
But Koskinen fired back that an independent prosecutor would be a “monumental waste” of resources, given how many congressional committees are already looking into the matter.
In fact, Koskinen chided Republicans a number of times at the hearing, underscoring how contentious the investigations have become.
Koskinen particularly criticized Ways and Means for saying earlier this week that emails for six other officials – including Nikole Flax, the chief of staff to the agency’s former acting commissioner – also couldn’t be reproduced.
The commissioner said Camp spoke too soon, and that there was no reason to believe Flax’s emails had been lost – an example, Koskinen told reporters, that the GOP “will often times go out with what we view as erroneous or misleading press releases.”
Rep. Sandy Levin (Mich.), the top Democrat at Ways and Means, said the hearing proved that Republicans are “determined to keep this going until November.”
But to Camp and other Republicans, who unsuccessfully demanded an apology of Koskinen, the IRS still has much to answer for.
“I think he owes a huge apology to the American people,” Camp said. “It’s regrettable that he doesn’t see it that way. But I think that shows you the arrogance of what we’ve been facing.”