Lerner has been silent for more than a year. Issa, Lerner lawyer escalate IRS fight

Lois Lerner’s lawyer and House Oversight Committee Chairman Darrell Issa battled on Sunday over the ex-IRS official’s lost emails, escalating the conflict that reignited two weeks ago.

Her lawyer William Taylor III challenged Issa’s assertion that Lerner lied about her crashed computer and missing emails.


“This is election-year politics; it’s convenient to have a demon that they can create and point to,” Taylor said on CNN’s “State of the Union.”

( PHOTOS: Lois Lerner returns to the Hill)

Appearing just before Taylor, Issa (R-Calif.) accused Taylor of lying about Lerner not printing out official emails.

“[Lerner’s] attorney has said things that are not correct, or disingenuous, or outright lied a number of times,” Issa said, adding that Taylor is just “trying to get his client off the hook after flubbing and taking the Fifth.”

Taylor said he “won’t respond to that, except to say he’s wrong.”

The Sunday feud was the latest round in the controversy over the lost emails, which the IRS said two weeks ago would not likely be recovered. The IRS blames dated technology and denies charges of deliberate wrongdoing.

Lerner’s lawyer told POLITICO on Friday that she has no records of two years of missing emails and that Republican claims that she’s hiding something are “silly,” in his first interview since the latest controversy around the former IRS official erupted.

( Also on POLITICO: Lerner sought audit of group invite to GOP senator)

“She doesn’t know what happened,” Taylor said of the 2011 computer crash that erased two years’ worth of Lerner’s correspondence. “It’s a little brazen to think she did this on purpose.”

The IRS has told congressional investigators probing the tea party targeting that the former head of the tax-exempt division’s emails from 2009 through mid-2011 were lost when her hard drive buckled. The time period encompasses the first year IRS agents in Cincinnati began pulling tea party applicants for a closer look.

That news revived a firestorm among Republicans in Congress, who are incredulous that technology cannot bring the emails back and accuse IRS Commissioner John Koskinen of lying. Democrats point out that no evidence suggests the computer crash was intentional and accuse Republicans of fanning flames of a dying controversy.

Lerner has been silent for more than a year, pleading the Fifth on Capitol Hill and speaking only through her lawyer episodically. The interview marks their first detailed response since the scandal was reignited and suggests Lerner’s camp is going to keep fighting.

“This is a so-called congressional investigation with no pretense of objectivity or bipartisanship,” Taylor said. “Critics of Ms. Lerner and the IRS seize indiscriminately on small pieces of fact to claim they prove scandal.”

The interview covered a number of questions raised in recent weeks, from claims that Lerner targeted GOP Sen. Chuck Grassley to accusations she was in cahoots with the Justice Department. Taylor also revealed that Lerner did not print official emails or have any saved on a backup computer — the former being something Republicans will seize on to say she broke record-keeping law.

Lerner’s admission at a May 2013 tax conference that the IRS had been singling out applications for tax-exempt status using terms such as “tea party,” followed by a critical inspector general report days later, set off the original storm. The groups in question were seeking status as a social welfare organization, or a 501(c)(4), which is allowed to engage in a limited amount of political activity.

Here are her lawyer’s answers to top questions:

The computer crash.

It was an accident, said Taylor, a founding partner of Zuckerman Spaeder LLP: “She didn’t have anything to do with the destruction of her computer.”

Lerner came to work one day in late spring 2011 and was surprised to flick on her computer to find a “blue screen,” he said. He said she tried to get it fixed since her practice of archiving was to simply save things on her computer. Democrats have released emails showing Lerner contacting the IRS IT department to show she tried to resolve the problem.

She never backed them up on a USB or separate hard drive, he said, ruling out a line of questioning posed by Issa about whether Lerner could have the emails stored elsewhere on a portable device.

Republicans say it’s no coincidence that just 10 days before the crash, Ways and Means Chairman Dave Camp (R-Mich.) had sent his first letter to the IRS about 501(c)(4) political activities and donors. But Taylor said Sunday on CNN’s “State of the Union” that the e-mails that are missing are “way before the time” in which Republicans allege there was targeting.

“The truth is these emails predate most anything that’s of any relevance to anybody, but you can see why it’s convenient to say there’s a computer crash and therefore there must be something nefarious going on,” Taylor said.

Oversight Republicans this week interrogated Koskinen about whether the agency at the time of the crash reached into its stash of six-month backup tapes to restore the emails. Koskinen said he wasn’t aware if they tried.

Taylor didn’t know about that option either, saying Lerner simply filled out an IT ticket “like any other IRS employee” with a problem, and when they told her they couldn’t salvage the hard drive and mentioned a more “expensive” alternative, she gave them the green light to pursue that option, he said.

“She requested that IT use every possible resource. Unfortunately, the sophisticated alternative was not able to retrieve the contents of her hard drive,” he said.

Koskinen this week said the IRS even sent Lerner’s computer to its criminal investigators, who were also unable to get anything back.

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The Grassley invite referral.

Responding to recent Ways and Means GOP allegations that Lerner tried to sic an IRS audit on Grassley, Taylor said they were mistaken and Lerner was simply suggesting a referral for the group, not the Iowa lawmaker.

“You don’t refer people to the exempt organizations division,” he said, calling the accusations “false” and “irresponsible” on Ways and Means’ part.

Lerner and Grassley were invited to speak at the same event in winter 2012, but their invitations were swapped by accident. Lerner recalls that the topic was on 501(c)(4) and the conference was at a “nice resort,” her lawyer said.

The unnamed group offered to pay for Grassley’s wife to accompany him, something Lerner thought may have been improper. Her colleagues said it wasn’t and it appears she dropped it after that.

Taylor said Lerner, who is not currently working but filling her free time gardening and volunteering, had nothing against Grassley.

In most of her criticized email correspondence released thus far from GOP investigators, Lerner has referred to scrutinizing conservative groups, like Crossroads GPS, while at the same time joking with colleagues that she wanted to work for the pro-Obama group Organizing for America.

But while Republicans say that shows Lerner was a mouthpiece for the White House, Taylor says it was natural for her division to look at conservative groups in 2010 because their numbers were on the rise.

“After Citizens United, groups identifying themselves with the tea party and other, more conservative causes dramatically increased the number of applications for (c)(4) status,” he said, referring to the landmark Supreme Court ruling that significantly loosened restrictions on political spending.

He said it was simply the job of Lerner and the IRS to ensure such tax-exempt organizations follow the law, which bars them from using more than about half of their resources engaging in politics.

For Camp “to say the IRS is looking at political activity is like [Captain Renault] saying he’s shocked there’s gambling going on in Casablanca,” Taylor said.

When POLITICO asked Taylor if Lerner was able to give an example in which she expressed concern over a liberal group or lawmaker, he did not offer one.

‘Cahoots’ with DOJ.

Taylor also responded to Oversight GOP reports that Lerner and Justice officials met in the fall of 2010 when Justice was considering the possibility of prosecuting 501(c)(4)s that may have been breaking rules by overly engaging in political activities — details Republicans found in emails handed over by DOJ.

Again, he said she was just doing her job.

“We should hope the two are talking to each other,” he said, because DOJ and the IRS both bring tax charges and should be on the same page, he said.

Emails summarizing the meeting also show that Lerner apparently expressed skepticism that the (c)(4) issues were a criminal, rather than a civil, matter.

Oversight GOP has also hit Lerner for giving 1.1 million pages of tax return data about 501(c)(4) organizations to the FBI just before the 2010 midterms — 33 tax returns that included unlawfully disclosed private taxpayer information.

Taylor said Lerner didn’t know and sent them because Justice requested the documents: “She [understood] the donor information on Schedule B had been removed. In some cases, we later learned, it may not have been.”

The IRS has acknowledged that the 33 returns were not scrubbed of taxpayer information as required by law.

Printing ‘official’ emails — or not.

Taylor said Lerner did not print out official records she may have sent over email because she didn’t know she had to.

The Federal Records Act requires agencies to back up all “business” correspondence — anything dealing with policy or operations, for instance. And while the IRS says it’s up to employees to print off hard copies of official emails and file them, Taylor said Lerner did not because she “did not think it was required.”

National Archives, which oversees the law, and the Treasury inspector general for tax administration are currently probing the lost emails and the backup policies. The Archivist has already said the IRS did not follow the law because it did not alert the Archives to lost emails that could be important, which is required.

Republicans this week argued that Lerner should have printed many of her emails because, as head of an entire IRS division, much of her correspondence would be “official.”

But Taylor retorts that such responsibility would have fallen on her assistants or the IRS.

“If somebody is supposed to keep archived copies, that’s the IT department’s or her staff’s responsibility,” he said. “If she didn’t [print] something, it wasn’t because she tried to conceal anything. … There should have been [IRS] backup.”

Hadas Gold contributed to this report.