David Ferriero stopped short of saying the IRS 'broke' the law. Archivist: IRS did not follow law

The U.S. Archivist told lawmakers on Tuesday that the IRS “did not follow the law” when it failed to report the lost Lois Lerner’s emails, which could have included official documents.

During a House Oversight and Government Reform hearing David Ferriero stopped short of saying the tax-collecting agency “broke” the law, saying “I am not a lawyer.”


But when pressed by Michigan Republican Tim Walberg about whether the IRS failure to inform the National Archives when it learned that two years of the former head of the tax exempt division’s email were lost, he said: “They did not follow the law.”

( Also on POLITICO: GOP vs. IRS chief: Part 2)

The testimony came at the third congressional hearing in less than two weeks since the IRS revealed the loss of emails from Lerner, a key figure in the targeting controversy. Republicans have pounced on the late notice given to lawmakers, while Democrats say Republicans are waging a partisan battle ahead of the midterm elections to rally the base.

Also at the hearing, subpoenaed White House attorney Jennifer O’Connor, a former IRS counselor to the acting commissioner, told the panel she had no prior knowledge of Lerner’s lost emails because her tenure predated that discovery.

“I did not know that her emails were missing and unrecoverable or that her computer crashed,” said O’Connor. She was hired on to help the IRS respond to congressional inquiries between May 2013 to November 2013.

Ferriero said the IRS didn’t follow the law because the Federal Records Act requires agencies to “notify us when they realize that they have a problem” — meaning any time documents or official emails are intentionally destroyed or lost on accident, they’re supposed to know.

( Also on POLITICO: Chaffetz: 'Find those geeks')

IRS Commissioner John Koskinen told Oversight Monday night that they did not notify Archives when they learned a bulk of Lerner emails were missing in February 2014 — nor when they realized in April or May that the crash meant several years worth of Lerner’s emails were gone.

The Archives, which oversees record-keeping laws, is probing the matter and has asked the IRS to investigate “whether the alleged disposal was broader than was reported in the June 13, 2014, letter,” according to its letter to the IRS. The IRS must report back in 30 days.

Oversight Democrats were quick to point out that record-keeping issues are a government-wide problem.

“Do you think that records retention is a problem exclusive to the IRS?” asked Rep. Michelle Lujan (D-N.M)

Ferriero answered no.

Transparency advocates have also said this is typical — pointing to scandals in the Bush administration where emails and documents disappeared, including the infamous torture-memos by Justice Department lawyer John Yoo.

The law requires agencies to save official records — defined in a National Archives guidance post as “documentary materials that agencies create and receive while conducting business that provide evidence of the agency’s organization, functions, policies, decisions, procedures, and operations, or that contain information of value.”

At the IRS, employees who send such official correspondences via email are supposed to print them out and file hard copies.

Koskinen said before the hearing Monday that they had some hard copies of Lerner’s emails, suggesting she “complied with agency policy at least in some instance.” He didn’t know how many.

But when pressed by Rep. Mark Meadows (R-N.C.) on the matter of potentially lost official documents, he said: “I don’t know whether anything lost was an official record or not” when it came to Lerner’s emails.

Given Lerner’s position as head of the department at the IRS, it’s likely many of her emails were official documents since she would theoretically have discussed IRS policies, decisions and operations, suggested Paul Wester, chief records officer for the U.S. government at the hearing.

When asked if he believed it was “unfair” to assume that some of Lerner’s email were official documents, he said: “Ah, no.”

“It would have been preferred for us to know about it when there was indication that there could be emails lost,” he said.

That would have been anytime between February, when the IRS first learned there was a problem, and between April and May, when the realization that they were gone forever set in.

Archives learned of the incident from the IRS letter to the Senate Finance Committee less than two weeks ago.

Ferriero wouldn’t say if an email between Lerner and a top Justice Department official, in which she transferred them 1.1 million pages worth of data on nonprofits, was a permanent official record.

Ferriero wasn’t sure.

“It is an email that is of record, whether it’s a temporary or permanent record, I can’t tell,” he said.

The two seemed hesitant about ruling on which of Lerner’s emails were official records or were not.

“The IRS is best to make that determination,” Wester told POLITICO after the hearing when asked about it.

An Obama administration policy issued in 2012 calls for all federal agencies to manage their email exclusively electronically by the end of 2016. They also issued email guidelines known as Capstone allowing agencies to categorize email based on the position of the employee, thus capturing records that “should be preserved as permanent from the accounts of officials at or near the top of an agency.”

Koskinen told reporters yesterday that “we are reviewing” the program for its most senior people, top 35 people, “which would be all of the division heads and would have included most of the people involved in this.”

O’Connor said she probably did not learn of the missing Lerner email while serving at the IRS because, at the time, the agency was simply pulling Lerner emails by “relevant search terms” rather than looking at all the emails.

Issa would later that summer ask for all Lerner’s emails, but O’Connor said then-Acting IRS Commissioner Danny Werfel, as far as she knew, wanted to finish up the method they were using to pull emails, then return to all the emails after that process was complete.

Democrats on the committee accused the GOP of using O’Connor to link the scandal to the White House.

“Why is she here? … It’s not because of her old job; it’s because of her new one… [ and] a partisan attempt to generate headlines with accusations against the White House,” Ranking Democrat Elijah Cummings of Maryland said. “There’s still no evidence — none — that the White House was involved in any way. … Issuing a subpoena to a White House lawyer does not change that fact.”

He also said it was because Issa and Ways and Means Chairman Dave Camp were jockeying for jurisdiction and more headlines on the IRS.

Indeed, the Republican rivalry over who takes the lead on the matter reached a new height last week when Camp (R-Mich.) first announced a hearing with Koskinen the Tuesday after the email news broke. Within the hour, Issa had subpoenaed him for a rare 7 p.m. hearing the night before.

The next day, Camp moved his hearing up to this past Friday. Although Camp’s committee told House leadership, Oversight Republicans and POLITICO that they moved the hearing only after the commissioner requested such, Koskinen and top Ways and Means Democrat Sandy Levin have since denied that the change in time was initiated by the IRS but a request from Camp.

In fact, Koskinen had to cancel his trip to Florida to visit with IRS workers there because of the change in plans.