Nancy Hamilton's Notes: 18½ Minutes vs. 2 Years: Then and Now

by Jackson Walker

During the Watergate scandal of 1973 and 1974, which ultimately led to the resignation of President Richard Nixon, the Nixon White House tapes were the focal point of a media firestorm and the nation's rapt attention, particularly the infamous 18½-minute gap in one of the recordings. According to President Nixon's secretary, Rosemary Woods, she made a "terrible mistake" during transcription and accidently erased a portion of a conversation, the contents of which remain unknown to this day. Reportedly, Nixon himself launched an investigation into how the tapes were erased but to no avail. Subsequently, a panel of persons nominated by the White House and Special Prosecution Force examined the tape and determined the gap was due to erasure but to this day the missing minutes have not been recovered. The tape is now in the possession of the National Archives. But that was then and this is now.

Fast forward forty years. On May 10, 2013, perhaps in an effort to get ahead of the news, Lois Lerner, the now-retired Director of IRS Exempt Organizations (EO), publicly apologized at an American Bar Association function for what she claimed were inappropriate actions by the Cincinnati office of the IRS to subject conservative groups to extra scrutiny. Within days, the Treasury Inspector General for Tax Administration (TIGTA) released its final audit report that found that the EO division of the IRS inappropriately targeted "Tea Party" and other conservative organizations based on their names and political positions for tax-exempt status and subjected them to heightened scrutiny which resulted in extended delays in processing applications. On May 22, 2013, Lerner appeared before the House Committee on Oversight and Reform, read a statement and then refused to answer questions invoking the Fifth Amendment privilege.

Unlike the infamous Nixon Watergate tapes, which were initially known only to a few White House employees and limited to the confines of the Oval Office, in this digital age of electronic messaging, it is my bet that the missing IRS emails will not remain silent through the ages. Their story will come out.

Congressional investigators, wanting to know whether any mistreatment by the agency involved outside groups like the Democratic Party or the White House, subpoenaed Lerner's emails. On March 26, 2014, in testimony before Congress, IRS Commissioner John Koskinen testified that the IRS was complying with the congressional subpoena and that Lois Lerner's emails were "stored on servers" and would be delivered to investigators.

But on Friday, June 13, the IRS Commissioner informed congressional investigators that two years (2009–2011) of emails sent to and received from Lerner were lost when her hard drive crashed in June 2011. Coincidentally or not, Lerner's hard drive crash occurred within days after Representative David Camp's June 3, 2011, letter to IRS Commissioner Shulman expressing concern that the "IRS appears to have selectively targeted certain taxpayers who are engaged in political speech. Not only does this threaten political speech, it casts doubt on the IRS' credibility as an impartial enforcer of the nation's tax laws" and requesting correspondence and records shared with the Department of Treasury regarding applications of gift tax to Section 501(c)(4) organizations, internal memoranda, internal documents and correspondence relating to same.

A week later, the IRS informed investigators that eight other hard drives from other IRS employees who communicated with Lerner, including the chief of staff to the acting commissioner, an IRS spokeswoman, and four agents working on EO cases, had crashed as well. According to Commissioner Koskinen, Lerner's hard drive was recycled and presumably destroyed. The backup tapes were erased and recycled every six months.

Reportedly, the IRS had an account with an archive retrieval company, Sonasoft; that contract was canceled at the end of fiscal 2011. Furthermore, according to U.S. Archivist David Ferriero, who testified before Congress on June 23, "They did not follow the law" because the Federal Records Act requires agencies to notify them when they have a problem, including any time documents or official emails are intentionally destroyed or lost by accident. The National Archives and Records Administration, which oversees record-keeping laws, is now probing the matter.

Lerner reported her hard drive crashed in June 2011. The IRS, however, claims to have first learned of the lost emails in February 2014. According to the New York Times, the IRS says it did not discover the emails were missing earlier because it was using search terms to give investigators emails specifically related to their inquiry. Only after investigators demanded all of Lerner's emails did the agency discover some were missing. To be fair, many point out that record-keeping issues are a systemic government-wide problem, and the lost emails can be blamed on bureaucratic incompetence, antiquated equipment and budget cuts.

This email scandal has not yet drawn the media attention of the Watergate era, but public attention and media coverage are increasing. Unlike the infamous Nixon Watergate tapes, which were initially known only to a few White House employees and limited to the confines of the Oval Office, in this digital age of electronic messaging, it is my bet that the missing IRS emails will not remain silent through the ages. Their story will come out.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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