By Judson Berger
Published June 26, 2014
Computer experts and Republican lawmakers are poking holes in IRS claims that the agency did all it could to retrieve embattled ex-official Lois Lerner’s allegedly “lost” emails, which the agency blames on a 2011 hard-drive crash.
The email revelation already has prompted three congressional hearings — with more likely to come — as lawmakers grow more skeptical of the explanation and look for inconsistencies in the story. Among them, they point to a flurry of emails from mid-2011 between Lerner and the agency’s information technology team about the alleged computer failure which was attached to the agency’s mea culpa delivered to Congress earlier this month.
IRS Commissioner John Koskinen, in testimony on Capitol Hill this week, cited those emails as proof of the hard drive crash.
But Lerner’s communications with the agency’s IT team referred to her desire to retrieve “lost personal files” — not lost emails.
And that detail is “very suspicious,” according to David Kennedy, chief executive of information security firm TrustedSec. Kennedy said that when government computers crash, email recovery should be a priority. But in Lerner’s communication with the IT team, “There is no talk about the recovery of the emails,” Kennedy said, adding, “It didn’t seem like they really wanted to recover the data.”
It’s possible that the emails shared with lawmakers and attached to a June 13, 2014, letter to leaders of the Senate Finance Committee are just a snapshot of Lerner’s communications with the IT team. But they indicate Lerner’s acute level of concern for what she referred to as her personal files.
The first email, from June 13, 2011, is a brief notification from one of Lerner’s colleagues in the Exempt Organizations division to other IRS staff that Lerner’s hard drive had crashed, with information on how to reach her. The next set of emails starts on July 19, 2011, and shows Lerner reaching out to IT staffers for their help in retrieving “lost personal files.”
“There were some documents in the files that are irreplaceable,” she wrote.
Subsequent emails show technicians failed to recover the data, despite exhausting “all avenues.” Ultimately, Lerner was told the sectors on her hard drive were “bad,” rendering her data unrecoverable.
“Thanks for trying,” Lerner wrote back. “Sometimes stuff just happens.”
Koskinen cited these discussions during a hearing Monday before the House Oversight and Government Reform Committee, saying the agency’s IT division “tried using multiple processes at Ms. Lerner’s request to recover the information stored on her computer’s hard drive.”
But a Republican aide on the Oversight committee, following the hearing, pointed to the fact that those exchanges never mention her missing emails.
“She doesn’t even say I’m missing emails,” the aide said, describing that detail as one of the “things that don’t … quite add up.” Also in that category, for some on the committee, is the matter of what happened with the IRS’s backup system, which is supposed to back up data for six months. Rep. Jason Chaffetz, R-Utah, pressed Koskinen at the Oversight hearing, asking why IT professionals didn’t go to the back-up tapes after her crash.
Koskinen said it’s “very costly and difficult” to extract individual emails from that system, but acknowledged he hadn’t seen messages explaining why that step wasn’t taken.
“I don’t know why,” Koskinen said.
In the June 13, 2014, letter to the Senate Finance Committee, the IRS revealed that those tapes “no longer exist” because they were recycled.
The IRS — backed up by some Democrats — claim Lerner’s hard-drive crash simply is a case of routine computer failure.
“It’s not unusual for computers anywhere to fail, especially at the IRS in light of the aged equipment IRS employees often have to use,” Koskinen testified Monday, claiming over 2,000 agency workers had hard drive crashes so far this year. Koskinen stressed that the agency was able to recover 67,000 Lerner emails, including 24,000 from other accounts, from January 2009 to May 2013.
Democrats have defended the IRS against some of the toughest attacks. At an Oversight committee hearing on Tuesday, Rep. Peter Welch, D-Vt., advised against “jumping to conclusions and assuming the worst possible interpretation.”
But congressional Republicans have received the “lost emails” explanation with a healthy dose of skepticism. They note that while they’ve been seeking Lerner’s emails for months, they only found out just two weeks ago that some were “lost.”
Fueling the suspicion is that the hard drive crash came just days after a letter dated June 3, 2011, from House Ways and Means Committee Chairman Dave Camp, R-Mich., to the IRS commissioner at the time, asked about IRS scrutiny of donations to so-called 501(c)(4) groups.
Those groups would later emerge at the heart of the IRS scandal, as Lerner admitted — after planting a question at a Washington, D.C., event — that the agency applied extra scrutiny to conservative groups seeking this exempt status.
Jason R. Baron, former litigation director at the National Archives who is now with the law firm Drinker Biddle & Reath, said his sense is that the IRS is experiencing the same kinds of technical problems that many institutions deal with.
“My take is that there is not a vast conspiracy here,” he told FoxNews.com. “We have a hard drive crash.”
He said, however, the disappearance of the files does reflect a “failure of best practices” at the IRS and other agencies.
Baron noted that the IRS and other agencies do not keep emails on network drives, and that the National Archives is urging agencies to embrace a new program to store certain emails permanently.
“The problem is deeper than simply a crash of a hard drive,” Baron said. “Had the IRS adopted [the Archives’ policy] … this problem would not have arisen in the form it did.”
On Tuesday, the head of the National Archives, David Ferriero, testified that the IRS “did not follow the law,” after failing to notify the Archives when the files vanished in 2011.
According to the IRS, agency employees typically have an email limit of 500 megabytes, or roughly 6,000 emails. It was lower than that at the time of Lerner¹s computer crash.
To deal with these limits, employees are supposed to move anything that qualifies as “official records” onto their own hard drive, and even print them out, when they¹re freeing up space. But if the hard drive goes down, files can be lost.