[House Report 114-635]
[From the U.S. Government Publishing Office]
114th Congress } { Rept. 114-635
HOUSE OF REPRESENTATIVES
2d Session } { Part 1
======================================================================
CONDEMNING AND CENSURING JOHN A. KOSKINEN, THE COMMISSIONER OF INTERNAL
REVENUE
_______
June 21, 2016.--Ordered to be printed
_______
Mr. Chaffetz, from the Committee on Oversight and Government Reform,
submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany H. Res. 737]
The Committee on Oversight and Government Reform, to whom
was referred the resolution (H. Res. 737) condemning and
censuring John A. Koskinen, the Commissioner of Internal
Revenue, having considered the same, report favorably thereon
with an amendment and recommend that the resolution as amended
be agreed to.
CONTENTS
Page
COMMITTEE STATEMENT AND VIEWS.................................... 3
PURPOSE AND SUMMARY.............................................. 3
BACKGROUND AND NEED FOR LEGISLATION.............................. 3
I. EXECUTIVE SUMMARY................................................3
II. INTRODUCTION.....................................................4
III. AUTHORITY........................................................6
IV. BACKGROUND ON THE COMMITTEE'S INVESTIGATION......................6
A. IRS Targeting of Tax-Exempt Applications from
Conservative Groups................................ 7
B. Lois Lerner's Emails are Critical to the Committee's
Investigation...................................... 11
V. THE IRS SIGNIFICANTLY DELAYED PRODUCTION OF DOCUMENTS PURSUANT TO
THE COMMITTEE'S FIRST SUBPOENA..................................12
VI. COMMISSIONER KOSKINEN'S OBSTRUCTION OF CONGRESSIONAL
INVESTIGATIONS..................................................14
A. Koskinen Testified the Agency Would Comply with the
Committee's Subpoena............................... 15
B. Commissioner Koskinen's Senior Advisors Promised to
Comply............................................. 16
VII. COMMISSIONER KOSKINEN'S FALSE CLAIM THAT KEY EVIDENCE WAS LOST OR
DESTROYED PROLONGED THE INVESTIGATION...........................17
A. Commissioner Koskinen Promised to Produce Lois
Lerner's Emails Even After He Knew Some Were
Missing............................................ 19
B. The Committee Learned Lois Lerner's Emails Are Lost. 24
C. Commissioner Koskinen Failed to Disclose Knowledge
of Additional Hard Drive Crashes................... 26
D. The IRS Made No Effort to Recover Lois Lerner's
Email Archive...................................... 28
E. Commissioner Koskinen's Misleading Statements That
No Backup Tapes Exist.............................. 29
1. Poor IRS Leadership Led to Destruction of Backup
Tapes............................................ 30
2. The Current IRS Email System Backup Tapes......... 33
3. The Decommissioned Email Server Backup Tapes...... 34
VIII.COMMISSIONER KOSKINEN SHOULD BE REMOVED FROM OFFICE.............36
LEGISLATIVE HISTORY.............................................. 37
EXPLANATION OF AMENDMENTS........................................ 37
COMMITTEE CONSIDERATION.......................................... 38
ROLL CALL VOTES.................................................. 38
STATEMENT OF OVERSIGHT FINDINGS AND RECOMMENDATIONS OF THE
COMMITTEE...................................................... 41
STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES............ 41
DUPLICATION OF FEDERAL PROGRAMS.................................. 41
DISCLOSURE OF DIRECTED RULE MAKINGS.............................. 41
FEDERAL ADVISORY COMMITTEE ACT................................... 41
COMMITTEE ESTIMATE............................................... 41
BUDGET AUTHORITY AND CONGRESSIONAL BUDGET OFFICE COST ESTIMATE... 41
MINORITY VIEWS................................................... 42
The amendment is as follows:
Amend the preamble to read as follows:
Whereas the Committee on Oversight and Government Reform issued a subpoena
to John A. Koskinen, Commissioner, Internal Revenue Service, on February
14, 2014, which compelled him to produce, among other things, ``all
communications sent or received by Lois Lerner, from January 1, 2009, to
August 2, 2013.'';
Whereas on March 4, 2014, Internal Revenue Service employees in
Martinsburg, West Virginia, magnetically erased 422 backup tapes,
destroying as many as 24,000 of Lois Lerner's emails responsive to the
subpoena;
Whereas Commissioner Koskinen violated a congressional subpoena by failing
to locate and preserve relevant records and by losing key pieces of
evidence that were in the agency's possession, and destroyed, on his watch;
Whereas Commissioner Koskinen betrayed the trust and confidence of the
American people as an Officer of the United States;
Whereas Commissioner Koskinen failed to live up to the promise he made to
the Senate Committee on Finance during his confirmation hearing to: ``Be
transparent about any problems we run into; and the public and certainly
this committee will know about those problems as soon as we do.'';
Whereas as early as February 2014, and no later than April 2014,
Commissioner Koskinen was aware that a substantial portion of Lois Lerner's
emails were missing and could not be produced to Congress, but did not
notify Congress of any problem until June 13, 2014, when he included the
information on the fifth page of the third enclosure of a letter to the
Senate Committee on Finance;
Whereas Commissioner Koskinen offered under oath a series of false and
misleading statements utterly lacking in honesty and integrity;
Whereas on March 26, 2014, Commissioner Koskinen was asked during a hearing
before the Committee on Oversight and Government Reform, ``Sir, are you or
are you not going to provide this committee all of Lois Lerner's emails?''
and he falsely answered, ``Yes, we will do that.'';
Whereas on June 20, 2014, Commissioner Koskinen testified falsely that
``since the start of this investigation, every email has been preserved.
Nothing has been lost. Nothing has been destroyed.'';
Whereas on June 20, 2014, before the House Committee on Ways and Means
Commissioner Koskinen testified falsely that the Internal Revenue Service
had ``confirmed that backup tapes from 2011 no longer existed because they
have been recycled, pursuant to the Internal Revenue Service normal
policy'' and on July 23, 2014, during a different hearing in the Committee
on Oversight and Government Reform, Subcommittee on Economic Growth, Job
Creation, and Regulatory Affairs, Commissioner Koskinen testified
``confirmed means that somebody went back and looked and made sure that in
fact any backup tapes that had existed had been recycled.'';
Whereas on June 20, 2014, Commissioner Koskinen testified that the Internal
Revenue Service had ``gone to great lengths'' to retrieve all of Lois
Lerner's emails, but in fact failed to search disaster backup tapes, Lois
Lerner's Blackberry, the email server, backup tapes for the email server,
and Lois Lerner's temporary replacement laptop, which the Treasury
Inspector General for Tax Administration subsequently found to contain more
than 1,000 of Lerner's emails;
Whereas Commissioner Koskinen's false statements delayed and otherwise
interfered with congressional investigations into the Internal Revenue
Service targeting of Americans based on their political affiliation; and
Whereas the aforementioned conduct of Commissioner Koskinen caused the
House of Representatives to lose confidence in his ability to administer
and supervise the execution and application of the internal revenue laws:
Now, therefore, be it
Committee Statement and Views
Purpose and Summary
The resolution documents that the House of Representatives
has lost confidence in Commissioner John A. Koskinen's ability
to administer and supervise the execution and application of
the internal revenue code. Therefore, the House of
Representatives censures and condemns John A. Koskinen for a
pattern of conduct while Commissioner of the Internal Revenue
Service that is incompatible with his duties and inconsistent
with the trust placed in him as an officer of the United
States. It is the sense of the House of Representatives that
John A. Koskinen, Commissioner of Internal Revenue, should: (a)
immediately resign from office, and if he does not so resign,
the President should remove him from office; and (b) be
required to forfeit any rights to any annuity for which is
eligible under chapter 83 or chapter 84 of title 5, United
States Code.
Background and Need for Legislation
I. Executive Summary
On May 15, 2013--one day after the Treasury Inspector
General for Tax Administration released a report that found the
Internal Revenue Services (IRS) targeted taxpayers on the basis
of their political beliefs--President Obama stated the
targeting program was ``inexcusable and Americans have the
right to be angry about it.'' Additionally, the President said,
``[O]ur administration has to make sure that we are working
hand in hand with Congress to get this thing fixed.''
This acknowledgment came five days after Lois Lerner,
Director of the Exempt Organizations Division, stated about the
targeting, ``that was wrong, that was absolutely incorrect,
insensitive and inappropriate.'' For the past two years,
several congressional committees investigated the IRS's
targeting of conservative groups.
IRS Commissioner John Koskinen, however, remained
unapologetic about the targeting program and unwilling to work
with Congress in the manner the President directed. Rather than
cooperate with Congress, Commissioner Koskinen obstructed the
congressional investigations of the targeting program by: (1)
allowing 24,000 emails relevant to the investigation, and
covered by a congressional subpoena and internal preservation
order, to be destroyed on his watch; and (2) failing to testify
truthfully and providing false and misleading information to
Congress.
Commissioner Koskinen's posture with respect to the various
congressional investigations of the IRS caused 52 Members of
the House of Representatives to sign a letter on July 27, 2015
that called on President Obama to exercise his authority under
26 U.S.C. Section 7803(a)(1)(D) to remove Mr. Koskinen as
Commissioner of the IRS. The President took no action, and the
House of Representatives was therefore left to consider
alternative means to remove or otherwise hold Commissioner
Koskinen accountable.
It is necessary to condemn and censure Commissioner
Koskinen because his failure to comply with a subpoena and
failure to testify truthfully permanently deprived the American
people of a complete understanding of the IRS targeting
scandal. Commissioner's Koskinen's complete disregard for
Congress's oversight obligations and the American people's
right to know the truth about the IRS targeting program caused
a deficit of confidence in the nation's tax collecting agency.
His continued leadership of the IRS is an insurmountable
obstacle to restoring that confidence. Mr. Koskinen cannot
continue in his role as Commissioner and the House of
Representatives should make it clear that his actions are
intolerable.
This report provides additional details with respect to the
various reasons that the House of Representatives should
condemn and censure Mr. Koskinen. Briefly, those reasons are:
Commissioner Koskinen failed to comply with a
subpoena resulting in destruction of key evidence. Commissioner
Koskinen failed to locate and preserve IRS records in
accordance with a congressional subpoena and an internal
preservation order. The IRS erased 422 backup tapes containing
as many as 24,000 of Ms. Lerner's emails--key pieces of
evidence that were in the agency's possession, and destroyed,
on Koskinen's watch.
Commissioner Koskinen failed to testify truthfully
and provided false and misleading information. Commissioner
Koskinen testified the IRS turned over all emails relevant to
the congressional investigation, including all of Ms. Lerner's
emails. When the agency determined Ms. Lerner's emails were
missing, Commissioner Koskinen testified the emails were
unrecoverable. Neither of these statements was true.
Commissioner Koskinen failed to notify Congress
that key evidence was missing. The IRS knew Ms. Lerner's emails
were missing in February 2014. In fact, they were not missing;
the IRS destroyed the emails on March 4, 2014. The IRS did not
notify Congress the emails were missing until June 2014--four
months later, and well after the White House and the Treasury
Department were notified.
II. Introduction
John Koskinen was confirmed as IRS Commissioner in December
2013 during the 113th Congress. Then-Chairman Darrell Issa
reissued a subpoena for Ms. Lerner's emails to him on February
14, 2014.\1\ Chairman Issa served Commissioner Koskinen another
subpoena on June 17, 2014 for any computer hardware containing
Ms. Lerner's emails. Both subpoenas were reissued by Chairman
Jason Chaffetz on March 4, 2015 in the 114th Congress.
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\1\The original subpoena was served on Treasury Secretary Jack Lew
on August 2, 2013, because no permanent IRS Commissioner was in place.
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During his confirmation hearing, Commissioner Koskinen
pledged to fully cooperate with the ongoing congressional
investigations.\2\ His actions have fallen well short of
fulfilling that pledge. As commissioner, Mr. Koskinen
repeatedly assured the Committee that the IRS was working to
gather Lois Lerner's emails and that the IRS would provide
these emails to the Committee. For instance, in testimony
before the Committee on March 26, 2014, Commissioner Koskinen
stated the IRS would produce all of Lois Lerner's subpoenaed
emails.\3\ It did not. In fact, under Commissioner Koskinen's
leadership, the IRS destroyed thousands of emails covered by
the Committee's subpoenas.
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\2\Nomination of John Koskinen: Hearing Before the S. Comm. on
Finance, 113th Cong. (2013) (question and answer with Ranking Member
Orrin Hatch).
\3\Examining the IRS Response to the Targeting Scandal: Hearing
Before the H. Comm. on Oversight & Gov't Reform, 113th Cong., at 27
(Mar. 26, 2014) (question and answer with Rep. Chaffetz) [hereinafter
Mar. 26, 2014 Hearing].
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After he learned that thousands of Ms. Lerner's emails were
missing from the IRS's archiving system, the Treasury Inspector
General for Tax Administration (TIGTA) found that Commissioner
Koskinen and his staff failed to look in five of the six places
where the emails could potentially be recovered. The IRS only
examined Lerner's hard drive, which apparently crashed in 2011.
TIGTA examined all the places where Lerner's emails might have
been preserved, including Lerner's Blackberry devices, email
server, backup email server, loaner laptop, the IRS's own
backup tapes, and Lerner's hard drive.\4\ TIGTA's more thorough
investigation recovered over 1,000 emails the IRS previously
failed to produce to Congress.\5\
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\4\Treasury Inspector General for Tax Administration, Report of
Investigation: Exempt Organizations Data Loss, (June 30, 2015)
(hereinafter ``TIGTA report'').
\5\Id.
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The malfeasance of Commissioner Koskinen extends beyond
investigative indifference into destruction of evidence. The
Counselor to the Commissioner, Catherine Duval, learned of gaps
in the Lerner email production on February 2, 2014. Yet, on
March 4-a month later--IRS employees on the midnight shift in
Martinsburg, West Virginia magnetically erased 422 backup
tapes, destroying as many as 24,000 Lois Lerner emails
responsive to the subpoenas. No one will ever know what was
contained in those emails.
After the backup tapes were destroyed, Commissioner
Koskinen made a series of false and misleading statements to
Congress while under oath. On June 20, 2014, Commissioner
Koskinen testified: ``Since the start of this investigation,
every email has been preserved. Nothing has been lost. Nothing
has been destroyed.''\6\ That testimony was subsequently
disproven by a TIGTA investigation that found 422 magnetically
backup tapes were erased.\7\
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\6\Recent Developments in the Committee's Investigation into the
Internal Revenue Service's Use of Inappropriate Criteria to Process
Applications of Tax-Exempt Organizations: Hearing Before the H. Comm.
on Ways & Means, 113th Cong. (2014).
\7\TIGTA report, supra note 4, at 2.
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Commissioner Koskinen also testified at a congressional
hearing on June 20, 2014 that the IRS made a genuine effort to
recover the missing Lerner emails. He stated, ``We've gone to
great lengths to spend a significant amount of money trying to
make sure that there is no email that is required that has not
been produced.''\8\ That statement was also proven false by
TIGTA, and by Commissioner Koskinen's own subsequent testimony.
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\8\IRS Commissioner John Koskinen: Hearing Before the H. Comm. on
Ways & Means (June 20, 2014).
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In addition, Commissioner Koskinen testified that the
backup tapes were never sent to a lab for professional forensic
analysis. That statement also proved false.\9\
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\9\Transcribed interview of Steven Manning, Internal Revenue Serv.,
in Wash., D.C. (April 6, 2015).
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Commissioner Koskinen engaged in a systematic effort to
obstruct, undermine, and discredit Congress's investigative
function. His actions caused the destruction of documents
covered by a subpoena and permanently deprived the American
people of a complete understanding of the scope and purpose of
the IRS targeting program. In the course of doing so, he made
false and misleading statements to Congress. For these reasons,
and others, Commissioner Koskinen should be condemned and
censured.
III. Authority
The authority to censure or otherwise condemn the actions
of government officials has come to be recognized and accepted
in congressional practice as extending to cases of
``misconduct,'' even outside of Congress, which the House finds
to be reprehensible, and therefore, worthy of condemnation or
rebuke.\10\ According to the Congressional Research Service,
``In the case of . . . federal officials, censure would be an
exercise of the implicit power of a deliberative body to
express its views, just as Congress may also express judgments
of other persons or events.''\11\
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\10\Jack Maskell, Expulsion, Censure, Reprimand, and Fine:
Legislative Discipline in the House of Representatives, Cong. Research
Serv. (May 2, 2013) (RL31382).
\11\Richard S. Beth, Censure of Executive and Judicial Branch
Officials, Legislation Proceedings, Cong. Research Serv. (Oct. 2, 1998)
at 6.
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The earliest attempt to censure an official is believed to
be a series of resolutions proposing the censure and
disapproval of Secretary Alexander Hamilton in 1793, the texts
of which were considered by historians to have been drafted by
Thomas Jefferson.\12\
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\12\Jack Maskell and Richard S. Beth, ``No Confidence'' Votes and
Other Forms of Congressional Censure of Public Officials, Cong.
Research Serv. (June 11, 2007) (RL34037).
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Either chamber may adopt a resolution to censure or condemn
a federal official.\13\ There were 31 resolutions to censure,
condemn, or express a loss of confidence, submitted from the
93rd through 109th Congresses (1973-2006) and directed against
federal officials.\14\
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\13\ Id.
\14\ Id.
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IV. Background on the Committee's Investigation
In February 2012, the Committee received reports the IRS
inappropriately scrutinized certain applicants for 501(c)(4)
tax-exempt status. Since then, the Committee has engaged in a
comprehensive investigation of the IRS's process for reviewing
applications for tax-exempt status. As part of this
investigation, the Committee reviewed more than 1.3 million
pages of documents, conducted more than 50 transcribed
interviews of current and former IRS officials, and held over a
dozen public hearings.
Documents and testimony show the IRS targeted conservative-
aligned applicants for tax-exempt status by scrutinizing them
in a manner distinct--and more intrusive--than other
applicants. Critical questions remain regarding the extent of
this targeting, and how and why the IRS acted--and persisted in
acting--in this manner. Commissioner Koskinen's failure to
comply with the Committee's subpoenas and to cooperate fully
with the Committee's investigation has caused many key
questions to remain unanswered.
A. IRS TARGETING OF TAX-EXEMPT APPLICATIONS FROM CONSERVATIVE GROUPS
In late February 2010, a screener in the IRS's Cincinnati
office identified a 501(c)(4) application connected with the
Tea Party. Due to ``media attention'' surrounding the Tea
Party, the application was elevated to the Exempt Organizations
Technical Unit in Washington, D.C.\15\ When officials in the
Cincinnati office received several similar applications in
March 2010, the Washington, D.C. office asked for two ``test''
applications, and ordered the Cincinnati employees to ``hold''
the remainder of the applications, which prevented the
applications from moving forward in the review process.\16\ A
manager in the Cincinnati office asked his screeners to develop
criteria for identifying other Tea Party applications so the
applications would not ``go into the general inventory.''\17\
By early April 2010, Cincinnati screeners began to identify and
hold any applications that met certain criteria. Applications
that met the criteria were removed from the general inventory
and assigned to a special group.
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\15\Email from Cindy Thomas, Manager, Exempt Organizations
Determinations, IRS, to Holly Paz, Manager, Exempt Organizations
Technical Unit, IRS (Feb. 25, 2010) [IRSR 428451].
\16\Transcribed Interview of Elizabeth Hofacre, Revenue Agent,
Exempt Orgs. Determinations Unit, IRS (May 31, 2013) [hereinafter
Hofacre Tr.].
\17\Transcribed Interview of John Shafer, Group Manager, Exempt
Orgs. Determinations Unit, IRS (June 6, 2013).
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In late spring 2010, Carter Hull, based in the Washington,
D.C. IRS office, was assigned to work on the test
applications.\18\ Hull, a federal employee with almost fifty
years of experience, was a recognized expert in 501(c)(4)
applications that showed indicia of political activity.\19\ He
issued letters to the test applicants requesting additional
information or clarification about certain information
contained in their applications for tax-exempt status.\20\
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\18\Transcribed interview of Carter Hull Internal Revenue Serv., in
Wash., D.C. (June 14, 2013).
\19\Id.
\20\IRS, Timeline for the 3 exemption applications that were
referred to EOT from EOD, [IRSR 58346-49].
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Meanwhile, through the summer and into fall 2010,
applications from other conservative-aligned groups were also
held. As the Cincinnati office awaited guidance from Washington
regarding those applications, a backlog developed. By fall
2010, the backlog of applications held in the Cincinnati office
had grown to 60.
On February 1, 2011, Lois Lerner, who served as Director of
Exempt Organizations (EO) at IRS from 2006 to 2013,\21\ wrote
an email to Michael Seto, the manager of the Technical Office
within the EO business division. The EO Technical Office was
staffed by approximately 40 IRS lawyers who provided advice to
IRS agents across the country. Lerner wrote, ``Tea Party Matter
very dangerous'' and asked the Office of Chief Counsel to get
involved.\22\ She advised Seto that ``Cincy [Cincinnati] should
probably NOT have these cases,'' implying they should be
handled at IRS headquarters in Washington.\23\ Seto testified
to the Committee that Lerner ordered a ``multi-tier'' review
for the test applications, a process that involved her senior
technical advisor and the Office of Chief Counsel.\24\
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\21\The IRS: Targeting Americans for Their Political Beliefs:
Hearing Before the H. Comm. on Oversight & Gov't Reform, 113th Cong.,
at 22 (May 22, 2013) (H. Rpt. 113-33) (statement of Lois Lerner,
Director, Exempt Orgs., IRS).
\22\Email from Lois Lerner, Director, Exempt Orgs., IRS to Michael
Seto, Manager, Exempt Orgs. Technical Unit, IRS (Feb. 1, 2011) [IRSR
161810].
\23\Id.
\24\Transcribed Interview of Michael Seto, Manager, Exempt Orgs.
Technical Unit, IRS (July 11, 2013) [hereinafter Seto Tr.].
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On July 5, 2011, Lerner became aware the backlog of Tea
Party applications pending in Cincinnati had swelled to ``over
100.''\25\ Lerner also learned of the specific criteria used to
screen the cases that were caught in the Tea Party backlog,
which included the terms ``Tea Party,'' ``Patriots,'' and ``9/
12.''\26\ She believed the term ``Tea Party''--a term that
triggered additional scrutiny under the criteria IRS personnel
developed-was ``pejorative.''\27\ Lerner ordered her staff to
adjust the criteria.\28\ She also directed the Technical Unit
to conduct a ``triage'' of the backlogged applications and to
develop a guide sheet to assist agents in Cincinnati with
processing the cases.\29\
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\25\Transcribed Interview of Justin Lowe, Technical Advisor to the
Commissioner, Tax Exempt and Gov't Entities Division, IRS (July 23,
2013).
\26\ Id.
\27\ Transcribed Interview of Holly Paz, Director, Exempt Orgs.,
Rulings and Agreements, IRS (May 21, 2013).
\28\Id.
\29\Seto Tr. at 121-23.
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In November 2011, the draft guide sheet for processing the
backlogged applications was complete.\30\ By then, there were
160-170 pending applications in the backlog.\31\ After the
Cincinnati office received the guide sheet from Washington,
officials in the EO division began to process the applications
in January 2012. IRS employees drafted questions to solicit
information from the applicants pursuant to the guide sheet.
The questions asked for information about the applicant
organizations' donors, volunteers, board membership, and
political affiliation, among other things.\32\
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\30\Email from Michael Seto, Manager, Exempt Orgs. Technical Unit,
IRS, to Cindy Thomas, Manager, Exempt Orgs. Determinations Unit, IRS
(Nov. 6, 2011) [IRSR 69902].
\31\Transcribed Interview of Stephen Daejin Seok, Group Manager,
Exempt Orgs. Determinations Unit, IRS (June 19, 2013).
\32\Id.
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By early 2012, questions about the IRS's treatment of these
backlogged applications attracted public attention. Committee
staff met with Ms. Lerner on February 24, 2012 regarding the
IRS's process for evaluating tax-exempt applications.\33\ Ms.
Lerner never informed the Committee about the true nature of
the IRS's treatment of the applications from conservative
groups. Instead, Ms. Lerner told Committee staff that the IRS's
criteria for evaluating tax-exempt applications had not
changed. Ms. Lerner also mentioned the guide sheet developed by
the Washington office and used by revenue agents to process
applications.
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\33\Briefing by Lois Lerner, Director, Exempt Orgs., IRS, to H.
Comm. on Oversight & Gov't Reform Staff (Feb. 24, 2012).
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Committee staff subsequently met with TIGTA representatives
on March 8, 2012.\34\ Shortly thereafter, TIGTA began an audit
of the IRS's process for evaluating tax-exempt applications.
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\34\Briefing by Treasury Inspector Gen. for Tax Admin. staff, to H.
Comm. on Oversight & Gov't Reform Staff (May 2013).
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In late February 2012, after Ms. Lerner briefed Committee
staff, then-IRS Deputy Commissioner Steven Miller requested a
meeting with her to discuss these applications. Ms. Lerner
informed Mr. Miller of the backlog and advised that the IRS had
asked applicant organizations for donor information.\35\ Deputy
Commissioner Miller relayed this information to IRS
Commissioner Douglas Shulman.\36\ On March 23, 2012, Mr. Miller
convened a meeting of his senior staff to discuss these
applications. Mr. Miller launched an internal review of
potentially inappropriate treatment of Tea Party 501(c)(4)
applications ``to find out why the cases were there and what
was going on.''\37\
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\35\Transcribed Interview of Steven Miller, Deputy Commissioner,
IRS (Nov. 13, 2013) [hereinafter Miller Tr.].
\36\Id.
\37\Id.
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The internal IRS review took place in April 2012. Mr.
Miller realized there was a problem and that the application
backlog needed to be addressed.\38\ IRS officials designed a
new system to process the backlog, and Mr. Miller received
weekly updates on the progress of the backlog throughout the
summer 2012.\39\
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\38\Id.
\39\Id.
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In May 2013, in advance of the release of TIGTA's audit
report on the IRS's process for evaluating applications for
tax-exempt status, the IRS planned to acknowledge publicly that
certain tax-exempt applications were inappropriately
targeted.\40\ On May 10, 2013, at an event sponsored by the
American Bar Association (ABA), Ms. Lerner responded to a
question she planted with a member of the audience prior to the
event. A veteran tax lawyer asked:
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\40\Email from Nicole Flax, Chief of Staff to the Deputy
Commissioner, IRS, to Lois Lerner, Director, Exempt Orgs., IRS (Apr.
23, 2013) [IRSR 189013]; Miller Tr. At 154-56; Transcribed Interview of
Sharon Light, Senior Technical Advisor to the Director, Exempt Orgs.,
IRS (Sept. 5, 2013); Email from Nicole Flax, Chief of Staff to the
Deputy Commissioner, IRS, to Adewale Adeyemo, Dept. of the Treasury
(Apr. 22, 2013) [IRSR 466707].
Lois, a few months ago there were some concerns about
the IRS's review of 501(c)(4) organizations, of
applications from tea party organizations. I was just
wondering if you could provide an update.\41\
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\41\Eric Lach, IRS Official's Admission Baffled Audience at Tax
Panel, Talking Points Memo, May 14, 2013.
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In response, Ms. Lerner stated:
So our line people in Cincinnati who handled the
applications did what we call centralization of these
cases. They centralized work on these in one particular
group.\42\
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\42\Rick Hasen, Transcript of Lois Lerner's Remarks at Tax Meeting
Sparking IRS Controversy, Election Law Blog (May 11, 2013, 7:37 a.m.),
available at http://electionlawblog.org/?p=50160 (last visited Oct. 23,
2015).
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Ms. Lerner also stated:
However, in these cases, the way they did the
centralization was not so fine. Instead of referring to
the cases as advocacy cases, they actually used case
names on this list. They used names like Tea Party or
Patriots and they selected cases simply because the
applications had those names in the title. That was
wrong, that was absolutely incorrect, insensitive, and
inappropriate--that's not how we go about selecting
cases for further review. We don't select for review
because they have a particular name.\43\
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\43\Id.
Ms. Lerner's statements during the ABA panel, entitled
``News from the IRS and Treasury,'' were the first public
acknowledgement that the IRS had inappropriately scrutinized
the applications of conservative-aligned groups. Within days,
the President and the Attorney General expressed serious
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concerns about the IRS's actions. The President stated:
It's inexcusable, and Americans are right to be angry
about it, and I am angry about it. I will not tolerate
this kind of behavior in any agency, but especially in
the IRS, given the power that it has and the reach that
it has into all of our lives.\44\
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\44\Statement by the President, May 15, 2013, available at https://
www.whitehouse.gov/the-press-office/2013/05/15/statement-president
(last visited Oct. 23, 2015).
At the same press conference, the Attorney General
announced a Justice Department investigation.\45\
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\45\Holder Launches Probe into IRS Targeting of Tea Party Groups,
FoxNews.com, May 14, 2013.
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As a result of Ms. Lerner's announcement at the ABA panel,
and for other reasons, the Committee scheduled a hearing where
Ms. Lerner would appear and answer questions about how and why
the IRS processed conservative-aligned applicants for tax-
exempt status. On May 14, 2013, Chairman Issa invited Ms.
Lerner to testify at a hearing on May 22, 2013.\46\ Ms. Lerner,
through her attorney, confirmed she would appear at the
hearing,\47\ and that she planned to invoke her Fifth Amendment
rights and not answer questions.\48\
---------------------------------------------------------------------------
\46\Letter from Hon. Darrell E. Issa, Chairman, H. Comm. on
Oversight & Gov't Reform, to Lois Lerner, Director, Exempt Orgs., IRS
(May 14, 2013) (letter inviting Lerner to testify at May 22, 2013
hearing).
\47\Email from William W. Taylor, III, Zuckerman Spaeder LLP, to H.
Comm. on Oversight & Gov't Reform Majority Staff (May 17, 2013).
\48\Letter from William W. Taylor, III, Zuckerman Spaeder LLP, to
Hon. Darrell E. Issa, Chairman, H. Comm. on Oversight & Gov't Reform
(May 20, 2013).
---------------------------------------------------------------------------
Since Ms. Lerner would not testify voluntarily at the May
22, 2013 hearing and because her testimony was critical to the
Committee's investigation, Chairman Issa authorized a subpoena
to compel her to appear. The subpoena was served on May 20,
2013.
At the hearing, after being sworn, Ms. Lerner made a
voluntary opening statement. She stated (in pertinent part):
I have not done anything wrong. I have not broken any
laws. I have not violated any IRS rules or regulations,
and I have not provided false information to this or
any other congressional committee. And while I would
very much like to answer the Committee's questions
today, I've been advised by my counsel to assert my
constitutional right not to testify or answer questions
related to the subject matter of this hearing. After
very careful consideration, I have decided to follow my
counsel's advice and not testify or answer any of the
questions today.\49\
---------------------------------------------------------------------------
\49\The IRS: Targeting Americans for Their Political Beliefs:
Hearing before the H. Comm. on Oversight & Gov't Reform, 113th Cong. 22
(May 22, 2013) (H. Rpt. 113-33) (statement of Lois Lerner, Director,
Exempt Orgs., IRS).
Following her statement, Chairman Issa explained he
believed she had waived her right to assert a Fifth Amendment
privilege and asked her to reconsider her position on
testifying.\50\ In response, Ms. Lerner stated: ``I will not
answer any questions or testify about the subject matter of
this Committee's meeting.''\51\ The hearing was placed in
recess so the Committee could consider whether Lerner had in
fact waived her Fifth Amendment rights.
---------------------------------------------------------------------------
\50\Id.
\51\Id.
---------------------------------------------------------------------------
At a business meeting on June 28, 2013, the Committee
approved a resolution rejecting Ms. Lerner's Fifth Amendment
privilege claim based on her waiver at the May 22, 2013,
hearing. The hearing was reconvened on March 5, 2014. Ms.
Lerner again refused to answer questions, and the Committee
initiated the process to hold her in contempt of Congress.
Meanwhile, the Committee's investigation continued.
Documents and testimony obtained by the Committee confirmed
that Lerner was a central figure in the IRS's inappropriate
scrutiny of certain applicants for tax-exempt status. The
Committee therefore focused investigative resources on
obtaining documents--including emails--that would help
investigators understand the full extent of her role in the
targeting program.
B. LOIS LERNER'S EMAILS ARE CRITICAL TO THE COMMITTEE'S INVESTIGATION
Since Ms. Lerner refused to testify, her emails are vital
to establish her precise role in the targeting. Without access
to the entirety of her communications, especially those that
occurred when the IRS's program to target conservative
applicants for tax-exempt status was active, the full extent of
her role cannot be known.
Ms. Lerner was, when the targeting occurred, the Director
of the EO business division of the IRS. The EO business
division contains the two IRS units responsible for executing
the targeting program: the EO Determinations Unit in
Cincinnati; and the EO Technical Unit in Washington, D.C.
Ms. Lerner has unique, first-hand knowledge of how, and
why, the IRS scrutinized applications for tax-exempt status
from conservative-aligned groups. The IRS sent letters to
501(c)(4) application organizations, signed by Ms. Lerner, that
included questions about the organizations' donors. These
letters went to applicant organizations that met certain
political criteria. Ms. Lerner later described the selection of
these applicant organizations as ``wrong, [] absolutely
incorrect, insensitive, and inappropriate.''\52\
---------------------------------------------------------------------------
\52\Rick Hasen, Transcript of Lois Lerner's Remarks at Tax Meeting
Sparking IRS Controversy, Election Law Blog (May 11, 2013, 7:37 AM),
http://electionlawblog.org/?p=50160.
---------------------------------------------------------------------------
In addition to being in a position to control and direct
the targeting, the incomplete set of Ms. Lerner's emails
obtained by the Committee makes clear she was personally
motivated to target conservative-oriented tax-exempt
organizations. In 2010, while IRS employees were screening
applications, Ms. Lerner and her colleagues contemplated
concerns about the ``hugely influential Koch brothers.''\53\
Ms. Lerner advised that her unit should ``do a c4 project next
year'' focusing on existing organizations.\54\ She went on to
acknowledge the potential scrutiny the effort could receive and
stated that it should be engineered so as not appear to be a
``per se political project.''\55\
---------------------------------------------------------------------------
\53\Email from Paul Streckfus to Paul Streckfus (Sep. 15, 2010) (EO
Tax Journal 2010-130) [IRSR 191032-33].
\54\Email from Lois Lerner, IRS, to Cheryl Chasin et al., IRS (Sep.
15, 2010) [IRSR 191032-33].
\55\Email from Lois Lerner, IRS, to Cheryl Chasin et al., IRS (Sep.
16, 2010) [IRSR 191030].
---------------------------------------------------------------------------
As left-leaning groups pressured the IRS to investigate
conservative nonprofits, Ms. Lerner wrote on August 31, 2010:
``We won't be able to stay out of this--we need a plan!''\56\
Later, in October 2010, Ms. Lerner spoke of the intense
pressure on the IRS to ``fix the problem'' resulting from the
Supreme Court's decision in Citizens United v. Federal Election
Commission, saying, ``Everybody is screaming at us right now:
`Fix it now before the election. Can't you see how much these
people are spending?'''\57\
---------------------------------------------------------------------------
\56\Email from Lois Lerner, IRS, to Sarah Hall Ingram, IRS (Aug.
31, 2010) [IRSR 632342].
\57\Lois Lerner Discusses Political Pressure on IRS in 2010,''
available at https://www.youtube.com (last visited July 31, 2014)
(transcription by Committee).
---------------------------------------------------------------------------
Ms. Lerner played a central role in the IRS's disparate
treatment of certain tax-exempt groups. She was extensively
involved in handling the Tea Party cases--from directing the
review process to receiving periodic status updates.\58\ She
created roadblocks to delay the approval of certain
organizations' tax-exempt applications. Ms. Lerner directed the
manager of the IRS's EO Technical Unit to subject Tea Party
cases to a ``multi-tier review'' system out of concern the
applications could extend the Citizens United decision to
nonprofit law.\59\ The system Ms. Lerner helped implement and
manage eventually led to the significant delay of Tea Party
501(c)(4) applications by subjecting these applications to an
unprecedented level of scrutiny.\60\
---------------------------------------------------------------------------
\58\Justin Lowe, IRS, Increase in (c)(3)/(c)(4) Advocacy Org.
Applications (June 27, 2011). [IRSR 2735]; Email from Judith Kindell,
IRS, to Lois Lerner, IRS (July 18, 2012). [IRSR 179406].
\59\Seto Tr., at 34.
\60\See e.g., Transcribed Interview of Carter Hull, Tax Law
Specialist, Exempt Orgs. Technical Unit, IRS, at 38-44, 44-51 (June 14,
2013) [hereinafter Hull Tr.]; Hofacre Tr. at 24-25.
---------------------------------------------------------------------------
Ms. Lerner refused to testify before Congress about her
role in the IRS targeting scandal. Ms. Lerner's refusal to
cooperate with the Committee's investigation rendered her
contemporaneous emails even more important to the congressional
effort to understand the extent of the IRS targeting program
and her role in it.
V. The IRS Significantly Delayed Production of Documents Pursuant to
the Committee's First Subpoena
For more than two years, the Committee has sought all of
Ms. Lerner's emails from the IRS.\61\ On June 4, 2013, the
Committee wrote to Mr. Koskinen's predecessor, Acting IRS
Commissioner Daniel Werfel, to request ``[a]ll documents and
communications sent by, received by, or copied to Lois Lerner''
from January 1, 2009 to the present.\62\
---------------------------------------------------------------------------
\61\Letter from Hon. Darrell E. Issa, Chairman, H. Comm. on
Oversight & Gov't Reform, to Daniel Werfel, Acting Commissioner, IRS,
June 4, 2013.
\62\Id.
---------------------------------------------------------------------------
Because the IRS did not comply with the Committee's
requests for information, on August 2, 2013, then-Chairman Issa
issued a subpoena to Treasury Secretary Jacob Lew, as the
custodian of IRS documents.\63\ Paragraph 1 on the subpoena
schedule requested ``[a]ll communications sent or received by
Lois Lerner, from January 1, 2009, to August 2, 2013.''\64\ The
subpoena described eight discrete categories of documents to
allow the IRS to identify and produce responsive documents in
an efficient way.\65\
---------------------------------------------------------------------------
\63\Comm. on Oversight & Gov't Reform Subpoena to Jacob Lew, Sec'y.
Dep't of the Treasury (Aug. 2, 2013).
\64\Id.
\65\Id.
---------------------------------------------------------------------------
On August 2, 2013, Acting Commissioner Werfel testified
under oath regarding the IRS's effort to produce all of
Lerner's emails to the Committee. He testified:
Rep. JORDAN. So I just want to be clear then. Every
single email of Lois Lerner's that we have asked for,
you have sent to us?
Mr. WERFEL. No. But we've provided hundreds of her
emails. But, again, this is a process.
Rep. JORDAN. No, no, no, no, no, no. It's pretty
simple. You go to her computer and you get her emails.
Eventually, Werfel committed to produce Lerner's emails. He
testified:
Rep. JORDAN. We have a specific request. We want
every bit of correspondence from Lois Lerner and you
won't give it to us. Here is the lady who broke the
story with the planted question. Here is the lady who
took the Fifth. Here is the lady who is at the center
of this storm. And we want every bit of email from her,
and you won't give it to us.
Mr. WERFEL. I will tell you I'm committed to.
Rep. JORDAN. And you have had 3 months to do it.
Mr. WERFEL. I will tell you what we're committed to.
We're committed to reviewing every one of Lois Lerner's
emails, and providing the response.
Acting Commissioner Werfel reiterated his commitment to
produce Ms. Lerner's emails later during his testimony. He
stated:
Mr. WERFEL. Yeah, I know. A couple of other
responses. First, Lois Lerner's emails are on the top
of our list and we are working through it. But we're
also producing----
Rep. JORDAN. That's not good enough. That's not. We
want them and we wanted them.\66\
---------------------------------------------------------------------------
\66\Examining the Skyrocketing Problem of Identity Theft Related
Tax Fraud at the IRS: Hearing Before the Subcomm. on Gov't Operations
of the H. Comm. on Oversight & Gov't Reform, 113th Cong., at 81-83
(2013) (testimony of Hon. Daniel Werfel, Principal Deputy Comm'r,
Internal Revenue Serv.).
---------------------------------------------------------------------------
Despite making the production of Ms. Lerner's emails the
IRS's ``top'' priority, Mr. Werfel did not disclose there were
problems with the preservation and collection of the entirety
of Ms. Lerner's emails. In fact, contrary to Acting
Commissioner Werfel's claim that the IRS was ``aggressively
working to share, gather and provide information'' to the
Committee, the agency continued to obstruct the Committee's
investigation even after a new permanent commissioner was
appointed.\67\
---------------------------------------------------------------------------
\67\Letter from Hon. Daniel Werfel, Principal Deputy Comm'r,
Internal Revenue Serv., to Hon. Darrell Issa, Chairman, H. Comm. on
Oversight & Gov't Reform & Hon. Jim Jordan, Chairman, Subcomm. on
Economic Growth, Job Creation, and Regulatory Affairs (Aug. 2, 2013).
---------------------------------------------------------------------------
VI. Commissioner Koskinen's Obstruction of Congressional Investigations
President Obama nominated John A. Koskinen to be the
permanent IRS Commissioner on August 1, 2013.\68\ During his
confirmation hearing, Koskinen pledged to cooperate with
several congressional investigations examining the targeting
scandal.\69\ He stated, ``[W]e will be transparent about any
problems we run into; and the public and certainly this
committee will know about those problems as soon as we
do.''\70\ On December 23, 2013, John Koskinen was sworn in as
the 48th IRS Commissioner.\71\
---------------------------------------------------------------------------
\68\The White House, Press Release, President Obama Announces His
Intent to Nominate John Koskinen as Commissioner of the Internal
Revenue Serv. (Aug. 1, 2013), available at http://www.whitehouse.gov/
the-press-office/2013/08/01/president-obama-announces-his-intent-
nominate-john-koskinen-commissioner (last visited July 31, 2014).
\69\Nomination of John Koskinen: Hearing Before the S. Comm. on
Finance, 113th Cong. (2013) (question and answer with Ranking Member
Orrin Hatch). Mr. Koskinen's nomination makes clear his term expires on
November 12, 2017.
\70\Nomination of John Andrew Koskinen, to be Commissioner,
Internal Revenue Service: Hearing Before the S. Comm. on Finance, 113th
Cong. (2013).
\71\Internal Revenue Serv., Commissioner John Koskinen, http://
www.irs.gov/uac/Commissioner-John-Koskinen (last visited July 31,
2014).
---------------------------------------------------------------------------
Commissioner Koskinen was on notice from his earliest days
in office regarding the need to preserve documents relevant to
the IRS targeting scandal. When Commissioner Koskinen became
the head of the agency, a Committee subpoena had been in place
for more than four months, since August 2, 2013. The subpoena
covered ``[a]ll communications sent or received by Lois Lerner,
from January 1, 2009, to August 2, 2013.''\72\ The Committee
reissued that subpoena to Commissioner Koskinen on February 14,
2014, seven weeks after he was sworn in.\73\
---------------------------------------------------------------------------
\72\H. Comm. on Oversight & Gov't Reform Subpoena to Jacob Lew,
Sec'y, Dep't of the Treasury (Aug. 2, 2013).
\73\H. Comm. on Oversight & Gov't Reform Subpoena to John Koskinen,
Comm'r, Internal Revenue Serv. (Feb. 14, 2014).
---------------------------------------------------------------------------
The subpoena made clear the legal obligation for Mr.
Koskinen, as the Commissioner of the IRS, to produce all eight
categories of documents covered by the subpoena, including
emails to and from Lois Lerner. Despite this, Mr. Koskinen
failed to make the Committee aware that thousands of emails
covered by the subpoena were missing.
The chain of events that ultimately caused many of Ms.
Lerner's emails to be unavailable to the Committee began in
June 2011, when Ms. Lerner's computer crashed. On February 2,
2014, Catherine Duval, Counselor to the Commissioner, noticed a
massive gap in the batch of Ms. Lerner's emails that were being
collected for production to the Committee.\74\ Ms. Duval
noticed there were no custodial emails (emails extracted from
Ms. Lerner's computers) from before 2011 because the hard drive
that contained those messages crashed.\75\ Ms. Duval realized
that emails from the period in question may have been
recoverable on backup tapes and made an inquiry with the Office
of the Chief Information Officer.\76\ Steven Manning, IRS's
Deputy Chief Information Officer, informed Ms. Duval and Thomas
Kane, a lawyer in the Chief Counsel's Office, that the IRS's
``disaster recovery tapes'' (also called backup tapes) are
reused every six months, and that the previous information is
written over.\77\
---------------------------------------------------------------------------
\74\Transcribed interview of Thomas Kane, Deputy Assoc. Chief
Counsel, Procedure & Administration, Office of Chief Counsel, Internal
Revenue Serv. (July 17, 2014).
\75\Id.; Letter from Leonard Oursler, Internal Revenue Serv., to
Ron Wyden & Orrin Hatch, S. Comm. on Finance, encl. 3 at 6 (June 13,
2014).
\76\Transcribed interview of Thomas Kane, Deputy Assoc. Chief
Counsel, Procedure & Administration, Office of Chief Counsel, Internal
Revenue Serv. (July 17, 2014).
\77\Id.
---------------------------------------------------------------------------
According to Commissioner Koskinen's own testimony at a
hearing on July 23, 2014, he became aware that thousands of Ms.
Lerner's emails were missing in February 2014, shortly after
Ms. Duval and Mr. Kane learned backup tapes that might contain
the missing emails are routinely overwritten.\78\ In fact,
Commissioner Koskinen testified that Mr. Kane learning this
information was tantamount to the entire agency being aware
that Ms. Lerner's emails were missing. Commissioner Koskinen
testified: ``If you told me now that Tom Kane said he knew in
February, I would henceforth say we, as the IRS, knew in
February.''\79\
---------------------------------------------------------------------------
\78\An Update on the IRS Response to Its Targeting Scandal: Hearing
Before the H. Comm. on Oversight & Gov't Reform Subcomm. on Econ.
Growth, Job Creation & Reg. Affairs, 113th Cong. (2014).
\79\Id.
---------------------------------------------------------------------------
Commissioner Koskinen--despite knowing that thousands of
emails covered by a congressional subpoena were missing and in
jeopardy of being permanently lost--took no meaningful action
to retrieve them. And so, on March 4, 2014, IRS employees
working the midnight shift at a facility in Martinsburg, West
Virginia, magnetically erased 422 backup tapes that contained
the missing Lerner emails.\80\ The backup tapes that were
destroyed contained as many as 24,000 Lerner emails responsive
to the subpoenas.\81\
---------------------------------------------------------------------------
\80\Treasury Inspector General for Tax Administration, Report of
Investigation: Exempt Organizations Data Loss 2 (June 30, 2015).
\81\Id.
---------------------------------------------------------------------------
Commissioner Koskinen did not reveal to Congress that
thousands of Ms. Lerner's emails were missing until June 20,
2014,\82\ despite a series of opportunities to do so.
---------------------------------------------------------------------------
\82\``Recent Developments in the Committee's Investigation into the
Internal Revenue Service's Use of Inappropriate Criteria to Process
Applications of Tax-Exempt Organizations'': Hearing Before the H. Comm.
on Ways & Means, 113th Cong. (2014).
---------------------------------------------------------------------------
A. COMMISSIONER KOSKINEN TESTIFIED THE AGENCY WOULD COMPLY WITH THE
COMMITTEE'S SUBPOENA
Rather than notify the Committee that thousands of emails
covered by a subpoena were missing, Commissioner Koskinen
devised a series of excuses for the IRS's inability to produce
Ms. Lerner's emails. At a Committee hearing on March 26, 2014,
Commissioner Koskinen blamed the scope of the subpoena for the
IRS's failure to comply. He asserted the subpoena covered ``not
thousands, but millions of documents.''\83\ Mr. Koskinen never
mentioned that any IRS officials' emails were missing or
destroyed. When asked specifically whether the IRS would
respond to the subpoena, he responded that the agency would do
so. He testified:
---------------------------------------------------------------------------
\83\Mar. 26, 2014 Hearing, supra note 3, at 27.
---------------------------------------------------------------------------
Rep. CHAFFETZ. You have a duly issued subpoena. Are
you or are you not going to provide this committee the
emails as indicated in this subpoena, yes or no?
Mr. KOSKINEN. We have never said we weren't----
Rep. CHAFFETZ. I am asking you yes or no.
Mr. KOSKINEN. We are going to respond to the
subpoena----
Rep. CHAFFETZ. No, no. Sir----
Mr. KOSKINEN. Yes, we are going to respond to the
subpoena. I am just telling you to respond fully to the
subpoena, we are going to be at this for years, not
months.\84\
---------------------------------------------------------------------------
\84\Id. at 30 (testimony of John Koskinen, Comm'r, Internal Revenue
Serv.).
---------------------------------------------------------------------------
During the same hearing, Commissioner Koskinen testified
under oath that the IRS would produce all of Ms. Lerner's
emails to the Committee.\85\ He stated:
---------------------------------------------------------------------------
\85\ Id.
---------------------------------------------------------------------------
Rep. CHAFFETZ. And I don't understand that. Just
specific to item one, Lois Lerner----
Mr. KOSKINEN. Lois Lerner's emails----
Rep. CHAFFETZ. Sir, are you or are you not going to
provide this committee all of Lois Lerner's emails?
Mr. KOSKINEN. We are already starting----
Rep. CHAFFETZ. Yes or----
Mr. KOSKINEN. Yes, we will do that.\86\
---------------------------------------------------------------------------
\86\ Id.
In a later exchange, Commissioner Koskinen again stated
---------------------------------------------------------------------------
that he would provide the subpoenaed documents.
Rep. CUMMINGS. Well, reclaiming just for a second. I
just want us to be clear. I mean, time is precious,
money is precious. Just tell us. I mean, you talk about
relevance. You said if a lawyer were to see this
subpoena, they would have some concerns. I just want to
be clear. I mean, it sounds like, again, I am saying
what I said before, you seem to have an understanding
and we seem to have an understanding, and they don't
seem to be the same. So are you going to provide the
documents for Lois Lerner?
Mr. KOSKINEN. Yes.
Rep. CUMMINGS. That were subpoenaed.
Mr. KOSKINEN. Yes.\87\
---------------------------------------------------------------------------
\87\ Id. at 31.
---------------------------------------------------------------------------
Like Acting Commissioner Werfel before him, Commissioner
Koskinen promised to produce all of the emails Ms. Lerner sent
or received during the period in question. At the hearing, Mr.
Koskinen made no mention of the fact that the IRS did not
possess thousands of emails responsive to the subpoenas.
B. COMMISSIONER KOSKINEN'S SENIOR ADVISORS PROMISED TO COMPLY
Following Commissioner Koskinen's testimony before the
Committee, his senior advisors assured Committee staff the IRS
would produce Ms. Lerner's emails. In a bipartisan staff
meeting on April 4, 2014, two of Commissioner Koskinen's senior
advisors, Catherine Duval and Leonard Oursler, discussed the
IRS's response to the Committee's subpoena.\88\ Ms. Duval
stated the IRS had identified and set aside all of Ms. Lerner's
emails as part of its document production process.\89\ Neither
Ms. Duval nor Mr. Oursler disclosed that the IRS had already
destroyed a significant cache of Ms. Lerner's emails.
---------------------------------------------------------------------------
\88\Meeting between H. Comm. on Oversight & Gov't Reform Staff &
Catherine Duval & Leonard Oursler, Internal Revenue Serv. (Apr. 4,
2014).
\89\ Id.
---------------------------------------------------------------------------
VII. Commissioner Koskinen's False Claim that Key Evidence was Lost or
Destroyed Prolonged the Investigation
According to the IRS, Ms. Lerner's laptop computer crashed
in June 2011. When technicians reviewed the hard drive after
the crash, they determined the data on her hard drive was
unrecoverable.\90\ An investigation by TIGTA concluded Ms.
Lerner's hard drive most likely crashed on June 11, 2011, a
Saturday. Efforts to determine who had access to Ms. Lerner's
office at the time were unsuccessful because the security badge
entry and exit logs from that day were also destroyed.\91\
Aaron Signor, an IRS IT specialist, initially examined Ms.
Lerner's hard drive.\92\ Mr. Signor provided computer-related
assistance to the EO Division. Mr. Signor removed the computer
from Ms. Lerner's office and determined that a problem existed
with the computer's hard drive.\93\ Mr. Signor attempted
unsuccessfully to retrieve data from the hard drive before
discarding it in a cardboard box containing roughly thirty
other crashed drives.\94\ That was the extent of Mr. Signor's
attempt to restore data on the hard drive and he closed the
matter on June 21, 2011.\95\
---------------------------------------------------------------------------
\90\Letter from Leonard Oursler, Internal Revenue Serv., to Hon.
Ron Wyden & Hon. Orrin Hatch, S. Comm. on Finance (June 13, 2014).
\91\TIGTA report, supra note 4, at 9.
\92\Transcribed interview of Aaron Signor, Internal Revenue Serv.
(Aug. 1, 2014).
\93\ Id.
\94\ Id.
\95\ Id.
---------------------------------------------------------------------------
In July or August 2011, Mr. Signor received a phone call
from Lillie Wilburn, an IT manager, asking whether he still had
Ms. Lerner's hard drive.\96\ She asked Mr. Signor to ship the
hard drive to another technician for additional
examination.\97\ John Minsek, a senior investigative analyst in
the IRS's Criminal Investigations (CI) unit, eventually
received Ms. Lerner's hard drive.\98\ Mr. Minsek understood the
hard drive was from ``a computer of importance'' and there was
a ``sense of urgency'' to recover data.\99\ Using the CI unit's
digital forensic facilities, Mr. Minsek opened the hard drive
and conducted additional tests.\100\ Once he opened the hard
drive, Mr. Minsek noticed ``well-defined scoring creating a
concentric circle in the proximity of the center of the
disk.''\101\ According to Mr. Minsek, the scoring covered less
than one percent of the surface of the disk.\102\
---------------------------------------------------------------------------
\96\ Id.
\97\ Id.
\98\Transcribed interview of John Minsek, Internal Revenue Serv.
(July 24, 2014).
\99\ Id.
\100\ Id.
\101\ Id.
\102\ Id.
---------------------------------------------------------------------------
Following Mr. Minsek's examination, he determined he was
unable to recover the data and returned the hard drive to the
IRS's IT team.\103\ In a subsequent conversation with IRS IT
personnel, Mr. Minsek raised the possibility the IRS could send
Ms. Lerner's hard drive to a data recovery service, believing
it was ``possible that they had techniques, methods, perhaps
proprietary tools that I did not have.''\104\ Instead, Ms.
Lerner's hard drive was sent to an IRS facility and recycled by
an outside contractor.\105\
---------------------------------------------------------------------------
\103\ Id.
\104\ Id.
\105\Transcribed interview of Thomas Kane, Internal Revenue Serv.
(July 17, 2014).
---------------------------------------------------------------------------
The destruction of Ms. Lerner's hard drive in June 2011
occurred during a pivotal time in the IRS's targeting of
conservatives. Just four months earlier, in February 2011, Ms.
Lerner called the Tea Party applications ``very dangerous'' and
ordered the cases undergo an unprecedented ``multi-tier''
review.\106\ In early June 2011, Ms. Lerner requested a copy of
the tax-exempt application filed by the prominent conservative
group Crossroads GPS for review by her senior technical
advisor.\107\
---------------------------------------------------------------------------
\106\Email from Lois Lerner, Internal Revenue Serv., to Michael
Seto, Internal Revenue Serv. (Feb. 1, 2011) [IRSR 161810].
\107\Email from Holly Paz, Internal Revenue Serv., to Cindy Thomas,
Internal Revenue Serv. (June 1, 2011) [IRSR 69914-15].
---------------------------------------------------------------------------
Witnesses testified Ms. Lerner stored a significant amount
of information on her computer's hard drive. According to Mr.
Signor, the IT technician who regularly serviced Ms. Lerner's
computer, Ms. Lerner maintained a large volume of data on the
hard drive of her computer.\108\ Mr. Signor recommended Ms.
Lerner back up her data on a network server. He testified:
---------------------------------------------------------------------------
\108\Transcribed interview of Aaron Signor, Internal Revenue Serv.
(Aug. 1, 2014).
---------------------------------------------------------------------------
Q. Do you recommend your end users to save data onto
the [network shared] drive?
A. Yes.
Q. That's something you do in the normal course of
your work?
A. Yes.
Despite that recommendation, Mr. Signor was told Ms. Lerner
did not have the time or responsibility to save her data. Mr.
Signor testified:
Q. You stated at the onset of the last round that you
would recommend to end users that they back up their
work. Do you recall that?
A. Yes.
Q. Did you have occasion to make that recommendation
to Ms. Lerner prior to working on her laptop in the
summer of 2011?
A. Yes.
Q. When?
A. There were probably several occasions between 2007
and 2011. I couldn't say exactly when.
Q. Do you know in what context?
A. It would have been in the context of another
ticket where I was working on her computer and maybe
noticed the volume of data and suggested it.
Q. Do you have reason to know whether she followed
your suggestion or not?
A. Yes.
Q. What do you know?
A. I was told that she didn't have backups at one
point.
Mr. Signor later clarified the point further:
Q. And when you say you told her about backups, what
exactly do you remember telling Ms. Lerner's assistant
about backups?
A. There was one day where she and I were in Lois's
office. I can't remember if Lois was present or not.
But I had said, you know, ``Lois has plenty of data. We
really should get backups of her data.'' And her
response was, ``Well, I don't think that Lois has the
time to do it, and it's not her responsibility.''
That's what was said, something--I'm not quoting
exactly, but something like that would have been
said.\109\
---------------------------------------------------------------------------
\109\Id.
---------------------------------------------------------------------------
On September 5, 2014, the IRS notified Congress it could
not find emails from five other records custodians, in addition
to Ms. Lerner.\110\ The IRS lost emails sent and received by
Judy Kindell, Ms. Lerner's senior technical advisor and expert
on non-profit political speech; Ronald Shoemaker, a Washington
manager who oversaw work on the applications; and Julie Chen
and Nancy Heagney, two Cincinnati-based Determinations
Specialists.\111\ Some of the missing emails were sent and
received during key periods of the IRS's targeting of
conservative tax-exempt applicants. For instance, Judy
Kindell's missing emails were from August 2010, when the IRS
began to receive media inquiries related to the President's
critical rhetoric of Citizens United and political speech by
conservative non-profit groups. According to the IRS, Ms.
Kindell was instructed to save old emails on her computer's
hard drive and ``when her hard drive failed, she lost email
that resided on that drive.''\112\
---------------------------------------------------------------------------
\110\Letter from Leonard Oursler, Internal Revenue Serv., to Hon.
Dave Camp, Chairman, H. Comm. on Ways & Means (Sep. 5, 2014).
\111\Id.
\112\Id.
---------------------------------------------------------------------------
In June 2011, after her emails were destroyed, Ms. Lerner
emailed David Fish, who also experienced a hard drive failure.
``No one will ever believe,'' she wrote, ``that both your hard
drive and mine crashed within a week of each other!''\113\
---------------------------------------------------------------------------
\113\Email from Lois Lerner, Internal Revenue Serv., to David Fish
& Nikole Flax, Internal Revenue Serv. (June 29, 2011) [IRSR 903314].
---------------------------------------------------------------------------
A. COMMISSIONER KOSKINEN PROMISED TO PRODUCE LOIS LERNER'S EMAILS EVEN
AFTER HE KNEW SOME WERE MISSING
Commissioner Koskinen's continually evolving and misleading
statements about Lois Lerner's emails compounded the challenges
created by their destruction. For several months, Mr.
Koskinen's unwillingness to provide accurate and
straightforward information about the missing emails
unnecessarily delayed and hindered the Committee's fact-finding
efforts.
On March 26, 2014, Commissioner Koskinen appeared before
the Committee to testify about the IRS's compliance with
congressional subpoenas and document requests.\114\ As
described above, during the hearing, Mr. Koskinen was
repeatedly asked whether he would commit to producing all of
Ms. Lerner's emails. Commissioner Koskinen testified repeatedly
that he would.
---------------------------------------------------------------------------
\114\Examining the IRS Response to the Targeting Scandal: Hearing
Before the H. Comm. on Oversight & Gov't Reform, 113th Cong. (2014).
---------------------------------------------------------------------------
The Committee subsequently obtained testimony that the IRS
knew Ms. Lerner's emails had been destroyed at the time of
Commissioner Koskinen's appearance in March 2014. In
particular, IRS Deputy Associate Chief Counsel, Thomas Kane--
who had responsibility for the IRS's document production
process in response to congressional requests--testified that
senior IRS leadership became aware of problems with Ms.
Lerner's emails in early February 2014.\115\ Mr. Kane testified
that on February 2, 2014, Catherine Duval, Counselor to the
Commissioner, noticed a discrepancy in the number emails
gathered from Ms. Lerner's account.\116\ The IRS had gathered
16,000 emails from the period after April 2011 and ``less than
100'' from the period before April 2011.\117\
---------------------------------------------------------------------------
\115\Transcribed interview of Thomas Kane, Internal Revenue Serv.
(July 17, 2014).
\116\Id.
\117\Id.; Letter from Leonard Oursler, Internal Revenue Serv., to
Hon. Ron Wyden, Chairman, & Hon. Orrin Hatch, Ranking Member, S. Comm.
on Finance encl. 3 at 6 (June 13, 2014).
---------------------------------------------------------------------------
After becoming aware of the discrepancy in the number of
emails, Mr. Kane asked a subordinate, Paul Butler, to look into
the matter.\118\ Two days later, on February 4, senior IRS
leadership learned that Ms. Lerner's hard drive had crashed in
2011 from her former administrative assistant, Dawn Marx.\119\
Mr. Kane testified:
---------------------------------------------------------------------------
\118\Transcribed interview of Thomas Kane, Internal Revenue Serv.
(July 17, 2014).
\119\Id.
Q. And so do you remember precisely when you became
aware of the hard drive crash?
A. We were--Paul Butler had talked to someone who
worked for Lois at about the time when the emails had a
great discrepancy and was told by her that there had
been a hard drive crash at that particular point in
time.
Q. Do you know the name of the person that Mr. Butler
spoke with?
A. Dawn Marx. Marx with an ``x.''
Later, Mr. Kane testified:
Q. Do you know, sir, when Ms. Marx informed Mr.
Butler about the hard drive crash?
A. February 4th.
Q. Of 2014?
A. Correct.
Q. And why does that date stand out to you in your
memory?
A. The date stands out to me because we first found
out about it on February 2nd, and it was only 2 days
afterwards.
When asked whether it took long to figure out what
happened, Mr. Kane stated:
A. It didn't take us long to figure out that it was
reported that there was a hard drive crash at or about
the time that the discrepancy in the emails took place.
Once Mr. Kane discovered the crash, he communicated up the
chain of command to Catherine Duval. Mr. Kane testified:
Q. And upon learning on February 4th of the hard
drive crash, who did you communicate that to?
A. That was relayed to Kate [Duval].
Q. By who?
A. I would have been the one to do it, yes.\120\
---------------------------------------------------------------------------
\120\Id.
---------------------------------------------------------------------------
Mr. Kane also told the Committee that senior IRS leadership
became aware in mid-February 2014 that Ms. Lerner's hard drive
had been recycled and any emails on the hard drive were
``unrecoverable.'' Mr. Kane stated:
Q. And do you recall when Mr. Butler gave you that
information, the hard drive had been recycled?
A. I don't recall a specific date or time period, or
time, but it certainly would have been within the
period of time when he was actively interacting with
the IT people, in early to mid-February.\121\
---------------------------------------------------------------------------
\121\Id.
---------------------------------------------------------------------------
Mr. Kane also testified about the process that rendered the
hard drive unrecoverable. He stated:
Q. Do you have an understanding now as to what that
term, ``recycled,'' means?
A. I do have some knowledge as to what happened to
the hard drive.
Q. What happened to the hard drive?
A. After the CI forensic analysis determined that it
was--that the material on it was unrecoverable, it was
returned to the IT people, who at some point in time
degaussed it to make sure that if there was anything
else on it, particularly from a 6103 perspective, that
it would not be recovered. It was then sent to New
Carrollton again. A lot of our IT functions are housed
out there, and they have a recycling function out there
where material is eventually recycled to an outside
contractor. And I have no idea what the outside
contractor does with these materials.\122\
---------------------------------------------------------------------------
\122\Id.
---------------------------------------------------------------------------
From mid-February 2014 to April 2014, the IRS attempted to
recover some of the missing Ms. Lerner emails by other
means.\123\ However, it is clear from Mr. Kane's testimony that
the IRS knew no later than mid-February 2014 that a portion of
Ms. Lerner's emails were missing. In fact, Commissioner
Koskinen acknowledged during a July 23, 2014 hearing: ``If you
told me now that Tom Kane said he knew in February, I would
henceforth say we, as the IRS, knew in February.''\124\
Moreover, Mr. Koskinen himself stated that he personally knew
about problems with Ms. Lerner's emails in February.
Commissioner Koskinen testified:
---------------------------------------------------------------------------
\123\Id.
\124\An Update on the IRS Response to Its Targeting Scandal:
Hearing Before the Subcomm. on Econ. Growth, Job Creation & Reg.
Affairs of the H. Comm. on Oversight & Gov't Reform, 113th Cong.
(2014).
Rep. DeSANTIS. So if the senior IRS officials knew in
mid-February that the emails could not be recovered off
the hard drive, why did you tell this committee that
you would produce them?
Mr. KOSKINEN. As I have testified before, when I
testified at previous hearings, when I testified in
March, I said we would provide all Lois Lerner emails,
as I have also testified since then. I did not mean to
imply that if they didn't exist, we would somehow
magically provide them. We have provided you all the
Lois Lerner emails we have.
With regard to when officials at the IRS knew the
impact of the hard drive crash, as I have testified
several times in the 11 hours of hearings since June
13th, what I was advised and knew in February was that
when you took the emails that had already been provided
to this committee and other investigators, and, instead
of looking at them by search terms, looked at them by
date, it was clear that there were fewer emails in the
period up through 2011 and subsequently. And there was
also, I was told, there had been a problem with Ms.
Lerner's computer. It was not described to me in any
greater detail than that.\125\
---------------------------------------------------------------------------
\125\Id.
---------------------------------------------------------------------------
Despite knowing about the missing emails in February,
Commissioner Koskinen failed to mention anything during his
sworn testimony on March 26, 2014.\126\ Instead, he promised
the Committee the IRS would produce all of Ms. Lerner's emails.
In addition, Counselor to the Commissioner, Catherine Duval,
and the IRS's National Director for Legislative Affairs,
Leonard Oursler, failed to mention any problems with Ms.
Lerner's emails during a meeting with bipartisan Committee
staff on April 4, 2014.\127\ Ms. Duval requested this meeting
specifically to discuss how the IRS would execute the
Commissioner's promise to produce the subpoenaed Lerner emails,
but did not use this opportunity to inform the Committee of any
issues related to Ms. Lerner's emails.
---------------------------------------------------------------------------
\126\Id.
\127\Meeting between Committee staff and Catherine Duval & Leonard
Oursler, Internal Revenue Serv. (Apr. 4, 2014).
---------------------------------------------------------------------------
Even when the IRS finally acknowledged the missing emails
on June 13, 2014, it failed to provide full and complete
information to the Committee. First, the IRS stated it
``confirmed'' that backup tapes from the relevant period had
been destroyed.\128\ Commissioner Koskinen repeated this
information during his sworn testimony to the House Committee
on Ways and Means on June 20, 2014. He testified:
---------------------------------------------------------------------------
\128\Letter from Leonard Oursler, Internal Revenue Serv., to Hon.
Ron Wyden, Chairman, & Hon. Orrin Hatch, Ranking Member, S. Comm. on
Finance encl. 3 (June 13, 2014).
In light of the hard-drive issue, the IRS took
multiple steps over the past months to assess the
situation and produce as much email as possible for
which Ms. Lerner was an author or recipient. We
retraced the collection process for her emails. We
located, processed and included email from an unrelated
2011 data collection for Ms. Lerner. We confirmed that
backup tapes from 2011 no longer existed because they
have been recycled, pursuant to the IRS normal policy.
We searched email from other custodians for material on
which Ms. Lerner appears as author or recipient.\129\
---------------------------------------------------------------------------
\129\Recent Developments in the Committee's Investigation into the
Internal Revenue Service's Use of Inappropriate Criteria to Process
Applications of Tax-Exempt Organizations: Hearing Before the H. Comm.
on Ways & Means, 113th Cong. (2014) (statement of John Koskinen, IRS
Commissioner).
Commissioner Koskinen later defended his claim that he
confirmed these backup tapes were destroyed. In a July 2014
---------------------------------------------------------------------------
hearing before the Committee, he testified:
Rep. GOWDY. What does the word ``confirmed'' mean to
you?
Mr. KOSKINEN. Confirmed means that somebody went back
and looked and made sure that in fact any backup tapes
that had existed had been recycled.\130\
---------------------------------------------------------------------------
\130\An Update on the IRS Response to Its Targeting Scandal:
Hearing Before the Subcomm. on Econ. Growth, Job Creation & Reg.
Affairs of the H. Comm. on Oversight & Gov't Reform, 113th Cong.
(2014).
---------------------------------------------------------------------------
Confirmation, by Mr. Koskinen's or any definition, never
occurred. TIGTA was able to establish that several backup tapes
from this timeframe had not, in fact, been recycled. Moreover,
Commissioner Koskinen did not divulge in June 2014 that the
normal policy had not applied since May 22, 2013. In fact, Mr.
Koskinen withheld from Congress that a notice to preserve
backup tapes had been in place for over a year and that the IRS
had deleted backup tapes containing as many as 24,000 emails
during that time.\131\
---------------------------------------------------------------------------
\131\ Email from Terrance Milholland, Internal Revenue Serv. to
Lauren Buschor, Karen Freeman, Daniel Chaddock, David Stender, and Anne
Shepherd, (carbon copy to Stephen Manning, Gina Garza, Tracey Babcock,
and Kathleen Walters, Internal Revenue Serv.) (May 22, 2013).
---------------------------------------------------------------------------
Commissioner Koskinen also testified the IRS went to
``great lengths'' to recover Ms. Lerner's emails. He stated:
Rep. McDERMOTT. Is there anything you can see in the
time that you've been there that they didn't--that the
IRS did not do to try and get all?
Mr. KOSKINEN. There's no indication. I have said,
we've gone to great lengths. We've retraced the process
for producing her email twice just to make sure that no
email was missing. We understand the importance of this
investigation. We've gone to great lengths to spend a
significant amount of money trying to make sure that
there is no email that is required that has not been
produced.\132\
---------------------------------------------------------------------------
\132\IRS Commissioner John Koskinen: Hearing Before the H. Comm on
Ways and Means, 113th Cong. (2014).
---------------------------------------------------------------------------
The Committee subsequently learned that, contrary to
Commissioner Koskinen's assertions, some backup material did
exist. TIGTA informed the Committee on July 29, 2014, that at
least some backup tapes were not overwritten by the IRS.\133\
TIGTA also told the Committee it located Microsoft Exchange
server drives from the relevant period the IRS had not searched
because it was under the mistaken belief the drives had been
destroyed.\134\ The IRS never bothered to determine whether the
drives had in fact been destroyed.
---------------------------------------------------------------------------
\133\Conference call between Treasury Inspector Gen. for Tax Admin.
and Cong. Staff (July 29, 2014).
\134\Id.
---------------------------------------------------------------------------
Additionally, Steven Manning, the Deputy Chief Information
Officer at the IRS from 2009 until March 2015, stated that the
IRS made no effort to recover information from the backup
tapes. Mr. Manning was the point person on issues related to
the IT component of e-discovery. He testified:
Q. Did the Commissioner ever ask for the backup tapes
to be forensically examined?
A. Not to me. Not that I recall--not to me.\135\
---------------------------------------------------------------------------
\135\Transcribed interview of Steven Manning, Internal Revenue
Serv., in Wash., D.C. (April 6, 2015).
---------------------------------------------------------------------------
For four months, from February 2014 to June 2014,
Commissioner Koskinen withheld vital information about the
IRS's ability to comply with the Committee's subpoena for all
of Ms. Lerner's emails. Even after claiming Ms. Lerner's emails
were missing, Commissioner Koskinen continued to provide
incomplete and misleading information about the IRS's efforts
to recover them. As recently as September 12, 2014, Mr.
Koskinen insisted Ms. Lerner's emails were permanently missing.
In a letter to Subcommittee on Economic Growth, Job Creation,
and Regulatory Affairs Chairman Jim Jordan regarding whether
Ms. Lerner's emails might be recoverable from backup tapes
maintained by the IRS, Commissioner Koskinen wrote: ``We have
seen no indication that any email data from the June 2011
timeline exists or is accessible on these [backup]
tapes.''\136\
---------------------------------------------------------------------------
\136\Letter from John Koskinen, Internal Revenue Serv., to Rep. Jim
Jordan, Chairman, Subcomm. on Economic Growth, Job Creation, and
Regulatory Affairs (Sep. 12, 2014).
---------------------------------------------------------------------------
This statement by Commissioner Koskinen was false. On
November 21, 2014, TIGTA notified congressional investigators
that it located a significant portion of Ms. Lerner's
``missing'' emails.\137\ TIGTA found the emails among hundreds
of ``disaster recovery tapes'' that were used to back up the
IRS email system.\138\
---------------------------------------------------------------------------
\137\Rachel Bade, Thousands of lost Lois Lerner IRS emails found by
IG, POLITICO, Nov. 23, 2014.
\138\Susan Ferrechio, 30,000 missing emails from IRS' Lerner
recovered, WASH. EXAMINER, Nov. 22, 2014.
---------------------------------------------------------------------------
B. THE COMMITTEE LEARNED LOIS LERNER'S EMAILS ARE LOST
Following months of noncompliance with the Committee's
subpoenas, the IRS finally informed Congress on June 13, 2014
that it had lost a portion of Ms. Lerner's emails. The IRS
cited a hard drive crash in 2011 as the cause for the
loss.\139\ The apparent hard drive crash compromised Ms.
Lerner's emails from January 2009 to April 2011, a time period
critical to the Committee's investigation.\140\ Four days
later, the IRS contacted Congress again, this time to explain
that it had also lost the emails of other IRS officials. All
were relevant figures in the Committee's investigation.\141\
---------------------------------------------------------------------------
\139\Letter from Leonard Oursler, Nat'l Dir. for Legislative
Affairs, Internal Revenue Serv., to Hon. Ron Wyden, Chairman, S. Comm.
on Finance & Hon. Orrin Hatch, Ranking Member, S. Comm. on Finance
(June 13, 2014), encl. 3, at 7 (carbon copy to Hon. Darrell Issa,
Chairman, H. Comm. on Oversight & Gov't Reform) [hereinafter June 13,
2014 Letter].
\140\Id.
\141\Rachael Bade, GOP: IRS Lost More Emails in Tea Party Affair,
POLITICO, June 17, 2014 [hereinafter Bade, IRS Lost More Emails].
---------------------------------------------------------------------------
The chain of events that eventually led the IRS to disclose
the missing emails began on April 23, 2014, when the Committee
wrote to the Justice Department about a new revelation that
Richard Pilger, Director of the Justice Department's Election
Crimes Branch, spoke with Ms. Lerner about coordinating with
the IRS to prosecute tax-exempt applicants.\142\ The
Committee's letter included a request for ``[a]ll documents and
communications between or among Lois Lerner and employees of
the Department of Justice for the period of January 1, 2009,
through the present.''\143\
---------------------------------------------------------------------------
\142\Letter from Members, H. Comm. on Oversight & Gov't Reform, to
Hon. Eric Holder, Attorney Gen., U.S. Dep't of Justice (Apr. 23, 2014)
[hereinafter Apr. 23, 2014 Letter]; Email from Richard Pilger, Dir.,
Election Crimes Branch, U.S. Dep't of Justice, to Lois G. Lerner,
Internal Revenue Serv. (May 8, 2013). [IRSR 209188].
\143\Apr. 23, 2014 Letter, supra note 138.
---------------------------------------------------------------------------
On May 20, 2014, the Committee subpoenaed the Justice
Department for the documents described in the April 23, 2014
letter.\144\ A May 28, 2014 production from the Justice
Department included additional emails sent between Mr. Pilger
and Ms. Lerner.\145\ These emails were not contained in any
prior document production from the IRS to the Committee. After
the Committee obtained emails that demonstrated the IRS's
production of emails in response to the subpoena was
incomplete, the IRS came clean.\146\
---------------------------------------------------------------------------
\144\Subpoena from H. Comm. on Oversight & Gov't Reform to Hon.
Eric Holder, Attorney Gen., U.S. Dep't of Justice (May 20, 2014).
\145\Letter from Peter J. Kadzik, Principal Deputy Asst. Attorney
Gen., U.S. Dep't of Justice, to Hon. Darrell Issa, Chairman, H. Comm.
on Oversight & Gov't Reform (May 28, 2014).
\146\June 13, 2014 Letter, supra note 133.
---------------------------------------------------------------------------
Late in the afternoon on Friday, June 13, 2014, the IRS
notified Congress that due to a hard drive crash, Lois Lerner's
emails to and from other IRS employees from January 2009 to
April 2011 were missing.\147\ According to the IRS, because Ms.
Lerner's hard drive had crashed in mid-2011, an unknown number
of federal records were permanently destroyed.\148\ The IRS,
therefore, was unable to recover the emails Ms. Lerner sent and
received during that key period. This admission was the first
time that the IRS gave any indication it did not possess all of
Ms. Lerner's emails covered by the subpoena. The White House
and Treasury Department learned that Ms. Lerner's emails were
missing months earlier.\149\
---------------------------------------------------------------------------
\147\Id.
\148\Id.
\149\IRS Obstruction: Lois Lerner's Missing Emails, Part I: Hearing
Before the H. Comm. on Oversight & Gov't Reform, 113th Cong., at 170
(June 23, 2014) (question and answer with Rep. Jordan) [hereinafter
June 23, 2014 Hearing]; Josh Hicks, IRS Email Controversy Continues
this Week with Two Hearings, WASH. POST, June 23, 2014; Rachel Bade,
IRS Chief Defiant on Lois Lerner Email Loss, POLITICO, June 20, 2014.
---------------------------------------------------------------------------
In written testimony submitted to the Committee in advance
of a June 23, 2014 hearing, Commissioner Koskinen explained
that IRS officials first discovered the possibility that Ms.
Lerner's computer may have malfunctioned in February 2014 when
gathering emails responsive to congressional requests.\150\ It
was at this point that IRS officials first noticed a
discrepancy in the distribution of the dates on her
emails.\151\ According to testimony obtained from Thomas Kane,
IRS Deputy Associate Chief Counsel for Procedure and
Administration, senior IRS leadership first became concerned
about the possibility that Ms. Lerner's emails were missing on
February 2, 2014, and confirmed that her hard drive had crashed
just two days later.\152\ IRS officials then briefed
Commissioner Koskinen in February about this issue.\153\
Commissioner Koskinen testified in June 2014 that IRS
Information Technology professionals ``learned additional facts
regarding Lerner's computer crash in mid-2011'' during a search
for Ms. Lerner emails in mid-March 2014.\154\ Commissioner
Koskinen's written and oral testimony not only indicate that
IRS employees knew about a potential problem with Ms. Lerner's
computer at least four months before telling Congress, but also
before Commissioner Koskinen's March 26, 2014 testimony before
the Committee.
---------------------------------------------------------------------------
\150\H. Comm. on Oversight & Gov't Reform, Written Testimony of
John A. Koskinen, Comm'r, Internal Revenue Serv. (June 23, 2014), at 2
[hereinafter Koskinen Written Testimony, June 23, 2014].
\151\Id.
\152\Kane Tr. at 45.
\153\June 23, 2014 Hearing, supra note 143, at 38 (question and
answer with Rep. Mica).
\154\Bade, IRS Chief Defiant, supra note 135.
---------------------------------------------------------------------------
Despite receiving questions during the Committee's March
26, 2014 hearing directly pertaining to the collection of Ms.
Lerner's emails, Commissioner Koskinen assured Members that the
IRS ``was already starting'' to gather Ms. Lerner's emails--
never mentioning the possibility that any of her emails were
irretrievable.\155\ Commissioner Koskinen testified under oath
that the IRS would respond to the subpoena, again failing to
mention the possibility that some documents covered by the
subpoena were lost.\156\ Months later, however, during
testimony before the Committee, Commissioner Koskinen admitted
that at the time of the Committee's March 26, 2014 hearing,
``he knew there'd been a problem'' with Ms. Lerner's
emails.\157\
---------------------------------------------------------------------------
\155\Mar. 26, 2014 Hearing, supra note 3, at 30.
\156\Id.
\157\June 23, 2014 Hearing, supra note 143, at 31 (question and
answer with Chairman Issa).
---------------------------------------------------------------------------
C. COMMISSIONER KOSKINEN FAILED TO DISCLOSE KNOWLEDGE OF ADDITIONAL
HARD DRIVE CRASHES
On June 17, 2014--four days after the IRS admitted that an
unknown number of Ms. Lerner's emails were lost--the agency
informed Congress that it was not able to produce emails for
other key officials at the center of the Committee's
investigation.\158\ Specifically, the IRS informed Congress
that six more employees' hard drives failed, causing the agency
to lose emails for officials who were central to the IRS
targeting investigation.\159\ Commissioner Koskinen later
adjusted the number of affected employees to eight.\160\ Even
more troubling, the IRS remained unsure if additional
employees' hard drives crashed, raising questions as to the
extent to which the Committee received all emails relevant to
its investigation.\161\ Commissioner Koskinen testified before
the Committee that the IRS is ``still looking'' into whether
additional hard drives crashed, and that he is unaware as to
``what the final number will be.''\162\
---------------------------------------------------------------------------
\158\Bade, IRS Lost More Emails, supra note 135.
\159\Id.
\160\Koskinen Written Testimony, June 23, 2014, supra note 144, at
4.
\161\Bade, IRS Chief Defiant, supra note 135.
\162\June 23, 2014 Hearing, supra note 143, at 137 (question and
answer with Rep. Chaffetz).
---------------------------------------------------------------------------
The IRS apparently lost emails for Supervisory Public
Affairs Specialist Michelle Eldridge, Agent Kimberly Kitchens,
Agent Julie Chen, Supervisory Agent Tyler Chumny, and Agent
Nancy Heagney.\163\ According to the IRS, the missing data for
seven of the eight officials came from the period under
investigation.\164\ The IRS explained that it relied on
employees to archive emails themselves on their personal
computers, rather than preserving records by automatically
backing up emails or by other means.\165\
---------------------------------------------------------------------------
\163\Bade, IRS Lost More Emails, supra note 135.
\164\Id.; Koskinen Written Testimony, June 23, 2014, supra note
144, at 4.
\165\Bade, IRS Lost More Emails, supra note 135.
---------------------------------------------------------------------------
Despite the Committee's frequent, ongoing correspondence
with the IRS regarding its document productions pursuant to the
Committee's subpoena, the IRS never mentioned--until thirteen
months after the Committee's initial document request--the
possibility that it would not fully produce Lois Lerner's
emails or those of any other IRS official.
Even when asked directly whether there were any other
anomalies in the data retrieval for the Committee's requests,
Commissioner Koskinen testified that he was not aware of any.
He testified:
Rep. MASSIE. And what I want to ask you now is: Are
there any other anomalies in the data or in the
retrieval of emails that you can think of now so we can
avoid having a second hearing on this in 6 months?
Mr. KOSKINEN. That's a fair question, a good
question. I'm not aware of any.
Rep. MASSIE. Okay. So there's nothing like somebody
came to you----
Mr. KOSKINEN. Other than we're pursuing the other
custodians.
Rep. MASSIE. Right. The other eight hard drives that
have crashed.
Mr. KOSKINEN. Right. That's what we knew last week.
We're still looking. I don't know what the final number
will be.
Rep. MASSIE. Okay. So you understood my question?
Mr. KOSKINEN. I understand your question.
Rep. MASSIE. A hint of bad news that was similar to
the bad news we had in February, I'm asking you to just
share it now.
Mr. KOSKINEN. And I've said I do not know of any
other bad news, as you put it.\166\
---------------------------------------------------------------------------
\166\June 23, 2014 Hearing, supra note 143, at 136-37 (question and
answer with Rep. Massie).
---------------------------------------------------------------------------
The Committee later learned, however, that the IRS became
aware of additional hard drive crashes one week before the June
23, 2014 hearing. During a transcribed interview with Committee
staff, Thomas Kane, the IRS Deputy Associate Chief Counsel for
Procedure and Administration, testified that the IRS learned of
as many as twenty additional hard drive crashes on June 16,
2014. Commissioner Koskinen, however, failed to disclose the
extent of these additional crashes, or that there were
complications of any kind with respect to the agency's efforts
to comply with the Committee's subpoenas. Mr. Kane testified:
Q. Sir, according to a news report, there were hard
drive failures from other IRS custodians; is that
right?
A. Yes. There were--well, there are--were identified
potential hard drive problems, yes.\167\
---------------------------------------------------------------------------
\167\Kane Tr. at 165.
Mr. Kane later testified that he became aware of the
---------------------------------------------------------------------------
additional hard drive failures on June 16, 2014. He testified:
Q. And, sir, when did you personally become aware of
those other hard drive problems?
A. On the Monday morning before that that first
briefing took place.
Q. The briefing with Ways and Means?
A. Yes.
Q. So June 16?
A. That's right. I believe it was on Monday
morning.\168\
---------------------------------------------------------------------------
\168\Id. at 165-66.
---------------------------------------------------------------------------
Mr. Kane further testified:
Q. Do you know how many custodians, in addition to
the seven or eight identified at Ways and Means?
A. I don't recall the exact number. It was less than
20, and again, some of these people were identified
without any--these people were identified without any
real investigation as to knowing, you know, what was
reported or why and what the consequences of anything
that may have been wrong.\169\
---------------------------------------------------------------------------
\169\Id. at 169.
---------------------------------------------------------------------------
Mr. Kane explained that the IRS officials whose hard drives
crashed included Andy Megosh, a group manager in EO Guidance,
Kimberly Kitchens, an IRS revenue agent in Cincinnati, Justin
Lowe, the Technical Advisor to the Commissioner of Tax-Exempt
and Government Entities, and David Fish, Manager of EO
Guidance--all relevant figures to the Committee's inquiry.\170\
---------------------------------------------------------------------------
\170\Id. at 172.
---------------------------------------------------------------------------
When Commissioner Koskinen appeared before the Committee on
June 23, 2014, he had a responsibility to provide a candid
account of the additional hard drive crashes and whether the
crashes could interfere with the agency's ability to respond to
the subpoenas. Commissioner Koskinen's testimony that there
were no other anomalies in the data collection indicates that
he failed to fully disclose to the Committee all of the details
the IRS knew at that time about the extent of the additional
hard drive crashes.
D. THE IRS MADE NO EFFORT TO RECOVER LOIS LERNER'S EMAIL ARCHIVE
Commissioner Koskinen testified that in 2011, the IRS
maintained a disaster recovery system designed to back up
computer contents for six months.\171\ During a June 23, 2014
Committee hearing, Commissioner Koskinen explained that the IRS
made no effort to recover Ms. Lerner's email archive from the
six-month backups after she initially detected problems with
her computer in June 2011.\172\
---------------------------------------------------------------------------
\171\June 23, 2014 Hearing, supra note 133, at 92-93 (question and
answer with Rep. Chaffetz).
\172\Id.
---------------------------------------------------------------------------
When the IRS informed Congress of Ms. Lerner's hard drive
crash, the agency stated that IT professionals tried ``multiple
processes to recover the information stored on her computer's
hard drive,'' but the ``hard drive was determined at the time
to be unrecoverable by the IT professionals.''\173\ IT
professionals, however, never attempted to recover her emails
from the backup tapes.\174\ According to Commissioner Koskinen,
the IRS failed to pursue recovery because it was
``costly.''\175\ He testified:
---------------------------------------------------------------------------
\173\June 13, 2014 Letter, supra note 133.
\174\Id.
\175\June 23, 2014 Hearing, supra note 143, at 93 (question and
answer with Rep. Chaffetz).
Rep. CHAFFETZ. Thank the chairman. My understanding
is that the backup of emails was only--only lasted for
6 months. Is that correct?
Mr. KOSKINEN. Yes. It's actually a disaster recovery
system, and it backs up for 6 months in case the entire
system goes down.
Rep. CHAFFETZ. And that was in place in 2011?
Mr. KOSKINEN. That was the rule in 2011, policy.
Rep. CHAFFETZ. So when Lois Lerner figured out on
June 13 that her computer crashed and you've--there
have been emails showing that she was going to great
lengths to try to get that recovered, why didn't they
just go to that 6-month tape?
Mr. KOSKINEN. Because that 6-month tape is a disaster
recovery tape that has all of the emails on it and is a
very complicated tape to actually extract emails for.
But I have not seen any emails to explain why they
didn't do it. So I--it would be difficult, but I don't
know why they didn't.
Rep. CHAFFETZ. But you said that the IRS was going to
extraordinary lengths to give it to the recovery team.
Mr. KOSKINEN. That's correct. That's correct.
Rep. CHAFFETZ. But it's back up on tape?
Mr. KOSKINEN. For 6 months. Yes.
Rep. CHAFFETZ. And that was within the 6-month
window. So why didn't you get them off the backup?
Mr. KOSKINEN. All I know about that is that the
backup tapes are computer recovery tapes that put
everything in one lump and extracting individual emails
out of that is very costly and difficult and it was not
the policy at the time.
Rep. CHAFFETZ. Did anybody try?
Mr. KOSKINEN. I have no idea--indication that they
did.
Rep. CHAFFETZ. So you have multiple emails showing
that she was trying to recover this. The testimony of
the IRS that they were trying desperately--in fact, you
got a forensic team to try to extract this. You went to
great lengths. You made a big point over the last week
about all the efforts you were going through. But they
were backed up on tape and you didn't do it?
Mr. KOSKINEN. As far as I know, they did not. But
they did have, as I noted in the email, she had 3
months' worth of emails at that time going from April--
or 2 months from April to--\176\
---------------------------------------------------------------------------
\176\Id. at 92-93.
---------------------------------------------------------------------------
Despite the IRS's policy in 2011 to retain six-month backup
tapes of the contents of employees' computers, IT professionals
apparently neglected to use all available resources at that
time to retrieve Ms. Lerner's emails, including forgoing any
attempt to recover her emails from the agency's own disaster
recovery system.
E. COMMISSIONER KOSKINEN'S MISLEADING STATEMENTS THAT NO BACKUP TAPES
EXIST
Subsequently, the Committee learned that contrary to
Commissioner Koskinen's assertions, some backup material did
exist. TIGTA informed the Committee on July 29, 2014, that at
least some backup tapes were not overwritten by the IRS.\177\
TIGTA also told the Committee it located Microsoft Exchange
server drives from the relevant period, and that the IRS had
not searched those drives because agency staff were under the
mistaken belief the drives had been destroyed.\178\ The IRS
never bothered to determine whether this was true.
---------------------------------------------------------------------------
\177\Conference call between Treasury Inspector Gen. for Tax Admin.
and Cong. Staff (July 29, 2014).
\178\Id.
---------------------------------------------------------------------------
In fact, TIGTA located a number of backup tapes that
yielded some emails within fifteen days. Timothy Camus, the
TIGTA Deputy Inspector General for Investigations, testified:
Rep. CHAFFETZ. Start to finish, how long did it take
for you to find the tapes when you started in June? I
believe it was June of 2014.
Mr. CAMUS. Correct. We took possession of--740--the
initial set of backup tapes on July 1, roughly 15 days
after we started our investigation.\179\
---------------------------------------------------------------------------
\179\IRS: TIGTA Update Part II: Hearing Before the H. Comm on
Oversight and Gov. Reform, 114th Cong. (2015).
Had the IRS taken immediate steps to locate backup tapes
concurrent with the discovery of the gap in Ms. Lerner emails
in February 2014, tapes containing up to 24,000 emails may not
have been destroyed on March 4, 2014.
1. POOR IRS LEADERSHIP LED TO DESTRUCTION OF BACKUP TAPES
The IRS information technology department records backups
incrementally on a daily basis, with a full backup performed
weekly.\180\ Before May 2013, the IRS reused and recycled
backup tapes every six months as a cost saving measure.\181\
---------------------------------------------------------------------------
\180\TIGTA report, supra note 4, at 12.
\181\Id. at 12.
---------------------------------------------------------------------------
On May 22, 2013, the IRS Chief Technology Officer Terence
Milholland sent an email directive to senior staff ordering the
preservation of electronic email media indefinitely.\182\ That
email, titled ``Information Retention Policy Revision,''
changed the previous policy of keeping backup tapes only for
six months.\183\ Mr. Milholland's order stated:
---------------------------------------------------------------------------
\182\ Email from Terrance Milholland, Internal Revenue Serv., to
Lauren Buschor, Karen Freeman, Daniel Chaddock, David Stender, and Anne
Shepherd, (carbon copy to Stephen Manning, Gina Garza, Tracey Babcock,
and Kathleen Walters, Internal Revenue Serv.) (May 22, 2013).
\183\TIGTA report, supra note 4, at 4.
Given the current environment and ongoing
investigations, do not destroy/wipe-reuse and of the
existing backup tapes for email, or archiving of other
information from IRS personal computers. Further, do
not reuse or refresh or wipe information from any
personal computer that is being reclaimed/returned/
refreshed/updated from any employee or contractor of
the IRS. Finally, effective immediately, the email
retention policy for backups is to be indefinite rather
than 6 months.\184\
---------------------------------------------------------------------------
\184\Email from Terrance Milholland, Internal Revenue Serv., to
Lauren Buschor, Karen Freeman, Daniel Chaddock, David Stender, and Anne
Shepherd, (carbon copy to Stephen Manning, Gina Garza, Tracey Babcock,
and Kathleen Walters, Internal Revenue Serv.) (May 22, 2013).
---------------------------------------------------------------------------
Mr. Milholland continued: ``In other words, retain
everything to do with email or information that may have been
stored locally on a personal computer.''\185\
---------------------------------------------------------------------------
\185\Id.
---------------------------------------------------------------------------
In an interview with TIGTA, Mr. Milholland stated he was
``blown away'' at the revelation that backup tapes were
degaussed in March 2014, ten months after he issued this
directive.\186\
---------------------------------------------------------------------------
\186\Id.
---------------------------------------------------------------------------
Despite the need to preserve documents for the ongoing
investigations by Congress, the Department of Justice, and
TIGTA, IRS senior leadership made no effort to ensure the IRS
IT department and lower level personnel understood the impact
of, or complied with, the preservation order. Commissioner
Koskinen was made aware of the existence of the preservation
order shortly after his appointment as IRS Commissioner.\187\
Yet, he did nothing to ensure that his staff complied. He
neither reissued it nor sent out an email reminding IRS
personnel of its importance. In fact, he took no action of any
kind with respect to the order. When asked by TIGTA if the
email directive was sufficient, Mr. Koskinen acknowledged the
matter ``probably could have been handled differently.''\188\
---------------------------------------------------------------------------
\187\Id at 1272.
\188\Id.
---------------------------------------------------------------------------
Commissioner Koskinen repeatedly missed opportunities to
ensure compliance with the preservation order. Mr. Koskinen
failed to raise the issue in February 2014 upon learning of the
gap in emails; he failed to ensure that the Media Management
Midnight Unit (the team that destroyed the backup tapes)
properly understood the order; and failed to make certain that
individuals who ordered the destruction of the specific media,
in this instance the backup tapes, properly understood the
preservation order.\189\ Mr. Camus testified:
---------------------------------------------------------------------------
\189\Id. at 16.
Rep. WALBERG. So based on your investigation, what
efforts did the IRS, Terry Milholland or anyone else,
make to ensure that the CTO's email notice to cease
routine destruction of electronic records was actually
followed by low-level employees?
Mr. CAMUS.There is very much confusion, and I'm not
certain there was appropriate management oversight of
that directive.\190\
---------------------------------------------------------------------------
\190\AIRS: TIGTA Update Part II: Hearing Before the H. Comm on
Oversight and Gov. Reform, 114th Cong. (2015).
---------------------------------------------------------------------------
In February 2014, upon learning that emails may be missing,
the IRS should have investigated whether backup tapes existed,
and whether the instruction not to destroy documents was
properly understood and executed throughout the agency.
Counselor to the Commissioner, Catherine Duval, testified her
first reaction upon discovering the gap in the Ms. Lerner
production on February 2, 2014, was to revisit the preservation
order. During a transcribed interview, Ms. Duval testified:
Q. Now, Mr. Kane testified before us that you first
noticed a discrepancy in the number of Lois Lerner
emails in early February 2014. Is that right?
A. I came into the office, confess something now. I
came into the office on Super Bowl Sunday instead of
watching the Super Bowl. That's my confession. At that
time, I looked at a list of the Lois Lerner emails that
had been produced to Congress. And in looking at that,
I saw a disproportionate distribution of dates.
Q. Okay. What was your reaction?
A. My reaction was the next day I talked to the IT
people and other folks in the Office of Chief Counsel
about the need to look for backup tapes from the
relevant time period, to secure Ms. Lerner's laptop, to
do a quality control check on the document preservation
and collection process. And to learn what we could
learn about that.\191\
---------------------------------------------------------------------------
\191\Transcribed interview of Catherine Duval, Internal Revenue
Serv. (July 31, 2014).
Despite her instinct to confirm agency-wide compliance with
the document preservation order, it does not appear that
occurred. Had Ms. Duval taken action, the destruction of the
backup tapes would have halted. When TIGTA investigated the
missing emails, however, the gross mismanagement of the
preservation notice came to light. TIGTA found a breakdown in
communications following Mr. Milholland's email directive
resulted in the failure to preserve backup tapes. Had IRS
managers taken simple steps to ensure compliance with the
order, the tapes likely would not have been destroyed.
At any point between May 2013 and March 4, 2014, Mr.
Koskinen could have confirmed the preservation order was
properly distributed to those whose job it is to destroy backup
tapes, hard drives, and other media. The Media Management
Midnight Unit, the team that destroyed the backup tapes, failed
to understand the scope of the preservation order. IRS
leadership should have ensured these individuals in particular
knew that backup tapes were not to be destroyed.
Robert Lyewsang, an IT specialist at the IRS, told TIGTA he
never received a copy of the preservation order, nor did anyone
in his chain of command explain the need to preserve the backup
tapes. Because of this, he sent the Form 3210 to the Media
Management Midnight Team formally authorizing the destruction
of the backup tapes.\192\
---------------------------------------------------------------------------
\192\Id. at 964, 967.
---------------------------------------------------------------------------
Mr. Lyewsang authorized the destruction of the tapes
because Steve Warren, the manager of IT backup equipment
nationwide, told him the tapes were not needed and the room
where they were located needed to be cleaned out. Mr. Warren
told Mr. Lyewsang the agency no longer needed the backup tapes
sometime in the fall of 2013.\193\ Mr. Lyewsang told TIGTA that
the IRS wanted to remodel the space to house a new network
operations center, and he was being pressured to move the
backup tapes.\194\ Mr. Lyewsang's intern testified under oath
about the disorganized cleaning process, specifically that the
room in question had been a year overdue for clearing out to
reduce computer space.\195\
---------------------------------------------------------------------------
\193\Id. at 963.
\194\Id.
\195\Id. at 1202.
---------------------------------------------------------------------------
As Commissioner Koskinen acknowledged, verifying that IRS
employees understood the directive to preserve all backup tapes
could, and should, have been done differently. Upon becoming
commissioner, Mr. Koskinen should have taken steps to ensure
that IRS employees knew of and were properly following the
preservation order. At a minimum, after learning about the
missing emails, Commissioner Koskinen should have directed his
subordinates to make sure the people on the ground--the people
who most needed to know about the preservation directive--were
aware of the need to preserve backup tapes. Instead, IRS
employees did not understand the preservation order and failed
to preserve relevant backup tapes.
In June 2014, after the IRS acknowledged the missing Lerner
emails, the agency stated that it ``confirmed that backup tapes
from 2011 no longer exist because they have been recycled'' but
failed to disclose when this occurred.\196\ Commissioner
Koskinen repeated this information during his sworn testimony
to the House Committee on Ways and Means on June 20, 2014,
where he testified that the IRS went to ``great lengths'' to
recover Ms. Lerner's emails.
---------------------------------------------------------------------------
\196\Letter from Leonard Oursler, Internal Revenue Serv., to Hon.
Ron Wyden, Chairman, & Hon. Orrin Hatch, Ranking Member, S. Comm. on
Finance, encl. 3 (June 13, 2014).
---------------------------------------------------------------------------
The Committee learned these statements were false. Not only
did the IRS fail to ``confirm'' the tapes had been destroyed,
the backup tapes were swiftly recovered by TIGTA when it became
aware of the issue in June 2014. Further, had the IRS either
abided by its preservation notice of May 22, 2013 or looked for
backup tapes upon learning of the problems in the email
production in February 2014, up to 24,000 additional Lerner
emails may have been recovered. The IRS, however, failed on
both accounts.
2. THE CURRENT IRS EMAIL SYSTEM BACKUP TAPES
In May 2011, the IRS migrated its email backup system from
New Carrollton, Maryland, to Martinsburg, West Virginia.\197\
At that time, and until May 22, 2013, IRS policy was to recycle
the backup tapes every six months.\198\ On May 22, 2013, IRS
Chief Technology Officer Terence Milholland issued a policy
directive via email titled ``Information Retention Policy
Revision,'' changing the backup tape recycle policy to an
indefinite retention period.\199\
---------------------------------------------------------------------------
\197\IRS: TIGTA Update Part II, Hearing Before the H. Comm. on
Oversight & Gov't Reform, 114th Cong. 4 (2015) (written testimony of
Hon. J. Russell George and Timothy P. Camus, TIGTA) (hereinafter ``June
25 TIGTA testimony'').
\198\TIGTA report, supra note 4, at 4.
\199\Email from Terrance Milholland, Internal Revenue Serv. to
Lauren Buschor, Karen Freeman, Daniel Chaddock, David Stender, and Anne
Shepherd, (carbon copy to Stephen Manning, Gina Garza, Tracey Babcock,
and Kathleen Walters, Internal Revenue Serv.) (May 22, 2013).
---------------------------------------------------------------------------
TIGTA learned about Lois Lerner's hard drive crash and
resulting gaps in the IRS's production on June 13, 2014, the
same day Congress and the American public learned of the
problem, but months after the IRS discovered the missing
emails.\200\ TIGTA promptly opened an investigation to
determine whether the emails the IRS reported as lost could be
recovered.
---------------------------------------------------------------------------
\200\TIGTA report, supra note 4, at 1.
---------------------------------------------------------------------------
Two weeks later, on June 30, 2014, TIGTA requested the IRS
provide any backup tapes that could contain Lerner's emails
from January 1, 2008, through December 31, 2011.\201\ In
response to this request, the IRS provided 744 tapes that may
have been used to back up Lerner's email account.\202\ From
these tapes, TIGTA found five sets of weekly backups of
Lerner's email beginning on November 20, 2012, approximately
six months before Milholland's backup tape retention policy
directive took effect.\203\ According to TIGTA, these tapes are
the oldest known Lerner email account backups available.\204\
---------------------------------------------------------------------------
\201\Id. at 13.
\202\Id.
\203\Id. at 14.
\204\Id. at 14.
---------------------------------------------------------------------------
TIGTA compared the Lerner emails it recovered from these
backup tapes to the IRS's production to Congress and found over
1,000 new emails the IRS never produced.\205\
---------------------------------------------------------------------------
\205\Id. at 15.
---------------------------------------------------------------------------
Timothy Camus, the TIGTA Deputy Inspector General for
Investigations, explained to the Committee how TIGTA found the
backup tapes for the current IRS email system: ``To the best we
can determine through the investigation, they just--they simply
didn't look for those emails. So for the 1,000--over 1,000
emails that we found on the backup tapes--we found them because
we looked for them.''\206\ In fact, TIGTA determined the agency
failed to look in five of the six possible sources of
``electronic media, all of which the IRS had in their
possession.''
---------------------------------------------------------------------------
\206\IRS: TIGTA Update Part II, Hearing Before the H. Comm. on
Oversight & Gov't Reform, 114th Cong. (2015) (emphasis added).
---------------------------------------------------------------------------
3. THE DECOMMISSIONED EMAIL SERVER BACKUP TAPES
When the IRS moved the email server from New Carrollton,
Maryland to Martinsburg, West Virginia, it turned off the old
email server but left it in place.\207\ In December 2011, IRS
IT employees disassembled the server and treated the server
hard drives and backup tapes as junk.\208\ In April 2012, most,
but not all, of these parts were destroyed by an IRS
contractor. In December 2013, months after the preservation
order was issued, the remaining servers and backup tapes were
shipped to Martinsburg for destruction.\209\ These servers and
tapes remained in Martinsburg until March 2014 until Mr.
Lyewsang sent the proper paperwork to destroy the hard drives
and backup tapes.\210\
---------------------------------------------------------------------------
\207\June 25 TIGTA testimony, supra note 191, at 4.
\208\TIGTA report, supra note 4, at 3.
\209\Id.
\210\Id.
---------------------------------------------------------------------------
On or about March 4, 2014, one month after the IRS realized
it did not have all of Ms. Lerner's emails, IRS employees on
the Media Management Midnight Unit in Martinsburg, West
Virginia, magnetically erased, or degaussed, 422 backup tapes
that likely contained full, weekly backups of Lerner's email
account dating back to late November or December 2010.\211\
During its investigation, TIGTA found and examined these tapes,
but they contained no recoverable data.\212\ As discussed
above, the employees did not destroy the server hard drives
shipped with the backup tapes because they incorrectly believed
the preservation order only applied to hard drives.\213\
---------------------------------------------------------------------------
\211\Id. at 17.
\212\June 25 TIGTA testimony, supra note 191, at 7.
\213\TIGTA report, supra note 4, at 17.
---------------------------------------------------------------------------
Notwithstanding Mr. Milholland's May 2013 directive not to
destroy any of the backup tapes for email, the IRS continued to
degauss backup tapes until approximately June 2014.\214\ TIGTA
estimates the IRS's failure to comply with the May 2013
preservation order and congressional subpoenas resulted in the
loss of up to 24,000 Lerner emails.\215\ Mr. Camus testified
before the Committee about the destruction of these tapes. He
stated:
---------------------------------------------------------------------------
\214\Id. at 17.
\215\June 25 TIGTA testimony, supra note 191, at 8.
Rep. JORDAN. How in the world, with the preservation
order and the subpoena did they destroy 422 tapes,
containing, according to your investigation,
potentially 24,000 emails? How does that happen, Mr.
---------------------------------------------------------------------------
Camus?
Mr. CAMUS. It's an unbelievable set of circumstances
that would allow that to happen.\216\
---------------------------------------------------------------------------
\216\IRS: TIGTA Update Part II: Hearing Before the H. Comm. on
Oversight & Gov't Reform, 114th Cong. (2015) (emphasis added).
Despite the known gaps in Ms. Lerner's emails identified in
February 2014, the IRS never asked any of the employees in
question to look for backup tapes or the server hard drives
associated with the decommissioned server.\217\ TIGTA made the
first request for these tapes in June 2014. TIGTA found, if the
IRS had actually conducted a search for backup tapes for Ms.
Lerner's email account, the agency would have probably
identified the tapes before they were degaussed in March
2014.\218\
---------------------------------------------------------------------------
\217\TIGTA report, supra note 4, at 18.
\218\Id.
---------------------------------------------------------------------------
Though Commissioner Koskinen testified the IRS made
``extraordinary efforts'' to recover Ms. Lerner's emails,
TIGTA's investigation shows this is not the case. Mr. Camus
testified:
Rep. WALBERG. Given the IRS's failure to attempt the
methods TIGTA used to recover the missing emails, would
you characterize the IRS efforts as extraordinary?
Mr. CAMUS. I would not.\219\
---------------------------------------------------------------------------
\219\IRS: TIGTA Update Part II: Hearing Before the H. Comm. on
Oversight & Gov't Reform, 114th Cong. (2015).
---------------------------------------------------------------------------
In fact, TIGTA found IRS's lack of due diligence extended
beyond the backup tapes. Mr. Camus testified the IRS failed to
search five of six potential sources for Lerner emails. He
stated:
Rep. WALBERG. How many potential sources for
recovering Lerner's emails existed for the IRS?
Mr. CAMUS. We believe there were six.
Rep. WALBERG. Namely?
Mr. CAMUS. The hard drive would have been a source,
Blackberry source, backup tapes a source, server drives
a source, the backup tapes for the server drives, and
then finally the loaner lap tops.
Rep. WALBERG. How many of these six did the IRS
search?
Mr. CAMUS. We're not aware that they searched any one
in particular. They did--it appears they did look into
initially whether or not the hard drive had been
destroyed, but they didn't go much further than
that.\220\
---------------------------------------------------------------------------
\220\IRS: TIGTA Update Part II: Hearing Before the H. Comm. on
Oversight and Gov't Reform, 114th Cong. (2015).
The lack of due diligence with respect to retrieving Ms.
Lerner's missing emails was compounded by a stunning ignorance
of where those missing emails might reside. On June 20, 2014,
after the email problems became public, Commissioner Koskinen
testified he was not even aware as to whether or not Ms. Lerner
---------------------------------------------------------------------------
had a Blackberry. He testified:
Rep. PRICE. Do you [know]--if Lois Lerner had a
Blackberry or an iPhone?
Mr. KOSKINEN. I do not know.
Rep. PRICE. Can you find out if Lois Lerner had an--
had an iPhone or a Blackberry for us?
Mr. KOSKINEN. I can find that out and be happy to let
you know.\221\
---------------------------------------------------------------------------
\221\IRS Commissioner John Koskinen: Hearing Before the H. Comm. on
Ways and Means, 113th Cong. (2014).
---------------------------------------------------------------------------
Commissioner Koskinen's posture with respect to the
Committee's efforts to obtain Ms. Lerner's emails delayed the
Committee's investigation. Commissioner Koskinen's credibility
was further damaged when TIGTA found approximately 1,000
missing Lerner emails that Commissioner Koskinen previously
claimed were permanently lost. In fact, TIGTA located a number
of backup tapes that yielded some emails within fifteen days.
Timothy Camus, the TIGTA Deputy Inspector General for
Investigations, testified:
Rep. CHAFFETZ. Start to finish, how long did it take
for you to find the tapes when you started in June? I
believe it was June of 2014.
Mr. CAMUS. Correct. We took possession of--740--the
initial set of backup tapes on July 1, roughly 15 days
after we started our investigation.\222\
---------------------------------------------------------------------------
\222\IRS: TIGTA Update Part II: Hearing Before the H. Comm. on
Oversight and Gov't Reform, 114th Cong. (2015).
---------------------------------------------------------------------------
Had the IRS taken immediate steps to locate backup tapes
upon the discovery of the gap in Lerner emails in February
2014, tapes containing up to an additional 24,000 emails may
not have been destroyed on March 4, 2014. Mr. Camus further
testified:
Rep. CHAFFETZ. Mr. Camus, the IRS had these emails.
And you said they didn't purposely destroy them, but
what did they do with these emails?
Mr. CAMUS. To the best we can determine through the
investigation, they just simply didn't look for those
emails. So for the 1,000--over 1,000 emails that we
found on the backup tapes--we found them because we
looked for them.\223\
---------------------------------------------------------------------------
\223\IRS: TIGTA Update Part II: Hearing Before the H. Comm. on
Oversight and Gov't Reform, 114th Cong. (2015) (emphasis added).
VIII. Commissioner Koskinen Should be Censured and Condemned
More than two years have passed since Congress began
investigating the IRS's mistreatment of conservative tax-exempt
groups. After reviewing more than one million pages of
documents, conducting more than 50 transcribed interviews, and
holding over a dozen public hearings, the American people still
do not have a complete accounting of the IRS's deprivation of
American citizens' first Amendment rights.
The IRS's destruction of up to 24,000 relevant emails in
the face of a congressional subpoena and preservation order is
inexcusable. Had the IRS taken the necessary steps to educate
employees on the preservation notice, or undertaken any sort of
investigation once the agency learned of the missing emails, it
could have stopped the destruction of these important
documents. In the absence of Lois Lerner's testimony, these
documents are critical to the Committee's attempt to determine
fully what went wrong at the IRS. Commissioner John Koskinen's
false and misleading statements to Congress about the
destruction of these emails has compounded the problem. His
unwillingness to present accurate information about the missing
emails has delayed and hindered the Committee's efforts,
perhaps permanently so.
The IRS is one of the most powerful federal agencies and
must be trustworthy. It is not possible to move past the
agency's willful targeting of conservative tax-exempt
applications as long as the agency refuses to take
responsibility for its actions. As leader of the IRS,
Commissioner Koskinen has repeatedly failed to take
responsibility for the destruction of evidence by the agency
and the numerous misstatements he made to Congress about this
matter. Because of his actions, and the actions of others at
the agency he leads, the American people may never know the
complete truth about the IRS' targeting of conservative tax-
exempt applications.
For these reasons, the Committee recommends that
Commissioner Koskinen be censured and condemned; resign or be
removed from office; and forfeit all rights to any annuity for
which he is eligible under chapter 83 or chapter 84 of title 5,
United States Code.
Legislative History
The Committee's full investigation and oversight of the
need to censure and condemn John A. Koskinen is documented
above. H. Res. 737, condemning and censuring John A. Koskinen,
the Commissioner of Internal Revenue, was introduced on May 18,
2016 by Congressman Jason Chaffetz (R-UT) and referred to the
Committee on Oversight and Government Reform. The bill was also
referred to the Committee on the Judiciary and the Committee on
Ways and Means. On June 15, 2016, the Committee on Oversight
and Government Reform ordered H. Res. 737 favorably reported,
as amended, by a roll call vote of 23 to 15.
Explanation of Amendments
During Full Committee consideration of the resolution,
Ranking Member Elijah E. Cummings (D-MD) offered an amendment
to the resolution to strike specific portions of the resolution
he believed to be inaccurate. Chairman Jason Chaffetz (R-UT)
offered an amendment to the Cummings amendment to clarify the
date of a statement made by John A. Koskinen. The Chaffetz
second degree amendment was adopted by voice vote, and the
Cummings amendment, as amended, was adopted by voice vote.
Congressman Matt Cartwright (D-PA) offered an amendment to
the resolution to strike and replace the entire preamble and
replace the text with new clauses related to the current
Inspector General for Tax Administration, the Honorable J.
Russell George. The amendment also would strike and replace all
text following the resolved clause and insert language
suggesting ``Commissioner Koskinen is an honorable public
servant who has been extraordinarily cooperative with
Congress.'' The Cartwright amendment was not adopted by a roll
call vote of 15 to 21.
Committee Consideration
On June 15, 2016 the Committee met in open session and
ordered reported favorably the resolution, H. Res. 737, by roll
call vote, a quorum being present.
Roll Call Votes
There were two roll call votes during consideration of H.
Res. 737:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Statement of Oversight Findings and Recommendations of the Committee
In compliance with clause 3(c)(1) of rule XIII and clause
(2)(b)(1) of rule X of the Rules of the House of
Representatives, the Committee's oversight findings and
recommendations are reflected in the descriptive portions of
this report.
Statement of General Performance Goals and Objectives
In accordance with clause 3(c)(4) of rule XIII of the Rules
of the House of Representatives, the Committee's performance
goal or objective of this resolution is to condemn and censure
John A. Koskinen, the Commissioner of Internal Revenue.
Duplication of Federal Programs
No provision of this resolution establishes or reauthorizes
a program of the Federal Government known to be duplicative of
another Federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Disclosure of Directed Rule Makings
The Committee estimates that enacting this resolution does
not direct the completion of any specific rule makings within
the meaning of 5 U.S.C. 551.
Federal Advisory Committee Act
The Committee finds that the resolution does not establish
or authorize the establishment of an advisory committee within
the definition of 5 U.S.C. App., Section 5(b).
Congressional Budget Office Cost Estimate
With respect to requirements of clause (3)(c)(3) of rule
XIII of the Rules of the House of Representatives and section
402 of the Congressional Budget Act of 1974, the Committee has
not received a cost estimate for this measure from the Director
of Congressional Budget Office. The Committee on Oversight and
Government Reform estimates that the resolution would have no
cost.
MINORITY VIEWS
On October 27, 2015, Chairman Chaffetz and 18 other
Republican Committee Members introduced House Resolution 494 to
impeach John Koskinen, the Commissioner of the Internal Revenue
Service (IRS), for ``high crimes and misdemeanors.''\1\
They introduced their resolution only days after the
Department of Justice (DOJ) reported to Congress that it
``found no evidence that any IRS official acted based on
political, discriminatory, corrupt, or other inappropriate
motives that would support criminal prosecution.'' The
Department of Justice also ``found no evidence that any
official involved in the handling of tax-exempt applications or
IRS leadership attempted to obstruct justice.''\2\
Republicans also introduced their impeachment resolution
after the Republican Treasury Inspector General for Tax
Administration (TIGTA) reported that he identified no evidence
of politically motivated targeting, no evidence that anyone at
the IRS obstructed Congress, and no evidence of any order to
destroy or conceal documents. In testimony before the House
Committee on Oversight and Government Reform, the Inspector
General agreed that he found ``no evidence that IRS employees
were politically motivated in their creation or use of the
inappropriate screening criteria'' or that ``any IRS employees
had been directed to destroy or hide information from Congress,
the DOJ, or TIGTA.''\3\
Despite these findings, Oversight Committee Members Jim
Jordan and Mark Meadows reportedly approached House Speaker
Paul Ryan in a private meeting last month and threatened to
force a vote on their impeachment resolution on the House
floor.\4\ Speaker Ryan reportedly discouraged their campaign
for impeachment. He argued that the IRS ``has not been led
well'' and ``needs to be cleaned up,'' but ``[a]s far as these
other issues,'' his preference would be to focus on efforts to
``reform the tax code.''\5\
Shortly after the meeting with Speaker Ryan, Chairman Jason
Chaffetz introduced a new resolution to censure Commissioner
Koskinen.\6\ The resolution was referred to the Committee on
the Judiciary and the Committee on Ways and Means, and, because
it also proposed stripping Commissioner Koskinen of his
pension, it was referred to the Oversight Committee as well.
Judiciary Committee Chairman Bob Goodlatte announced that
he would hold several hearings on these issues.\7\ The first
hearing, entitled ``Examining the Allegations of Misconduct
Against IRS Commissioner John Koskinen, Part I,'' took place on
May 24, 2016. Chairman Goodlatte invited Chairman Chaffetz and
Representative Ron DeSantis to testify at that hearing.
Chairman Goodlatte scheduled ``Part II'' of the hearing for
June 22, 2016.
Instead of waiting for the Judiciary Committee to conclude
its hearings, Chairman Chaffetz rushed to hold a business
meeting with the Oversight Committee on June 15, 2016, to
leapfrog over the Judiciary Committee and proceed with a vote
on his censure resolution. The Oversight Committee approved the
resolution along party lines. Democrats strongly oppose the
Chairman's censure resolution for the reasons set forth below.
Republicans conceded during the markup that their censure resolution
was inaccurate
At the Oversight Committee business meeting on June 15,
2016, Committee Republicans were forced to admit that their
resolution was inaccurate after Ranking Member Elijah E.
Cummings offered an amendment to correct its factual
inaccuracies.
For example, the resolution misleadingly spliced together
two statements made by the Commissioner, making it appear as
though he made them together. In fact, he made these statements
on different dates before different Committees.\8\
Ranking Member Cummings made the following statement in
support of his amendment:
Mr. Chairman, I want to make clear that I am not
suggesting that you deceived the House when you
included these inaccuracies in this resolution. I am
not alleging that you were dishonest. I recognize that
you were likely relying on what others told you. The
same is true of Commissioner Koskinen.\9\
Chairman Chaffetz acknowledged the inaccuracy, and Ranking
Member Cummings' amendment on this provision was adopted.
The resolution Republicans voted out of Committee continues to include
obvious factual inaccuracies
Despite correcting one inaccuracy, Republicans refused to
correct several others during the markup.
For example, paragraph ten of the resolution asserts that
Commissioner Koskinen should be fired in part because he did
not check Lois Lerner's BlackBerry to retrieve additional
emails after her hard drive crashed. Ranking Member Cummings
offered an amendment to strike that language because TIGTA took
possession of her BlackBerry six months before Commissioner
Koskinen joined the IRS.
On June 30, 2013, the Inspector General's office issued a
report stating that it ``took possession of LERNER's BlackBerry
on June 10, 2013, after she left the IRS.''\10\ Mr. Koskinen
was not sworn into his position as Commissioner until December
23, 2013.\11\
Republicans refused to acknowledge these facts and voted
against correcting this inaccuracy in their resolution.
Chairman Chaffetz stated during the markup: ``The record is
clear that in terms of the BlackBerry, it was not
checked.''\12\ However, the Inspector General's report
indicates that in fact it was checked:
Forensic examination of the BlackBerry provided 2,972
readable e-mails. A manual comparison to de-duplicate
these items against the IRS production to Congress
resulted in the discovery of 190 new e-mails that had
not been previously provided to Congress, the DOJ or to
TIGTA; 169 of the e-mails are from after 8:30 AM on May
16, 2013; six of the e-mails mentioned EO matters, but
nothing responsive to Congress' request.\13\
It remains unclear what Chairman Chaffetz expected
Commissioner Koskinen to do with Ms. Lerner's BlackBerry when
he joined the IRS six months later in December 2013,
particularly since the Inspector General had already taken
possession of the BlackBerry and later conducted a forensic
investigation.
The resolution is inaccurate in stating that Commissioner Koskinen knew
as early as February 2014 that a substantial portion of Lois
Lerner's emails were missing
Paragraph six of the resolution states that Commissioner
Koskinen knew ``as early as February 2014'' that Ms. Lerner's
emails were missing and could not be produced to Congress. This
assertion is also wrong.
Commissioner Koskinen did not learn of the hard drive
failure until April 2014, when he was advised about it by staff
and informed that a hard drive failure did not necessarily mean
a loss of data.\14\ Commissioner Koskinen testified to this
effect before the Oversight Committee.\15\ Republicans refused
to acknowledge these facts and voted against correcting this
inaccuracy in the resolution.
The majority has presented no evidence that Commissioner
Koskinen was aware of the hard drive failure prior to April
2014. They argue that he must have learned about the hard drive
failure earlier because it furthers their baseless conspiracy
theory that he intentionally withheld information and was
complicit in, or even ordered, the destruction of back-up tapes
that occurred in March 2014.
The Justice Department reported that as soon as IRS
officials discovered the hard drive failure, ``IRS attorneys
and officials spent that time exercising due diligence to
determine what had occurred, mitigating heavily against
criminal intent.''\16\
The resolution mischaracterizes Commissioner Koskinen's previous
testimony
The censure resolution mischaracterizes Commissioner
Koskinen's testimony at a June 20, 2014, hearing before the
House Committee on Ways and Means. The resolution refers to his
testimony at this hearing as ``false'' because Commissioner
Koskinen stated: ``Since the start of this investigation, every
e-mail has been preserved. Nothing has been lost. Nothing has
been destroyed.''\17\
In fact, during that same hearing, Commissioner Koskinen
made clear: ``At this time, it is too early to know if any e-
mails have been lost on those hard drives.''\18\ In addition,
he made these statements a year before he learned that backup
tapes had been degaussed by low-level employees in West
Virginia.
The resolution completely disregards the conclusions of the Republican
Inspector General of the IRS
When Republicans launched their investigation, they relied
heavily on Inspector General J. Russell George. Inspector
General George is a holdover appointee who was chosen by
President George W. Bush and who previously served as the
Republican staff director of a subcommittee of the Oversight
Committee.
Inspector General George conducted an extensive
investigation to determine whether IRS employees intentionally
targeted conservative applicants for tax-exempt status for
political reasons. His staff interviewed more than 100
witnesses and searched tens of thousands of documents, and his
office spent more than $2 million on this investigation.\19\ At
the conclusion of this investigation, Inspector General George
identified no politically motivated targeting, no obstruction
of justice, and no effort to conceal information from Congress.
Rep. Matthew Cartwright offered an amendment during the
Oversight Committee markup to include Inspector General
George's findings in the censure resolution. As he stated when
he introduced his amendment, ``The bottom line is that in order
to vote for this censure resolution, you would have to believe
Inspector General George is lying.''\20\
Republicans opposed the amendment and voted it down.
The Republican Inspector General found no politically motivated
targeting
After Inspector General George's exhaustive multi-year
investigation, he identified no evidence that anyone at the IRS
targeted any group for political reasons.
Testifying before two different committees in May 2013,
Inspector General George agreed that he found ``no evidence
that IRS employees were politically motivated in their creation
or use of the inappropriate screening criteria.''\21\
Inspector General George's findings were confirmed by the
Oversight Committee's own investigation. In June 2013, an IRS
Screening Manager who worked at the IRS for 21 years and
described himself as a ``conservative Republican'' objected to
any suggestion that he or his team unfairly targeted
conservative groups.\22\
During the Oversight Committee's markup, Republicans
defeated Rep. Cartwright's amendment to include this finding in
the resolution.
The Republican Inspector General found no order to destroy any
documents
The Inspector General's office interviewed 118 witnesses
and reviewed employee emails in Martinsburg, West Virginia,
where two low-level employees recycled, or ``degaussed,''
backup tapes that included emails from Ms. Lerner.
The Inspector General concluded: ``No evidence was
uncovered that any IRS employees had been directed to destroy
or hide information from Congress, the DOJ, or TIGTA.''\23\ One
witness interviewed by the Inspector General stated:
Nobody in particular would have made the decision to
destroy the tapes/hard drives, degaussing/destruction
is just part of the process. Nobody specifically
instructed [NAME REDACTED] to destroy the tapes/hard
drives and nobody told him to do it because of the
content on the tapes/hard drives. [NAME REDACTED] said
he never knows the content of the tapes or hard drives
the group destroys, to include this particular
shipment.\24\
During the Oversight Committee's markup, Republicans
defeated Rep. Cartwright's amendment to include this finding in
the resolution.
The Republican Inspector General found no evidence that any IRS
employees erased backup tapes to conceal responsive emails
The Inspector General's office conducted its own analysis
of whether any data could be salvaged from the backup tapes and
produced to Congress, finding that 422 server backup tapes that
were believed to have contained Lois Lerner's e-mails had been
degaussed on March 4, 2014.
The Inspector General concluded that ``the investigation
did not uncover any evidence that the IRS and its employees
purposely erased the tapes in order to conceal responsive
documents from Congress, the DOJ, and TIGTA.''\25\
The Inspector General reported that two low-level employees
working in Martinsburg, West Virginia degaussed the backup
tapes so they could be reused. The Chief Technology Officer of
the IRS issued a policy directive to preserve all electronic
backup media in May 2013, but the Inspector General found that
the ``employees who destroyed the backup tapes misinterpreted
the directive.''\26\
During the Oversight Committee's markup, Republicans
defeated Rep. Cartwright's amendment to include this finding in
the resolution.
The Republican Inspector General testified that Commissioner Koskinen
has been ``extraordinarily cooperative''
The censure resolution accuses Commissioner Koskinen of
failing to locate and preserve emails from Ms. Lerner that were
lost due to her hard drive failure, and of making false and
misleading statements to Congress. These allegations have been
directly contradicted by the Inspector General and others.
On June 25, 2015, Inspector General George appeared before
the Oversight Committee and testified that Commissioner
Koskinen was ``extraordinarily cooperative'' with the
investigation.\27\
Senator Orrin Hatch, the Chairman of the Senate Committee
on Finance, agreed with Inspector General George, stating that
``for the most part'' Commissioner Koskinen has ``been very
cooperative with us.''\28\
During the Oversight Committee's markup, Republicans
defeated Rep. Cartwright's amendment to include this finding in
the resolution.
The Department of Justice found no politically motivated targeting or
obstruction of justice
As part of a lengthy investigation of their own, career
officials at the Justice Department reported to Congress that
they ``found no evidence that any IRS official acted based on
political, discriminatory, corrupt, or other inappropriate
motives that would support criminal prosecution.''\29\
The Justice Department also ``found no evidence that any
official involved in the handling of tax-exempt applications or
IRS leadership attempted to obstruct justice.''\30\
In collaboration with the Inspector General and the Federal
Bureau of Investigation, the Justice Department conducted more
than 100 witness interviews, collected more than one million
pages of IRS documents, and examined potential criminal
liability for IRS employees under civil rights, tax
administration, and obstruction statutes.
The Justice Department specifically examined ``whether any
IRS official attempted to obstruct justice with respect to
their reporting function to Congress, the collection and
production of documents demanded by the Department and
Congress, and the delayed disclosure of the consequences of Ms.
Lerner's hard drive crash, or the March 2014 erasure of
electronic backup tapes.''\31\
The Justice Department found ``no evidence of such an
intent by any official involved in the handling of tax-exempt
applications or the IRS's response to investigations of its
conduct.''\32\
There is no evidence that the degaussed backup tapes contained ``key''
evidence
Paragraph 3 of the resolution suggests that the backup
tapes that were degaussed contained ``key pieces of evidence,''
but Ms. Lerner's hard drive crashed before she learned that any
inappropriate criteria were being used. The IRS Technology
Asset Management System indicates that Ms. Lerner filed a
helpdesk ticket with regard to her hard drive failure on June
13, 2011.\33\ This is approximately two weeks before a June 29,
2011, briefing when she learned about language contained in the
``Be on the Lookout'' listing inappropriate criteria. She
instructed that the criteria be revised immediately.\34\
On June 25, 2015, Inspector General George testified to the
Oversight Committee that, after extensive efforts, his office
was able to recover more than 1,000 emails from Ms. Lerner's
hard drive. However, after examining those emails, he
concluded: ``A review of these new e-mails did not provide
additional information for the purposes of our
investigation.''\35\
Instead, these so-called ``new'' emails were completely
irrelevant. For instance, one of the recovered emails that the
Inspector General produced to Congress was a December 25, 2012,
email from eBay advertising holiday shopping deals. Another
newly discovered email was from FlowerShopping.com a few days
before.
On October 23, 2015, the Justice Department sent a letter
to the Committee concluding that ``we are confident that we
were able to compile a substantially complete set of the
pertinent documents.''\36\ The Department stated:
The IRS collected documents from more than 80
employees--many more employees than were regularly and
directly involved in the matters under investigation--
making exceedingly remote the chance that a hard drive
crash or other technical failure experienced by any
particular employee could cause the permanent loss of
any relevant email or other document.\37\
The resolution has no legal effect whatsoever
The resolution to censure Commissioner Koskinen is a simple
House resolution that merely expresses ``the sense of the House
of Representatives.''\38\ This resolution has no practical
effect and lacks the force of law. House resolutions are
``considered only by the body in which they were introduced,''
and are ``not presented to the President for action.''\39\
Legal scholars agree that even if the House passes H. Res.
737, it would have no legal effect. For example, according to
the Congressional Research Service: ``Simple resolutions
require no action by the other house of Congress, and since
they contain no legislative matters are not presented to the
President and `have no legal effect.'''\40\
Chairman Chaffetz is inaccurate when he says his resolution would
``require'' Commissioner Koskinen to forfeit his pension
When Chairman Chaffetz introduced his resolution censuring
Commissioner Koskinen, he stated that it ``requires the
forfeiture of his pension.''\41\ At the June 15, 2016, business
meeting to consider the censure resolution, Chairman Chaffetz
again asserted that H. Res. 737 ``requires forfeiture of his
government pension and any other federal benefits for which he
is eligible.''\42\
Legal scholars agree that Chairman Chaffetz's public
statements are inaccurate. Because H. Res. 737 is a House
resolution with no legal effect, it does not require
Commissioner Koskinen to forfeit his pension.
On June 20, 2016, Richard Briffault, the Joseph P.
Chamberlain Professor of Legislation at Columbia Law School,
sent a letter to the Oversight Committee stating, ``The
provision of H. Res. 737 concerning Commissioner Koskinen's
pension is just such a `sense of the House' statement. It
cannot bind persons or property outside the House.''\43\
It would be fundamentally unfair and potentially unconstitutional to
take away Commissioner Koskinen's vested pension for his
previous government service
Commissioner Koskinen has devoted many years of his career
to public service in the federal government. Even though the
resolution to censure Commissioner Koskinen has no legal
effect, it would be fundamentally unfair to strip Commissioner
Koskinen of the vested pension he previously earned for more
than a decade of government service based on unfounded
allegations that are unrelated to that service.
In addition, the Supreme Court has held that any
legislative act that ``determines guilt and inflicts punishment
upon an identifiable individual without provision of the
protections of a judicial trial'' is an unconstitutional Bill
of Attainder.\44\ As the Judiciary Committee concluded when
considering the proposed impeachment of President Clinton, ``a
law formally and publicly expressing condemnation by the
legislature directed at a specific individual--confronts
squarely the prohibition on Bills of Attainder.''\45\
Members of Congress and other officers and employees of the
federal government can be required to forfeit the federal
retirement annuities for which they had qualified only if they
are convicted of specific federal offenses.\46\ Commissioner
Koskinen has not been charged or convicted of any crime, and
there is no other legal mechanism under which the House, acting
alone, would have the authority to remove his pension.
On June 17, 2016, Richard W. Painter, the S. Walter Richey
Professor of Corporate Law at the University of Minnesota Law
School, sent a letter to the Oversight Committee stating: ``A
legislative enactment that sought to take away the pension or
other property of a particular individual would be a bill of
attainder specifically prohibited by the Constitution.''\47\
Professor Painter's letter cites the Heritage Foundation
Guide to the Constitution, which states: ``As James Madison
said in The Federalist No. 44, `Bills of attainder, ex post
facto laws, and laws impairing the obligation of contracts, are
contrary to the first principles of the social compact, and to
every principle of sound legislation.'''\48\
Professor Painter's letter concludes:
I should furthermore note that over the past several
years your Committee has spent millions of taxpayer
dollars on this investigation. This is essentially a
dispute between the IRS and Members of Congress about
the 501c4 organizations that further the objectives of
political campaigns, including campaigns of Members of
Congress. The IRS is charged with determining whether
the activities of these organizations comply with the
Internal Revenue Code and it is not proper for Congress
to seek to intimidate the IRS in the discharge of its
duties.\49\
Commissioner Koskinen is an honorable man who has served the public on
behalf of Democrats and Republicans
Commissioner Koskinen is a dedicated and well-respected
public servant who has worked for both Democrats and
Republicans throughout his long and distinguished career. He
agreed to come out of retirement in 2013 to lead the IRS during
a period of significant turmoil.\50\
Commissioner Koskinen has a long and respected history of
taking on difficult jobs. He began his career in public service
working for Republican Mayor John V. Lindsay of New York. In
1994, he was asked by the Clinton Administration to become the
``Y2K Czar,'' tasked with preparing the government in the lead-
up to the year 2000.
Commissioner Koskinen was called on by President George W.
Bush's administration to become Freddie Mac's new chairman in
the midst of the financial crisis. According to President
Bush's chief housing-finance administrator, James B. Lockhart
III, Commissioner Koskinen was selected because ``Freddie
needed some stronger management.'' Mr. Lockhart has stated that
the Bush Administration was ``thankful'' that Commissioner
Koskinen accepted the position.\51\
This resolution has no binding authority and will have no
legal effect. This Committee has done a great deal of
bipartisan work on investigations and legislation. The Chairman
and Ranking Member have sent more than 600 bipartisan letters
in this Congress. But this partisan investigation is founded on
conspiracy theories that undermine the credibility and
integrity of the Oversight Committee.
Elijah E. Cummings,
Ranking Member.
----------
ENDNOTES
\1\H. Res. 494.
\2\Letter from Peter J. Kadzik, Assistant Attorney General,
Department of Justice, to Chairman Jason Chaffetz and Ranking
Member Elijah E. Cummings, House Committee on Oversight and
Government Reform (Oct. 23, 2015) (online at http://
democrats.oversight.house.gov/sites/
democrats.oversight.house.gov/files/documents/2015-10-
23%20DOJ%20to%20HOGR%20%28IRS%29%20-
%20Chmn%20Chaffetz%20RM%20Cummings.pdf).
\3\House Committee on Oversight and Government Reform, The
IRS: Targeting Americans for Their Political Beliefs, 113th
Cong. (May 22, 2013) (online at https://oversight.house.gov/
hearing/the-irs-targeting-americans-for-their-political-
beliefs/); Treasury Inspector General for Tax Administration,
Report of Investigation: Exempt Organizations Data Loss (June
30, 2015) (#54-1406-008-I) (online at http://
democrats.oversight.house.gov/sites/
democrats.oversight.house.gov/files/documents/
TIGTA%20Report.pdf).
\4\Conservatives Force Leadership's Hand in IRS
Impeachment, The Hill (May 18, 2016) (online at http://
thehill.com/policy/finance/280334-conservatives-force-house-
gop-leaderships-hand-in-irs-impeachment).
\5\Ryan Stops Short of Backing Effort to Impeach IRS Chief,
Roll Call (Apr. 14, 2016) (online at www.rollcall.com/news/
politics/ryan-wont-back-effort-impeach-irs-commissioner).
\6\H. Res. 737.
\7\Conservatives Force Leaderships Hand in IRS Impeachment,
The Hill (May 18, 2016) (online at http://thehill.com/policy/
finance/280334-conservatives-force-house-gop-leaderships-hand-
in-irs-impeachment).
\8\House Committee on Ways and Means, Hearing on IRS
Investigation, 113th Cong. (June 20, 2014); House Committee on
Oversight and Government Reform, Subcommittee on Economic
Growth, Job Creation, and Regulatory Affairs, Hearing on An
Update on the IRS Response to its Targeting Scandal, 113th
Cong. (July 23, 2014).
\9\House Committee on Oversight and Government Reform,
Statement of Ranking Member Elijah E. Cummings, Full Committee
Business Meeting to Consider H. Res. 737, Condemning and
Censuring John A. Koskinen, the Commissioner of Internal
Revenue (June 15, 2016) (online at http://
democrats.oversight.house.gov/news/press-releases/republicans-
concede-inaccuracies-in-resolution-to-censure-irs-commissioner-
but).
\10\Treasury Inspector General for Tax Administration,
Report of Investigation: Exempt Organizations Data Loss (June
30, 2015) (#54-1406-008-I) (online at http://
democrats.oversight.house.gov/sites/
democrats.oversight.house.gov/files/documents/
TIGTA%20Report.pdf).
\11\Koskinen Sworn in as IRS Commissioner, The Hill (Dec.
23, 2013) (online at http://thehill.com/policy/finance/193917-
john-koskinen-sworn-in-as-irs-commissioner).
\12\House Committee on Oversight and Government Reform,
Statement of Chairman Jason Chaffetz, Full Committee Business
Meeting to Consider H. Res. 737, Condemning and Censuring John
A. Koskinen, the Commissioner of Internal Revenue (June 15,
2016) (online at https://oversight.house.gov/markup/full-
committee-business-meeting-37/).
\13\Treasury Inspector General for Tax Administration,
Report of Investigation: Exempt Organizations Data Loss (June
30, 2015) (#54-1406-008-I) (online at http://
democrats.oversight.house.gov/sites/
democrats.oversight.house.gov/files/documents/
TIGTA%20Report.pdf).
\14\Id.
\15\House Committee on Oversight and Government Reform,
Hearing on IRS Obstruction Part I, 113th Cong. (June 23, 2014).
\16\Letter from Peter J. Kadzik, Assistant Attorney
General, Department of Justice, to Chairman Jason Chaffetz and
Ranking Member Elijah E. Cummings, House Committee on Oversight
and Government Reform (Oct. 23, 2015) (online at http://
democrats.oversight.house.gov/sites/
democrats.oversight.house.gov/files/documents/2015-10-
23%20DOJ%20to%20HOGR%20%28IRS%29%20-
%20Chmn%20Chaffetz%20RM%20Cummings.pdf).
\17\House Committee on Ways and Means, Hearing on IRS
Investigation, 113th Cong. (June 20, 2014).
\18\Id.
\19\Email from Treasury Inspector General for Tax
Administration Staff to House Committee on Ways and Means Staff
(Apr. 15, 2015).
\20\House Committee on Oversight and Government Reform,
Statement of Rep. Matthew Cartwright, Full Committee Business
Meeting to Consider H. Res. 737, Condemning and Censuring John
A. Koskinen, the Commissioner of Internal Revenue (June 15,
2016) (online at https://oversight.house.gov/markup/full-
committee-business-meeting-37/).
\21\House Committee on Oversight and Government Reform,
Hearing on The IRS: Targeting Americans for Their Political
Beliefs, 113th Cong. (May 22, 2013).
\22\House Committee on Oversight and Government Reform,
Interview of Screening Group Manager (June 6, 2013) (online at
http://democrats.oversight.house.gov/news/press-releases/first-
hand-account-cummings-releases-full-transcript-of-conservative-
republican).
\23\Treasury Inspector General for Tax Administration,
Report of Investigation: Exempt Organizations Data Loss (June
30, 2015) (#54-1406-008-I) (online at http://
democrats.oversight.house.gov/news/press-releases/new-irs-
inspector-general-report-finds-no-evidence-that-lerner-
intentionally).
\24\Id.
\25\Id.
\26\Id.
\27\House Committee on Oversight and Government Reform,
Hearing on IRS: TIGTA Update, Part Two (June 25, 2015).
\28\Hatch: Senate Wont Remove IRS Head, The Hill (May 19,
2016) (online at http://thehill.com/policy/finance/280594-
hatch-senate-wont-remove-irs-commissioner).
\29\Letter from Peter J. Kadzik, Assistant Attorney
General, Department of Justice, to Chairman Jason Chaffetz and
Ranking Member Elijah E. Cummings, House Committee on Oversight
and Government Reform (Oct. 23, 2015) (online at http://
democrats.oversight.house.gov/sites/
democrats.oversight.house.gov/files/documents/2015-10-
23%20DOJ%20to%20HOGR%20%28IRS%29%20-
%20Chmn%20Chaffetz%20RM%20Cummings.pdf).
\30\Id.
\31\Id.
\32\Id.
\33\Treasury Inspector General for Tax Administration,
Report of Investigation: Exempt Organizations Data Loss (June
30, 2015) (#54-1406-008-I) (online at http://
democrats.oversight.house.gov/news/press-releases/new-irs-
inspector-general-report-finds-no-evidence-that-lerner-
intentionally).
\34\Treasury Inspector General for Tax Administration,
Inappropriate Criteria Were Used to Identify Tax-Exempt
Applications for Review (May 14, 3013) (#2013-10-053) (online
at www.treasury.gov/tigta/auditreports/2013reports/
201310053fr.pdf).
\35\House Committee on Oversight and Government Reform,
Testimony of J. Russell George, Treasury Inspector General for
Tax Administration, and Timothy P. Camus, Deputy Inspector
General for Investigations, Treasury Inspector General for Tax
Administration, Hearing on IRS: TIGTA Update, Part Two (June
25, 2015).
\36\Letter from Peter J. Kadzik, Assistant Attorney
General, Department of Justice, to Chairman Jason Chaffetz and
Ranking Member Elijah E. Cummings, House Committee on Oversight
and Government Reform (Oct. 23, 2015) (online at http://
democrats.oversight.house.gov/sites/
democrats.oversight.house.gov/files/documents/2015-10-
23%20DOJ%20to%20HOGR%20%28IRS%29%20-
%20Chmn%20Chaffetz%20RM%20Cummings.pdf).
\37\Id.
\38\H. Res. 737.
\39\Congress.gov, How Our Laws Are Made--Learn About the
Legislative Process (online at www.congress.gov/resources/
display/content/How+Our+Laws+Are+Made+-
+Learn+About+the+Legislative+Process#HowOurLawsAreMade-
LearnAbouttheLegislativeProcess-SimpleResolutions) (accessed
June 16, 2016); United States House of Representatives, The
Legislative Process (online at www.house.gov/content/learn/
legislative_process/) (accessed June 16, 2016).
\40\Memorandum from Congressional Research Service to House
Committee on Oversight and Government Reform Staff, Effect of
House Censure Resolution on a Federal Official's Pension (June
20, 2016).
\41\House Committee on Oversight and Government Reform,
Chaffetz Introduces Censure Resolution for IRS Commissioner
(May 18, 2016) (online at https://oversight.house.gov/release/
chaffetz-introduces-censure-resolution-for-irs-commissioner/).
\42\House Committee on Oversight and Government Reform,
Statement of Chairman Jason Chaffetz, Full Committee Business
Meeting to Consider H. Res. 737, Condemning and Censuring John
A. Koskinen, the Commissioner of Internal Revenue (June 15,
2016) (online at https://oversight.house.gov/markup/full-
committee-business-meeting-37/).
\43\Letter from Richard Briffault, Joseph P. Chamberlain
Professor of Legislation, Columbia Law School, to House
Committee on Oversight and Government Reform (June 20, 2016).
\44\Nixon v. Administrator of General Services, 433 U.S.
425, 433 (1977) (citing United States v. Lovett, 328 U.S. 303,
315-216).
\45\House Committee on the Judiciary, Impeachment of
William Jefferson Clinton, President of the United States,
105th Cong. (1998) (H. Rept. 105-830) (online at
www.congress.gov/105/crpt/hrpt830/CRPT-105hrpt830.pdf).
\46\Congressional Research Service, Loss of Federal
Pensions for Members of Congress Convicted of Certain Offenses
(Sept. 12, 2013) (96-530) (online at www.fas.org/sgp/crs/misc/
96-530.pdf).
\47\Letter from Richard W. Painter, S. Walter Richey
Professor of Corporate Law, University of Minnesota Law School,
to House Committee on Oversight and Government Reform (June 17,
2016).
\48\Heritage Foundation, The Heritage Guide to the
Constitution, Bill of Attainder (online at http://
www.heritage.org/constitution/#!/articles/1/essays/62/bill-of-
attainder)
\49\Id.
\50\Head of I.R.S., Facing Censure, Relishes a Job Few
Could Love, New York Times (June 14, 2016) (online at
www.nytimes.com/2016/06/15/us/politics/irs-impeachment-john-
koskinen.html?_r=1).
\51\Id.
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