IRS changes its story on lost emails and hard drive crashes

IRS Commissioner Koskinen’s testimony that all backup tapes of Lois Lerner’s emails have been destroyed may be “inoperative,” to use the term employed during Watergate when stories changed. The House Oversight Committee chaired by Darrell Issa has released the transcription of testimony taken last week revealing that the IRS is changing its tune.

During a transcribed interview with congressional investigators on Thursday, July 17, IRS Deputy Associate Chief Counsel Thomas Kane, who supervises the IRS’s targeting scandal document production to Congress, testified that new developments now make him uncertain whether e-mail back-up tapes containing lost e-mails from key IRS targeting official Lois Lerner exist or not.  The new testimony is at odds with the June 13, 2014, memo sent to Sens. Ron Wyden (D-OR) and Orrin Hatch (R-UT) by the IRS which reported that the IRS, “Confirmed that back-up tapes from 2011 no longer exist because they have been recycled.”  Kane had reviewed the June 13 memo but noted his current uncertainty with investigators.

Kane and a Committee investigator had the following exchange during Thursday’s transcribed interview:

Investigator: You stated at the time that document was produced to Congress, the document, the white paper in Exhibit 3[the June 13 memo], that it was accurate to the best of your knowledge.  Is it still accurate?

Kane: There is an issue as to whether or not there is a ‑‑ that all of the backup recovery tapes were destroyed on the 6‑month retention schedule. 

Investigator: So some of those backup tapes may still exist?

Kane: I don’t know whether they are or they aren’t, but it’s an issue that’s being looked at. 

Kane also testified that in addition to the IRS officials who had experienced hard drive crashes, as reported to the House Ways & Means Committee, a number of officials above and beyond these officials “have had computer problems over the course of the period covered by the investigations and the chairman’s subpoena” that could prevent the IRS from fully complying with the subpoenas.  Kane characterized the number of such individuals as “less than 20” and named IRS officials Andy Megosh, Kimberly Kitchens, Justin Lowe, and David Fish as members of the new group.

Justin Lowe – Technical Advisor to the Commissioner of Tax-Exempt and Government Entities, before that he was a tax-law specialist in EO (Exempt Organizations) Technical and then EO Guidance.  Advisor to Tax-Exempt and Government Entities Commissioner Joseph Grant.

David Fish – Manager of EO Guidance (which develops formal and informal guidance to the public on tax-exempt issues); Fish also served as Acting Director of Rulings and Agreements in late 2011/early 2012. Advisor to Lois Lerner.

Andy Megosh – Group manager in EO Guidance.  Megosh was cited in the Ways and Means Committee’s referral of Lerner Lerner to the Justice Department.

Kimberly Kitchens – IRS revenue agent in Cincinnati who donated to President Obama’s reelection campaign.

Chairman Issa issued the following statement on the new revelations in Kane’s testimony:

“I’m struck by the fact that the IRS attempted to keep a key witness like Mr. Kane away from investigators and only agreed to his appearance after I issued a subpoena for his testimony. Finding out that IRS Commissioner Koskinen jumped the gun in reporting to Congress that the IRS ‘confirmed’ all back-up tapes had been destroyed makes me even more suspicious of why he waited months to inform Congress about lost Lois Lerner e-mails.  Commissioner Koskinen has repeatedly blamed the reporting delay on an effort to be sure what he said was correct, we now know that wasn’t the case.”

In the face of this incompetence or worse, Rep. Elijah Cummings of the same committee is demanding an end to the criticism of Koskinen and no further questions. In other words, the agency that demands Americans keep complete and impeccable records for all their financial transactions for seven years should be able to lose records and face no close scrutiny. Susan Ferrechio reports:

The top Democrat on the House Oversight and Government Reform panel is objecting to a plan to call the Internal Revenue Service commissioner to testify for a third time in a matter of weeks, calling it “public harassment of an agency head.”

Rep. Elijah Cummings, D-Md., sent a letter Monday to Chairman Darrell Issa, R-Calif., objecting to a decision to call Commissioner John Koskinen to testify at a hearing on Wednesday. It would be the third time Koskinen appeared before the panel in the past month, Cummings noted.

“Requiring Commissioner Koskinen to testify again this week not only takes him away from the day-to-day duties of operating an agency with 90,000 employees, but it also diverts our Committee from conducting responsible oversight on many key areas that traditionally have been part of our jurisdiction,” Cummings said in the letter.

The IRS’s story is transparently hinky. You and I could never get away with anything like this in our dealings with the agency. At the Washington Post, Josh Hicks reports on six questions from an expert about the IRS’s procedures that raise serious issues around the integrity of its responses to date
… few organizations are in a better position to make an assessment of the situation than the International Association of Information Technology Asset Managers, which deals with these types of issues on a regular basis.

The group, which runs the only worldwide certification program for IT asset managers, released six questions on Monday that it thinks lawmakers and federal investigators should ask about the missing e-mails of former IRS official Lois Lerner, a central figure in the targeting affair.

1.) What happened to the IRS’s IT asset managers who appear to have disappeared at a key juncture?

Ordering the destruction of a hard drive and documenting that process would be handled by trained, certified IT asset managers, according to IAITAM. But the group’s records show that at least three IRS IT asset managers were shuffled out of their positions around the time of the May 2013 inspector general’s report that detailed the agency’s targeting practices.

IAITAM said investigators need to “determine if these in-house IT asset managers were removed from the picture as the IRS email investigation heated up.”

2.) Where is the documentation to prove that the IRS wiped or destroyed Lois Lerner’s hard drive?

So far, we only have the word of IRS officials. IAITAM said its standards call for clear proof and records of destruction when drives are wiped or eliminated. “Until that documentation is provided, the hard drives should be considered lost, not destroyed,” Rembiesa said.

Read the other four here.

IRS Commissioner Koskinen’s testimony that all backup tapes of Lois Lerner’s emails have been destroyed may be “inoperative,” to use the term employed during Watergate when stories changed. The House Oversight Committee chaired by Darrell Issa has released the transcription of testimony taken last week revealing that the IRS is changing its tune.

During a transcribed interview with congressional investigators on Thursday, July 17, IRS Deputy Associate Chief Counsel Thomas Kane, who supervises the IRS’s targeting scandal document production to Congress, testified that new developments now make him uncertain whether e-mail back-up tapes containing lost e-mails from key IRS targeting official Lois Lerner exist or not.  The new testimony is at odds with the June 13, 2014, memo sent to Sens. Ron Wyden (D-OR) and Orrin Hatch (R-UT) by the IRS which reported that the IRS, “Confirmed that back-up tapes from 2011 no longer exist because they have been recycled.”  Kane had reviewed the June 13 memo but noted his current uncertainty with investigators.

Kane and a Committee investigator had the following exchange during Thursday’s transcribed interview:

Investigator: You stated at the time that document was produced to Congress, the document, the white paper in Exhibit 3[the June 13 memo], that it was accurate to the best of your knowledge.  Is it still accurate?

Kane: There is an issue as to whether or not there is a ‑‑ that all of the backup recovery tapes were destroyed on the 6‑month retention schedule. 

Investigator: So some of those backup tapes may still exist?

Kane: I don’t know whether they are or they aren’t, but it’s an issue that’s being looked at. 

Kane also testified that in addition to the IRS officials who had experienced hard drive crashes, as reported to the House Ways & Means Committee, a number of officials above and beyond these officials “have had computer problems over the course of the period covered by the investigations and the chairman’s subpoena” that could prevent the IRS from fully complying with the subpoenas.  Kane characterized the number of such individuals as “less than 20” and named IRS officials Andy Megosh, Kimberly Kitchens, Justin Lowe, and David Fish as members of the new group.

Justin Lowe – Technical Advisor to the Commissioner of Tax-Exempt and Government Entities, before that he was a tax-law specialist in EO (Exempt Organizations) Technical and then EO Guidance.  Advisor to Tax-Exempt and Government Entities Commissioner Joseph Grant.

David Fish – Manager of EO Guidance (which develops formal and informal guidance to the public on tax-exempt issues); Fish also served as Acting Director of Rulings and Agreements in late 2011/early 2012. Advisor to Lois Lerner.

Andy Megosh – Group manager in EO Guidance.  Megosh was cited in the Ways and Means Committee’s referral of Lerner Lerner to the Justice Department.

Kimberly Kitchens – IRS revenue agent in Cincinnati who donated to President Obama’s reelection campaign.

Chairman Issa issued the following statement on the new revelations in Kane’s testimony:

“I’m struck by the fact that the IRS attempted to keep a key witness like Mr. Kane away from investigators and only agreed to his appearance after I issued a subpoena for his testimony. Finding out that IRS Commissioner Koskinen jumped the gun in reporting to Congress that the IRS ‘confirmed’ all back-up tapes had been destroyed makes me even more suspicious of why he waited months to inform Congress about lost Lois Lerner e-mails.  Commissioner Koskinen has repeatedly blamed the reporting delay on an effort to be sure what he said was correct, we now know that wasn’t the case.”

In the face of this incompetence or worse, Rep. Elijah Cummings of the same committee is demanding an end to the criticism of Koskinen and no further questions. In other words, the agency that demands Americans keep complete and impeccable records for all their financial transactions for seven years should be able to lose records and face no close scrutiny. Susan Ferrechio reports:

The top Democrat on the House Oversight and Government Reform panel is objecting to a plan to call the Internal Revenue Service commissioner to testify for a third time in a matter of weeks, calling it “public harassment of an agency head.”

Rep. Elijah Cummings, D-Md., sent a letter Monday to Chairman Darrell Issa, R-Calif., objecting to a decision to call Commissioner John Koskinen to testify at a hearing on Wednesday. It would be the third time Koskinen appeared before the panel in the past month, Cummings noted.

“Requiring Commissioner Koskinen to testify again this week not only takes him away from the day-to-day duties of operating an agency with 90,000 employees, but it also diverts our Committee from conducting responsible oversight on many key areas that traditionally have been part of our jurisdiction,” Cummings said in the letter.

The IRS’s story is transparently hinky. You and I could never get away with anything like this in our dealings with the agency. At the Washington Post, Josh Hicks reports on six questions from an expert about the IRS’s procedures that raise serious issues around the integrity of its responses to date
… few organizations are in a better position to make an assessment of the situation than the International Association of Information Technology Asset Managers, which deals with these types of issues on a regular basis.

The group, which runs the only worldwide certification program for IT asset managers, released six questions on Monday that it thinks lawmakers and federal investigators should ask about the missing e-mails of former IRS official Lois Lerner, a central figure in the targeting affair.

1.) What happened to the IRS’s IT asset managers who appear to have disappeared at a key juncture?

Ordering the destruction of a hard drive and documenting that process would be handled by trained, certified IT asset managers, according to IAITAM. But the group’s records show that at least three IRS IT asset managers were shuffled out of their positions around the time of the May 2013 inspector general’s report that detailed the agency’s targeting practices.

IAITAM said investigators need to “determine if these in-house IT asset managers were removed from the picture as the IRS email investigation heated up.”

2.) Where is the documentation to prove that the IRS wiped or destroyed Lois Lerner’s hard drive?

So far, we only have the word of IRS officials. IAITAM said its standards call for clear proof and records of destruction when drives are wiped or eliminated. “Until that documentation is provided, the hard drives should be considered lost, not destroyed,” Rembiesa said.

Read the other four here.