Shifting Sands

If you paid close attention this week, you could see the sand shifting under Obama’s feet. From public opinion to the federal courts to the president’s former putative allies, it was not a good week to be Obama, and it’s likely to get worse for him. Walkabouts in D.C., travels to distant fundraisers, preposterous flailing on the international scene, and more shots with his cute kids are not going to change the situation as far as I can tell. Yet he lacks other options.

1. Hard Drives are Crashing all over the Place

This week, the efforts to push the IRS scandal under the carpet seem to be unavailing. Increased numbers of IT experts say the crashed drive story is implausible.

"The notion that these emails just magically vanished makes no sense whatsoever. That is not how IT asset management at major businesses and government institutions works in this country.

When the hard drive in question was destroyed, the IRS should have called in an accredited IT Asset Destruction (ITAD) professional or firm to complete that process, which requires extensive documentation, official signoffs, approvals, and signatures of completion. If this was done, there would be records. If this was not done, this is the smoking gun that proves the drive or drives were destroyed improperly – or not at all."

Barbara Rembiesa, President, International Association of Information Technology Asset Managers (IAITAM)

In fact, once the story spread to include 6 other email accounts of IRS officers, all that remained was for the IRS to ask us to clap our hands if we believed in Tinkerbelle, too.

The wave of computer crashes apparently struck both Washington, D.C. -- where Lois Lerner oversaw the agency’s Exempt Organizations division -- and also Cincinnati, Ohio -- where agents processed tax-exempt applications.

A noted rocket scientist of my acquaintance on hearing that version responded: “It would be interesting to estimate the probability that that IRS is telling the truth about the PARTICULAR 6 computers crashing at random…. if they have 90000 employees… the probability is something like one out of a numbers with around 24 ‘0’s.”

In fact, no one seems to be buying the IRS tale. A Fox news Poll indicates 76% of Americans believe the IRS deliberately destroyed the emails evincing it had deliberately targeted Obama’s opponents in violation of the law.

Capping off the week, we learned that the EPA is now also claiming crashed drives destroyed a critical email trail.

The EPA is being accused of slow-walking several requests by the House committee to provide lawmakers with documents involving alleged employee misconduct on a number of thorny issues, including conflicts among the EPA, the Office of Inspector General and agency management as well as the EPA’s action related to the veto of the controversial Pebble Mine project in Alaska.

Lawmakers at the hearing wanted McCarthy to address lost emails from a hard-drive crash at the agency that wiped out some emails from former employee Philip North to his bosses at the EPA over the controversial Alaska mine project.

Complicating matters, North has gone off the proverbial grid, making it difficult for lawmakers to issue a subpoena for him to testify.

Rep. Kerry Bentivolio, R-Mich., asked McCarthy if she knew where North was.

“No sir, I don’t know that,” she responded.

Bentivolio pressed McCarthy about claims North’s hard drive crashed, making some of his emails unavailable.

McCarthy said the EPA has submitted all the documents it has been able to find and will “continue the search.”

“There are some gaps, but we have submitted significant amounts,” McCarthy said.

Emails from North, now retired, recently surfaced that seemed to show the Alaska-based biologist tried to get the Pebble Mine project killed as far back as 2008.

Those emails -- and memos indicating government officials worked early on with tribal leaders and environmental groups to oppose the venture -- raised questions about the agency's claims that when it ultimately vetoed the gold-and-copper mine project, it did so based on scientific evidence.

Emails from North’s account show that he “appeared to have played a key role in the EPA’s decision to pursue a veto,” Caitlin Carroll, a spokeswoman for the House Oversight and Government Reform Committee, told

When he was still reachable, North was asked multiple times to come in and talk to lawmakers about the project. He offered up a list of complications that prevented him from meeting with the government, including a pre-planned, one-year boat ride around the world with his school-aged children.

North Carolina Rep. Mark Meadows asked McCarthy whether North had backed up his emails and suggested there might be a violation of federal record-keeping rules.

Internet wit Iowahawk nailed it as usual: “Apparently, the leading cause of hard drive failures is subpoenas.”

By the end of the week, Clinton spinmeister Lanny Davis was arguing for the appointment of an independent prosecutor to investigate the IRS.

As a matter of fact, there no longer is a statute allowing the appointment of an independent counsel, and with the Senate in Democrat hands I wouldn’t count on a new statute authorizing one to be passed. A special prosecutor could be appointed by the Attorney General but given his record of unparalleled lawlessness, that hardly seems a solution to be wished for.

On the other hand, there may be some legal redress on the horizon.

2. The Spoilation of Evidence and Failure to Comply with Discovery Rules

It may well be, however, that the case will explode as a result of private litigation, not Congressional hearings. As American Thinker’s Thomas Lifson noted, the case brought by Z Street, a pro-Israel interest group, denied tax exempt status by Lois Lerner, may be the trigger.

The involves a case filed in August 2010. The Wall Street Journal noted of it:

Under the Federal Rules of Civil Procedure and legal precedent, once the suit was filed the IRS was required to preserve all evidence relevant to the viewpoint-discrimination charge. That means that no matter what dog ate Lois Lerner's hard drive or what the IRS habit was of recycling the tapes used to back up its email records of taxpayer information, it had a legal duty not to destroy the evidence in ongoing litigation.

In private white-collar cases, companies facing a lawsuit routinely operate under what is known as a "litigation hold," instructing employees to affirmatively retain all documents related to the potential litigation. A failure to do that and any resulting document loss amounts to what is called "willful spoliation," or deliberate destruction of evidence if any of the destroyed documents were potentially relevant to the litigation.

At the IRS, that requirement applied to all correspondence regarding Z Street, as well as to information related to the vetting of conservative groups whose applications for tax-exempt status were delayed during an election season. Instead, and incredibly, the IRS cancelled its contract with email-archiving firm Sonasoft shortly after Ms. Lerner's computer "crash" in June 2011.

In the federal District of Columbia circuit where Z Street's case is now pending, the operating legal obligation is that "negligent or reckless spoliation of evidence is an independent and actionable tort." In a 2011 case a D.C. district court also noted that "Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a 'litigation hold' to ensure the preservation of relevant documents."

The government's duty is equally pressing. "When the United States comes into court as a party in a civil suit, it is subject to the Federal Rules of Civil Procedure as any other litigant," the Court of Federal Claims ruled in 2007. The responsibility to preserve evidence should have been a topic of conversation between the IRS chief counsel's office and the Justice Department lawyers assigned to handle the Z Street case.

The case opens the door into the IRS destruction of evidence, setting up separate tort claims against those responsible.

And the Z Street case is not the only one where the government is on the hotseat respecting the IRS documents.

Internal Revenue Service officials will have to explain to a federal judge July 10 why the tax agency didn't inform the court that Lois Lerner's emails had been lost.

U.S. District Court for the District of Columbia Judge Emmett G. Sullivan quickly granted a motion filed earlier today by attorneys for Judicial Watch seeking a courtroom status conference “as soon as possible to discuss the IRS's failure to fulfill its duties to this court under the law, as well as other ramifications of this lawsuit.”

In its motion, the non-profit watchdog noted that the IRS publicly acknowledged loss of Lerner emails to and from individuals outside of the agency early in February 2014.

Then on Feb. 26, the tax agency provided its first production of documents in response to a Judicial Watch Freedom of Information Act lawsuit filed in October 2013.

No mention was made in that production of the lost Lerner emails, even though the original Judicial Watch FOIA lawsuit filed in May 2013 specifically sought them.

Judicial Watch further noted that "although IRS had knowledge of the missing Lois Lerner emails and of the other IRS officials, it materially omitted any mention of the missing records" in an April 30 status update on its document production. [snip]  The tax agency could also face court sanctions or even criminal proceedings if Sullivan is not satisfied with the government's explanation.

Judge Sullivan presided over the Department of Justice’s horrible prosecution of former Senator Ted Stevens (since reversed ) and should  by that experience hold no presumptions about the integrity of the government lawyers before him. He has seen the low ethical and professional caliber of those who handled that case, the worst example of prosecutorial misconduct outside of the Duke Lacrosse case in my memory.

3. Obama Twice Puts the NLRB’s work in Legal Limbo, Creating Yet More Chaos

While the public and Congress seem to have found the plethora of email eating computers incredible, the Supreme Court has now handed Obama what appears to be his 12th unanimous defeat, as even his handpicked members refuse to go along with his outrageous, overreaching executive conduct.

In 2010, after he could not get his appointments to the National Labor Relations Board, the NLRB attempted to operate without a legal quorum. After a successful challenge to that obviously illegal move, about 600 decisions the tribunal issued were of no legal effect. Most were never relitigated to the Board.

It speaks ill of the education Harvard Law School provided Obama that he hasn’t figured out that under our laws an illegally constituted tribunal is without effect but a scant two years later he repeated the error.

This latest defeat involves the president’s refusal in January 2012 to follow precedent respecting the Congress’s decision as to when it is in recess.

He made recess appointments to the National Labor Relations Board at a time when Congress explicitly denied it was in recess. It is a longstanding precedent of obvious merit in a system where power is divided among the three branches of government that the executive and judiciary must respect the procedural rules the legislature sets for itself. The Senate had sought a longer than three-day break and the House had refused to grant it. (Ironically, these short breaks were a tactic Senate Majority Leader Reid had devised to prevent President Bush from making recess appointments.) Now that the White House was in Democrat hands, the president felt free to ignore the Congressional jurisdiction to set its own rules about recesses and went ahead with appointments to the NLRB anyway.

(Subsequently Senate Majority Leader Harry Reid rammed through a provision to the Senate rules, making it harder thereafter for a minority party to filibuster presidential appointments. Thus, recess appointments are now less necessary for a president hoping to install unpopular candidates. My online friend Alex Bensky predicts, “If the GOP wins back the Senate this fall, Harry Reid and the Democrats will suddenly find that allowing filibusters in everything, specifically judicial appointments, is a cornerstone of democracy.”)

Obama’s improvident action and the Court’s rebuke now set hundreds of cases decided in the 19 months these unlawful appointments were in effect -- I’ve seen figures in the 430 case range -- in limbo. Approximately 100 of these cases are in court already having been challenged for the lack of a legal quorum and those challenges surely must be upheld under this ruling. As for the remainder, unless the losing party before the Board decides to simply comply,the Board will have to relitigate them, even if, as some have predicted, they result in similar outcomes. Relitigating so many matters will surely strain their operations and delay action on new matters,

However this turns out, the president’s petulance, disrespect for the coequal branches of government, and boundless view of his powers continues to add to the kinds of uncertainty and stasis that is so harmful to our economic and political life. His shortcomings deny him firm footing …they are a kind of quicksand into which he is rapidly sinking beyond rescue.

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