Court Grants Judicial Watch Hearing over Missing IRS Emails

Judicial Watch filed a Motion for Status Conference in the United States District Court for the District of Columbia to confer about the emails of Lois Lerner and other IRS officials, which were the subject of longstanding Judicial Watch Freedom of Information Act (FOIA) requests and a lawsuit, and which the IRS now claims to have “lost” (Judicial Watch v. IRS (No. 1:13-cv-1559)). U.S. District Court Judge Emmet G. Sullivan almost immediately granted our request and ordered a federal court hearing on the missing IRS emails be set for July 10!

The emails Judicial Watch has sought since May 2013 cover portions of the same period for which the IRS on June 13, 2014 notified the House Committee on Ways and Means were lost or destroyed. Yet, as we informed the Judge Sullivan today, the IRS failed to notify either Judicial Watch or the court concerning the “lost” emails:

Plaintiff’s FOIA requests and the Committee’s request indisputably seek the same emails of Lois Lerner and the other IRS officials, including Nikole Flax, from January 1, 2010 to the present. Despite the obvious relevance, IRS has still not notified the Court or Plaintiff of the destruction of emails and whether the same issues relating to production of emails of Lois Lerner or the other six IRS officials exist in this lawsuit. Plaintiff only learned of the destroyed records on June 13, 2014, when the news media reported on the existence of IRS’s letter to Congress about the status of the emails.

In May 2013, Judicial Watch submitted four separate FOIA requests for IRS communications concerning the review process for organizations seeking tax exempt status. One of the FOIA requests specifically sought Lerner’s communications with other IRS employees and with any government or private entity outside the IRS regarding the review and approval process for 501(c)(4) applicants from January 1, 2010, to the present. A second request sought communications for the same time frame between the IRS and members of Congress and other government agencies, as well as any office of the Executive Branch. After the IRS failed to provide the information, Judicial Watch filed a FOIA lawsuit on October 9, 2013.

And there is little doubt that our FOIA lawsuit led to the discovery of the “lost” emails:

As revealed in the announcement by the Committee, IRS confirmed that it first knew of the lost emails in February 2014. See Exhibit 3. This was during the same time frame IRS made its first production of responsive records to Plaintiff in this case on February 26, 2014. See IRS’ Status Update Report (ECF No. 15). The timing of these events reveals that the discovery of the supposedly lost emails was triggered by this lawsuit. However, IRS has still not informed this Court or Plaintiff regarding the missing emails in this litigation.

And, to put it charitably, the IRS subsequently may have intentionally omitted material information from the court:

On April 30, 2014, IRS submitted its Status Update to the Court (ECF No. 15) regarding its ongoing search and production in this case, which was after the discovery of the missing records. 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 its Status Update.

This FOIA lawsuit led to key revelations, including emails showing that, in response to pressure from Senate Democrats, the IRS and Lerner communicated with the Department of Justice about possibly prosecuting tax-exempt groups involved in political speech. And last month, the lawsuit forced the release of IRS documents showing, contrary to what President Obama has said, the delays of Tea Party applications were directed out of the agency’s headquarters in Washington, D.C. The documents also show extensive pressure on the IRS by Senator Carl Levin (D-MI) to shut down conservative-leaning tax-exempt organizations.

It is well past time for the Obama administration to answer to a federal court about its cover-up and destruction of records.

On October 21, 2013, Judicial Watch released email exchanges between Lerner and enforcement attorneys at the Federal Election Commission (FEC) indicating that the IRS provided detailed, confidential information concerning the tax exempt application status and returns of conservative groups to the FEC in violation of federal law. Included with the email exchanges were IRS questionnaires to a conservative group that contained questions of a hostile nature. The emails were produced to Judicial Watch by the FEC in response to an August 9, 2013, FOIA request. By the way, none of these FEC emails with Lerner have been produced by the IRS.