Undemocratic: How Unelected, Unaccountable Bureaucrats Are Stealing Your Liberty and Freedom (Part 6) – Guest Essayist: Jay Sekulow
During the Watergate scandal, the press went into a veritable feeding frenzy when the Nixon White House reported that slightly more than eighteen minutes of tape recordings of a key conversation between President Richard Nixon and his chief of staff, H. R. Haldeman, were erased. The Nixon White House claimed it was an accident. This erasure contributed immeasurably to the perception that the president was corrupt and helped bring down a presidency that only two years earlier had won reelection in a historic landslide. (Ironically enough, one of the articles of impeachment 51 against Richard Nixon cited his attempts to use the IRS against his political enemies, attempts that were insignificant compared to the vast scope of actual IRS wrongdoing during the Obama administration.) Fast-forward to 2014, with the IRS facing allegations of wrong- doing that absolutely dwarfed in scale and scope any of the allegations against the Nixon administration, and it “lost” far, far more evidence than a mere eighteen-minute conversation.
Then it got worse. Much worse.
Days later, the IRS informed Congress that it lost emails from at least six more IRS officials, including Nikole Flax, the chief of staff to the former commissioner, and the very same individual who suggested roping the FEC into the IRS and DOJ’s scheme to launch made-up (excuse me, “pieced together”) prosecutions of conservative nonprofits.44
Computers are crashing all over the IRS.
This was astounding behavior from an agency that demands taxpayers—to paraphrase Comedy Central’s Jon Stewart—to become virtual “hoarders” of receipts and other records.
This from an agency that requires taxpayers to bear the burden of proof of their own expenses when it launches an audit, a departure from the constitutional norm that typically requires the government to bear the burden of proof when it accuses citizens of wrongdoing.
An ACLJ post from the week when this phase of the scandal broke got it exactly right: “The IRS claims that it stores voluminous amounts of email, yet just the important ones from what may be the largest IRS scandal in history seem to disappear.” 45
In response, the IRS touted its data-keeping prowess:
The IRS email system runs on Microsoft Outlook. Each of the Outlook email servers are located at one of three IRS data centers. Approximately 170 terabytes of email (178,000,000 megabytes, representing literally hundreds of millions of emails) are currently stored on those servers. For disaster recovery purposes, the IRS does a daily back-up of its email servers. The daily back-up provides a snapshot of the contents of all email boxes as of the date and time of the backup.46
Somehow, out of “170 terabytes of email” stored on its servers, the IRS managed to lose exactly the emails Congress most wanted to see. How convenient.
On July 9, 2014, the scandal expanded from emails to “OCS”— short for Microsoft Office Communications Server, the IRS’s internal instant messenger service. The House Oversight Committee released emails showing that a mere twelve days after the IRS learned that the Treasury inspector general was going to blow the lid off the Tea Party targeting scandal, Lois Lerner emailed an IRS IT professional asking this:
I had a question today about OCS [Microsoft Office Communications Server]. I was cautioning folks about email and how we have several occasions where Congress has asked for emails and there has been an electronic search for responsive emails—so we need to be cautious about what we say in emails. Someone asked if OCS conversations were also searchable—I don’t know, but told them I would get back to them. Do you know? 47
Here was the response:
No, the IRS does not routinely save chat communications— unless employees intentionally take steps to preserve their conversation. These chat communications are not saved— and this is critical—despite the fact that “the functionality exists within the software.” 48
Let’s be clear: This means that the IRS had the ability to save its internal “chat” communications, but chose not to do so. The “functionality” existed, but the IRS did not choose to use it.
Lois Lerner’s reply?
Yes, for Lerner it was perfect—the exact answer she needed to hear. She could “caution” her team to be careful in emails, she could “crash” her computer, and then she could still—at least for the time being—speak internally on a communications system that the IRS was choosing not to save.
Keep in mind also that Lerner was urging “caution” in response to knowledge that Congress would be performing its constitutional oversight responsibility. Unelected bureaucrats should not be “cautious” in dealing with the American people’s elected representatives; they should be transparent.
These revelations, taken together, provided a road map for other federal agencies to suppress or “lose” their own records of emails with Lois Lerner. And, yes, like clockwork the White House came forward days later to claim that it had done a comprehensive search of its own computer records and no one had ever emailed Lois Lerner.
So, here’s the timeline: the IRS takes a year to tell Congress it “lost” the key Lerner emails, while it took the White House just days to report that no Lois Lerner emails exist.
But what about emails with chief of staff Nikole Flax? She visited the White House thirty-one times, and some segments of her emails were lost as well.50 Did the White House thoroughly search for her communications?
During the Watergate scandal, the press went into a veritable feeding frenzy when the Nixon White House reported that slightly more than eighteen minutes of tape recordings of a key conversation between President Richard Nixon and his chief of staff, H. R. Haldeman, were erased.
The Nixon White House claimed it was an accident.
This erasure contributed immeasurably to the perception that the president was corrupt and helped bring down a presidency that only two years earlier had won reelection in a historic landslide.
(Ironically enough, one of the articles of impeachment 51 against Richard Nixon cited his attempts to use the IRS against his political enemies, attempts that were insignificant compared to the vast scope of actual IRS wrongdoing during the Obama administration.)
Fast-forward to 2014, with the IRS facing allegations of wrongdoing that absolutely dwarfed in scale and scope any of the allegations against the Nixon administration, and it “lost” far, far more evidence than a mere eighteen-minute conversation.
Yet aside from the indispensable conservative media, the mainstream media yawned, appearing to take at face value that, well, computers crash.
In 1974, dogged investigators hounded the president of the United States.
In 2014, aggrieved conservatives—victimized by a staggering amount of wrongdoing—could only turn to a Department of Justice so beset with its own partisan bias that it earns itself two entire chapters of this book, chapters that can expose only a small fraction of the department’s recent wrongdoing.
And how did the Department of Justice respond to the IRS wrongdoing? By appointing a dedicated partisan and Obama donor to “lead” the DOJ’s investigation of the IRS.52
Don’t forget that this is the same DOJ that was trying—just days before the attorney general ordered it to “investigate” the IRS—to “piece together” prosecutions of conservatives.
The conflict of interest was obvious. And it was left obviously unaddressed, and it still has not been addressed as this book goes to print.
A single chapter in a book cannot possibly do justice to the full extent of IRS malice as it assaulted President Obama’s political opponents. Those familiar with the scandal will read this book and immediately think of multiple additional incidents.
But the purpose of this book is not to provide the final word on the IRS’s political corruption. Indeed, even as I write, litigation is ongoing—litigation that is revealing new facts every day. The purpose of this book is to show—agency by agency—how our federal bureaucracy is corrupting the rule of law, threatening our democracy, and acting with unchecked arrogance and malice.
And lest you think the arrogance and malice are confined to the government’s treatment of conservatives, think again.
I’m not even finished talking about the IRS.
Jay Sekulow is Chief Counsel of the American Center for Law and Justice (ACLJ), which focuses on constitutional law. The ACLJ represents dozens of organizations that were unlawfully targeted by the IRS. Jay is a New York Times bestselling author. His latest book “UNDEMOCRATIC: How Unelected, Unaccountable Bureaucrats Are Stealing Your Liberty and Freedom” is available now. He hosts “Jay Sekulow Live”– a daily radio show which is broadcast on more than 850 stations nationwide as well as Sirius/XM satellite radio. Follow him on Twitter @JaySekulow.
Excerpt provided by Howard Books, an imprint of Simon & Schuster.
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This might already be in Jay Sekulow’ book or perhaps somewhat too new of a development, but it came out that the inspector general handling the IRS email investigation learned of more backup tapes. Upon going to the facility the backup tapes are kept, the IT staff said that the IRS never asked for them to honor the effort to produce them to Congress: