Lois Lerner Missing Emails – what is fair, and what is not – and the IRS has explaining to do, including the IRS Commissioner


Yes, it is weird.  The missing Lois Lerner emails are from the key time period (January 09 to summer 2011.)

But, it appears, as best I can sort out now, that Lois Lerner’s emails were destroyed and she notified the IT department at the IRS months before the IRS scandal broke, and thus before the investigation begun.  Hence…unless she could see into the future, and knows how to destroy hard drives, it seems unlikely to me that she destroyed them deliberately in anticipation of the investigation.  I also don’t know how you crash your hard drive to create this problem – maybe you do, but I don’t.

But even if unintentional, and even if not some grand conspiracy to destroy the emails, the IRS and Lois Lerner still have a big problem. It is fair to draw an adverse inference from their loss and destruction that the IRS now has the burden to rebut.  It is fair to assume that the emails, had they been retained as required, would have hurt her case, not helped.

Just saying the records are lost does not get the IRS off the hook. It does the oppposite. It shifts the burden of proof to the IRS so now they have to prove no corruption. So…IRS…get busy! We are waiting. And what happens if the IRS asks how to prove the missing emails were not evidence of corruption? That’s their problem since they lost the emails and have a duty to preserve them. (By the way, in the courtroom we have a rule called ‘the missing evidence rule’ which speaks to this very problem of evidence in control of one party that is destroyed or lost.)

I also think it fair to consider how the IRS treats taxpayers when taxpayers say they have innocently lost documents that would prove some tax matter. The burden is on the taxpayer just like the burden now is on the IRS for their lost or destroyed records.

As an aside, it is pretty rotten that often the IRS won’t cut taxpayers slack for innocent loss of tax records yet now they want slack from the American people for their destroyed Lerner emails. Go figure. (And in a weird twist of irony, the IRS Exemption Unit at the heart of this scandal kept demanding more and more documents from the Tea Party organizations seeking exemptions and apparently never satisfied or convinced by the documents produced. Yes, the IRS wanted documented proof to be convinced of qualification of exemption and now the American people want the same, they want documented proof – emails – that Lois Lerner was not up to her eyeballs in IRS corruption. And if they can’t come up with those emails, they need to figure out how else to prove this is not corruption.)

One other thing…what is up with the Commissioner of the IRS? In February he said it would take 2 years to produce the Lerner emails and in February the IRS was well aware of their total destruction.

This is a serious scandal (targeting) and we need an aggressive investigation. That includes efforts to try and locate Lois Lerner’s now missing emails from IRS computers. She sent those emails to someone, so the net needs to be broadened. We know she communicated with some at the FEC, so start searching FEC computers during the relevant time.