The IRS Scandal, Day 412

That was quick. During a congressional hearing Monday night, IRS Commissioner John Koskinen — an attorney — asserted the IRS had done nothing criminal. Rep. Trey Gowdy (R-SC), then asked what criminal statutes he relied on to reach that judgment. Koskinen admitted he hadn’t looked at any. Less than 24 hours later, America’s top official for archiving federal records, David Ferriero, appeared before Congress. He said the IRS “did not follow the law.” Not that this will have much effect on Commissioner Koskinen, as smug and imperious as any bureaucrat you will meet. Throughout these hearings, he’s come across less as a professional determined to restore the good name of the IRS than a Democratic Party hack who thinks the IRS is the victim here. The IRS is spinning a tale of bureaucratic incompetence to explain the vanishing emails from former Tax Exempt Organizations doyenne Lois Lerner and six other IRS employees. We have less faith by the minute that there is an innocent explanation for this failure to cooperate with Congress, but even if true it doesn't matter. The IRS was under a legal obligation to retain the information because of a litigation hold. 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. ...

Attorney General Eric Holder won't name a special prosecutor, but there's still plenty of room for the judge in the Z Street case to force the IRS to explain and answer for its "willful spoliation" of email evidence.