With the Supreme Court's 2013 term concluding on Monday, many Americans are assessing how they feel about the judicial branch of their government. Even if you are still reeling about some of the decisions made recently by the least dangerous branch, don't forget the executive. The president and his agencies can also make you wonder how the American experiment is panning out.
On Tuesday, U.S. District Judge Reggie Walton issued an order to hear oral arguments from lawyers representing the Internal Revenue Service and the conservative nonprofit True the Vote. True the Vote is one of the conservative groups claiming IRS improperly targeted its application for nonprofit status based on the group's political and philosophical affiliation. True the Vote filed a motion for a preliminary injunction and expedited discovery on Monday, calling for an independent forensics examination of any IRS hard drives, servers, or other computer hardware involved in the government agency's possible targeting of conservative nonprofits' applications for tax-exempt status. It wants an outside computer expert to try to ascertain how and when any electronic evidence, such as former IRS Commissioner Lois Lerner's emails, may have been lost. Also, it would be great if the government didn't spoliate — I mean "recycle" — any more evidence….
In its motion, True the Vote argues that the law obligated the IRS to preserve potentially relevant evidence, including electronically stored information. The IRS knew that the hard drives and emails of Lerner and other officials were of significant legal interest. By the time the agency supposedly began disposing of Lois Lerner's computer hardware, Congress was publicly investigating the IRS scandal. Pro-Israel group Z Street, Inc. filed suit in August 2010, alleging similar improper targeting as True the Vote claims. In September 2013, True the Vote itself sent a litigation hold letter to counsel for the IRS officials, including Lerner, who the group believed were involved in IRS wrongdoing. The government clearly had notice that the computer equipment and information should be preserved as potential evidence.
If the account alleged in True the Vote's motion is accurate, opposing counsel was none too cooperative. Despite earlier attempts to confer with IRS counsel, attorneys for True the Vote did not learn of the missing emails of Lois Lerner and other IRS officials until Friday, June 13, 2014, when news reports publicized the loss. On that day, IRS finally informed Congressional investigators that the agency could not recover two years' worth of Lerner's emails. Apparently, Lerner's hard drive crashed in 2011, its data was unrecoverable, and the government had no available back-ups.
Talk about bad luck — finding out on Friday the 13th that two years' worth of emails spanning the time period when you believe the federal government committed illegal acts have been "lost."
Of course, it is hard to believe in bad luck when federal-government malfeasance is involved. Did IRS officials violate True the Vote's constitutional rights by improperly singling out their application for tax-exempt status as the conservative group claims? Was this politically motivated targeting the result of overzealous lower-level employees? Did members of the Obama administration orchestrate this campaign to punish the administration's political enemies? We don't know. That's the kicker about the spoliation of evidence.
IRS explanations of how Lerner's emails during the crucial time period were lost have not inspired much confidence, under the circumstances. Perhaps the only reason to believe that the IRS and Obama administration are telling the truth about the lost evidence and the IRS scandal is that their explanations look so extraordinarily — almost laughably — suspicious that someone would have to have "courage" the size of the U.S. Treasury to claim such things with a straight face.
In June, U.S. Rep. Steve Stockman (R -TX) wrote a letter to Admiral Michael Rogers, Director of the National Security Agency, asking that NSA turn over all metadata the agency has collected from Lerner's email accounts from January 2009 to April 2011. Stockman's request was more clever political theatre than sincere attempt to recover relevant evidence. It is fitting, though. While one part of the federal government may be improperly amassing information on all of us, another part can't keep track of its own top officials' emails.
Last week, Texas Senator Ted Cruz (R – TX) called for Attorney General Eric Holder to appoint an unbiased special prosecutor or face impeachment proceedings. Cruz said that "conducting a nakedly partisan investigation to cover up political wrongdoing [ . . . ] by any reasonable measure constitutes high crimes and misdemeanors." Cruz criticized the Department of Justice's appointment of Obama donor Barbara Bosserman to head the IRS investigation. Cruz said, "Attorney General Eric Holder has the opportunity to do the right thing. He could appoint a special prosecutor with meaningful independence who is not a major Obama donor."
So, scrutiny of IRS officials continues apace. Counsel for IRS and True the Vote are set to appear before Judge Walton on July 11. We'll see what comes of True the Vote's push-back against the government.
In the meantime, whether you are still gritting your teeth over the Supreme Court's final decisions of OT 2013 or trying to swallow the IRS's intransigence or incompetence in "losing" Lois Lerner's email, you'll have the Fourth of July holiday to mull it over. Perhaps revisit and critique Federalist No. 69 or de Tocqueville’s Democracy in America (affiliate links) over the long weekend? Happy Independence Day.
Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school's law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She will be working at the Center for Legal Pedagogy at Texas Southern University during the 2013-2014 academic year. She looks forward to a career of teaching and writing about, but never practicing, law. You can reach her at firstname.lastname@example.org