Archivist: IRS didn't follow law with lost emails

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Archivist: IRS didn't follow law with lost emails
Sen. Charles Grassley, R-Iowa is seen on Capitol Hill in Washington. (AP Photo/Susan Walsh)
Lois Lerner, former director of the Tax Exempt and Government Entities Division at the Internal Revenue Service(IRS), listens during a hearing of the House Oversight and Government Reform Committee on Capitol Hill March 5, 2014 in Washington, DC. Chairman Darrell Issa(R-CA) questioned witness Lerner, to see if the Internal Revenue Service has been targeting US citizens based on their political beliefs. Lerner invoked her Fifth Amendment right not to testify. AFP PHOTO/Brendan SMIALOWSKI (Photo credit should read BRENDAN SMIALOWSKI/AFP/Getty Images)
Members of the media follow Lois Lerner, the director of the Internal Revenue Service's (IRS) exempt organizations office, left, after a House Oversight and Government Reform Committee hearing in Washington, D.C., U.S., on Wednesday, May 22, 2013. Lerner, the mid-level IRS official at the center of a controversy over treatment of small-government groups, invoked her right not to testify after reading a statement denying that she had committed any crimes. Photographer: Pete Marovich/Bloomberg via Getty Images
WASHINGTON, DC - APRIL 10:Committee chairman Darrell Issa (R-CA) looks on during a House Oversight Committee meeting to determine whether or not to hold IRS Official Lois Lerner in contempt, on Capitol Hill, April 10, 2014 in Washington, DC. After debate, the committee voted 21-12 to hold her in contempt and refer the matter to the full House of Representatives. (Photo by Drew Angerer/Getty Images)
Lois Lerner, former director of the Tax Exempt and Government Entities Division at the Internal Revenue Service(IRS), is re-sworn-in for a continuation of a hearing of the House Oversight and Government Reform Committee on Capitol Hill March 5, 2014 in Washington, DC. The committee held the hearing to see if the Internal Revenue Service has been targeting US citizens based on their political beliefs. Lerner once again invoked her Fifth Amendment right not to testify. AFP PHOTO/Brendan SMIALOWSKI (Photo credit should read BRENDAN SMIALOWSKI/AFP/Getty Images)
Lois Lerner, the director of the Internal Revenue Service's (IRS) exempt organizations office, listens during a House Oversight and Government Reform Committee hearing in Washington, D.C., U.S., on Wednesday, May 22, 2013. Lerner, the mid-level IRS official at the center of a controversy over treatment of small-government groups, invoked her right not to testify after reading a statement denying that she had committed any crimes. Photographer: Pete Marovich/Bloomberg via Getty Images
The Internal Revenue Service (IRS) headquarters stands in Washington, D.C., U.S., on Wednesday, May 15, 2013. The widening inquiries into the IRS are focusing less on why employees singled out small-government groups for scrutiny and more on agency executives who didn't inform Congress earlier. Photographer: Andrew Harrer/Bloomberg via Getty Images
This Thursday, Jan. 9, 2013 photo, shows a 2013 1040-ES IRS Estimated Tax form at H & R Block tax preparation office in the Echo Park district of Los Angeles. “The United States income tax is a pay-as-you-go tax, which means that tax must be paid as you earn or receive your income during the year,” the IRS says. “You can either do this through withholding or by making estimated tax payments.” (AP Photo/Damian Dovarganes)
Internal Revenue Service Commissioner John Koskinen is sworn in on Capitol Hill in Washington, Wednesday, March 26, 2014, prior to testifying before the House Oversight Committee hearing probing whether tea party groups were improperly targeted for increased scrutiny by the government’s tax agency. Earlier this month, IRS official Lois Lerner was called to testify about the controversy but refused to answer questions by committee Chairman Darrell Issa, R-Calif., and invoked her Fifth Amendment rights at least nine times. (AP Photo/J. Scott Applewhite)
In this Thursday, Jan. 9, 2013 photo, H & R Block public accountant, John Lee, explains how to file the 2013 1040-ES IRS Estimated Tax forms at his H & R Block tax preparation office in the Echo Park district of Los Angeles. “The United States income tax is a pay-as-you-go tax, which means that tax must be paid as you earn or receive your income during the year,” the IRS says. “You can either do this through withholding or by making estimated tax payments.” (AP Photo/Damian Dovarganes)
Tea party activists attend a rally on the grounds of the U.S. Capitol in Washington, Wednesday, June 19, 2013. The IRS has been under fire from Democrats and Republicans in Congress since May, when one of its officials publicly apologized for targeting conservative groups' applications for tax-exempt status for close examination. (AP Photo/J. Scott Applewhite)
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By Eileen Sullivan

WASHINGTON (AP) -- The Internal Revenue Service did not follow the law when it failed to report the loss of records belonging to a senior IRS executive, the nation's top archivist told Congress on Tuesday, in the latest development in the congressional probe of the agency's targeting of conservative groups seeking tax-exempt status.

In June 2011, IRS executive Lois Lerner's computer crashed, resulting in the loss of records that are sought in investigations into the agency's actions. At the time, the agency tried to recover Lerner's records, but with no success.

When it was determined later in the summer of 2011 that the records on the hard drive were gone forever, the IRS should have notified the National Archives and Records Administration, U.S. Archivist David Ferriero told members of the House Oversight and Government Reform Committee. But Ferriero learned of the lost records on June 13 when the IRS notified Congress.

"Any agency is required to notify us when they realize they have a problem," Ferriero said.

Lerner is at the center of the controversy and has refused to answer questions from Congress, citing her Fifth Amendment right not to incriminate herself. In May, the House voted to hold Lerner in contempt of Congress. She retired from the IRS last fall after having been placed on paid leave.

In an effort to determine whether the Obama administration had any knowledge or involvement in the activities of the IRS division that reviews applications for tax-exempt status, lawmakers have sought and received thousands of IRS records - none of which has implicated the White House in the controversy. But when it was revealed that some of the emails sought were unrecoverable, Republicans questioned the timing of the hard drive crash, suggesting key records related to the investigation have conveniently gone missing.

IRS Commissioner John Koskinen has said that he has seen no evidence anyone committed a crime when the agency lost emails.

Pressed by a congressman Tuesday, Ferriero would not state that the IRS broke the law. He would only say that the agency didn't "follow" the law, referring to the Federal Records Act.

In a rare evening hearing before the same committee on Monday, Koskinen said there was no evidence that Lerner intentionally destroyed the missing emails. To the contrary, he said, the IRS went to great lengths trying to retrieve lost documents on Lerner's computer, even sending it to the agency's forensic lab.

Republicans have said the Obama administration has not been cooperative with Congress' investigation.

"They've not only not fully cooperated, they haven't done a damn thing to help us get to the truth of what really happened," said House Speaker John Boehner, R-Ohio. "Lois Lerner refuses to tell us the truth, and then all of sudden, `Oh my goodness, we lose two years' worth emails.' Listen, I grew up in a bar. This doesn't pass the straight-face test."

Monday night, House Oversight Committee Chairman Darrell Issa, R-Calif., subpoenaed White House counsel Jennifer O'Connor to testify about her time at the IRS from May to November 2013. While at the IRS, O'Connor helped the agency gather documents related to the congressional investigation.

On Tuesday, when he questioned O'Connor, Issa called her a "hostile witness."

O'Connor disagreed. "I'm definitely not hostile," she said.

Later in the hearing, Issa said he consulted with another member who is a former prosecutor and the proper term to describe O'Connor was a "non-cooperative witness."

White House spokesman Josh Earnest said the White House has been cooperating throughout the investigation.

"Our commitment to cooperating with legitimate congressional oversight and in some cases illegitimate congressional oversight is pretty well documented," Earnest said. Asked if the House Oversight and Government Reform committee's investigation was "illegitimate," Earnest said, "I'm saying that there are legitimate questions that can be raised about the partisan motivation of some of those who are conducting oversight in this circumstance."

The IRS was able to generate 24,000 Lerner emails from the 2009 to 2011 period because she had copied in other IRS employees. Overall, the IRS said it is producing a total of 67,000 emails to and from Lerner, covering the period from 2009 to 2013.

The IRS inspector general is investigating the lost emails, Koskinen said.

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