US archivist says IRS didn’t follow law

Former IRS counsel Jennifer O’Connor (from left), archivist David Ferriero, and records officer Paul Wester were sworn in to testify at a House committee hearing Tuesday.
Former IRS counsel Jennifer O’Connor (from left), archivist David Ferriero, and records officer Paul Wester were sworn in to testify at a House committee hearing Tuesday.

WASHINGTON — 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 Tuesday.

‘‘Any agency is required to notify us when they realize they have a problem,’’ David Ferriero, Archivist of the United States, said during a House Oversight and Government Reform committee hearing.

In June 2011, former IRS executive Lois Lerner’s computer crashed, resulting in the loss of records that are sought in investigations into the agency targeting conservative groups seeking tax-exempt status. At the time, the agency tried to recover the records, but without success.


Republicans have questioned the timing of the hard drive crash, suggesting key records sought in the investigation have conveniently gone missing.

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In a rare evening hearing before the same committee Monday, IRS Commissioner John Koskinen said that he has seen no evidence anyone committed a crime when the agency lost e-mails that might shed light on the targeting of Tea Party and other political groups before the 2010 and 2012 elections.

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.

‘‘Federal agencies are responsible for preventing the unauthorized disposition of federal records, including their unlawful or accidental destruction, deletion, alteration, or removal from federal custody,’’ he said. ‘‘When an agency becomes aware of an incident of unauthorized destruction, they must report the incident to us.’’

The National Archives and Records Administration did not learn about the lost records until this month, Ferriero said.


Tuesday’s was the third hearing held since it was disclosed on June 13 that some of Lerner’s e-mails were missing becasue of a hard drive failure. Lerner has refused to answer questions, citing her Fifth Amendment right not to incriminate herself.

Monday night, the committee chairman, Representative Darrell Issa of California, 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, Issa called O’Connor 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 is a ‘‘noncooperative witness.’’


House Speaker John Boehner, an Ohio Republican, said Tuesday that the Obama administration is not helping Congress get to the truth over the tax agency’s close scrutiny of conservative groups and its recent revelation that it lost e-mails related to that inquiry.

‘‘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,’’ Boehner said. ‘‘Lois Lerner refuses to tell us the truth, and then all of sudden, ‘Oh my goodness, we lose two years’ worth e-mails.’ Listen, I grew up in a bar, this doesn’t pass the straight face test.’’

Lerner headed the division that processes applications for tax-exempt status. The Oversight Committee is investigating the handling of applications from Tea Party and other political groups. In May, the House voted to hold Lerner in contempt of Congress. Congressional investigators want Lerner’s e-mails to see whether there is evidence that anyone outside the IRS was involved.

Koskinen said there was no evidence Lerner intentionally destroyed the e-mails. 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.