90 Miles From Tyranny

Monday, June 30, 2014

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U.S. Rep. Marsha Blackburn

It is with a heavy heart and disappointment that I write this. In May 2013, we confirmed the IRS was targeting conservative nonprofit groups. We were originally told this was the work of two rogue employees in Cincinnati. However, as Congress and others have worked to peel back the layers, we learned this activity originated in Washington, D.C., and involved coordination between multiple agencies.

In addition, a senior Internal Revenue Service official has twice stood before Congress and invoked the Fifth Amendment. IRS Commissioner John Koskinen has stated that House Oversight and Government Reform Committee Chairman Darrell Issa’s investigation would produce “a lot of irrelevant, vast volumes of material.” Last week, Koskinen testified that the IRS lost volumes of Lois Lerner’s emails and that the hard drive to her computer had been “destroyed.” Given these facts, I believe a special counsel should be appointed.

The power for appointing a special counsel rests with the U.S. attorney general. First, a “criminal investigation” must be “warranted.” Second, the prosecution would raise a “conflict of interest” for the Department of Justice. Third, the “public interest” is best served by the appointment of a special counsel.

While Lerner has every right to plead the Fifth, Congress is not a court of law and we have every right to speculate about her reasons for doing so. Silence can be deafening.

Recently, it was revealed that Lerner sent an email titled “DOJ Call” on May 8, 2013, to Nikole Flax, chief of staff to acting IRS Commissioner Steven Miller at the time. Lerner advised that she received a call that day from Richard Pilger, director of the election crimes branch at the Department of Justice. Pilger inquired how DOJ could work with the IRS to construct criminal cases against nonprofits they believed were engaged in political activity.

Lerner had already clarified that conservative nonprofits were being targeted when she wrote “Tea Party Matter very dangerous” in a Feb. 1, 2011, email. Pilger told her “DOJ is feeling like it needs to respond” to a “Senator Whitehouse idea” raised at a congressional hearing. Pilger’s actions are troubling. They suggest the existence of a coordinated effort between the IRS and Department of Justice to criminally prosecute conservative groups. This presents a serious conflict of interest. Attorney General Eric Holder should recuse himself out of an abundance of caution.

I believe the public interest would be well served by appointment of a special counsel. The pile of evidence suggesting that conservative organizations were unfairly targeted has left a cloud of corruption hovering over the IRS. People have always feared the IRS. It has access to sensitive financial information of millions of Americans and the authority to enforce its mandate through audits and the seizure of taxpayer money. Also, Koskinen’s comments suggest that he will not seriously comply with congressional subpoenas.

The Internal Revenue Service (IRS) is currently claiming that seven different IRS officials experienced computer crashes that erased their emails and made it impossible for the IRS to cooperate with congressional investigations into the IRS targeting matter.

The wave of computer crashes apparently struck both Washington, D.C. — where Lois Lerner oversaw the agency’s Exempt Organizations division — and also Cincinnati, Ohio — where agents processed tax-exempt applications.

The Federal Records Act requires IRS employees to save all of their emails pertaining to agency business and to also print those emails out in case they have a computer crash.

IRS commissioner John Koskinen claimed in testimony in March that the IRS employees’ emails were saved on servers, but then testified this month that he doesn’t know of any “magical way” to get the missing emails back.

The IRS canceled its six-year business relationship with the email-archiving firm Sonasoft in September 2011, weeks after Lerner’s computer crash, and also prematurely retired data storage devices at its IT offices in Maryland.

Here are the seven IRS employees who could use a tutorial on hard drive-fixing:

Lois Lerner: Lerner was the Washington-based head of the IRS Exempt Organizations division until her recent resignation. Lerner originally apologized in May 2013 for targeting conservative groups, but later attested to her innocence and repeatedly pleaded the Fifth at House Oversight hearings. The House of Representatives voted in May to hold Lerner in contempt of Congress. New IRS commissioner John Koskinen testified that nobody at the IRS tried to extract any emails from a six-month backup disk after Lerner’s computer hard drive allegedly crashed in June 2011. Lerner’s hard drive was “recycled.” Lerner and her attorney husband Michael Miles live on a $2.4 million property in Bethesda, Maryland.

Nikole Flax, former chief of staff to IRS commissioner Steven Miller: Flax was a busy bureaucrat during her tenure at the IRS, where she worked for Lerner in the exempt organizations division among other roles. Flax made 31 visits to the White House between July 12, 2010 and May 8, 2013, according to White House visitor logs. Flax’s visits started in the early days of the IRS targeting program and ended just two days before the IRS scandal broke on May 10, 2013. Flax met twice in the Eisenhower Executive Office Building with Jeanne Lambrew, a top adviser to President Obama who exchanged confidential information on conservative groups with Lerner.

Flax previously worked at the Joint Committee on Taxation as a legislative counsel, but left about six years ago, sources told TheDC. Flax attended Louisiana State University. She is married to Ryan H. Flax, a litigation consultant at the Washington firm A2L Consulting and a former intellectual property lawyer at the major D.C. law firm Dickstein Shapiro. The couple live in Chevy Chase, Maryland. Reached by phone, Ryan Flax declined to comment for this report, telling TheDC that he is “not really a part of this [controversy].”

Michelle Eldridge, IRS national media relations chief: This 23-year IRS veteran was tasked with defending the IRS when it came under scrutiny in 2012 for whistleblower reprisal from its inspector general and from Republican Sen. Chuck Grassley, who Lerner tried to target, and when it was revealed in 2013 that the agency leaked confidential information on conservative groups to the liberal nonprofit ProPublica. Eldridge visited the White House on March 22, 2010, to meet with Vice President Joe Biden’s scheduling director Alex Hornbrook.