- The Washington Times - Monday, July 7, 2014

Two conservative groups have earned court time this week over cases tied to the missing emails of former IRS employee Lois G. Lerner, moving the matter from Capitol Hill to the courtroom.

Legal watchdog group Judicial Watch and voter-rights group True the Vote are pursuing separate cases trying to get to the bottom of Ms. Lerner’s emails and the IRS’s targeting of conservative and tea party groups.

Judicial Watch, which has forced release of a number of key IRS documents in the scandal, said the agency broke the law by not informing them of Ms. Lerner’s 2011 computer hard drive crash, which IRS officials say has likely caused some of her emails to be lost forever.

A status conference for Judicial Watch’s case — a lawsuit against the IRS for failing to comply with Freedom of Information Act requests — is scheduled for Thursday.

Meanwhile, True the Vote, which argues it was unfairly targeted, wants the court to order an independent examination of IRS computers “to prevent any further destruction of evidence, whether inadvertent or intentional.”

A hearing on True the Vote’s motion is scheduled for Friday.

The moves come after IRS Commissioner John Koskinen and Republicans on Capitol Hill have repeatedly clashed over the lost emails and over whether the agency took enough steps to try to recover them.

But Daniel J. Metcalfe, who served as the founding director of the Justice Department’s Office of Information and Privacy for more than 25 years, said even Mr. Koskinen could only provide so much information.

“You don’t want the guy at the top who doesn’t have direct knowledge of anything. You want the electronic records manager — the guy to whom Lois Lerner and any other crash victims would have gone for email restoration so that they could continue their work,” said Mr. Metcalfe, now the executive director of the Collaboration on Government Secrecy at American University’s Washington College of Law.

“It does seem quite suspicious that the employees engaged in controversial activities here had computer crashes, as opposed to there being a systemic crash. And it is awfully suspicious that the agency has been unable to reconstruct through a back-up system what it says was lost,” he said.

Judicial Watch, a conservative group that advocates for more government transparency, had sought communications from Ms. Lerner and other IRS employees regarding the review and approval process for tax-exempt organizations and sued in October, after which the agency began to produce some records on a rolling basis.

Ms. Lerner ran the division of the IRS that improperly scrutinized tea party and conservative groups’ applications for tax-exempt status.

The group said the IRS’s “apparent destruction” of records and failure to notify the court of the missing emails necessitated an immediate conference.

True the Vote, a group that works to pass stronger voter ID laws, first sued the IRS last May in a bid to secure its tax-exempt status, which was subsequently granted in November.

District Judge Emmet G. Sullivan, who granted the hearing in Judicial Watch’s case, also appointed a special prosecutor to investigate the corruption trial of former Alaska Sen. Ted Stevens and upbraided federal prosecutors for intentionally withholding evidence when he threw out Mr. Stevens’ convictions on charges of ethics violations.

But Carl Tobias, a professor at the University of Richmond School of Law, said federal judges are reluctant to enter a political fight unless it’s really necessary.

“I doubt that the federal judges, especially on the D.C. District, will want to be embroiled in a political dispute that may be resolving itself without too much judicial intervention,” Mr. Tobias said.

The IRS said it does not comment on pending litigation.

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