[Jonathan H. Adler] Even if accidental, the loss of Lois Lerner’s e-mails is evidence of problems at the IRS

Last Friday it was revealed that approximately two-years worth of Lois Lerner’s e-mails at the Internal Revenue Service were lost due to a hard drive failure.  This revelation would have raised eyebrows even were the timing not incredibly convenient.  The hard drive crash occurred approximately ten days after Congress first inquired about the targeting  of conservative non-profits.  And, despite dozens of Congressional inquiries, the loss of e-mails relevant to multiple congressional investigations was not revealed until last week.    Were that not enough, subsequent reports suggest the IRS has lost e-mails from six others also implicated in the alleged targeting of conservative groups.  One need not be skeptical hippo to be skeptical.

Are there potentially innocent explanations? Yes, if by “innocent” one means that the e-mail loss is due to incompetence and bureaucratic short-sightedness rather than malfeasance.  Megan McArdle explains:

As it happens, I used to administer just the sort of e-mail systems that the IRS seems to be using. So I fired off a set of queries to the IRS about its e-mail system, its archiving policies and how the loss of data happened. Many of those queries remain unanswered, but I was given some documents that explain how the files could have been lost. My conclusion: It is plausible that this was an innocent coincidence. But it is only plausible if the IRS is managing its IT systems so badly that it is very easy to lose critical records — or for abusive employees to destroy the evidence of their misbehavior. A private company under investigation that responded to regulators, or a judge, with this sort of explanation rather than producing the requested documents would rightly expect to be handed an adverse judgment or a whopping fine. This incident should be thoroughly investigated, and steps should be taken throughout the government to make sure that no similar incident can ever happen again. . . .

To believe the IRS requires a pretty low opinion of government competence. My friends who work in regulated sectors such as finance are outraged by the IRS’s description of how it was running its backup process, because the government subjects them to constantly ratcheting standards for document retention — specifying how long, and on what format, they have to keep every communication ever generated by their firms. How dare they demand higher standards of regulated companies than they do of the regulators?

In 2014, every government agency should be storing every e-mail that goes in or out in an easily accessible format. That they weren’t bothering suggests that the IRS does not expect to deliver the kind of accountability that it routinely demands of taxpayers. That’s potentially a much bigger problem than anything Lois Lerner stands accused of — and it should be rectified, government-wide, with all due speed.

As always, TaxProf Paul Caron has compiled the latest news and commentary on the IRS scandal, as he does every day.  By his count, this is day 404 of the IRS scandal.  How many more will there be before we know what really happened?

Jonathan H. Adler teaches courses in constitutional, administrative, and environmental law at the Case Western University School of Law, where he is the inaugural Johan Verheij Memorial Professor of Law and Director of the Center for Business Law and Regulation. He clerked for Judge David B. Sentelle on the U.S. Court of Appeals for the D.C. Circuit and is a Senior Fellow at the Property & Environment Research Center in Bozeman, Montana. Follow: @jadler1969

UGC FROM ARTICLE: !!!

FINAL commentConfig: {includereply=true, canvas_permalink_id=washpost.com/8bvh5zpd9k, allow_comments=true, commentmaxlength=2000, includeshare=true, display_comments=true, canvas_permalink_app_instance=bg52e9xhqr, display_more=true, moderationrequired=false, includefeaturenotification=true, canvas_allcomments_id=washpost.com/km4ey0dajm, comments_period=14, defaultsort=reverseChronological, includevoteofftopic=false, allow_videos=false, includesorts=true, markerdisplay=post_commenter:Post Commenter|staff:Post Writer|top_commenter:Post Forum|top_local:Washingtologist|top_sports:SuperFan|fact_checker:Fact Checker|post_recommended:Post Recommended|world_watcher:World Watcher|cultuer_connoisseur:Culture Connoisseur|weather_watcher:Capital Weather Watcher|post_contributor:Post Contributor, childrenitemsperpage=3, includeheader=true, includeverifiedcommenters=true, defaulttab=all, includerecommend=true, includereport=true, maxitemstop=2, source=washpost.com, allow_photos=false, maxitems=7, display_ugc_photos=false, includepause=true, canvas_allcomments_app_instance=6634zxcgfd, includepermalink=false}!!

UGC FROM ARTICLE: !!!

FINAL commentConfig: {includereply=true, canvas_permalink_id=washpost.com/8bvh5zpd9k, allow_comments=true, commentmaxlength=2000, includeshare=true, display_comments=true, canvas_permalink_app_instance=bg52e9xhqr, display_more=true, moderationrequired=false, includefeaturenotification=true, canvas_allcomments_id=washpost.com/km4ey0dajm, comments_period=14, defaultsort=reverseChronological, includevoteofftopic=false, allow_videos=false, includesorts=true, markerdisplay=post_commenter:Post Commenter|staff:Post Writer|top_commenter:Post Forum|top_local:Washingtologist|top_sports:SuperFan|fact_checker:Fact Checker|post_recommended:Post Recommended|world_watcher:World Watcher|cultuer_connoisseur:Culture Connoisseur|weather_watcher:Capital Weather Watcher|post_contributor:Post Contributor, childrenitemsperpage=3, includeheader=true, includeverifiedcommenters=true, defaulttab=all, includerecommend=true, includereport=true, maxitemstop=2, source=washpost.com, allow_photos=false, maxitems=7, display_ugc_photos=false, includepause=true, canvas_allcomments_app_instance=6634zxcgfd, includepermalink=false}!!