Judge sides with IRS in search for Lerner emails
By Bernie Becker - 08/07/14 06:01 PM EDT
A federal judge on Thursday delivered an early setback to a conservative group’s lawsuit against the IRS, denying a request to allow an independent expert to search for former agency official Lois Lerner’s missing emails.
Judge Reggie Walton of the U.S. District Court in Washington ruled that the conservative group, True the Vote, had provided no evidence that the IRS had already intentionally destroyed evidence or would do so in the future.
He added that approving True the Vote’s request could jeopardize the confidentiality of taxpayer information, and complicate the efforts of an inspector general currently investigating what happened to Lerner’s emails.
“The public interest weighs strongly against the type of injunctive relief the plaintiff seeks,” Walton, a George W. Bush nominee, wrote in his 17-page opinion filed Thursday.
Cleta Mitchell, a lawyer for True the Vote, on Thursday downplayed the significance of Walton’s ruling, saying the judge had only rejected their request for expedited assistance.
The government has asked the court to dismiss True the Vote’s lawsuit, a request that Mitchell said could be ruled on shortly. If Walton allows the suit to continue, Mitchell said that True the Vote would have other opportunities to get the independent forensic expert and other relief it requested.
In addition to the forensic expert, True the Vote had asked Walton to force the IRS to preserve all relevant documents for its lawsuit.
That request came after the IRS told lawmakers in June that Lerner’s hard drive crashed in 2011, leaving an untold number of her emails missing.
Lerner, who retired in September 2013 after leading an IRS division overseeing tax-exempt groups, has emerged as the central figure in the controversy surrounding the agency’s improper scrutiny of Tea Party groups.
House Republicans have both voted to find Lerner in contempt of Congress and urged the Justice Department to prosecute her in the 15 months since she became the first IRS official to apologize for the agency’s treatment of conservative groups.
In recent months, her lost emails have given the congressional investigations into the IRS new intensity, with the agency’s commissioner, John Koskinen, facing repeated grillings on Capitol Hill.
But Walton said Thursday that True the Vote, which received tax-exempt status last year, had fallen short of what he admitted was a high bar: showing that the group would face “irreparable harm” if the court didn’t rule in its favor.
True the Vote had argued that Lerner’s emails might never be recovered unless the court acted, and that documents would continue to disappear unless Walton ordered the IRS to keep them safe.
Walton instead decided to defer to Treasury’s inspector general for tax administration, the watchdog that first outlined the IRS’s treatment of Tea Party groups.
The judge had hinted in a July hearing that he would give precedence to the government watchdog. The inspector general later told the court, under oath, that it had put 15 staffers onto the Lerner investigation.
Permitting an independent expert to investigate as well, Walton said, wouldn’t help the search for the missing emails, “but will rather only duplicate and potentially interfere with ongoing investigative activities.”
Plus, Walton said he was concerned that, by definition, appointing an outside party to investigate would put confidential taxpayer information at risk.
“Allowing a third party, as requested by the plaintiff, to inspect IRS computers would necessarily result in the disclosure of tax returns and return information to that third party,” the judge wrote.
The government has argued that Lerner’s hard drive crashed roughly two years before the Tea Party controversy broke, giving them no reason to know those emails would need to be preserved.
On Thursday, Walton rejected True the Vote’s stance that a separate lawsuit — filed by Z Street, a pro-Israel group, in 2010 — meant the IRS should have been preserving documents. True the Vote’s argument that the two lawsuits were related because both groups opposed Obama administration policies was a stretch, the judge found.
True the Vote’s case is one of several currently in the federal courts. Another district court judge in Washington, Emmet Sullivan, has also asked the IRS to outline under oath why Lerner’s emails aren’t recoverable.
Walton noted Thursday that yet another federal judge recently partially dismissed a lawsuit similar to True the Vote’s, adding that suggested both sides had “non-frivolous arguments” about the strength of the group’s case.