clock menu more-arrow no yes mobile

Filed under:

The root problem at the IRS still isn’t fixed

Ex-IRS official Lois Lerner.
Ex-IRS official Lois Lerner.
Chip Somodevilla/Getty Images

Ex-IRS official Lois Lerner didn't want anyone reading her instant messages.

In an April 2013 missive uncovered by House Republicans, Lerner asks a member of the agency's IT department whether her instant messages can be searched in the event of a congressional inquiry. She notes that she's previously told colleagues that "we need to be cautious about what we say in emails." When she finds out that her messages aren't searchable unless someone else saves them, she replies, "perfect."

The facts here fit both sinister and innocuous interpretations.

Let's begin with the sinister interpretation. Here's what we know about Lerner: she managed a division of the IRS that subjected conservative groups applying for 501(c)4 status to improperly harsh scrutiny. She lost a huge chunk of her e-mails in a hard drive crash that came shortly after Rep. Dave Camp asked the IRS whether conservative groups were facing improper scrutiny. She was clearly worried about whether her electronic communications would be visible amidst a congressional inquiry.

Moreover, the IRS, in general, has lost some documents it was supposed to keep and failed to provide some documents it was supposed to offer. And its failure to promptly notify the National Archives and Records Administration about Lerner's lost e-mails violated the law. When Lerner testified before Congress she pled the Fifth.

It doesn't look good.

The innocuous interpretation goes like this: The IRS's improper scrutiny also fell on progressive groups. There's still no evidence of any organized effort to target conservative groups for political reasons. Lerner's hard drive crash was ill-timed but hard drive crashes happen. Her panicked e-mails attempting to restore the files are evidence that nothing sinister was afoot — while conspiracies are possible, they usually don't involve multiple individuals in the IT department and a paper trail.

As for her warning to her colleagues to watch what they say in e-mails and IMs, that's a banal, responsible point for an IRS supervisor to make: people e-mail all kinds of dumb jokes, and make all kinds of dumb comments, that they wouldn't want read aloud at a congressional hearing — so it behooves them to remember their e-mails could be read aloud at a congressional hearing. If Lerner was really a criminal genius making sure she could cover her tracks, it's absurd to believe that in 2013, more than two years after she supposedly wiped her e-mails in a fake hard-drive crash, she would e-mail this query to another IRS employee — knowing the e-mail would be archived and searchable — rather than walk over and ask her in person.

Lerner is gone from the IRS, of course. So the ongoing lawsuits and investigations are more about learning what happened then attempting to stop something that is happening. And we should learn what happened. Politicization at the IRS is a special kind of problem and it should be investigated thoroughly.

But something that shouldn't get lost amidst the focus on Lerner is the root problem: the unclear definition of which groups qualify for 501(c)4 status and which don't. It's the murk of that rule that led to the IRS's scrutiny of both conservative and progressive political groups. A clear law would ensure that individuals like Lerner have less discretion over the process. But there's been a lot more interest among House Republicans in trying to uncover a scandal than in fixing the problem, and since Democrats see little political upside in keeping focus on the IRS, they also haven't made it a priority.

If the problem at the IRS was really centered on Lois Lerner than it is likely fixed now that she's gone. But it went deeper than that, and a Congress that puts this much focus on what Lerner did wrong should be trying harder to make sure it can't happen again.