New Testimony: IRS May Still Have Missing Lois Lerner E-mails Backed Up

July 21, 2014

Official in charge of document production also raises possibility of new e-mail losses from ‘less than 20’ officials

During a transcribed interview with congressional investigators on Thursday, July 17, IRS Deputy Associate Chief Counsel Thomas Kane, who supervises the IRS’s targeting scandal document production to Congress, testified that new developments now make him uncertain whether e-mail back-up tapes containing lost e-mails from key IRS targeting official Lois Lerner exist or not.  The new testimony is at odds with the June 13, 2014, memo sent to Sens. Ron Wyden (D-OR) and Orrin Hatch (R-UT) by the IRS which reported that the IRS, “Confirmed that back-up tapes from 2011 no longer exist because they have been recycled.”  Kane had reviewed the June 13 memo but noted his current uncertainty with investigators.

Kane and a Committee investigator had the following exchange during Thursday’s transcribed interview:

Investigator: You stated at the time that document was produced to Congress, the document, the white paper in Exhibit 3[the June 13 memo], that it was accurate to the best of your knowledge.  Is it still accurate?

Kane: There is an issue as to whether or not there is a ‑‑ that all of the backup recovery tapes were destroyed on the 6‑month retention schedule. 

Investigator: So some of those backup tapes may still exist?

Kane: I don’t know whether they are or they aren’t, but it’s an issue that’s being looked at. 

Kane also testified that in addition to the IRS officials who had experienced hard drive crashes, as reported to the House Ways & Means Committee, a number of officials above and beyond these officials “have had computer problems over the course of the period covered by the investigations and the chairman’s subpoena” that could prevent the IRS from fully complying with the subpoenas.  Kane characterized the number of such individuals as “less than 20” and named IRS officials Andy Megosh, Kimberly Kitchens, Justin Lowe, and David Fish as members of the new group.

Justin Lowe – Technical Advisor to the Commissioner of Tax-Exempt and Government Entities, before that he was a tax-law specialist in EO (Exempt Organizations) Technical and then EO Guidance.  Advisor to Tax-Exempt and Government Entities Commissioner Joseph Grant.

David Fish – Manager of EO Guidance (which develops formal and informal guidance to the public on tax-exempt issues); Fish also served as Acting Director of Rulings and Agreements in late 2011/early 2012. Advisor to Lois Lerner.

Andy Megosh – Group manager in EO Guidance.  Megosh was cited in the Ways and Means Committee’s referral of Lerner Lerner to the Justice Department.

Kimberly Kitchens – IRS revenue agent in Cincinnati who donated to President Obama’s reelection campaign.

Chairman Issa issued the following statement on the new revelations in Kane’s testimony:

“I’m struck by the fact that the IRS attempted to keep a key witness like Mr. Kane away from investigators and only agreed to his appearance after I issued a subpoena for his testimony. Finding out that IRS Commissioner Koskinen jumped the gun in reporting to Congress that the IRS ‘confirmed’ all back-up tapes had been destroyed makes me even more suspicious of why he waited months to inform Congress about lost Lois Lerner e-mails.  Commissioner Koskinen has repeatedly blamed the reporting delay on an effort to be sure what he said was correct, we now know that wasn’t the case.”

 An expanded transcript of Mr. Thomas Kane’s exchange about the possibility that e-mail back-up tapes may still exist falls below:

Q1- And the white paper that you identified, that you called a white paper in Exhibit 3, you said that you had an opportunity to review that before it was produced.  Is that accurate?

A- Yes.

Q1- And to the best of your knowledge, was that document an accurate representation of the information within it?

A- At that time, that was certainly accurate. 

Q1- And if you had had any concerns about the accuracy of that document, would you have raised them?

A- Yes. 

Q1- And did you raise any concerns about the accuracy of that document?

A- As I indicated earlier, I had some issues that are suggested edits that I thought needed to be made, and there was a discussion about those, and there were some changes made.  They weren’t major, but, you know, I was accommodated. 

Q1- So the end product was accurate?

A- That was the state of knowledge and facts as we knew it when the document was set up.

Q1- Thank you very much.  I really appreciate the many hours you’ve spent with us. 

Q2- Sir, if I could just ask you one clarifying question based on your answers to those questions.  You stated at the time that document was produced to Congress, the document, the white paper in Exhibit 3, that it was accurate to the best of your knowledge.  Is it still accurate? 

A- There is an issue as to whether or not there is a ‑‑ that all of the backup recovery tapes were destroyed on the 6‑month retention schedule. 

Q2- So some of those backup tapes may still exist?

A- I don’t know whether they are or they aren’t, but it’s an issue that’s being looked at. 

Q2- By who?

A- It’s part of the TIGTA investigation.

Q2- So no one in the IRS, to your knowledge, outside of TIGTA, is looking at that issue?

A- The IRS is not looking at anything being investigated by TIGTA. 

Q2- And when was that issue identified?

A- Sometime after the white paper was sent up. 

Q2- And has there been any discussion about disclosing that issue to Congress, to the best of your knowledge?

A- I don’t know whether it has or it hasn’t been.  I thought Chairman Issa asked a question about it at the last hearing, but I could be wrong about that. 

Q2- The hearing with Commissioner Koskinen?

A- Yes.

Q2- And did the Commissioner give an accurate response to that question?

A- I forget how the question was framed, but I thought I had a recollection that Chairman Issa had asked the Commissioner about a backup tape issue looking ‑‑ being looked at by TIGTA.  That’s the context of my recollection. 

Q2- Anything else that you’re aware of that you can tell us about about the issue of the potential availability of a backup tape? 

Kane’s Counsel – Objection to form.

A- Again, it’s all under investigation by TIGTA at this point in time.  And I don’t know if there is a backup tape with information on it or there isn’t.  I know that there’s an issue out there about it. 

Q2- Okay.  Thank you, sir. 

(Q1= Committee investigator #1; Q2= Committee investigator #2; A= Kane)

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