IRS lawyer: Lois Lerner's Blackberry deliberately destroyed after start of congressional probe

IRS lawyer: Lois Lerner's Blackberry deliberately destroyed after start of congressional probe

By Doug McKelway  |  FoxNews.com

Published August 27, 2014

Lois Lerner’s Blackberry was intentionally destroyed after Congress had begun its probe into IRS targeting of conservative groups, a senior IRS lawyer acknowledged in a sworn declaration.

Thomas Kane, Deputy Assistant Chief Counsel for the IRS, wrote in the declaration, part of a lawsuit filed by Judicial Watch against the IRS, that the Blackberry was "removed or wiped clean of any sensitive or proprietary information and removed as scrap for disposal in June 2012."

That date - June 2012 - is significant because by that time, ex-IRS official Lerner had already been summoned before congressional staffers who interviewed her about reports of the IRS' targeting of conservative groups.

"We had already talked to her. Our personal staff and Oversight Committee staff had sat down with Ms. Lerner and confronted her about information we were getting from conservative groups in the state of Ohio and around the country," Rep. Jim Jordan, R-Ohio, told Fox News.

"If you intentionally destroy evidence, that is a crime. If you make a statement in court saying the evidence is not available and it is, that is also a crime," said Jay Sekulow, Chief Counsel for the American Center for Law and Justice.

The IRS did not immediately respond to Fox News’ request for comment.

News of the Blackberry's destruction followed Monday’s statement by Judicial Watch that Justice Department attorneys said in a Friday phone call the federal government backs up all computer records to ensure continuity of government in event of a catastrophe, but retrieving the Lerner emails would simply be "too onerous."

An administration official told Fox News Monday night that Judicial Watch misinterpreted the Friday phone call. "There was no new back-up system described last week to Judicial Watch," he said. "Government lawyers who spoke to Judicial Watch simply referred to the same email retention policy that Commissioner (John) Koskinen had described in his Congressional testimony."

But Cleta Mitchell, an attorney who represents other conservative groups suing the IRS, cited a whistleblower who bolsters Judicial Watch's interpretation.

"I received information from a former Department of Homeland Security official who had security clearances. He just retired in April," Mitchell said. "He contacted me and he contacted Judicial Watch and some members of Congress and said there is backup material."

The dueling versions are not likely to sit well with District Court Judge Emmet Sullivan, who is presiding over Judicial Watch’s lawsuit against the IRS. "He gave the IRS not one, but two opportunities in court filings with him to tell him where they were," said Tom Fitton, president of Judicial Watch. "There was no mention of this backup system to the court at that time."

According to Sidney Powell, author of "Licensed to Lie: Exposing Corruption in the Department of Justice," Sullivan is known to scold government lawyers who withhold evidence.

Powell said Sullivan appointed an independent counsel to investigate DOJ's prosecution of now deceased Republican Senator Ted Stevens of Alaska.Sullivan described the Stevens prosecution as "the worst case of misconduct he'd seen in 25 years."

Sullivan also said, "When government does not meet its obligations to turn over evidence, the system falters."