Ominous News for Obama Administration: Judge Sullivan May Be Its Judge Sirica
"It is almost always the cover-up rather than the event that causes trouble."
When President Obama declared last Super Bowl Sunday that there was "not even a smidgeon of corruption" at the Internal Revenue Service, he gave his personal Good Housekeeping Seal of Approval to it and especially vouched for Lois Lerner, the key figure in the IRS scandal over the treatment of tax exemption applications.
To vouch is "to give personal assurances; give a guarantee" (www.thefreedictionary.com/vouching).
Team Obama predictably blamed conspiracy theorists for the idea that something was amiss at the IRS.
To date, no evidence has surfaced that President Obama personally ordered discriminatory treatment of tax exemption applications to promote his reelection and punish perceived political enemies.
But, as the late Howard Baker put it, "It is almost always the cover-up rather than the event that causes trouble."
Will President Obama's sweeping assurance cause him trouble now?
Not only is it now known that the assertion that the Lerner email was lost is false, but also that her Blackberry was wiped clean AFTER Congressional investigation began.
"The IRS filing in federal Judge Emmet Sullivanís court reveals shocking new information. The IRS destroyed Lernerís Blackberry AFTER it knew her computer had crashed and after a Congressional inquiry was well underway. As an IRS official declared under the penalty of perjury, the destroyed Blackberry would have contained the same emails (both sent and received) as Lois Lernerís hard drive."
"Judge Sullivan has had to pry information from the IRS to learn anything about Ms. Lernerís Blackberry. Now, with these latest revelations, Iím confident heís not finished.
"In two elusive and nebulous sworn declarations, we can glean that Ms. Lerner had two Blackberries. One was issued to her on November 12, 2009. According to a sworn declaration, this is the Blackberry that contained all the emails (both sent and received) that would have been in her 'Outlook' and drafts that never were sent from her Blackberry during the relevant time.
"With incredible disregard for the law and the Congressional inquiry, the IRS admits that this Blackberry 'was removed or wiped clean of any sensitive or proprietary information and removed as scrap for disposal in June 2012.' This is a year after her hard drive 'crash' and months after the Congressional inquiry began.
"The IRS did not even attempt to retrieve that data. It cavalierly recites: 'There is no record of any attempt by any IRS IT employee to recover data from any Blackberry device assigned to Lois Lerner in response to the Congressional investigations or this investigation,' according to Stephen Manning, Deputy Chief Information Officer for Strategy & Modernization.
"Lerner was issued another Blackberry for Valentineís Day 2012óalso after she came under fire for her targeting of conservative groups. The IRS still has that Blackberry. Itís now in the possession of the Inspector General of the Treasury, but the new device would not have the data from the prior three years. That was most likely the point of getting the new device."
"This most recent revelation of destruction of evidence and refusal to retain data and documents despite a Congressional inquiry is beyond outrageous. It screams of guilt and creates a presumption in the law that the evidence would prove what those who were targeted and harassed claim. Judge Sullivan, like most Americans, wants the 'missing' emails that we all know are there somewhere.
"Aside from the fact the IRS was required to keep hard copies, we now know they should exist on Blackberry servers as well as Google and perhaps others. Indeed, the Department of Justice has disclosed that they all should be on a government serveróas we suspected."
As for possible ďghostĒ email accounts, Powell explained:
"The IRS should be able to determine, or Judge Sullivan can, whether any of the officials whose emails are missing used personal accounts or other names for business emails they didnít want going through the federal system even though they were required to do so."
"One thing is clear: the IRS has no interest in recovering the emails. It has deliberately destroyed evidence and another direct source of the emails it claims were 'lost.' It has been blatantly negligent if not criminal in failing to preserve evidence and destroying it instead.
"Donít be surprised if Judge Sullivan decides itís time to order production of everything on that Blackberry, issue subpoenas to third party servers including Blackberry for the dates covered by the Blackberry the IRS destroyed, unleash Judge Facciola, allow Judicial Watch more discovery, prohibit the IRS from destroying anything else, and start a list of lawyers who would make a good special prosecutor."
"In June, the White House suggested that the Republican-backed probes into the IRSís behavior amounted to little more than the servicing of their paranoid 'conspiracy theories.' Increasingly, though, tax agency officials appear to have been involved in a something closer to a genuine plot to hide evidence of wrongdoing from the public.
"And those Democrats who continue to defend this agency out of some misguided sense of loyalty toward the president will find themselves in an increasingly untenable position. Those smart enough to read the writing on the wall see that. The dam is about to burst."
"John Joseph Sirica (March 19, 1904 Ė August 14, 1992) was the Chief Judge for the United States District Court for the District of Columbia, where he became famous for his role in the Watergate scandal. He rose to national prominence during the Watergate scandal when he ordered President Richard Nixon to turn over his recordings of White House conversations.
"Sirica's involvement in the case began when he presided over the trial of the Watergate burglars. He did not believe the claim that they had acted alone, and persuaded or coerced most of them to implicate the men who had arranged the break-in (G. Gordon Liddy remained silent). For his role in Watergate the judge was named TIME magazine's Man of the Year in 1973."
Judge Sullivan may turn out to be the Obama administration's Judge Sirica.
Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.
Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.
The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.
Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.