The Washington Examiner asked the question whether the comparison between the Obama and Nixon Scandals a fair one and this was my answer.
For the middle class the comparison between the Obama and Nixon scandals is not only fair but a necessary step for a well-functioning government. The biggest threat to a well-functioning government has always been that the political class might corrupt the IRS or the FBI in their dogged pursuit of political advantages. Fortunately IRS commissioner, Donald C. Alexander, refused to launch audits of the people on Nixon’s Enemies list. He recognized the seriousness of the problem and being a good leader he did the right thing.
The middle class probably more than any other group wants the government but especially the IRS to be effective, non-partisan, and follow the rule of law. In my life I had the opportunity to talk to IRS personnel several times. In every case I found them to be professional, courteous, and respectful. Never once did I question their motives or integrity. The IRS was good at what they did so I naturally assumed that their leaders shared these same virtues. This is the essence of a well-functioning government. So I was shocked and embarrassed when I heard the testimony of Ms. Lerner and Mr. Koskinen. Instead of leaders who are trying to lead a good agency into a great one, we have Ms. Lerner pleading the fifth and Mr. Koskinen making excuses for being unable to find her emails. Based on their testimony I find myself questioning their motives and integrity all the time. President Obama as the chief executive officer of the Executive branch has achieved what President Nixon only dreamed of, a corrupt IRS. In two years President Obama will be gone but we will still have a corrupt IRS.
Nicholas Bagley highlighted the primary dilemma confronting the Supreme Court in the King v. Burwell case. I do not think anyone will argue that the Affordable Care Act is a fatally flawed bill. So how do we fix it? Here is what Justice Kennedy asked:
Well, if [the statute is] ambiguous, then we think about Chevron. But it seems to me a drastic step for us to say that the Department of Internal Revenue and its director can make this call one way or the other when there are, what, billions of dollars of subsidies involved here? … And it—it seems to me our cases say that if the Internal Revenue Service is going to allow deductions using these, that it has to be very, very clear.
Mr. Bagley argues that it is appropriate to defer to the agencies best judgment when it confronts big, difficult questions that arise in the course of administration. He argues in an amicus brief that:
It is then that the agency’s expertise and political accountability are most essential—and where the structure of the federal government most forcefully counsels judicial restraint.
If I follow his logic correctly then the agency’s expertise and political accountability must be beyond reproach if this is to work. We recently learned that despite President Obama’s admonition that there is not “even a smidgen of corruption” in the IRS scandal, Ms. Lerner’s Lerner’s e-mail records were “right where you would expect them to be.” A year ago, the IRS claimed after two months of looking that the e-mail records were irretrievably lost so it is not surprising that the Inspector General is looking at a criminal investigation of the IRS for its role in obstructing an ongoing investigation. Recently I looked at the Form 990 for the Clinton Foundation and for kicks I decided to compare it to one of the organizations that was targeted by the IRS, True The Vote. I was shocked to find out that True The Vote raised only $64,687 in 2010. This amount would be a round-off error on the transportation budget for the Clinton Foundation so I find it incredulous that the IRS decided to pursue them. Regardless of the legality it shows that the IRS was incredibly short-sighted politically. They gave their professional credibility away for nothing. Were there any adults in the room for that decision? So the Supreme Court justices are stuck with the dilemma of how to fix the Affordable Care Act if most of the people view the IRS as an incompetent if not corrupt organization? Are we comfortable with letting an organization who says it cannot find Ms. Lerner’s emails make a decision involving billions of dollars of subsidies? If you agree with Mr. Bagely’s argument that deferring to the IRS is okay, then you have to address the question under what circumstances should the Supreme Court send fatally flawed bills back to Congress to fix if billions of dollars of subsidies is not sufficient cause? If expediency is our only concern then the easiest solution is to send a box of blank paper to the IRS and tell them to fix the flawed legislation. Unfortunately the IRS cannot fix this bill or any other bill without input from Congress and their adversarial relationship with Congress should immediately disqualify them from this special task. To restore a less adversarial IRS-Congress relationship, Congress has to be very, very clear on the parts of laws involving the IRS. If we are to learn anything from the many mistakes made by the Affordable Care Act supporters, we need some adults in the room to craft bipartisan agreements that actually reform health care. As long as the American people want laws that work, the importance of the legislative process is not dead.
I was pondering whether anyone could be stupider than the IRS with handling emails when I learned that Ms. Clinton ran her own computer system for her official emails. Which part of violating government document retention requirements of the Federal Records Act, impeding an ongoing investigation, and potentially leaking sensitive government information does she not understand? They just threw the book at General Petraeus over leaking sensitive government information! I immediately came up with a bunch of questions like:
- How did she read top secret emails?
- Were any of the Benghazi emails on her server confidential or secret?
- Which Inspector General signed off on this email server fiasco?
- Is she deliberately sabotaging her 2016 presidential election?
Then I decided I should give her the benefit of the doubt till I did a little more research. With a little more time to ponder the AP report, Clinton ran her own computer system for her official emails, I have to say that of all of the bone-headed things for a Secretary of State to do, running a mail server from your home is at the top of my list. I am an IT professional who ran a mail server from my home and I can say unequivocally that it is a pain in the butt. In addition to the hardware requirements you have to be concerned about security, backups, and disaster recovery. To top it off it is particularly difficult to get the Domain Name System settings correct so that your emails do not end up in everyone’s spam folder. Even if you have to pay Google, Microsoft, or Yahoo, let them do it. You will be much better off. It is not worth your time and money to run a mail server from your home!
I cringe thinking about this but if we assume the AP report is correct then what can we say about her email server setup. My first check found out that her email is filtered from spam and protected from viruses by Mxlogic. This matches the claim in the article but it begs the question what did she do before she signed up with Mxlogic in 2013? I know Mxlogic was protecting my company email back in 2008. Did she run a naked email server? Then I checked for TXT records. I did not find any. This is the part of the DNS that email providers check to see if you are who you say you are. In my day job I manage a newsletter with over 80,000 subscribers. To keep in the good graces of the email world we include TXT records for SPF and DKIM so the major email providers know that we really are the one sending the email and not a spammer. At the very minimum you should have a static IP for the mail server and the DNS should have a TXT record for SPF, an A record for the sub-domain pointing to the IP of the email server, and a reverse PTR record for the sub-domain. So how did a person getting an email from this server know it was Ms. Clinton and not someone impersonating her? I don’t think I want to know any more. Ms. Clinton running an email server is far worse than anything that General Petraeus did!
I am not surprised that Ms. Lerner’s emails were found. As an old IT guy who is very familiar with the email system used by the IRS I found it almost impossible to believe that the IRS was so inept with implementing their email backup policies that they could not retrieve her emails. They do not pay IT guys enough to take on that risk without direct orders from upper management. In fact several people familiar with the IRS email systems said it was unlikely the backup tapes were permanently lost because government IT systems almost never destroy or re-use backup tapes. They just buy more. My solution to finding the missing tapes was to arrest the IT guys and see if that improves their memory. Fortunately they did not have to resort to that since Ms. Lerner’s email records were “right where you would expect them to be”. If this report is true, then the question becomes when did the IRS leadership know of the cover-up, what did they do about it, and why did the IRS deliberately impede an ongoing investigation. If the cover-up stretches up to the White House this could be another case like the Watergate scandal where the cover-up is worse than the crime.
In fact, Camus stated, Lerner’s e-mail records were “right where you would expect them to be.” A year ago, the IRS claimed after two months of looking that the e-mail records were irretrievably lost; it took TIGTA just two weeks to find them in the usual backup records. The rather obvious conclusion is that the IRS didn’t want to find those records, and hoped that announcing them as destroyed would end the probe into Lerner’s records. If that’s the case, then it raises the question about just how much IRS leadership knows about Lerner’s communications, and how much they might be involved in them (worth noting: Koskinen came in afterward).
Isn’t it odd that Judge Walton thought the “prospect of future harm” by the IRS is “speculative”. Look at this chart of 2014 Midterm Issues from a recent Gallup poll and tell me that the prominence of “the way federal government works” issue does not bother you. We have a Constitutional crisis going on and Judge Walton just gave the IRS a pass on the most egregious behavior by the IRS since President Nixon. Arguably the behavior of Ms. Lerner and the IRS cover-up is much worse than anything the Nixon administration did. At least he had the decency to resign when he was caught. So for all of those people who thought that “the way federal government works” is a very important problem, Judge Walton has made the problem worse. It looks like laws and courts exist solely for the benefit of government agencies. Has our representative government officially been killed and replaced with an administration accountable to no one and a judicial system more than willing to look the other way?
If there is such a thing as an afterlife, President Nixon is probably pissed. For lesser offences he resigned the Presidency to preserve our way of government. Sadly this generation does not care about a form of government he once held dear. Let us imagine for a moment President Nixon is looking down on us and what he would see.
- Ms. Lerner targeted conservative groups under the auspices of the IRS. She realized that her targeting behavior was forbidden by IRS rules so she starts a cover-up. President Nixon chuckles. She releases the information about the targeting at a conference. This does not go over well and she is subpoenaed by Congress. President Nixon chuckles some more. She makes a statement to the Congressional committee asserting her innocence and then promptly pleads the fifth. President Nixon chuckles some more and thinks the more things change, the more they stay the same.
- Despite IRS policies that say that IRS personnel must have either disk or printed backup copies of important emails, the IRS cannot produce Ms. Lerner’s and several others emails. President Nixon chuckles. The IRS deliberately ignored written policies and implemented a decentralized backup policy that is dependent on individuals who commit a crime will be stupid enough to leave behind incriminating evidence. Any IT guy will tell you that is a policy born to fail. Conveniently when the subpoenas arrive, the disk drives start failing and the IRS can no longer produce the emails. At this point President Nixon is probably wondering that if he was able to lose the Watergate tapes like this IRS lost the emails, the world would be different place today.
- President Nixon is confused with the IRS corruption problem. Evidently corruption in the IRS is not the IRS’s problem. The IRS had written policies they chose to not enforce. President Nixon chuckles because there have been no consequences. Judge Walton’s court has just said that corruption in the IRS is not the court’s problem because the IRS has promised to implement the policies they were already supposed to have already implemented. Judge Walton says that IRS corruption is not his court’s problem because the “prospect of future harm” by the IRS is “speculative”. President Nixon is chuckling again. He thinks the word “speculative” is a nice touch.
In the city of no consequences our federal government is running amok and Judge Walton has given his blessing.
I think we can quickly fix the IRS scandal if we arrest the IRS IT guy. Ms. Lerner’s attorney says it was IT’s responsibility to archive the emails so if we are going to pursue this passive-aggressive game to its logical conclusion then the next step is to throw an IT guy in jail. The beauty of this plan is that it doesn’t even have to be the right guy or gal. As soon as the IT staff gets a whiff of what is going on a lot of these political problems that have been plaguing the operation of the IRS will automagically get solved. I suspect that even that missing 2010 email stating that ‘Tea Party’ applications should be forwarded to a specific group for additional review will finally show up. If the courts do not put the fear of God into these political hacks running the IRS, the IT guys and gals will make it happen and it will not be pretty.
I was chuckling to myself while reading Patrick Howley’s article on the Daily Caller, “Issa to IRS Commissioner: Lerner’s Lawyer Contradicted Your Testimony… Want To Try Again?”. In that article he says that Ms. Lerner’s attorney claims “that Lerner did not know she was supposed to comply with federal law.” According to Wikipedia, Ms. Lerner “is a member of the Massachusetts bar having earned her juris doctorate from Western New England College School of Law and graduating cum laude. She completed her undergraduate studies cum laude at Northeastern University.” She sounds like a pretty smart student. Before her stint at the IRS she was the lead counsel for the Justice Department and Acting General Counsel for the Federal Elections Commission. It sure looks like the Justice Department and Federal Elections Commission thought she has a pretty sharp legal mind. Now we are being asked to believe that she did not know that she was supposed to comply with federal law? So let me see if I understand this correctly. Her lawyer asserts that she made an innocent mistake by not complying with the Federal Records Act and due to an unfortunate disk drive crash the evidence that would have proven her innocence of illegally targeting conservative organizations is now missing. These circumstances are way too convenient for me to believe Ms. Lerner and the IRS were that stupid. According to a recent Rasmussen poll, “71% Think IRS Likely to Have Destroyed E-mails to Hide Guilt”. Most of the people use a different standard concerning government corruption. They will assume the IRS and Ms. Lerner are corrupt until the IRS finds her missing emails. It may be unfair but it is hard to tell the difference between government incompetence and corruption. If we want to change future outcomes we have to stop treating government incompetence as a kinder, gentler form of corruption.
For old IT guys like me the interesting question is why wasn’t most of Ms. Lerner’s emails online? If you have the last three to five years of emails online then a disk crash becomes a minor issue. I get the impression that very few of her emails were online. To an IT guy or gal the difference between online and offline storage is how fast you recover from an event like a disk crash or theft. Online storage also lowers the cost of email discovery. In the vast majority of scenarios online storage is the low cost solution and offline storage is the high cost solution. So why did the IRS choose the high cost solution? The letter from Leonard Oursler, IRS, to Senators Wyden and Hatch provides their explanation but in turn opens the IRS to second guessing. According to the letter “the average individual employee’s mailbox is limited to 500 megabytes, which translates to approximately 6,000 emails”. Prior to 2011 the limit was lower. To support Ms. Lerner’s 67,000 emails from 2009 to 2011 it would have required about 5.3 gigabytes of online storage or approximately .003% of the 170 terabytes the IRS said they had available for online email storage. If management wanted they could have solved this problem by instructing the Exchange administrator to set her quota much higher. The cost for this solution is zero.
To put the email storage requirement into historical perspective here is an announcement from 2007 where Yahoo announced that it was offering unlimited email storage. I believe that Hotmail also offered unlimited email in 2007 but I am little fuzzy on whether Google offered 5 GB or 15 GB for their free email accounts. So if Yahoo, Hotmail, and Google can offer email storage greater than 5 gigabytes for free, what is the problem with the IRS?
First I looked at possible Exchange 2007 restrictions. Harold Wong says in this post that Exchange 2007 supported an unlimited database size. It doesn’t look like the software was the problem.
Then I looked at the cost of disk space. At work we use HP Proliant servers with SCSI drives which I assume the IRS is using, too. In 2009 we purchased a 300 gigabyte drive for about $230. If they were running servers with smaller disk drives then It would be easy to swap out drives and expand the database. In this scenario it would have cost the IRS about $7 to put her 5.3 gigabytes online. At this cost level a compliant email retention policy with 5 to 50 year retention schedule for staff personnel looks like a no brainer. If we go to the other extreme and accept the estimate provided by the IRS that “it would cost well over ten million dollars to upgrade the IRS information technology infrastructure in order to save and store all email ever sent or received by the approximately 90,000 current IRS employees”, you have to recognize that the IRS has already spent more than that on this investigation then they would have by upgrading the email system. The IRS policy to limit the employee’s mailbox to 500 megabytes was not only a costly mistake but it was not even a good faith attempt to comply with the federal email retention requirements. One hard disk drive crash could be explained as bad luck. When you have seven hard disk crashes and you are unable to reliably produce the emails, you have just made an argument for a massive policy failure. Why did they do it?
Every time I watch the heated house hearing on the IRS targeting scandal video I am struck with how Mr. Koskinen reminds me of Colonel Jessup in the movie, A Few Good Men. When Mr. Camp asks for an apology we get a smug almost arrogant smile. When he gets in the verbal brawl with Mr. Ryan I keep expecting him to yell,
You can’t handle the truth! The IRS has always been the political weapon of choice for the party in the White House and always will be. You see the missing emails as a fault in the system, I see it as the IRS adapting to modern times. You create laws requiring email retention, we find a way around them. As soon as the emails are transferred to the local disk drives, they are as good as gone! Whether Ms. Lerner deleted them or a disk drive crash made them unavailable, what difference does it make now? How else can we protect these political operatives who in turn protect our budget? We won, you lost! In three years your party may be in charge and you will want our help.
For a trip down memory lane here is the clip from A Few Good Men.
Here is a Yahoo news article called Congress to probe how IRS emails could go missing that provides a bit more information about the IRS efforts to reconstruct Ms. Lerner’s mailbox. Since the IRS does not appear to have printed copies of her emails as required by IRS policy they had to go around to 83 computers in the IRS to find the emails. Is this enough? Due to the “very weak policy for email archiving and retention” at the IRS I think the investigation is obligated to go through the emails, identify any people who might have been emailed by her in departments other than the IRS, and subpoena those mailboxes. It is crude and rude but the IRS policies for email archiving and retention have consequences on the functioning of the rest of the government, too. Hopefully the other departments are not as stupid as the IRS. Although this might sound counter-intuitive the investigation’s actions are in the best interest of the IRS. The IRS crashed the family car while texting and under the influence of alcohol. If our son or daughter did this it would be a long time for them to regain our trust. This is the same situation faced by the IRS. Here are the statements from the news article I found most interesting.
“If they knew there was a problem in 2011,” said Henry, now president of CrowdStrike, a security technology company, “they could have or should have been able to recover it.”
The IRS told Congress last week that recovering emails has been a challenge because doing so is “a more complex process for the IRS than it is for many private or public organizations.”
The IRS was able to find copies of 24,000 Lerner emails from between 2009 and 2011 because Lerner had sent copies to other IRS employees. Overall, the IRS said it was producing 67,000 emails to and from Lerner, covering 2009 to 2013. The agency said it searched for emails of 83 people and spent nearly $10 million to produce hundreds of thousands of documents.
At the time that Lerner’s computer crashed, IRS policy had been to make copies of all IRS employees’ email inboxes every day and hold them for six months. The agency changed the policy in May 2013 to keep these snapshots for a longer, unspecified amount of time. Had this been the policy in 2011, when at least two of the computer crashes occurred, there likely could have been backups of the lost emails today.
The chief executive for an email-archiving company, Pierre Villeneuve of Jatheon Technologies, said most public and private sector organizations keep emails for several years, not six months, because of financial regulations and inexpensive computer storage.
“To have a large agency like the IRS have a very weak policy for email archiving and retention is quite shocking,” Villeneuve said. “If this were a private enterprise and they couldn’t produce this information on demand, they’d be in trouble. They’d either be fined or accused of hiding information.”