Federal Court Judge Takes Extraordinary Steps in Judicial Watch IRS Lawsuit
The order from U.S. District Court Judge Emmett Sullivan was certainly clear enough. In alandmark victory for Judicial Watch, the federal judge ordered the IRS to submit sworn declarations detailing what happened to Lois Lerner's "lost" emails and what steps were being taken to find them. What was provided this week was a garbled explanation from no less than five IRS officials with more holes than a block of Swiss cheese.
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Per Fox News:
The IRS has submitted several sworn declarations to a federal district court in an attempt to explain the missing emails of former agency official Lois Lerner, as part of a case brought against the agency by [Judicial Watch] a conservative watchdog group.
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In the declarations, agency technology officials insisted they did everything they could to fix and recover data from the hard drive of Lerner, who is a central figure in the investigation into the agency's targeting of conservative groups. However, they said their efforts were fruitless, and some of Lerner's emails were lost.
These sworn declarations came from five IRS officials: Aaron G. Signor, John H. Minsek, Stephen L. Manning, Timothy P. Camus, and Thomas J. Kane.
We noted that the IRS and DOJ filings seem to treat as a joke Judge Sullivan's order requiring the IRS to produce details about Lois Lerner's "lost" emails and any efforts to retrieve and produce them to Judicial Watch as required under law.
This is the story we're supposed to believe according to these IRS officials: Lerner's crashed drive was analyzed by two technicians who employed a variety of tech tactics to recover the data, to no avail. The drives - which, mind you, had no recoverable data according to these experts - were then "degaussed" (wiped clean) "to protect against any possible disclosure of...taxpayer information." Anyone with even a passing familiarity with the IRS email scandal would have realized that these filings were a blatant continuation of the cover-up.
Well, if there's one thing I know, it is that most federal courts don't take kindly to being treated disrespectfully and expected to act like a somnolent member of Congress as administration officials mislead, omit, and play games.
Sure enough, in a stunning move, Judge Sullivan took the extraordinary step of launching an independent inquiry into the issue of Lerner's missing emails. Judge Sullivan issued thefollowing order on Thursday, August 14, in response to the IRS declarations:
In light of...the Declarations filed by the IRS, the IRS is hereby ORDERED to file a sworn Declaration, by an official with the authority to speak under oath for the Agency, by no later than August 22, 2014. In this Declaration, the IRS must: (1) provide information about its efforts, if any, to recover missing Lois Lerner emails from alternate sources (i.e., Blackberry, iPhone, iPad); (2) provide additional information explaining the IRS's policy of tracking inventory through use of bar code property tags, including whether component parts, such as hard drives, receive a bar code tag when serviced. If individual components do not receive a bar code tag, provide information on how the IRS tracks component parts, such as hard drives, when being serviced; (3) provide information about the IRS's policy to degauss hard drives, including whether the IRS records whose hard drive is degaussed, either by tracking the employee's name or the particular machine with which the hard drive was associated; and (4) provide information about the outside vendor who can verify the IRS's destruction policies concerning hard drives.
As I told The Hill, "Judicial Watch has filed hundreds of FOIA lawsuits. I have never seen this type of court action in all my 16 years at Judicial Watch."
Judge Sullivan has already authorized Judicial Watch to submit a request for limited discovery into the missing IRS records after September 10. So stay tuned for further details very soon.
And Judge Sullivan took the additional step of appointing Magistrate Judge John M. Facciola to manage and assist in discussions between Judicial Watch and the IRS about how to obtain the missing records. Magistrate Facciola is an expert in e-discovery.
I am so proud of our work at Judicial Watch that has had such an impact on breaking open the IRS scandal. Those of you who support our cause should be proud, too - because we couldn't do it without your financial support. These are trying times for our nation, but how reassuring it is to see that the legal system can be used effectively by a citizens' group like Judicial Watch to hold accountable the corrupt politicians and other public officials that are doing so much damage to the rule of law.
Emmy Award-Winning Journalist Teams Up With Judicial Watch to Sue HHS for Key Healthcare.gov Records
If anyone has a nose for a big story, it is Sharyl Attkisson, an Emmy Award-winning journalist who has news outlets like CBS, CNN and PBS on her resume. Ms. Attkisson knows that there is much more to the disastrous Healthare.gov roll-out story than the Obama administration has been willing to admit.
Stymied in her diligent attempts to get to the truth on her own, Ms. Attkisson has teamed up with Judicial Watch to force the release of documents that might shed light on the matter.
On August 8, 2014, we filed a Freedom of Information Act (FOIA) lawsuit on behalf of Ms. Attkisson against the Department of Health and Human Services (HHS) to obtain records regarding the flawed rollout of the Affordable Care Act on Healthcare.gov and other related systems. (The FOIA lawsuit was filed in the United States District Court for the District of Columbia.)
As Ms. Attkisson summarized her lawsuit on her Internet site http://sharylattkisson.com/:
From the moment Health and Human Services falsely denied it was tracking enrollment numbers in the early disastrous days of HealthCare.gov, to HHS keeping secret the details of the security risks it discovered prior to-and after-the website's launch, to HHS excluding journalists from viewing-but inviting favored private interests to view-the repair operations in progress, I've been seeking much of this undeniably public information.
Now, Ms. Attkisson is as experienced as anyone when it comes to news investigations. She became a Washington-based correspondent for CBS News in January 1995. Prior to that, she co-anchored CBS News "Up to the Minute." Before joining CBS, Attkisson was an anchor and correspondent for CNN (1990-1993). From 1996-2001, in addition to her CBS News duties, Attkisson hosted a half-hour weekly medical news magazine on PBS entitled "HealthWeek."
By adding Ms. Attkinson's experience together with JW's legal team, which has an unparalleled track record at forcing the release of government records, we hope to break through the Obama stonewall.
Judicial Watch filed the lawsuit on behalf of Ms. Attkisson because Centers for Medicare and Medicaid Services (CMS) failed to respond to four FOIA requests sent by Attkisson originally in October 2013 and then again on June 7, 2014. Here's what we're after:
• All materials, communications, emails and/or documents in which HHS Secretary Kathleen Sebelius and/or CMS Administrator Marilyn Tavenner is copied and/or a party to, which mention and/or refer to, whether directly or indirectly, enrollment figures regarding healthcare.gov, FMM, and/or state exchanges. This request includes, but is not limited to, actual enrollment data; any decision(s) related to whether to not and/or when to make the information public; the decisions(s) and/or discussions about waiting until November of 2013 to make the information public; and talking points or communications regarding public statements and/or preparation for Congressional testimony.
• All communications, whether written or otherwise recorded, including but not limited to: emails, memos, report and phone records that mention, pertain to, or otherwise refer to, whether directly or indirectly, tests and/or assessments of any sort surrounding the Federally Facilitated Marketplace, healthcare.gov, the Data Hub, or any other component related to the Affordable Care Act. This includes, but is not limited to, performance tests, security tests and functionality tests. The scope of this request is limited to the time period from June 1, 2013 to present.
• All communications, whether written or otherwise recorded, including but not limited to: emails, memos, report and phone records that mention, pertain to, or otherwise refer to, whether directly or indirectly, performance tests and or assessments and/or their results conducted regarding healthcare.gov between September 15, 2013 and September 30, 2013. This request includes, but is not limited to, tests in which CMS employees took part as mock users trying out the website prior to its launch.
• All emails, records, documents and other communications, whether written or otherwise recorded, regarding FOI requests made about healthcare.gov, whether by name or implication, in which the following CMS officials are a sender and/or receiver and/or a party to and/or mentioned, whether by name or implication: Janis Nero; Joseph Tripline; Deborah Peters, Vendetta Dutton; and Danean Jones. Please note the records request is specifically for communications dating from May 12, 2014 to present.
By way of review, Healthcare.gov, the Affordable Health Care Act website launched on October 1, 2013, immediately encountered substantial problems typical of those reported by the Chicago Tribune: "Consumers seeking more information on their new options under the Affordable Care Act were met with long delays, error messages and a largely non-working federal insurance exchange and call center Tuesday morning."
The Government Accountability Office, the nonpartisan, investigatory branch of the government, blamed CMS for the disaster, claiming it "undertook the development of Healthcare.gov and its related systems without effective planning or oversight practices, despite facing a number of challenges that increased both the level of risk and the need for effective oversight."
The Judicial Watch lawsuit on behalf of Attkisson seeks to discover records needed to establish accountability for the boondoggle of a rollout, including the internal decision-making procedures used by top HHS officials. On the day of the Healthcare.gov launch, CMS Administrator, Marilyn Tavenner, responded to questions from the press regarding enrollment numbers by saying, "We have just decided not to release that yet." The process for making the decision to withhold those numbers is included in Attkisson's FOIA request and subsequent suit.
Questions about Tavenner's missing records have increased in recent weeks due to her claims that she had deleted critical emails concerning the Healthcare.gov rollout. In response to a House Oversight Committee subpoena, HHS revealed in a letter to Committee Chairman Darrell Issa last week that a number of Tavenner's emails related to the rollout of Healthcare.gov were deleted and are "irretrievable." Accusing the Obama administration of failing to be "forthright," Issa commented, "[T]he Obama Administration has lost or destroyed emails for more than 20 witnesses, and in each case, the loss wasn't disclosed to the National Archives or Congress for months or years, in violation of federal law." And as I write this, there is breaking news that Tavenner actually directed that an email be deleted!
We are proud to represent Sharyl Attkisson, an independent journalist, who has a demonstrated track-record of refusing to play the Washington media game that ignores or suppresses public corruption stories such as Benghazi and Fast Furious. As her new FOIA lawsuit takes on Obamacare, she highlights how the Obama administration is in yet a new cover-up about how it seriously misled the American people about Healthcare.gov's failures.
"For years, I've watched Judicial Watch's dogged tenacity produce success in using FOIA lawsuits to obtain documents from a secretive government, whether under President George W. Bush or President Barack Obama, that often had utter contempt for me or other investigative journalists," said Ms. Attkisson in a statement accompanying the lawsuit. "Journalists and Americans interested in the truth about Washington under any administration can look to Judicial Watch and its work."
In May, Judicial Watch released a 106-page document obtained from HHS, revealing that on its first full day of operation, Obamacare's Healthcare.gov received only one enrollment. The document, obtained in response to a November 25, 2013, FOIA lawsuit against HHS, also revealed that on the second day of Healthcare.gov operation, 48% of registrations failed.
Vindication and Victory for Judicial Watch Election Integrity Efforts
Big news. I reported to you last week our most recent victory for election integrity came in the State of Indiana, where we filed a lawsuit in partnership with True the Vote, prompting election officials to implement a number of election integrity measures. (Ultimately, JW and True the Vote dropped the lawsuit after these measures were announced.)
As you know, JW conducted a national investigation of voter registration fraud and put states with dirty voter registration rolls on notice - clean the lists or face a Judicial Watch lawsuit. In some cases the threat of a lawsuit was all that was necessary. In others, we were forced to sue.
Now, was this lawsuit necessary? Was it worth the fight?
Well, let's take a look at the facts.
According to the Indiana Business Journal, Indiana moved almost 700,000 registrations to "inactive" status as a result of a May 2014 statewide mailing to all registered voters. This simple mailing is the type of reasonable effort that Judicial Watch and True the Vote have been advocating for over two years in federal court.
This astonishing number of "inactive" voters demonstrates that out of 4.4 million active Indiana voter registrations, about 17% of them could essentially be phantom registrations - meaning nearly 1 in 5 Indiana voter registrations are for people who have moved and no longer live at the address associated with that voters' outdated registration. By law, citizens are only allowed to vote for candidates who represent the jurisdictions in which they live. Of course, some of these "inactive" voters may vote or confirm their "active" status in some other way in the future. But, if Indiana follows the law, these "dirty names" could be removed from the rolls after the next presidential election!
All of this confirms what Judicial Watch has been saying all along in the litigation - Indiana's voter rolls have been badly inaccurate and out of date for years, putting the state in violation of federal law and putting elections there at risk for fraud.
It also puts the lie to the Leftist argument that voter registration fraud is a problem fabricated by Judicial Watch. (If you want the "facts" to counter the left's bogus argument that election integrity disenfranchises minority voters, click here. In North Carolina, minority turnout increased after election integrity measures were put into effect.)
So, yes, the data certainly indicates that this lawsuit was, in fact, necessary. And judging by the significant election reforms implemented by the state, the lawsuit has also been effective.
As the Indianapolis Business Journal explained, as a result of our lawsuit, Indiana law waschanged to give the Indiana Secretary of State a tie-breaking vote to use whenever the Election Division Co-Directors disagree on election administration expenditures or programs. This should end the perennially deadlocked election administration in the Indiana state government, and effectively address Indiana's previous systemic inaction on election integrity.
Moreover, as reported by the Talk Radio News Service, as a result of this lawsuit, Indiana law was changed to allow county election officials to remove registrations of deceased individuals once the officials read the voter's obituary in local newspapers. Before our lawsuit, county officials couldn't even remove the name of their next door neighbor from the voter rolls even if they attended his funeral. They had to wait for an official notice of death to come out of a bureaucracy in Indianapolis. We're thrilled that this nonsensical practice has ended.
There is also one other added ancillary benefit to our election integrity work in the State of Indiana.
As the South Bend Tribune reported, one county official explained that this badly overdue cleaning of the voter rolls will wind up saving local governments money. When the rolls no longer contain thousands of phantom registrations, local governments can stop printing ballots for voters who have moved out of their jurisdictions long ago.
So we're also helping to save cash-strapped local governments money that they can now use to serve their citizens' lawful interests (such as cleaner elections!).
Cleaner elections, saving untold taxpayer dollars, upholding the rule of law - not a bad result for one Judicial Watch/True the Vote lawsuit.
Until next week...
Tom Fitton
President
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