Commissioner John Koskinen was appearing at a rare evening hearing on Capitol Hill to answer questions about lost emails by a key figure in the probe. On Tuesday, the committee will hear from a White House official who once worked at the IRS.
"I know tonight will be difficult, and it deserves to be difficult for both sides," said Rep. Darrell Issa, R-Calif., chairman of the House Oversight Committee. "We have a problem with you, and you have a problem with maintaining your credibility."
Issa accused Koskinen of misleading the Oversight Committee in the spring, when he promised to turn over Lois Lerner's emails. Since then, the IRS has disclosed that Lerner's computer crashed in 2011, losing an unknown number of those emails.
Koskinen said he first learned there was a problem with Lerner's computer in February, but didn't learn that emails were lost until April. The IRS notified Congress June 13.
Lerner is the former head of the division that processes applications for tax-exempt status. The Oversight Committee is investigating the handling of applications from tea party and other political groups.
"I subpoenaed you here tonight because, frankly, I'm sick and tired of your game-playing in response to congressional oversight," Issa told Koskinen. "You, commissioner, are the president's hand-picked man to restore trust and accountability at the IRS. You testified under oath in March that you would produce all of Lois Lerner's emails subpoenaed by this committee."
"Mr. Commissioner, at a minimum you didn't tell the whole truth that you knew on that day," Issa added.
Koskinen said, "All the emails we have will be provided. I did not say I would provide you emails that disappeared. If you have a magical way for me to do that I'd be happy to know about it."
He added, "I never said I would provide you emails we didn't have."
Koskinen said congressional investigators were informed months ago that Lerner had computer problems back in 2011. Koskinen said emails provided to the committee last fall showed that Lerner's computer had crashed.
The emails indicate that Lerner had lost some data, though they don't explicitly say that Lerner's emails were lost. They were provided to congressional investigators as part of the tea party investigation.
"So it should be clear that no one has been keeping this information from Congress," Koskinen said.
In 2011, the IRS had a policy of backing up emails on computer tapes, but the tapes were recycled every six months, Koskinen said. He said Lerner's hard drive was recycled and presumably destroyed.
The IRS inspector general is investigating the lost emails, Koskinen said.
"It is not unusual for computers anywhere to fail, especially at the IRS in light of the aged equipment IRS employees often have to use in light of the continual cuts in its budget these past four years," Koskinen said. "Since Jan. 1 of this year, for example, over 2,000 employees have suffered hard drive crashes."
The IRS was able to generate 24,000 Lerner emails from the 2009 to 2011 period because she had copied in other IRS employees. Overall, the IRS said it is producing a total of 67,000 emails to and from Lerner, covering the period from 2009 to 2013
Lerner, who is now retired from the IRS, has refused to testify at two Oversight Committee hearings, invoking her constitutional right against self-incrimination.
Congressional investigators have shown that IRS officials in Washington were closely involved in handling tea party applications, many of which languished for more than a year without action. But so far, they have not publicly produced evidence that anyone outside the agency directed the targeting or knew about it.
If anyone outside the agency was involved, investigators were hoping for clues in Lerner's emails. The White House says it has found no emails between anyone in the executive office of the president and Lerner.
"Republicans have been trying desperately and unsuccessfully for more than a year to link this scandal to the White House," said Rep. Elijah Cummings of Maryland, the top Democrat on the Oversight Committee. "Rather than continuing on this path, I sincerely hope we will turn to constructive legislation with concrete solutions to help federal agencies run more effectively and efficiently."
Koskinen said there was no evidence that Lerner intentional destroyed the emails. To the contrary, the IRS went to great lengths trying to retrieve lost documents on Lerner's computer, even sending it to the agency's forensic lab, he said.
The Oversight Committee is holding a second hearing on the lost emails Tuesday, which sparked a back-and-forth with the White House. Issa invited an attorney in the White House counsel's office to testify, but the White House balked, saying her appearance wasn't necessary.
Issa responded Monday evening by issuing a subpoena for Jennifer O'Connor, who worked at the IRS from May to November 2013, helping the agency gather documents related to congressional investigations, Issa said. O'Connor has since moved to the White House counsel's office.
Issa said he wants to ask O'Connor about Lerner's lost emails. Late Monday, the White House said O'Connor would testify.