(Partial transcript below video)
Congressman Trey Gowdy outdid himself while questioning IRS Commissioner John Koskinen during Monday night’s House Committee on Oversight and Reform hearing. Below is a partial transcript:
Gowdy: “Well, I’m going to help you with it. Spoliation of the evidence is when a party fails to preserve evidence, there’s a negative inference that the jury can draw, from their failure to preserve the evidence. You with me? If you destroy documents, the jury can infer that those documents weren’t going to be good for you. If you fail to keep documents, the jury can infer that those documents were not going to be good for you. You’ve heard the phrase spoliation of evidence haven’t you?
Koskinen: “No, I can’t recall ever hearing that.”
Gowdy: “It’s true in administrative hearings, civil hearings, criminal hearings.”
Koskinen: “I practiced law once 45 years ago, gave it up for Lent one year, never went back.”
Gowdy: “Well let me tell you what you would have found had you stuck with it. When a party has a duty to preserve evidence or records, and they fail to do so, there is a negative inference that is drawn from their failure to preserve the evidence. It’s common sense, right? If you destroy something, the jury has a right to infer that whatever you destroyed would not have been good for you. Or else every litigant would destroy whatever evidence was detrimental to them. Agreed?”
Koskinen: “I’m not sure I think if you destroy the evidence and people could prove it, it wouldn’t be a good thing for your defense.”
Gowdy: “Well, no it’s worse than that the jury can draw and they’re instructed, they can draw a negative inference.”
Gowdy: If a taxpayer is being sued by the IRS administratively, civilly or prosecuted criminally, and they fail to keep documents, the jury can draw a negative inference from the fact that they didn’t keep receipts or emails or documents. So if it’s true and applies to a taxpayer, it ought to apply to the IRS as well. Agree?
Koskinen: “Is this a trial? Is this a jury? Is that what you’re…”
Gowdy: “I say administrative, civil or criminal. I say if you want to, if you want to go down that road, I’m happy to go down there with you. In fact I’m glad you mentioned it. You’ve already said multiple times today that there was no evidence you found of any criminal wrongdoing. I want you to tell me what criminal statutes you’ve evaluated.”
Koskinen: “I’ve not looked at any statutes.”
Gowdy: Well then how can you possibly tell our fellow citizens there’s no criminal wrongdoing, if you don’t even know what statute to look at?”
Koskinen: “Because I see no evidence that anybody consciously…”
Gowdy: “But how would you know what elements of the crime existed? You don’t even know what statutes are in play. I’m going to ask you again: What statutes have you evaluated?”
Koskinen: “Uh, I think you can rely on common sense. Nothing I have seen…”
Gowdy: “Common sense. Instead of the criminal code, you want to rely on common sense, no Mr. Koskinen, you can shake your head all you want to Commissioner, you have said today, that there is no evidence of criminal wrongdoing. And I’m asking you what criminal statute you have reviewed to reach that conclusion?”
Koskinen: “I’ve reviewed no criminal statute.”
Gowdy: Alright, so you don’t have any idea whether there’s any criminal conduct or not, because you don’t know the elements of the offense.”
Koskinen: “I’ve seen no evidence of wrongdoing.”
Gowdy: “Oh well, that’s very different than no evidence of criminal misconduct Commissioner.”
Koskinen: “It seems to me that if you haven’t done wrongdoing, It would be pretty hard to (stutter) argue that you had some criminal violation if you didn’t…”
Gowdy: “Well what did Lois Lerner mean when she said that ‘perhaps the FEC will save the day’?”
Koskinen: “I have no idea.”
Gowdy: “What did she mean when she said that ‘we need a project but we need to be careful that it doesn’t appear to be per se political’? You don’t think that’s a potential violation of 18242”?
Koskinen: “I have no idea if.”
Gowdy” “Because you haven’t looked at 18242. You don’t have any idea, Commissioner. You don’t have any idea whether there’s any criminal wrongdoing, or not.”
Koskinen: “With regard to the production of the evidence, the production of Lois Lerner’s emails, I have seen no evidence of wrongdoing. What else, what else…”
Gowdy: “If there were, that would be a separate criminal offense.”
Koskinen: “What else went on with Lois lerner, I’ve said in the past…”
Gowdy: “So what you’re saying is that you don’t have any idea whether she engaged in criminal wrongdoing, you’re just saying that you did not engage in any with respect to the emails.”
Koskinen: “I haven’t seen any wrongdoing with regard to the production of Lois Lerner’s emails.”
Gowdy: “You are not saying there was no criminal wrongdoing with respect to the targeting of conservative groups. I want to be very clear, you’re not saying that.”
Koskinen: “Made no judgments.”
Gowdy: So you disagree with the President when he says that there’s not a smidgen of corruption.”
Koskinen: “There are people who have been making judgments both sides about whetheer there were…”
Gowdy: “And you know what? I’m not one of those. I’m just simply saying we will never know because you didn’t keep the evidence. The evidence was spoliated. And whether it was negligent, whether it was intentional, whether it’s reckless, we still don’t have the evidence, Commissioner.”
Koskinen: “Well you have the evidence that there is no emails from the White House, You have the Treasury emails, so the basic premise that this was an argument in a conspiracy driven by the White House…”
Gowdy: “No sir, you’re wrong about that. You’re wrong about that. That you’re repeating a talking point from our colleagues on the other side that we’re obsessed with the White House. It was Jay Carney who perpetuated the myth that it was rogue agents in Ohio. It wasn’t any of us. Was that accurate? Was that first initial line of defense that this is just two rogue agents in Ohio? Was that accurate Commissioner?”
Koskinen: “Not that I know of.”
Gowdy: “Alright, so that wasn’t accurate and that came from the White House. Who said there’s not a smidgeon of corruption? Who said that, Commissioner?”
Koskinen: “Uh, my understanding it was the President.
Gowdy: “Uh it was the President. So that was Jay Carney and the President both inserting themselves into the IRS scandal. And you want to blame us for bringing the White House into it?
Koskinen: “I haven’t blamed you at all I…”
Gowdy: “You just did, Commissioner, ya’ just did.”
Koskinen: “It’s a good argument, all I said was the White House has revealed there were no Lois Lerner emails, Treasury has given you all of their emails and to the extent that uh the argument was that Lois Lerner was conspiring and emailing back and forth, thus far I haven’t seen any emails…”
Gowdy: “You can be engaged in a conspiracy that doesn’t include the White House.
Unknown voice: “Gentleman, time’s up.”