Cheney's Subpoenaed E-Mails Missing

Vice President's email lost for key week in CIA leak probe

MSNBC reports:

When Special Counsel Patrick Fitzgerald wanted to find out what was going on inside Vice President Dick Cheney's office, the prosecutor in the CIA leak probe made a logical move. He dropped a grand jury subpoena on the White House for all the relevant e-mail.

One problem: Even though White House computer technicians hunted high and low, an entire week's worth of e-mail from Cheney's office was missing. The week was Sept. 30, 2003, to Oct. 6, 2003, the opening days of the Justice Department's probe into whether anyone at the White House leaked the identity of CIA operative Valerie Plame.

That episode was part of the picture that unfolded Tuesday on Capitol Hill, where Democrats on a House committee released new information about one of the Bush White House's long-running issues, its problem-plagued e-mail system.

For the first time, a former White House computer technician went public with the details. Steven McDevitt revealed in written statements submitted to Congress how a plan was developed to try to recover the missing e-mail for Fitzgerald.

Ultimately, 250 pages of electronic messages were retrieved from the personal e-mail accounts of officials in Cheney's office, but whether that amounted to all the relevant e-mail is a question that may never be answered.

McDevitt made clear that it was a sensitive issue inside the White House.

"I worked with ... White House Counsel on efforts to provide an explanation to the special prosecutor," McDevitt wrote. "This included providing a briefing to the special prosecutor's staff on this subject."

McDevitt provided no details of the meetings with White House Counsel Harriet Miers and others in the counsel's office in late 2005 and early 2006. The White House refused to comment on those meetings.

White House on defensive

The White House put the best face on a bad hearing Tuesday of the House Oversight and Government Reform Committee, defending the administration's handling of its electronic messages.

McDevitt said that one estimate from a 2005 analysis was that more than 1,000 days of e-mail were missing from January 2003 to Aug. 10, 2005. McDevitt said "the process by which e-mail was being collected and retained was primitive and the risk that data would be lost was high." The "low end" estimate was about 470 days, he added.

The White House says a substantial amount of what had been believed to be missing e-mail had been located.

"We are very energized about getting to the bottom of this" issue, Theresa Payton, chief information officer at the White House Office of Administration, testified to the committee.

"This is a form of sandbagging," replied Oversight Committee Chairman Henry Waxman, D-Calif., who pointed out that by the time the White House fixes its e-mail problems, "you'll be out of office."

E-mail shortcomings

McDevitt's statements detailed shortcomings that he said have plagued the White House e-mail system for six years. He said:

* The White House had no complete inventory of e-mail files.
* There was no automatic system to ensure that e-mail was archived and preserved.
* Until mid-2005 the e-mail system had serious security flaws, in which "everyone" on the White House computer network had access to e-mail. McDevitt wrote that the "potential impact" of the security flaw was that there was no way to verify that retained data had not been modified.
* A new e-mail archiving system that would have addressed the problems was "ready to go live" on Aug. 21, 2006.

Payton told Waxman's committee she canceled the new system in late 2006 because it would have required modifications and additional spending. An alternative system is under way, she said.

Payton's predecessor, Carlos Solari, told the House committee that he was puzzled that the new system had been rejected and that he had "absolutely" believed that the system Payton rejected would be implemented.

When President Bush leaves office, presidential records and federal records at the White House will be turned over to the National Archives. Waxman produced a memo pointing to a lack of cooperation between the White House and the Archives.

"We still know virtually nothing about the status of the alleged missing White House e-mails," the Archives' general counsel, Gary Stern, wrote to his boss last September.

White House Emails Missing in CIA Leak Probe?

The Associated Press reports:

Apparent gaps in White House e-mail archives coincide with dates in late 2003 and early 2004 when the administration was struggling to deal with the CIA leak investigation and the possibility of a congressional probe into Iraq intelligence failures.

The gaps — 473 days over a period of 20 months — are cited in a chart prepared by White House computer technicians and shared in September with the House Reform and Government Oversight Committee, which has been looking into reports of missing e-mail.
Among the times for which e-mail may not have been archived from Vice President Dick Cheney's office are four days in early October 2003, just as a federal probe was beginning into the leak of Valerie Plame's CIA identity, an inquiry that eventually ensnared Cheney's chief of staff.

Contents of the chart — which the White House now disputes — were disclosed Thursday by Rep. Henry Waxman, a California Democrat who chairs the House committee, as he announced plans for a Feb. 15 hearing.

Waxman said he decided to release details from the White House-prepared chart after presidential spokesman Tony Fratto declared "we have absolutely no reason to believe that any e-mails are missing."

Among the periods of time for which the chart indicates e-mail is missing is a five-day span starting on Jan. 29, 2004, when the White House was dealing with the possibility of an election-year probe by Congress into Iraq intelligence failures.

Not archived by the office of the vice president is e-mail for Jan. 29-31, 2004, according to chart information released by Waxman. In addition, all e-mail from the White House Office in the Executive Office of the President was listed as missing for one of those days.

The chart indicates that e-mail also was not archived by the White House on the following Monday — Feb. 2, 2004 — the day President Bush took a big step in averting what could have been a politically troublesome congressional inquiry. He ordered an independent investigation into intelligence failures in Iraq.

The president conferred that day with former chief weapons inspector David Kay, declaring, "I want to know all the facts."

The commission named by Bush reached a harsh verdict about the U.S. intelligence community's performance, but the panel stopped short of addressing the White House's use of the intelligence data to support the idea of war with Iraq.

The White House says computer back-up tapes should contain substantially all e-mails between 2003 and 2005. However, the White House recycled backup tapes until sometime in October 2003, taping over existing data. That could mean some e-mail is gone forever if it is also missing from archives.

An example might be any missing e-mail from Cheney's office in the early days of the CIA leak probe. The White House has not said when in October 2003 it halted the recycling of backup tapes.

E-mails in early October 2003 could reveal key discussions between White House personnel in the week after the Justice Department opened a criminal investigation into the leak of Plame's CIA identity. The White House denied that Cheney chief of staff I. Lewis "Scooter" Libby or top presidential adviser Karl Rove were involved in the leak, an assertion that turned out to be false.

"Can it be a mere coincidence that some of the missing e-mail correspond to a key period during the Valerie Plame investigation?" asked Melanie Sloan, executive director of Citizens for Responsibility and Ethics in Washington. "Given everything else we know, that is nearly impossible to believe."

Her organization is one of two private advocacy groups suing the White House in the e-mail controversy.

At issue on Oct. 1, 2003, was the push by congressional Democrats for Attorney General John Ashcroft to step aside and appoint an independent prosecutor to investigate the White House.

Ashcroft eventually recused himself, and at the end of 2003 U.S. Attorney Patrick Fitzgerald was appointed by a Justice Department official to head the probe. Two years later, Libby was indicted, and he was later convicted of obstructing the investigation. His 30-month prison sentence was commuted by Bush. Rove was questioned by a federal grand jury five times but was never charged.

In January 2006, shortly after Libby was indicted, a letter from Fitzgerald to Libby's lawyers was the first public disclosure that the White House was having a problem with its e-mail system.

Fitzgerald wrote: "We have learned that not all e-mail of the Office of Vice President and the Executive Office of the President for certain time periods in 2003 was preserved through the normal archiving process on the White House computer system."

The White House says the e-mail matter arose in October 2005 in connection with the Justice Department's CIA leak probe, in which Fitzgerald later that month obtained a grand jury indictment against Libby for perjury, obstruction and lying to the FBI.

More Questions Over White House E-Mail

The Associated Press reports:

An ethics advocacy group asked a federal judge Thursday to order the White House to preserve tapes used to back up its e-mail system.

Asserting that the White House may not have kept copies of e-mails that are at the heart of a dispute over the Bush administration's record-keeping, Citizens for Responsibility and Ethics in Washington filed a motion asking for a court order to preserve computer backup tapes.

"The White House is refusing to confirm that they have maintained e-mail going back to the beginning of the administration as they are required by law to do," said Melanie Sloan, executive director of Citizens for Responsibility and Ethics.

The group placed on the public record two Justice Department letters stating that the White House is maintaining all backup tapes that were in the possession of the White House Office of Administration as of Sept. 25, 2007, the date CREW sued the Executive Office of the President in the e-mail controversy.

The private group asked the Justice Department for information about what backup tapes were in the White House's possession, but the Justice Department has not provided an explanation.

The possibility that backup tapes may not contain copies of all White House e-mail is a new dimension to the controversy, which first arose in early 2006. CREW alleges that millions of White House e-mails are missing, and that the backup tapes contained the lone remaining copies.

"At present the missing e-mail records exist only on backup tapes and other mediums, if at all," CREW said in its court filing. "Thus, those backup tapes contain the only copies of important historical evidence of this presidency."

CREW is entitled to a temporary restraining order to prevent any further document destruction, the group said in its filing with U.S. District Judge Henry Kennedy, an appointee of President Clinton.

In the past, the White House has said it is aware that some e-mails may not have been automatically archived on a computer server for the Executive Office of the President and that the e-mails may have been preserved on backup tapes.

In response to the latest court filing, White House spokesman Scott Stanzel said that because the matter is in court, he is referring to previous White Houses comments on the issue.

The White House has said that its Office of Administration is looking into whether there are e-mails that were not automatically archived and that if there is a problem, the necessary steps will be taken to address it.

The first indication of a problem came in nearly two years ago when special counsel Patrick Fitzgerald raised the possibility that records sought in the CIA leak investigation involving the outing of Valerie Plame could be missing because of an e-mail archiving problem at the White House.

The issue arose again this year amid the controversy over the firing of U.S. attorneys. Aides to Bush improperly used Republican Party-sponsored e-mail accounts for official business and an undetermined number of e-mails were lost.

Documents Show DOJ Considered Political Credentials In U.S. Atty Firings

• Nearly 2,394 pages of e-mails, schedules and memos released Friday
• Chart of prosecutors listed political credentials, Federalist Society membership
• Papers show replacements chosen by Justice officials nearly a year beforehand
• Rove didn't delete e-mails in case of eight fired prosecutors, lawyer says

The AP reports:
The Justice Department weighed political activism and membership in a conservative law group in evaluating the nation's federal prosecutors, documents released in the probe of fired U.S. attorneys show.

The political credentials were listed on a chart of 124 U.S. attorneys nominated since 2001, a document that could bolster Democrats' claims that the traditionally independent Justice Department has become more partisan during the Bush administration.

The chart was included in documents released Friday by the department to congressional panels investigating whether the firings last year of the U.S. attorneys were politically motivated -- an inquiry that has Attorney General Alberto Gonzales fighting for his own job.

"This is the chart that the AG requested," Monica Goodling, Justice's former liaison to the White House, wrote in a February 12 e-mail to two other senior department officials. "I'll show it to him on the plane tomorrow, if he's interested."

Goodling resigned last week, refusing to testify to Congress about her role in the firings and citing her constitutional protection against self-incrimination.

The 2,394 pages of e-mails, schedules and memos released Friday included a few hand-scribbled pages of notes of reasons why some of the eight were ousted -- notes that Justice officials confirmed were written by Goodling.

Under Iglesias' name, Goodling wrote: "Domenici says he doesn't move cases" -- a reference to Sen. Pete Domenici, the six-term Republican from New Mexico accused of pressuring the prosecutor on a political corruption investigation. That allegation has been one of the factors driving Democrats' claims that the firings were politically motivated.

The documents also included indications that senior department officials had replacements in mind for the outgoing prosecutors nearly a year before the ousters, seemingly contradicting testimony last month by Gonzales' former top aide.

The new batch of documents -- adding to more than 3,400 previously released -- came amid questions about missing White House e-mails, including some from presidential counselor Karl Rove and other administration officials. The Democratic-controlled Congress is seeking those e-mails as evidence for its inquiry into the firings. (Full story)

Private attorney Robert Luskin denied that Rove intentionally deleted his own e-mails from a Republican-sponsored computer system. He said President Bush's political adviser believed the communications were being preserved in accordance with the law.

Democrats are questioning whether any White House officials purposely sent e-mails about official business on the RNC server -- then deleted them, in violation of the law -- to avoid scrutiny.

White House officials said the administration is making an aggressive effort to recover anything that was lost. "We have no indications that there was improper intent when using these RNC e-mails," spokeswoman Dana Perino said.

The new documents also show Justice efforts to tamp down the controversy by meeting with congressional aides they considered potentially sympathetic to their viewpoint -- including a staffer to Sen. Charles E. Schumer, a New York Democrat who has been one of Gonzales' most vocal critics.

Additionally, the documents include correspondence from some prosecutors complaining about being ensnared in the political storm.

The chart underscores the weight that conservative credentials carried with the Justice Department.

The three-page spreadsheet notes the "political experience" of each prosecutor, which was defined as work at the Justice Department's headquarters in Washington, on Capitol Hill, for state or local officials, and on campaigns or for political parties.

Several of the 124 prosecutors on the list were also members of the Federalist Society for Law and Public Policy Studies. The group was founded by conservative law students and now claims 35,000 members, including prominent members of the Bush administration, the federal judiciary and Congress.

How the information was used by the administration isn't clear.

One of the eight attorneys fired in December -- Kevin Ryan, the prosecutor in San Francisco -- was a Federalist Society member.

Two others, David Iglesias in New Mexico and Bud Cummins in Little Rock, Arkansas, held Republican Party posts or ran for office before being tapped as U.S. attorneys, the chart shows.

New contradiction

The documents reveal a new contradiction in officials' accounting of the firings, indicating that replacements for those dismissed were chosen by Justice officials nearly a year beforehand.

Beginning with a January 2006 e-mail to White House Counsel Harriet Miers, former Justice chief of staff Kyle Sampson proposed replacing U.S. attorneys in San Diego, California; San Francisco, California; Michigan; and Arkansas.

The replacements were to include Rachel Brand, who heads the Justice Department's Office of Legal Counsel, to oust Margaret Chiara in Michigan, and Tim Griffin, a Rove protege who now is acting U.S. attorney in Arkansas.

But Sampson, who resigned under fire last month, told the Senate Judiciary Committee on March 29 that "I did not have in mind any replacements for any of the seven who were asked to resign" last December 7.

Gonzales is to explain his role in the firings to the same panel next Tuesday -- an appearance that even Republicans say is crucial to restoring his shaky credibility amid growing calls for his resignation.

"The contradictions continue to pile up," Schumer told reporters Friday. "The questions for the attorney general continue to mount."

Justice spokesman Brian Roehrkasse maintained that, except for Griffin, no replacements were selected before the prosecutors were told to resign.

"The list, drafted 10 months before the December resignations, reflects Kyle Sampson's initial thoughts, not preselected candidates by the administration," Roehrkasse said. "Sampson's initial thoughts were just that."

Sampson attorney Brad Berenson said his clients' testimony was "entirely accurate." He said that "some names had been tentatively suggested for discussion much earlier in the process, but by the time the decision to ask for the resignations was made, none had been chosen to serve as a replacement."

House Judiciary Chairman John Conyers said the new documents "were not a complete response to our subpoena request,"

"I expect that the attorney general, as the nation's chief law enforcement officer, will be respectful of his obligations under the committee's subpoena and respond in full by Monday," said Conyers, a Michigan Democrat.

Some of the documents released could prove embarrassing.

An October 2, 2006, e-mail to Brand, for example, derides Chiara as "Miss Margaret," an insensitive manager who announced in an all-staff meeting which employees would be receiving bonuses and outstanding staff evaluations. The sender's name on the e-mail was stripped from the document.

And in a February 28, 2007, e-mail, Griffin complained to Justice headquarters that he was being maligned as a White House pawn in the media.

"Someone at DOJ left the press with the impression that Harriet Miers vouching for me was some sort of extraordinary event," Griffin wrote to three senior Justice officials. "It wasn't."

Responded Assistant Attorney General Richard Hertling: "Not sure your assertion is accurate. Someone at DOJ merely recounted the facts. ... Your point is well taken, however, in that we need to emphasize the normalcy of the process in your case. I think we are ready to do that."