RE: Those Missing White House Emails

| Fri Apr. 13, 2007 2:23 PM EDT

Subpoenas have been authorized, the press is swarming, the Bush administration's flacks are taking a pounding — I think it's safe to say that the White House email controversy has officially blossomed into a full-blown scandal. This week the White House acknowledged that it may have "lost" an unspecified number of emails that were sent by staffers who used non-governmental, RNC-issued email addresses in what seemed at times a conscious effort to prevent their correspondence from becoming public record. "We screwed up, and we're trying to fix it," White House spokesperson Dana Perino told the press yesterday. She noted that only "a small slice" of the president's staff — among them Karl Rove and his deputies — used email addresses, along with BlackBerrys and laptops, supplied by the RNC. However, no mention has been made — and it's possible that in the end there may be no way of knowing — of just how many administration officials were circumventing the White House servers by using conventional Web mail services, such as Yahoo! or Gmail. This also appears to have been a fairly common practice among staffers who, as one administration official told U.S. News & World Report in 2004, "don't want my email made public."

As the White House comes under increasing scrutiny, the picture just keeps getting bleaker. We learned yesterday, for instance, that until August 2004 the RNC had a policy of deleting emails on its servers that were more than 30 days old. After "legal inquires," presumably those of CIA leak prosecutor Patrick Fitzgerald, the committee began saving the correspondence of White House officials. So, since Karl Rove is said to use his RNC address 95 percent of the time, and is a well known email fanatic, the RNC should have quite a hefty record of his communications, right? Strangely, the RNC doesn't have records of a single Rove email until 2005, which, as the committee's counsel Rob Kelner told members of Henry Waxman's Government Reform Committee, may have been because Rove was deleting them himself. This, it seems, is what led the RNC to remove Rove's ability to delete his messages and place an automatic archiving function solely on his account. Today, Rove's lawyer Robert Luskin explained that his client didn't intentionally purge his emails — rather, in the course of routine housekeeping, he would delete emails to keep his inbox in order. "His understanding starting very, very early in the administration was that those e-mails were being archived," Luskin said.

Beyond Rove's missing emails, and others the White House believes may have been lost due to the RNC's email purging policy, it seems there is another trove of emails that are unaccounted for — millions of them, actually. The watchdog group Citizens for Responsibility and Ethics in Washington reported yesterday that, according to two sources, "in addition to the so-called political emails sent through private accounts, there are over five million emails sent on White House servers over a two-year period that are also missing." In 2005, according to CREW, the White House Office of Administration discovered a problem with its archiving system and, after looking further into the issue, realized "there were hundreds of days in which emails were missing for one or more of the EOP [Executive Office of the President] components subject to the PRA [Presidential Records Act]." Though a plan was drawn up to recover the missing emails, CREW says, no action was ever taken to retrieve the lost messages.

In its report, CREW also raises two issues that I brought up in my original story on the controversy. The first is the Hatch Act "excuse," as CREW puts it. The White House has maintained (and the press hasn't challenged) that administration officials with political duties were using a separate, RNC-administered email system in order to avoid breaching Hatch, which prohibits federal employees from engaging in political activity on the job. This certainly seems like a reasonable explanation, unless you actually read the law. It states clearly that Senate-confirmed presidential appointees and staffers whose salaries are paid from an appropriation for the Executive Office of the President (read: White House officials) are allowed to engage in political activity that is otherwise prohibited to other federal employees — for instance, they are allowed to talk strategy with the RNC anytime, anywhere — as long as the associated costs are not picked up by taxpayers. While in the Clinton White House separate computer terminals were apparently set aside for staffers with political duties, the use of partisan email addresses is a new and highly unusual wrinkle. As Steven Aftergood, the director of the Federation of American Scientists' Project on Government Secrecy told me a couple weeks back, "It shows how closely intertwined the White House is with its partisan allies. The fact that the White House and the RNC are working hand in hand and White House officials are using RNC emails is itself remarkable."

The other question I raised has to do with an intriguing line in a January 2006 letter from Patrick Fitzgerald to Scooter Libby's defense team that's buried deep in the USA v. Libby docket. In it, Fitzgerald informs Libby's lawyers that the prosecution had "learned that not all email 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." Karl Rove's lawyer told the AP today that Fitzgerald had access to emails from Rove's various accounts. He also noted that, in addition to the White House, the prosecutor subpoenaed records from the RNC and the president's reelection campaign. "There's never been any suggestion that Fitzgerald had anything less than a complete record," Luskin said.

Considering that we now know that millions of White House emails are potentially MIA, all of them drafted during a time period that would have been relevant to Fitzgerald's investigation, if that hasn't been suggested before it certainly will be now.

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