The Continued Absurdity of the Missing White House Emails Case

Regular readers may recall that last spring, the White House reported that it may have lost some 5 million emails. Later last year, two non-profits, the National Security Archive (NSA) and Citizens for Responsibility and Ethics in Washington (CREW), sued to ensure the preservation of the emails. (That suit is still pending, and you can read about the whole story on our missing White House emails index page).

During the course of the legal proceedings, CREW filed Freedom of Information Act requests for documents prepared by the White House Office of Administration (OA) that analyzed the scale of the missing email problem. But the White House denied the FOIA requests, making the unique and unprecedented legal argument that the OA is not, in fact, a federal agency and therefore not subject to the FOIA. CREW sued, citing OA’s previous treatment as an agency and history of responding to FOIA requests as obvious evidence that the White House argument was ridiculous. That brings us to today, when a DC district court ordered (PDF) limited discovery in order to find out whether OA is, in fact, a federal agency.

You read that right: CREW had to get a court order to gather information to prove that a government agency is, in fact, a government agency.

According to the court order, the FOIA defines an agency as “any establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency,” but does not include “the President’s immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President.” In the past, other White House-affiliated offices like the Office of Science and Technology, the Council on Environmental Quality, and Office of Management and Budget have been found to be agencies subject to FOIA. It’s quite likely that following discovery, the court will rule that OA is also an agency.

But followers of this story will realize that whether or not OA is eventually ruled an agency is somewhat beside the point. The administration’s objective in all this seems to be to delay outside access to documents relating to the missing emails for as long as possible. And with the transitory nature of electronic records and the clock running out on the President’s tenure, they won’t need to delay much longer. Remember, this entire lawsuit is simply to gain access to documents that will enable the plaintiffs in the main lawsuit to assess the scope of the problem they’re suing about. But before long, the emails the White House failed to backup, many of them during the lead up to the Iraq war and the leaking of Valerie Plame’s covert identity, may be irreversibly gone. By then, whether or not the OA is an agency will be beside the point.