White House Official Tells Judge Searching for Missing Emails Requires Too Much Work

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In her sworn affidavit filed January 15, Payton said one employee in the Office of Administration—Steve McDevitt, who worked with Payton from 2002 to 2006—conducted the internal probe and the findings are in dispute. She added that she was unaware whether emails were properly archived.

CREW said Payton’s responses in her affidavit are “false and appear designed to mislead the court into believing that both discovery and any additional interim relief are unnecessary.”

Documents obtained by Henry Waxman, the chair of the House Oversight and Government Reform Committee, show that Payton’s office advised former White House counsel Harriet Miers in late 2003 or early 2004 about the administration’s failure to archive emails. Miers is said to have immediately informed Special Prosecutor Patrick Fitzgerald, who at the time was investigating the leak of Plame Wilson’s undercover CIA status. Fitzgerald had subpoenaed White House emails sent in 2003. However, according to CREW, Fitzgerald's staff was briefed before a complete audit of the email records could be taken and was therefore unaware of how extensive the problem was.

In a story I first reported in February 2006, the White House turned over 250 pages of emails to Fitzgerald it said it “discovered” following a court document Fitzgerald filed in January 2006 in US District Court in Washington, DC, that said he "learned that not all email of the Office of the 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."

That document was filed during the discovery phase of the perjury and obstruction of justice trial against former vice presidential staffer I. Lewis "Scooter" Libby, who was convicted last year by federal grand jury of perjury and obstruction of justice.

The White House offered no official explanation concerning the circumstances regarding the sudden reappearance of the emails it had turned over to Fitzgerald on February 6, 2006, or if there had been any truth to Fitzgerald's allegations the emails had not been automatically archived. At the time, a White House spokeswoman would only tell me that staffers had "discovered" the batch of documents during a search.

It is entirely possible that the missing emails could simply be the result of poor records management.

David Gewirtz, a former computer science professor who also used to be employed as the product management director for Symantec and held the title of "Godfather" at Apple Computer, Inc has written more than 600 articles about email and recently published a book, "Where Have All the Emails Gone” the definitive account about the circumstances that led to the loss of administration emails.

In an interview, Gewirtz said emails suddenly disappeared at a time when the White House had switched its email over from Lotus Notes to Microsoft Exchange, an issue in and of it the author finds suspicious.

"Why did they migrate at this time? The country was getting ready for war," noted Gewirtz, who said he has spoken to Senate and House staffers probing the loss of White House emails. "It doesn't make sense that you would want to yank out your communications structure when you're building up toward war. It's crucial for our government to have qualified communications at a critical juncture. It's just mind bogglingly questionable that the White House would change its communication structure at that time period. Why did they need to do it then? It certainly provides a lot of plausible deniability for when emails are scrutinized."

"Another plausible reason, and this is the conspiracy theory, if you yank out an email system there goes your compliance with the Presidential Records act and there's the 'my dog ate it' excuse," Gewirtz said. "There's really no net loss other than a PR loss."

Gewirtz said his biggest concern about the loss of White House emails is the national security implications.

"There's a separate server for political activity. The server is not located or managed by security experts," Gewirtz said. "Emails are sent by White House staffers using an unsecured server. Hundreds of millions of emails are sent through the open Internet. An email message sent by a low level political employee says where the president is traveling. That can be seen by anyone and can put the president at risk. It's something of a disturbing experience talking to Washington politicians. Technical issue takes a back seat based on what the political goal is. The potential loss through homeland security is pretty profound."

Still, that not a single email could be recovered from Cheney’s office between September 30, 2003 and October 6, 2003, the very week when federal investigators began their probe into the Plame Wilson leak and enjoined all White House staffers to turn over documents referencing Plame Wilson and her husband, raises suspicions. And it calls into question the integrity of Fitzgerald’s probe and suggests that he may not have obtained all of the evidence related to White House officials’ role in the leak.

Anne Weismann, chief counsel for CREW, agreed. In an email exchange with me, she said she believes there “are unanswered questions about what the special counsel knew, particularly as to scope of email problem.”

We wrote Fitzgerald a letter last April after we broke story of significant volume of missing White House emails, suggesting that he reopen investigation,” Weismann said. “To date, we have heard nothing. We have also written to Attorney General Michael Mukasey requesting that he appoint a special prosecutor to investigate and likewise have heard nothing.”

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Jason Leopold is editor of the online investigative news magazine The Public Record, http://www.pubrecord.org, and the author of the National Bestseller, "News Junkie," a memoir. Visit www.newsjunkiebook.com for a preview. He is also a two-time (more...)

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