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White House Balks at E-Mail Search

By Jason Leopold
March 24, 2008

The White House’s chief information officer said the Bush administration should not be compelled to search for millions of e-mails on individual computers and hard drives that may have been lost between 2003 and 2005 because it would be too expensive and require hundreds of hours of work, according to a filing the White House made with a federal court.

The court filing late Friday came in response to an order issued by U.S. Magistrate Judge John Facciola demanding that the White House show cause why it should not be ordered to create and preserve a “forensic copy” of e-mails from individual hard drives.

Facciola entered the show cause order in part because the White House admitted that it did not preserve back-up tapes prior to October 2003, meaning that e-mails may have been lost relating to the administration’s invasion of Iraq in March 2003 and its role in blowing the cover of covert CIA officer Valerie Plame Wilson in July 2003.

Theresa Payton, the chief information officer at the White House Office of Administration, responded that the White House routinely destroyed its hard drives every three years “in order to run updated software, reduce ongoing maintenance, and enhance security assurance. So it’s unlikely that any lost e-mails would be retrieved anyway.

“When workstations are at the end of their lifecycle and retired... under the refresh program, the hard drives are generally sent offsite to another government entity for physical destruction in accordance with Department of Defense guidelines,” Payton said in a sworn affidavit.

“Even if computer workstations used during the relevant time period are identifiable and locatable, making ‘forensic copies’ (as that term is defined by the court) of the workstations that may or may not contain residual data of e-mails would impose a significant burden,” Payton said.

But even putting aside the hundreds of hours of work involved, Payton said, there is no evidence to support allegations made in a lawsuit filed by two watchdog groups that the White House has lost as many as 10 million e-mails, or that the extra searching would do any good.

“Even if some older computer workstations were in use, finding them and copying their hard drives with the hope that the residual data contains relevant e-mail information would create an ‘awfully expensive needle to justify searching a haystack,’” the White House said in a separate filing.

“Because the allegation of missing e-mail from archives is unconfirmed, because the allegation of missing e-mails from back-up tapes is conjectural, and because the computer workstations are unlikely to house significant, if any, relevant material the costs of a forensic copy process would far outweigh any speculative benefits,” the White House said.

The Citizens for Responsibility and Ethics in Washington and George Washington University’s National Security Archive sued the Bush administration last year alleging the White House violated the Presidential Records Act by not archiving e-mails from 2003 to 2005.

The lawsuit followed an internal investigation by officials in Payton’s office who said computer experts could not locate any e-mails from the office of Vice President Dick Cheney between Sept. 30, 2003, and Oct. 6, 2003.

That was the week when the Justice Department launched an investigation into the Plame Wilson leak and set a deadline for Bush administration officials to turn over documents and e-mails containing any reference to Plame Wilson or her husband, former Ambassador Joseph Wilson.

Additionally, Office of Administration staffers said there were at least 400 other days between March 2003 and October 2005 when e-mails could not be located in either Cheney’s office or the Executive Office of the President.

Payton admitted last January that the White House “recycled” its computer back-up tapes until October 2003, making it much more difficult to retrieve e-mails. However, Payton maintains that while e-mails may have been deleted or “recycled,” they can still be recovered.

At a February hearing before the House Oversight and Government Reform Committee, Payton said she felt "very comfortable" that her office would succeed in recovering lost e-mails from "disaster recovery backup tapes." But her office has so far not attempted to do so.

Documents obtained by Rep. Henry Waxman, committee chair, 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 e-mails.

Miers is said to have immediately informed Special Prosecutor Patrick Fitzgerald, who was investigating the leak of Plame Wilson’s undercover CIA status. Fitzgerald had subpoenaed White House e-mails sent in 2003.

In January 2006, Fitzgerald informed the U.S. District Court in Washington that he "learned that not all e-mail 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.

On Feb. 6, 2006, the White House then turned over to Fitzgerald 250 pages of e-mails that it said it had “discovered.” The White House offered no official explanation concerning the circumstances regarding the sudden reappearance of the e-mails, nor comment on whether Fitzgerald's allegations that the e-mails had not been automatically archived were true.

At the time, a White House spokeswoman would only tell me that staffers had "discovered" the batch of documents during a search.

The belated delivery of documents calls into question the integrity of Fitzgerald’s probe, suggesting that he may not have obtained all the evidence related to White House officials’ role in the leak in a timely fashion.

Fitzgerald obtained Libby’s indictment on five counts of perjury and obstruction of justice in October 2005 and tried Libby in early 2007, winning a conviction on four counts. Libby was sentenced to 30 months in prison but President George W. Bush spared the former White House aide any jail time by issuing a commutation.

Testimony and documents implicated several other Bush administration officials in the leaking of Plame Wilson’s identity – including Bush’s chief political adviser Karl Rove and Vice President Dick Cheney – but Fitzgerald has brought no one else to trial and has refused to publicly discuss his prosecutorial judgments.

It is unclear if the possibility of missing e-mails impaired Fitzgerald’s inquiry. Anne Weismann, chief counsel for CREW, told me that she believes there “are unanswered questions about what the special counsel knew, particularly as to scope of e-mail problem.”

”We wrote Fitzgerald a letter last April … suggesting that he reopen the investigation,” Weismann said in an e-mail to me. “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.”

CREW filed a federal court motion earlier this month asking that Payton be held in civil contempt for knowingly submitting false, misleading and incomplete testimony in an affidavit filed with a federal court on Jan. 15.

In that affidavit, Payton said one employee in the Office of Administration — Steve McDevitt, who worked with Payton from 2002 to 2006 — conducted the internal e-mail probe and that the findings are in dispute. She added that she was unaware whether e-mails 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.”

Investigative reporter Jason Leopold is the author of News Junkie, a memoir. Visit for a preview.  

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