CREW Chief on Fitzgerald and the Missing Emails

By Matt Renner and Jason Leopold
t r u t h o u t | Report

Wednesday 18 April 2007

A couple of weeks before I. Lewis "Scooter" Libby, Vice President Dick Cheney's former chief of staff, was indicted on perjury and obstruction of justice charges, then-White House Counsel Harriet Miers was told that an internal White House probe determined that millions of administration emails dating back to 2003 were lost.

Miers immediately informed Patrick Fitzgerald, the special prosecutor appointed to investigate whether administration officials knowingly leaked the identity of covert CIA operative Valerie Plame Wilson, about the administration's lost emails, a government watchdog group has claimed, but Miers may not have told Fitzgerald the extent of the White House's email problem.

During a wide-ranging interview with Truthout on Monday, Melanie Sloan, executive director of Citizens for Responsibility and Ethics in Washington (CREW), and CREW's Chief Counsel Anne Weismann said they believe Miers did not fully inform Fitzgerald about the millions of emails the White House lost between 2003 and 2005. As a result, the CREW attorneys said it's likely that Fitzgerald did not obtain all of the evidence related to the leak investigation - particularly emails sent during that time period by Karl Rove that may further implicate the White House political adviser in the Plame Wilson leak.

The latest revelation by CREW provides new insight into how Fitzgerald first became aware that some emails related to the leak investigation were not turned over to FBI investigators in the fall of 2003, which the special prosecutor disclosed in a court filing in January 2006.

"We assume this is what [Fitzgerald] was referring to [in his court filing], but we do not know how deep the briefing given to him by Miers was," Sloan said.

In a story first reported by Truthout last year, Fitzgerald revealed that his investigative team "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," according to the January 2006 court filing. Less than two weeks after Fitzgerald revealed that emails from the White House were missing, 250 pages of emails from President Bush and Vice President Dick Cheney's offices were turned over to investigators working for the special prosecutor - more than two years after the investigation had begun.

The White House offered no official explanation concerning the circumstances regarding the sudden reappearance of the emails it turned over to Fitzgerald on February 6, 2006. At the time, a White House spokeswoman would only say that staffers "discovered" the batch of documents during a search.

In October of 2005, the White House Office of Administration discovered that White House emails had not been archived in accordance with the Presidential Records Act, according to Sloan. The Office of Administration briefed Miers about the lost emails and Miers is said to have immediately informed Fitzgerald's staff about the issue due to the fact that Fitzgerald had subpoenaed White House emails sent in 2003. However, according to Sloan, Fitzgerald's staff was briefed before a complete audit of the email records could be taken.

The Office of Administration audit concluded that more than five million emails had been lost. Sloan, who said her organization had obtained information about the extent of the emails the White House lost from two sources - one a former Bush administration official - believes this "suggests that Fitzgerald might not have gotten the complete story."

In late January 2004, Fitzgerald suspected that Rove had either hidden or destroyed an important document tying him to the leak, as well as the effort to discredit Plame's husband, Ambassador Joseph Wilson, who had been a vocal critic of the Iraq war and accused the Bush administration of twisting pre-war Iraq intelligence. The document that Fitzgerald believed Rove had either hidden or destroyed was an email Rove sent to Stephen Hadley, then-deputy national security adviser, in early July 2003. The email proved Rove had a conversation with Time magazine reporter Matthew Cooper about issues related to the CIA leak. Rove did not disclose that conversation when he was first interviewed by the FBI three months after he had emailed Hadley.

Curiously, the email Rove sent to Hadley did not show up during a search ordered by then-White House Counsel Alberto Gonzales in September 2003. Gonzales enjoined all White House staff members to turn over any communication pertaining to Plame Wilson and her husband. Gonzales's directive came twelve hours after senior White House officials had been told of the pending investigation.

"It looks like Karl Rove may well have destroyed evidence that implicated him in the White House's orchestrated efforts to leak Valerie Plame Wilson's covert identity to the press in retaliation against her husband, former Ambassador Joseph Wilson," Sloan said last week. "Special Counsel Fitzgerald should immediately reopen his investigation into whether Rove took part in the leak, as well as whether he obstructed justice in the ensuing leak investigation."

In light of the revelations Thursday that thousands of emails Rove sent over a four-year period via an email account maintained by the Republican National Committee may have been destroyed, questions as to why an email Rove sent to Hadley was not initially found in the 10,000 pages of documents and emails turned over to the special counsel has resurfaced. Additionally, there are also questions about the veracity of statements Rove and his attorney, Robert Luskin, made to Fitzgerald more than two years ago regarding why that email to Hadley wasn't found.

On April 12, CREW published a report entitled, "WITHOUT A TRACE: The Missing White House Emails and Violations of the Presidential Records Act," outlining the widespread failures by the White House to retain its emails. In its report, CREW said that "although [then-] White House counsel [Harriet Miers] was provided a detailed briefing of this analysis, and a plan of action to recover the missing email was developed, the plan has never been executed."

During a press briefing on Monday, White House Spokeswoman Dana Perino said the administration is "aware that there could have been some emails that were not automatically archived because of a technical issue."

"We have talked with the Office of Administration about that, and we're looking into those details," Perino said. "But given the complex nature of this issue, it might take us a little while to identify those. We do, however, know that most - all of those emails should be available on backup tapes."

Last week, CREW sent a letter to Fitzgerald urging him to reopen his investigation in light of revelations that thousands of emails Rove sent via an email account maintained by the Republican National Committee had been lost. CREW serves as legal counsel to Joseph and Valerie Wilson in their civil suit against Rove, Vice President Dick Cheney, I. Lewis "Scooter" Libby and Richard Armitage. Libby was convicted of perjury and obstruction of justice earlier this year for his role in the leak of Plame's identity.

Fitzgerald has not responded to CREW's letter, Sloan said.

Weismann, chief counsel for CREW, said the fact that Rove and other White House officials have sent emails through their Republican National Committee (RNC) accounts raises new questions about the integrity of Fitzgerald's investigation.

"Rove admitted to using the RNC servers for 95% of his correspondence," Weismann said. "Was Fitzgerald aware of this prior to closing the case? Did [Fitzgerald] know emails were being deleted from the RNC server?"

Until 2004, the RNC deleted emails from its server after 30 days. However, administration officials with RNC accounts could still independently access and delete email from the RNC server. The RNC said Rove was blocked from deleting emails from his RNC account during the CIA leak investigation.

Henry Waxman, chairman of the House Oversight and Governmental Reform Committee, has been investigating the use of unofficial email accounts by Bush administration officials. On Thursday, Waxman's staff met behind closed doors with RNC Counsel Rob Kelner to discuss the issue. In a letter to Gonzales on Thursday, Waxman said that the RNC has email archives dating back to 2004, but "has apparently destroyed all email records from White House officials from 2001, 2002 and 2003."

According to Waxman's letter, the RNC had special email procedures for Rove. According to Kelner, the RNC does not have any archived emails prior to 2005 for Rove. This, despite the reports that Rove uses his RNC account for the majority of his correspondence. Waxman said that Kelner "did not give any explanation for the emails missing from Mr. Rove's account, but he did acknowledge that one possible explanation is that Mr. Rove personally deleted his emails from the RNC server."

Sloan and Weismann said CREW has no direct evidence proving that Rove intentionally withheld emails from Fitzgerald's probe. But the CREW attorneys doubt that Rove and the White House has been forthcoming about Rove's involvement in the Plame Wilson leak in light of the fact that millions of emails during the height of the leak have not been recovered. Moreover, Sloan said it's difficult to determine whether Rove's attorney, Robert Luskin, has been forthcoming with Fitzgerald about the changing stories that Rove and Luskin told the special prosecutor regarding Rove's role in the Plame Wilson leak and the discovery of the email Rove sent to Hadley.

"He is a well-known lawyer and I would give him the benefit of the doubt, but there is no way to know if he was telling the truth or not at this point," Sloan said.