Fitzgerald - Missing Emails?

In recent court filings from the Libby case we learned that certain White House emails had not been archived in accordance with normal procedures (see Exhibit C).

Georgia10 at the DailyKos does a nice job of unmasking the Bush-Cheney conspiracy, but also does a nice job of preserving a question mark in the headline:

Fitzgerald Reveals Someone's Been Tampering With Evidence?

Tampering with evidence?  Georgia10 makes much of the "twelve hour gap" - the DoJ notified WH Counsel Gonzalez about the Plame investigation in the evening, and Gonzalez notifed the WH staff to preserve records the following morning.  Of course, WH emails are subject to archiving under the 1978 Presidential Records Act, so the gap is irrelevant to this specific issue, but fun's fun.

Even the word "deleted", tossed about casually by folks untroubled by reality, is premature - for all you or I know, the White House has a double-secret archive for national-security emails, and Fitzgerald is simply hinting to Libby's attorneys that to access these emails they have to ask the archivists nicely with the proper buzz-phrase that pays.  [Or, Fitzgerald may be alluding to the mysterious journey taken by the Rove-Hadley email - see UPDATE.]

As noted at DKos, an investigation into destruction of evidence is well within the scope of the Fitzgerald inquiry.  The good news is, there is no need to appoint a special counsel to look into this, since we already have one.  More good news - if this is really a significant story, Fitzgerald's office continues to be leak free.  And even better news - Fitzgerald notes that "we are aware of no evidence pertinent to the charges against defendant Libby which has been destroyed".  How he would know that without some hint as to what is missing is baffling, although I suppose it may be a statement of pure ignorance.  But if Fitzgerald does know what it was that was not archived with the normal procedures, that does suggest that he gained access to it some other way.

The NY Sun also covers this - they manage to round up some "no comments", and walk through the legal background going back to the 80's.  Pete Yost of the AP also has coverage, and concludes with this:

The Presidential Records Act, passed by Congress in 1978, made it clear that records generated in the conduct of official duties did not belong to the president or vice president, but were the property of the government.

The National Archives takes custody of the records when the president leaves office.

"Bottom line: Accidents happen and there could be a benign explanation, but this is highly irregular and invites suspicion," said Steve Aftergood, director of the Federation of American Scientists government secrecy project.

"A particular subset of records sought in a controversial prosecution have gone missing," Aftergood said. "I think what is needed is for the national archivist to ascertain what went wrong and how to ensure it won't happen again."

Well, there are plenty of questions without answers, so I expect this will make a useful Dem screaming point for a few days.  And we are curious to see how long the folks at DKos can hold on to that question mark.

MORE:  More on Mark Kleiman?  Oh, whatever.  Let's reflect on this point of his:

Disposing of another wingnut talking point, Fitzgerald asserts that, as of the Novak column, the only reporters who knew that Valerie Plame worked at the CIA were Woodward, Miller, Pincus, and Cooper. So much for the argument that the fact was widely known in political Washington...

Just to grab a name at random, the consensus is that Fitzgerald never even chatted with Nick Kristof of the Times.  In his letter Special Counsel Fitzgerald was able to distinguish between what he knew ("we were not aware"), and what was.  Would that others could do the same.

UPDATE:  Fitzgerald cites both the Office of the Vice President and the Executive Office of the President in his cautionary statement:

"We are aware of no evidence pertinent to the charges against defendant Libby which has been destroyed," Fitzgerald wrote in a letter to the defense team.

But the prosecutor added: "In an abundance of caution, we advise you that we have learned that not all e-mail 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."

Well - might he simply be referring to the mysterious journey taken by the Rove-Hadley email?  Maybe he was offered some techno-babble explanation for why that email eluded the first round of subpoenas, and the supporting evidence included other emails not "preserved through the normal archiving process".  In which case, he may simply be advising the Libby team of his own *possible* inability to comply with their discovery since the White House *may* have failed to comply with his subpoena - sure, they tell him they have solved the glitch and recovered everything, but how is a Special Counsel to know?

Comments

[kim]

What is Aftergood's basis for claiming that stuff is missing?

And I'm with the pure ignorance crowd. Fitz's statement was of simple agnosticism.
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[kim]

Or was missing?
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[p.lukasiak]

Fitzgerald notes that "we are aware of no evidence pertinent to the charges against defendant Libby which has been destroyed". How he would know that without some hint as to what is missing is baffling, although I suppose it may be a statement of pure ignorance.

legally, that is precisely how it has to be read. ("We know stuff is missing, we don't have any evidence that what is missing is exculpatory").

But if Fitzgerald does know what it was that was not archived in the normal procedures, that does suggest that he gained access to it some other way.

yes, well the references to "preservation" through "normal" archiving procedures certainly leads one to speculate that there were archives other than the "official" ones that are under the jurisdiction of the National Archives.

Personally, I think the odds are good that this is just a red herring --- that Fitz is just trying to scare a few people.

**********************

Just to grab a name at random, the consensus is that Fitzgerald never even chatted with Nick Kristof of the Times. In his letter Special Counsel Fitzgerald was able to distinguish between what he knew ("we were not aware"), and what was. Would that others could do the same.

there is no evidence that Kristof was aware of the "Plame connection", which is what the entry referred to. That being said, the "Andrea Mitchell" comment remains unresolved, and is far more significant than speculation re: Kristof...

[p.lukasiak]

What is Aftergood's basis for claiming that stuff is missing?

the fact that FitzG knows stuff is missing from the "normal" White House archives.

Its entirely possible that all Fitz knows ist that stuff is missing --- activity logs would reveal that emails had been sent and received that should have been part of the archives, but are not.

Then again, the fact that the Rove-Hadley email surfaced after a computer search of emails that should have turned it up strongly suggests that relevant emails were deleted from the system....

[kim]

How odd you must find Kristoff.

Perhaps some emails were shown to Fitz in October.
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[kim]

Blackberry splotches? Did I ever tell you about the time I saw a load of starlings getting flocked on the rotting fruit of a mulberry tree? Ye shall know them by their issue.
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[Sue]

p.luk,

Not trying to be a contrarian here, but how exactly does an email that didn't turn up strongly suggest emails were deleted?

[kim]

p.l: You're not making sense here. Where in Fitz's words do you find that email is or was missing?
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[kim]

Remember, 'not found' is not the same as 'missing'.
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[kim]

Are all conversations archived? All phone calls? All emails? All blackberry commo? The laws, as is usually the case, only approximately fit us.
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[maryrose]

Curioser and curioser; the Plame investigation unfolds. Personally the e-mail kerfuffle; I'm hard pressed to see any there there.

[Dwilkers]

"...there is no evidence that Kristof was aware of the "Plame connection..."

That's right pluk, Kristoff had breakfast with Joe and Val months before to talk about Joe's trip but he didn't find out that Val worked at the CIA. Even though the meeting was the basis for Kristoff's ensuing column. I mean, she was there, but he just thought she was there to make the eggs and pour the OJ - and little Joe and Val didn't tell him because, you know, it was top secret, and Kristoff's subsequent columns describing her career and all don't have anything to do with what he learned that day.

That makes a lot of sense. Just keep repeating it to yourself.

[Jeff]

Questions for Clifford May: It's been reported by David Corn that you told him that you had been interviewed by investigators in the CIA leak inquiry. And you have stated in print that you learned that Joe Wilson's wife worked at the CIA before Robert Novak's July 14 2003 column. Yet you are not among the reporters that the special prosecutor has recently stated are the only ones he is aware of who knew that Joe Wilson's wife worked at the CIA prior to July 14, 2003. What did you tell investigators about your knowledge of Wilson's wife's employment at the CIA? And why, like Robert Novak but unlike the other reporters on Fitzgerald's list of those how knew Valerie Plame Wilson worked at the CIA, have you not published an account of your role in the investigation?

[Jeff]

I would like Kristof to be more forthcoming. But there is a relevant difference between Kristof and May: May has claimed that he knew Plame worked at the CIA before Novak's column. Kristof has claimed no such thing. And May stands with Robert Novak and as the only reporters who have claimed pre-Novak knowledge of Plame's CIA employment who have not offered accounts of their role in the investigation. Not very good company. Let's add in Andrea Mitchell, who perhaps claimed and then retracted the claim to pre-Novak knowledge of Plame's CIA employment, but who has given some account of her role in the investigation, however unsatisfactory. We've gotten even less from May. Not very good company, and I hope he gets out of it soon, and offers us a clear and unambiguous account of his role in the investigation, in particular telling us what he told investigators, when he was interviewed and by whom, and so on.

[p.lukasiak]

Not trying to be a contrarian here, but how exactly does an email that didn't turn up strongly suggest emails were deleted?

a "keyword" search of the archives was supposedly done that should have turned up the "Rove-Hadley" email.

The fact that the Rove-Hadley email did not turn up in the "keyword" search of the archives strongly suggests that it had been deleted from the archives.

*********************
p.l: You're not making sense here. Where in Fitz's words do you find that email is or was missing?

Oh, I think the following language says that email is missing from the archives...

"we advise you that we have learned that not all email of the Office of Vice President and the Executive Office of President for certain time periods in 2003 was preserved through the normal archiving process on the White House computer system."

do try and pay attention to all the facts, kim, not just the ones you want to know about....

*********************

That's right pluk, Kristoff had breakfast with Joe and Val months before to talk about Joe's trip but he didn't find out that Val worked at the CIA. Even though the meeting was the basis for Kristoff's ensuing column. I mean, she was there, but he just thought she was there to make the eggs and pour the OJ - and little Joe and Val didn't tell him because, you know, it was top secret, and Kristoff's subsequent columns describing her career and all don't have anything to do with what he learned that day.

yup.....what's so difficult about believing that Plame would maintain her cover during a visit by Kristof to talk to Wilson?

I know that wingnut logic insists that this whole thing is a massive conspiracy between the media and the Wilsons, but the facts don't bear that out.

[nittypig]

TM, The language on the missing evidence "we are aware of no evidence" is basically the same as that on the reporters, "we were not aware". Fitz doesn't know what's in the missing emails, and hasn't built his case on it. Likewise he doesn't know of other reporters who might have known about Plame, and hasn't built his case on that either.

You cannot reasonably claim that Fitz' statment suggests that he knows what's in the missing emails, any more than Kleiman can claim that his statement on reporters means that no-one else knew.

[kim]

'Not all email was preserved through the normal archiving process' is not the same as saying that stuff is or was missing. Please try to pay attention to logic.
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[p.lukasiak]

Fitz doesn't know what's in the missing emails, and hasn't built his case on it.

Fitz may, in fact, be building part of his case on the missing emails.....

He may (or may not) know what is in the emails. What he probably does know is

1) who sent and received each one, when each one was sent, and how long each one was.

2) When each one was removed from the archives, and by whom

I think the "by whom" may be key here, because it is unlikely that any of the principles had sufficient knowledge to screw around with the archives -- that means some geek did it, and that geek basically destroyed federal property and was threatened with an indictment if he didn't tell who told him to destroy the information in the files....

.....my guess is (as usual) Hadley.

[cathyf]

Is this a Microsoft Exchange server? If the answer is "yes" then this assertion:

"Bottom line: Accidents happen and there could be a benign explanation, but this is highly irregular and invites suspicion," said Steve Aftergood, director of the Federation of American Scientists government secrecy project.

Is hilarious. As anyone who has ever been a victim of a microsoft mail system knows, MSExchange corrupts its databases over time.

A classic symptom is that if you connect with POP vs IMAP you see different messages. In order to fix it, you have to shut the whole system down and rebuild the database indices from the data, and there is always mail that just disappears in the process -- typically it's mail that was showing on one protocol but not the other. While the system is shut down (typically a 1-3 day process) all of the mail that would normally get fed into the mail system, as in from the internet, has no where to go. Depending upon how those systems are configured, the mail either sits there patiently waiting and comes in when the server goes back online, or it gets dropped in the bit bucket and is never seen again. (Bill Gates: "It's not a bug, it's a feature!")

While MSExchange is a particularly unreliable program, they all have bugs in them, and they can all fail. Not to mention that the archiving is done on some sort of electronic media (disks, mag tapes, cds, etc.) and some certain percentage of that stuff just fails and becomes unreadable. Anybody who thinks that data storage systems are perfect and any failure is suspicious really ought to be taken to their local mental health facility for evaluation -- see what other delusions they are suffering from.

cathy :-)

[p.lukasiak]

'Not all email was preserved through the normal archiving process' is not the same as saying that stuff is or was missing. Please try to pay attention to logic.

get serious. If the emails were not preserved (and everything was supposed to be preserved) that means they are missing FROM THE ARCHIVES.

And really, don't lecture me about logic, when you don't have the first fucking clue what you are talking about.

[Gary Maxwell]

What? Aren't you the guy just upthread talking about a looney wingnut conspiracy theory? And then you blurt out something so wild that anything you derided above pales in comparison? Sheesh.

[kim]

Your speculations about Fitz's knowledge of those emails is horse patootie.
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[Sue]

Fitzgerald asserts that, as of the Novak column, the only reporters who knew that Valerie Plame worked at the CIA were Woodward, Miller, Pincus, and Cooper.

How can Fitz unequivocally assert that these are the only reporters who knew? He thought Novak, Miller, Pincus and Cooper were the only ones until Woodward stepped forward. He thought Libby was the first to leak to a reporter, until Woodward stepped forward. He has to be saying they are the only ones he has corroborated evidence that says they knew. Or he is setting himself up for another egg on his face moment.

[kim]

Actually, Sue, I think he has been very careful there. I interpret that to mean that at a certain period of time those were the only reporters that he, Fitz, knew about. Wild.
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[cathyf]

'Not all email was preserved through the normal archiving process'

could mean something as innocuous as 'we have special folders for the penis-enlargement, breast-enhancement, Canadian-pharmacy, bootleg-software, mortgage-refinance, and phishing spam and we don't mix it into the regular archives.'

(Haven't you ever wondered whether the president and the pope get more or less spam than the rest of us, and if their experts have figured out more clever ways to deal with it?)

cathy :-)

[Cecil Turner]

The fact that the Rove-Hadley email did not turn up in the "keyword" search of the archives strongly suggests that it had been deleted from the archives.

Nonsense. It strongly suggests they used the wrong "keywords." (Which is both what they claimed, and the most logical answer if you actually read the thing.)

Oh, I think the following language says that email is missing from the archives...

No it doesn't. It says "not all email . . . for certain time periods in 2003 was preserved through the normal archiving process on the White House computer system." That could mean it was preserved via a non-normal process, or not preserved. Or, perhaps he's saying the VP's e-mail system has a remote database that didn't update properly. (And yes, assuming the first has to be true is a logic issue.) In any event, it sounds like he's talking about a computer glitch.

yup.....what's so difficult about believing that Plame would maintain her cover during a visit by Kristof to talk to Wilson?

What's so difficult about believing she might talk? It looks to be pertinent, so why not ask?

[Sue]

I read the actual letter. I should have done so first instead of using an article that refers to wingnuts. Mr. Fitzgerald asserted they were they only ones he was aware of. Not that they were the ONLY reporters.

[The Unbeliever]

p.luk, I think what kim is getting at is roughly similar to my theory: Fitz's language indicates the e-mails could have been archived, but not using the proper bureaucratic methods. The entire paragraph of his letter pasted on Raw Story:

"We are aware of no evidence pertinent to the charges against defendant Libby which has been destroyed. In an abundance of caution, we advise you that we have learned that not all email... was preserved through the normal archiving process on the White House computer system."

This does not indicate that the e-mail was deleted from the archives--which would require deliberate action--but that it may never have been stored there in the first place, for reasons unlisted. It may be that the White House IT staff was swithcing to a new archiving system, and e-mails from a certain time period are now languishing in a temporary data store; or maybe they were foolish enough to use MSExchange (don't get me started on a tech rant), and e-mails during that time never into the DB in the first place, but got dumped into a system folder.

In these cases, a keyword search on the main archives would fail to turn up some data, but that data is not lost or being willfully obscured. (Though I suspect whatever poor intern got assigned the task of manually adding these e-mails to the DB has received a stern talking-to...)

[The Unbeliever]

Oops, Cecil made my points first while I was typing. That'll teach me to post without refreshing the thread first...

[Sue]

We are aware of no evidence...which has been destroyed.

That statement is in response to a question/statement in the January 5, 2006 letter sent to Fitzgerald by Libby's counsel. Is that letter posted elsewhere? It wasn't in the link TM provided as EX C.

[Dwilkers]

On the e-mail thing I remember reading a story shortly after the election in 2000 about GWB having decided he couldn't use e-mail to talk to the twins anymore because every e-mail he sent was going to be public record. I thought that was sad at the time.

The e-mail thing is disturbing, but the best evidence there's no 'there' there is that there hasn't been an indictment. That would be very high on my list if I were Fitz and there was something fishy going on - and you'd think he'd have learned about this problem a couple years ago.

Whatever the case you can bet Rove and Libby aren't responsible for running the backup tapes at the White House every night before they turn off the lights.

[Sue]

Bad...bad...italics....

[Sue]

Apologies to the board...

[kim]

You made me a believer, Unbeliever.
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[TM]

Personally, I think the odds are good that this is just a red herring --- that Fitz is just trying to scare a few people.

Well, I will seize a rare opportunity to agree with P Luk.

However, we are all circling around the other obvious explanation - something strange *may* have happened to that Hadley-Rove email, and Fitzgerald clearly refers to both the OVP and the Exec Office of the Pres, which might include Rove.

A possible unified explanation - Fitzgerald got some techno-bable explanation about why Rove's email was so hard to find (wrong server, wrong archive, whatever), and part of the evidence backing the story was that a batch of emails were misplaced.

So, "in an abundance of caution", Fitzgerald is just saying to Libby's team, look, I am trying to cooperate with you guys on your discovery, but I can't promise you that everything I ought to have in compliance with my own subpoenas has actually been sent to me. So, if it looks like I am horsing you around by withholding something I ought to have, it may be that the archivists horsed me around.

Or, (to try again) Fitzgerald might be saying, look, I know some stuff got misplaced, and was eventually found; I have no idea whether I can conclude that everything was found, or how I would be sure of that.

Well - as noted, he is authorized to investigate this, and, with Rove, presumably he is.

[Joe]

I heard somewhere that Fitz had evidence that the emails in question were generated with an IBM Selectric and used a proportional spaced font...

[Ranger]

Wasn't there a similar problem with e-mail archiving during the Clinton administration? I seem to recall that something like a year and a half's e-mails were just never captured and stored. I think Judicial Watch filed a wistleblower case for a fired White House staff member or contractor who was threatened with reprisal if they exposed the problem. I also recall that one of the key White House IT staffers at the time (who was central to the controversy) was later (a few years later) fired from an important IT job at DHS for having bogus stuff on her resume.

[Cecil Turner]

I don't know anything about their system, but the one we had at my last command used to dump itself about once a quarter, and we'd inevitably lose some of the data. On rereading Fitz's somewhat technical phrasing, that seems to be the sort of thing he's implying. (Presumably as an explanation of why Libby's broad discovery request might not be feasible). I'm beginning to doubt there's anything here.

[Syl]

Why is so much current trouble pointed to laws and regulations made in the '70's? Don't answer. The question was rhetorical, but the solution may not be.

-Presidential Records Act, 1978
-"budget process rigged for spending by the Democrats in 1974" (WSJ, Instapundit)
-FISA, 1978
-and I will add the Hughes-Ryan Act, 1974, which instilled micro-management of the CIA
-And the granddaddy, the Church Committee, which resulted, among other things, in Ford's executive order to ban assassinations

Looking back it seems the '70's were an overreaction. A correction seems necessary.

[Sue]

The letter is in response to a formal discovery request, whether in the form of a legal document or a letter (I believe federal courts (and possibly some states) (I further believe they allow for letters in this instance since this letter is the prosecution's response and it is not in legal form) require initial disclosures that are pretty standard.

Sample question: Your written response to any document production request should state the following: (a) Whether no DOCUMENTS exist; (b) If you withhold any DOCUMENT
because of a claim of privilege, IDENTIFY each such DOCUMENT and the specific ground for withholding it; (c) If your response is that any requested DOCUMENTS are not in YOUR possession, custody or control, describe in detail the efforts YOU made to locate the DOCUMENTS and IDENTIFY who has control and the LOCATION of the DOCUMENTS; (d) IDENTIFY
the source of each DOCUMENT you produce; and (e) If any requested DOCUMENT has been destroyed IDENTIFY all facts concerning the DOCUMENT and its destruction.

I think too much is being made of the response in Fitz's letter. It is a standard reply to a standard question with a caveat, possibly knowing how Rove's email was discovered at a later date, and other emails might surface the same way that one did.

[Jeff]

Syl - I love it. The new era of personal responsibility ushered in by the Republicans: don't blame us Republicans who control both law-making branches of the federal government for the absurd budget. It's the 1974 Democrats' fault! They rigged the process! And it can't be unrigged! We've been screwed!

[SmokeVanThorn]

pluk - Before you sneer at others' lack of logic, see if you can grasp the notion that the statement "my son did not put his bicycle in the garage as I instructed him to do" does not necessarily lead to the conclusion "the bicycle is now missing" because it could be found someplace else, like the driveway or the bushes.

[Sue]

Sorry, I meant to provide the Source. Documents are identified in Federal Rules of Evidence 1001

le 1001. Definitions

For purposes of this article the following definitions are applicable:

(1) Writings and recordings. "Writings" and "recordings" consist of letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation.

(2) Photographs. "Photographs" include still photographs, X-ray films, video tapes, and motion pictures.

(3) Original. An "original" of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An "original" of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an "original".

(4) Duplicate. A "duplicate" is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduces the original.

[Rick Ballard]

Geez, Sue, now you're confusing me with facts....

Thank you.

[Syl]

Jeff

Rather defenseive are we? You're quite right. The Reps aren't doing their job. They're perfectly capable of adjusting the rules, they just haven't tackled it and as I understand it, their base is angry.

[topsecretk9]

Also, it's important to remember Cecil's point: if this wasn't tagged onto the indictment it's hard to see Fitz insinuating it's part of his case now. (Cecil of course articulates it better).

I'm also not sure Fitz would include "a red herring" about an issue he was currently investigating (the secrecy thing).

I think TM's 2 explanations are about right. There asking for everything including the kitchen sink and Fitz warning them he doesn't have the kitchen sink and they will loose there?

[topsecretk9]

loose = lose

[Rick Ballard]

TS,

I agree - surfeit of caution and rule following to the letter. Shakespeare may have written a play with an appropriate title for this situation.

The opposition's problem with Arachne's new nanothread is that the clothes produced are invisible.

[Uncontrollable laughter]

Paul Lukasiak:
do try and pay attention to all the facts, kim, not just the ones you want to know about....

I sent this in to the OED for a future example of self-parody. Really, PK, you act as if you have no track record in such matters.

[Neo]

The missing items are securely stored with the missing e-mails of former Vice President Al "I invented the Internet" Gore.

Seems Al either didn't use his e-mail or his "crack" team of IT folks lost most, if not all, of the e-mails that he did send.

Libby's attorneys should contact the guys at Judicial Watch who have had the Clinton White House in court over missing e-mails ad infinitum.