[House Report 106-1023]
[From the U.S. Government Publishing Office]



                                                 Union Calendar No. 593

106th Congress, 2d Session - - - - - - - - - - - - House Report 106-1023

 
 THE FAILURE TO PRODUCE WHITE HOUSE E-MAILS: THREATS, OBSTRUCTION, AND

                          UNANSWERED QUESTIONS

                               __________

                             EIGHTH REPORT

                                 by the

                     COMMITTEE ON GOVERNMENT REFORM

                             together with

                     MINORITY AND ADDITIONAL VIEWS

                             Volume 1 of 2

                                     


                                     

  Available via the World Wide Web: http://www.gpo.gov/congress/house
                      http://www.house.gov/reform

December 4, 2000.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                               __________

                    U.S. GOVERNMENT PRINTING OFFICE
67-229                     WASHINGTON : 2000

                     COMMITTEE ON GOVERNMENT REFORM

                     DAN BURTON, Indiana, Chairman
BENJAMIN A. GILMAN, New York         HENRY A. WAXMAN, California
CONSTANCE A. MORELLA, Maryland       TOM LANTOS, California
CHRISTOPHER SHAYS, Connecticut       ROBERT E. WISE, Jr., West Virginia
ILEANA ROS-LEHTINEN, Florida         MAJOR R. OWENS, New York
JOHN M. McHUGH, New York             EDOLPHUS TOWNS, New York
STEPHEN HORN, California             PAUL E. KANJORSKI, Pennsylvania
JOHN L. MICA, Florida                PATSY T. MINK, Hawaii
THOMAS M. DAVIS III, Virginia        CAROLYN B. MALONEY, New York
DAVID M. McINTOSH, Indiana           ELEANOR HOLMES NORTON, District of 
MARK E. SOUDER, Indiana                  Columbia
JOE SCARBOROUGH, Florida             CHAKA FATTAH, Pennsylvania
STEVEN C. LaTOURETTE, Ohio           ELIJAH E. CUMMINGS, Maryland
MARSHALL ``MARK'' SANFORD, South     DENNIS J. KUCINICH, Ohio
    Carolina                         ROD R. BLAGOJEVICH, Illinois
BOB BARR, Georgia                    DANNY K. DAVIS, Illinois
DAN MILLER, Florida                  JOHN F. TIERNEY, Massachusetts
ASA HUTCHINSON, Arkansas             JIM TURNER, Texas
LEE TERRY, Nebraska                  THOMAS H. ALLEN, Maine
JUDY BIGGERT, Illinois               HAROLD E. FORD, Jr., Tennessee
GREG WALDEN, Oregon                  JANICE D. SCHAKOWSKY, Illinois
DOUG OSE, California                               ------
PAUL RYAN, Wisconsin                 BERNARD SANDERS, Vermont 
HELEN CHENOWETH-HAGE, Idaho              (Independent)
DAVID VITTER, Louisiana
                      Kevin Binger, Staff Director
                     James C. Wilson, Chief Counsel
           David A. Kass, Deputy Counsel and Parliamentarian
                     M. Scott Billingsley, Counsel
                       Pablo E. Carrillo, Counsel
                        Jason A. Foster, Counsel
                       Kimberly A. Reed, Counsel
                     Robert A. Briggs, Chief Clerk
              Philip M. Schiliro, Minority Staff Director
               Philip S. Barnett, Minority Chief Counsel
            Kristin Amerling, Minority Deputy Chief Counsel
                   Paul Weinberger, Minority Counsel


                         LETTER OF TRANSMITTAL

                              ----------                              

                                  House of Representatives,
                                  Washington, DC, December 4, 2000.
Hon. J. Dennis Hastert,
Speaker of the House of Representatives,
Washington, DC.
    Dear Mr. Speaker: By direction of the Committee on 
Government Reform, I submit herewith the committee's eighth 
report to the 106th Congress.
                                                Dan Burton,
                                                          Chairman.


                                     
                            C O N T E N T S

                              ----------                              
                                                                   Page
Table of names...................................................  VIII
Key dates........................................................     X
Findings.........................................................    XV
 I. Why the committee investigated the White House failure to manage e-
    mail records......................................................1
        A.  White House document production: a pattern of delay 
            and omission.........................................     3
        B.  The significance of e-mail records to this 
            committee's investigations...........................     9
II. The e-mail problems explained: a brief summary...................12
        A.  The Mail2 problem....................................    14
        B.  The D-User problem...................................    17
        C.  The Office of the Vice President problems............    18
III.The White House concealed the e-mail problems....................20

        A.  Mark Lindsay and Laura Callahan threatened contract 
            employees............................................    20
        B.  The Office of Administration repeatedly informed the 
            White House about the e-mail problem.................    41
        C.  The White House Counsel failed to address the e-mail 
            problem..............................................    48
        D.  Additional problems hampered efforts to repair the e-
            mail system..........................................    62
        E.  Office of Administration management failed to act....    70
IV. The White House has misled Congress and the public about the e-mail 
    problem..........................................................88
        A.  The White House response.............................    88
        B.  The White House's attempts to impede the 
            investigation........................................    96
        C.  The White House's gamesmanship with the production of 
            the missing e-mails..................................   105
 V. Concerns regarding the joint e-mail investigation undertaken by 
    Department of Justice and the Office of Independent Counsel.....112
        A.  The Attorney General's refusal to appoint a special 
            counsel..............................................   116
        B.  Tony Barry's false statements to the Alexander court 
            underscore the Justice Department's conflict of 
            interest.............................................   117
        C.  The Department of Justice's failure to interview 
            material witnesses in a timely fashion...............   124
        D.  The Department of Justice's failure to devote 
            adequate resources to the e-mail investigation.......   128
Exhibits.........................................................   130

                               APPENDICES

Appendix 1.--Committee correspondence............................   874
Appendix 2.--Document subpoenas issued to the White House........  1119
Appendix 3.--Subpoenas to testify issued to the White House......  1283

                                 VIEWS

Minority Views of Hon. Henry A. Waxman, Hon. Tom Lantos, Hon. 
  Major R. Owens, Hon. Edolphus Towns, Hon. Paul E. Kanjorski, 
  Hon. Patsy T. Mink, Hon. Carolyn B. Maloney, Hon. Eleanor 
  Holmes Norton, Hon. Chaka Fattah, Hon. Elijah E. Cummings, Hon. 
  Dennis J. Kucinich, Hon. Rod R. Blagojevich, Hon. Danny K. 
  Davis, Hon. Jim Turner, Hon. Harold E. Ford, Jr., and Hon. 
  Janice D. Schakowsky...........................................  1285

 I. Executive summary..............................................1285
        A.  Background...........................................  1286
        B.  Allegations..........................................  1287
        C.  The majority's version of Events.....................  1293
II. Background.....................................................1294
        A.  The Automated Records Management System..............  1295
        B.  The Mail2 problem....................................  1297
        C.  Other e-mail problems................................  1302
        D.  Committe knowledge of the e-mail matter..............  1304
III.Allegations regarding the Mail2 problem........................1305

        A.  Allegation that e-mails relevant to investigations 
            have not been produced...............................  1305
        B.  Allegation that Northrop Grumman employees were 
            threatened with jail if they discussed the Mail2 
            problem..............................................  1306
        C.  Allegation that Northrop Grumman employees were told 
            not to tell others about the Mail2 problem...........  1310
            1.  The OA instructions not to discuss...............  1310
            2.  The OA instructions regarding Northrop Grumman 
                management.......................................  1313
        D.  Allegation that the White House concealed information 
            about the Mail2 problem from Congress and various 
            independent counsels.................................  1314
        E.  Allegation that Earl Silbert told the White House 
            about the alleged threats and problems with subpoena 
            compliance...........................................  1316
        F.  Allegation that the White House failed to disclose a 
            computer disk containing non-produced Monica Lewinsky 
            e-mails..............................................  1319
        G.  Allegation that an OA employee filed a false and 
            misleading affidavit about the Mail2 problem.........  1320
        H.  Allegation that an OA employee attempted to hide 
            information about the Mail2 problem from Congress....  1321
        I.  Allegation that Cheryl Mills was responsible for the 
            failure to disclose the Mail2 problem................  1322
        J.  Allegation that the Justice Department has failed to 
            investigate, or to appoint a special counsel to 
            investigate, the e-mail matter.......................  1323
        K.  Other allegations....................................  1325
            1.  Allegation that the White House has delayed 
                reconstruction of the e-mails....................  1325
            2.  Allegation that the White House has impeded the 
                committee's investigation........................  1326
            3.  Allegation that OA briefing materials are 
                evidence of a conspiracy to hide the Mail2 
                problem from Congress............................  1327
            4.  Allegation that Sidney Blumenthal tried to 
                prevent his e-mails from being archived..........  1327
IV. Allegations concerning the Office of the Vice President........1328
        A.  Allegation that the OVP deliberately attempted to 
            circumvent subpoena compliance.......................  1328
        B.  Allegation that the reconstructed OVP e-mails contain 
            significant information..............................  1330
        C.  Allegation that Vice President Gore sought to hide e-
            mails from investigators.............................  1331
        D.  Allegation that the Vice President was aware of 
            records management problems in the OVP...............  1332
 V. The costs of the investigation and the reconstruction effort...1333
Exhibits.........................................................  1336

Additional views of Hon. Dan Burton..............................  1460

  I. Further evidence that Northrop Grumman employees were threatened 
     into secrecy about the e-mail problem.........................1460
        A.  Robert Haas told Joseph Vasta about the threats......  1460
        B.  Northrop Grumman Director of Contracts Joseph 
            Lucente's letter to the contractor was prompted by 
            the allegations of threats...........................  1461
        C.  Earl Silbert's law firm has additional documents 
            related to his contacts with the White House and 
            representation of Northrop Grumman...................  1462
        D.  Telephone message slip confirmed contact between Earl 
            Silbert and Special Counsel to the President Lanny 
            Breuer in December 1998..............................  1464
        E.  Earl Silbert was not Northrop Grumman's natural 
            choice for outside counsel on a contracts matter.....  1464
        F.  Lanny Breuer's recollection of the contact with Earl 
            Silbert..............................................  1465
        G.  Lucente confirmed the extraordinary nature of OA 
            Director Ada Posey's ``special task order'' request..  1465
 II. Northrop Grumman's recent failure to cooperate with the 
     investigation.................................................1466
        A.  Northrop Grumman's specious assertions of privilege..  1466
        B.  Northrop Grumman's refusal to waive attorney-client 
            privilege............................................  1471
        C.  Northrop Grumman's failure to provide documents in a 
            timely manner........................................  1473
III. Further evidence of the insufficiency of the test search and the 
     unraveling of the ``disconnect'' defense......................1474
        A.  The attorney who performed the comparison changed her 
            story................................................  1474
        B.  Mark Lindsay failed to act after learning of the 
            comparison results...................................  1476
 IV. The Justice Department's questionable handling of the e-mail 
     matter........................................................1477
        A.  Examples of advocacy in Alexander v. FBI that 
            undermine confidence in the purported criminal 
            investigation........................................  1477
        B.  The Attorney General's failure to allocate adequate 
            resources to the e-mail investigation................  1480
  V. The critics of the investigation have utterly failed to address 
     the facts on their merits.....................................1481
        A.  Response to the minority staff rebuttal..............  1481
        B.  Judge Todd Campbell's comments on the report.........  1487
        C.  Cheryl Mills' opening statement at the committee's 
            March 4, 2000 hearing................................  1488
Exhibits.........................................................  1491

                               APPENDICES

Appendix 1.--Committee correspondence since September 27, 2000...  1567
Appendix 2.--Detailed chronologies...............................  1635
Appendix 3.--Office of the Vice President documents..............  1653
                             TABLE OF NAMES

                              ----------                              





The White House:
    William Jefferson Clinton.............  President of the United
                                             States
    John Podesta..........................  Chief of Staff
    Mark Lindsay..........................  Assistant to the President
                                             for Management and
                                             Administration, former
                                             Director of the Office of
                                             Administration (OA) and
                                             former General Counsel to
                                             OA
    Virginia Apuzzo.......................  Former Assistant to the
                                             President for Management
                                             and Administration

The White House Counsel's Office:
    Beth Nolan............................  Counsel to the President
    Charles F.C. Ruff.....................  Former Counsel to the
                                             President
    Dimitri Nionakis......................  Associate Counsel to the
                                             President
    Cheryl Mills..........................  Former Deputy Counsel to the
                                             President
    Lanny Breuer..........................  Former Special Counsel to
                                             the President
    Sally Paxton..........................  Former Special Associate
                                             Counsel to the President
    Michelle Peterson.....................  Former Associate Counsel to
                                             the President

The Office of the Vice President:
    Albert Gore, Jr.......................  Vice President of the United
                                             States
    Charles Burson........................  Chief of Staff, former
                                             Counsel to the Vice
                                             President
    Todd Campbell.........................  Former Counsel to the Vice
                                             President
    Kumiki Gibson.........................  Former Associate Counsel to
                                             the Vice President
    Michael Gill..........................  Former Staff Secretary

The Office of Administration:
    Michael Lyle..........................  Director
    Ada Posey.............................  Former Director
    Paulette Cichon.......................  Former Deputy Director
    Dorothy Cleal.........................  Former Information Systems
                                             and Technology Division
                                             (IS&T) Director
    Kathleen Gallant......................  Former IS&T Director
    Dale Helms............................  Contracting Officer (CO) and
                                             IS&T Procurement Branch
                                             Chief
    James Wright..........................  Former Contracting Officer's
                                             Technical Representative
                                             (COTR) and IS&T Data Center
                                             Branch Chief
    Laura Callahan........................  Former IS&T Desktop Systems
                                             Branch Chief
    Karl Heissner.........................  IS&T Systems Integration
                                             Development Branch Chief
    Daniel A. ``Tony'' Barry..............  Computer Specialist
    Nell Doering..........................  Supervisory Management
                                             Analyst
    Christina VanFossan...................  Financial Management
                                             Division Director
    Joseph Kouba..........................  Financial Management
                                             Division Budget Analyst

Northrop Grumman:
    Earl J. Silbert.......................  Outside legal counsel, Piper
                                             Marbury Rudnick & Wolfe
    Joseph Lucente........................  Director, contracts and
                                             subcontracts
    James DeWire..........................  Program director
    Steven Hawkins........................  Former program manager
    Joseph Vasta..........................  Former program manager
    Betty Lambuth.........................  Former Lotus Notes team
                                             manager
    Robert Haas...........................  Lotus Notes administrator
    John E. Spriggs.......................  Senior engineer
    Sandra Golas..........................  VAX Systems administrator
    Yiman Salim...........................  Lotus Notes developer


                               KEY DATES

                              ----------                              





September 1996............................  A computer contractor
                                             mislabels a White House e-
                                             mail server ``Mail2''
                                             instead of ``MAIL2''
                                             causing incoming e-mail not
                                             to be recorded.
December 2, 1997..........................  Attorney General Reno
                                             declines to appoint an
                                             independent counsel to
                                             investigate telephone
                                             fundraising by President
                                             Clinton or Vice President
                                             Gore.
January 21, 1998..........................  Lewinsky scandal breaks.
January 30, 1998..........................  Daniel A. ``Tony'' Barry
                                             prepares incident report
                                             describing e-mail anomaly
                                             with Lewinsky
                                             (INTERNETUSER1) and Raines
                                             (EOPUSER1) e-mail.
June 11, 1998.............................  Barry is deposed in the
                                             Alexander v. FBI case
                                             regarding the ARMS system.
                                             Asked by a Justice
                                             Department lawyer if e-mail
                                             sent from Idaho to a White
                                             House PC would be stored in
                                             the ARMS system, Barry
                                             states, ``If it was
                                             directed to their E-mail ID
                                             at the EOP, yes, it would
                                             be.''
June 12, 1998.............................  Northrop Grumman (NG)
                                             contractors discover the
                                             Mail2 problem.
June 15, 1998.............................  Laura Callahan, Mark
                                             Lindsay, and NG contractors
                                             discuss Mail2 problem.
                                             Contractors say they were
                                             threatened, and three say
                                             ``jail'' was mentioned.
June 18, 1998.............................  Robert Haas (NG) completes
                                             an audit of the White House
                                             e-mail system. Document
                                             lists unrecorded e-mails
                                             totaling 246,083.
June 19, 1998.............................  Memorandum from Assistant to
                                             the President Apuzzo to
                                             John Podesta advising of
                                             anomaly in the Mail2
                                             server.
June 19, 1998.............................  Charles Ruff calendar entry
                                             indicating meeting with
                                             Mark Lindsay and Cheryl
                                             Mills.
July 10, 1998.............................  Barry writes e-mail to his
                                             supervisor indicating he
                                             reviewed Alexander
                                             deposition transcript. Made
                                             changes and faxed to
                                             Department of Justice
                                             attorney. Same e-mail
                                             indicates that Barry spent
                                             ``a considerable amount of
                                             time this week working on
                                             the Mail2 problem.''
August 13, 1998...........................  Barry writes e-mail to his
                                             supervisor: ``As far as I
                                             can tell, there is no
                                             movement under way to fix
                                             the problem and recover the
                                             lost records from the
                                             backup tapes. . . . I feel
                                             that the records must be
                                             recreated and any searches
                                             need to be reperformed if
                                             the requestors feel it is
                                             necessary[.] . . . This
                                             seems like a daunting
                                             proposition but I do not
                                             see any other alternative .
                                             . . I appologize [sic] for
                                             the rambling nature of this
                                             memo but I hope it captures
                                             my concerns and frustration
                                             level.''
August 17, 1998...........................  President Clinton testifies
                                             before the grand jury and
                                             tells the Nation that he
                                             had an ``inappropriate
                                             relationship'' with Monica
                                             Lewinsky.
August 28, 1998...........................  NG Deputy Program Manager
                                             Vasta meets with NG
                                             contractors. They tell him
                                             about threats, express
                                             concern about document
                                             searches, and say they have
                                             been prohibited from
                                             speaking to superiors.
                                             Pursuant to previous
                                             instructions from OA
                                             management not to take
                                             notes, a contractor seizes
                                             Vasta's notes at the end of
                                             the meeting.
September 9, 1998.........................  NG Director of Contracts
                                             Lucente and NG corporate
                                             counsel meet with
                                             contractors. They tell him
                                             about threats, express
                                             concern about document
                                             searches, and say they have
                                             been prohibited from
                                             speaking to superiors.
September 10, 1998........................  Barry sends e-mail to
                                             supervisors: ``I am growing
                                             increasingly concerned
                                             about the seeming lack of
                                             movement on the Mail2
                                             problem. Do you know where
                                             the hold up is. We have
                                             known about this problem
                                             for 4 months now and not a
                                             single record has been
                                             passed to ARMS . . . even
                                             worse, the root problem has
                                             not been fixed.''
September 11, 1998........................  House of Representatives
                                             releases the report of
                                             independent counsel Starr
                                             to the public.
September 11, 1998........................  Earl Silbert (former
                                             Watergate prosecutor
                                             retained by NG) has
                                             teleconferences with NG
                                             counsel and an NG employee.
September 12, 1998........................  Earl Silbert has
                                             teleconference with NG
                                             counsel.
September 14, 1998........................  Northrop Grumman sends
                                             letter to the White House
                                             stating that ``Ms.
                                             [Callahan] directed the
                                             Company employees to
                                             evaluate the [Mail2]
                                             problem and undertake
                                             remedial action, without
                                             Northrop Grumman management
                                             involvement. . . . Based on
                                             our review, the level of
                                             effort required to remedy
                                             the dysfunction will
                                             substantially exceed the
                                             scope of work contemplated
                                             under the referenced
                                             contract. As a consequence
                                             we are not proceeding with
                                             our efforts to remedy the
                                             dysfunction until we have
                                             received further
                                             contractual direction.''
September 15, 1998........................  Earl Silbert has
                                             teleconference with
                                             Northrop Grumman counsel.
September 22, 1998........................  Earl Silbert has
                                             teleconference with
                                             Northrop Grumman counsel.
September 25, 1998........................  Barry e-mail to his
                                             supervisor and to IS&T
                                             Director Gallant indicating
                                             there has still been no
                                             movement on Mail2 problem,
                                             even though he sent the
                                             ``concerned memo'' 2 weeks
                                             ago--needs to know his role
                                             for his ``own sanity.''
September 28, 1998........................  Earl Silbert has
                                             teleconference with ``White
                                             House counsel.''
October 9, 1998...........................  Earl Silbert has
                                             teleconference with NG
                                             counsel.
October 10, 1998..........................  Laura Callahan leaves the
                                             EOP (approximate date given
                                             by Callahan in her
                                             testimony).
November 23, 1998.........................  The Mail2 problem is
                                             prospectively cured.
                                             Henceforth, e-mail messages
                                             from outside the White
                                             House will be archived.
                                             Unarchived e-mails,
                                             however, still cannot be
                                             reviewed for subpoena
                                             compliance.
November 24, 1998.........................  Attorney General Reno
                                             declines to appoint an
                                             independent counsel to
                                             investigate Vice President
                                             Gore's solicitations from
                                             the White House.
December 4, 1998..........................  Insight article on
                                             ``Computer Glitch Leads to
                                             Trove of `Lost' E-mails at
                                             White House'' is published.
                                             In the article, White House
                                             spokesman Barry Toiv
                                             confirms there is a problem
                                             but claims that e-mails
                                             were duplicative of
                                             documents produced to
                                             independent counsel Starr
                                             in the Lewinsky matter.
December 7, 1998..........................  Attorney General Reno
                                             declines to appoint an
                                             independent counsel to
                                             investigate President
                                             Clinton's role in 1996
                                             fundraising activities.
December 11, 1998.........................  Vasta sends memo on weekly
                                             COTR meeting. Northrop
                                             Grumman notified the
                                             ``Government'' about
                                             Insight magazine article.
December 12, 1998.........................  House Judiciary Committee
                                             approves articles of
                                             impeachment against
                                             President Clinton.
December 15, 1998.........................  Earl Silbert has a
                                             teleconference with
                                             Northrop Grumman counsel.
December 19, 1998.........................  The House of Representatives
                                             impeaches President
                                             Clinton.
December 30, 1998.........................  Earl Silbert has
                                             teleconference with ``White
                                             House counsel.''
January 29, 1999..........................  Attorney General Reno
                                             declines to appoint an
                                             independent counsel to
                                             investigate Harold Ickes'
                                             role in 1996 fundraising
                                             activities.
February 12, 1999.........................  The Senate acquits President
                                             Clinton of the impeachment
                                             charges.
February 24, 1999.........................  Kate Anderson (OA Counsel's
                                             office) deletes a reference
                                             to Mail2 reconstruction
                                             from materials used to
                                             brief Mark Lindsay for his
                                             testimony before
                                             congressional
                                             appropriators. Lindsay
                                             later explains that he did
                                             not need his briefing
                                             materials to cover things
                                             he already understood.
March 2, 1999.............................  Lindsay testifies before
                                             Congressman Kolbe's
                                             Appropriations
                                             Subcommittee. He neither
                                             requests funding to
                                             reconstruct unrecorded e-
                                             mails, nor informs the
                                             subcommittee about the
                                             Mail2 problem.
March 19, 1999............................  OA General Counsel Lyle
                                             sends e-mail to Joe Kouba
                                             asking Kouba to ``correct''
                                             OA budget materials used
                                             for briefing Virginia
                                             Apuzzo by removing bullet
                                             relating to Mail2
                                             reconstruction.
April 9, 1999.............................  D-user problem discovered.
                                             This problem meant that all
                                             users whose names commenced
                                             with ``D'' did not have
                                             their e-mails archived from
                                             October 21, 1998, until
                                             June 1, 1999.
July 9, 1999..............................  Barry declaration in
                                             Alexander v. FBI fails to
                                             mention the failure of
                                             ARMS.
February 15, 2000.........................  First article on the e-mail
                                             scandal mentioning threats
                                             appears in the Washington
                                             Times. The White House
                                             fails to inform the
                                             committee that there is a
                                             problem with subpoena
                                             compliance.
March 17, 2000............................  White House finally
                                             acknowledges Mail2, D-user,
                                             and Office of the Vice
                                             President (OVP) e-mail
                                             problems in letter from
                                             Counsel to the President
                                             Beth Nolan to Chairman
                                             Burton.
March 20, 2000............................  Mark Lindsay of OA sends
                                             letter to Congressman Kolbe
                                             requesting $1.7 million
                                             from the Armstrong account
                                             to remedy the e-mail
                                             problem.
March 23, 2000............................  Michael Lyle appears before
                                             Congressman Kolbe's
                                             Appropriations
                                             Subcommittee. Lyle does not
                                             mention e-mail problems in
                                             his opening statement.
March 23, 2000............................  Committee on Government
                                             Reform holds its first
                                             hearing on the e-mail
                                             scandal.
March 30, 2000............................  Committee on Government
                                             Reform holds its second
                                             hearing on the e-mail
                                             scandal.
April 27, 2000............................  Congressman Kolbe sends
                                             letter to Mark Lindsay
                                             stating: ``the Committee is
                                             extremely concerned that it
                                             took nearly two years for
                                             the White House to notify
                                             the Committee of this
                                             critical problem and the
                                             potential implications for
                                             additional moneys to both
                                             solve the problem and
                                             reconstruct the e-mails.''
May 3, 2000...............................  Committee on Government
                                             Reform holds its third
                                             hearing on the e-mail
                                             scandal.
May 4, 2000...............................  Committee on Government
                                             Reform holds its fourth
                                             hearing on the e-mail
                                             scandal.
June 7, 2000..............................  White House admits over 1
                                             year's worth of OVP e-mail
                                             permanently destroyed.
                                             Although four hearings
                                             discussing the White House
                                             failure to comply with
                                             subpoenas have been held,
                                             this is the first
                                             notification that there is
                                             a significant problem with
                                             OVP subpoena compliance.
August 23, 2000...........................  Attorney General Reno
                                             declines to appoint a
                                             special counsel to
                                             investigate Vice President
                                             Gore's fundraising
                                             activities.
September 22, 2000........................  White House produces first
                                             batch of reconstructed e-
                                             mails responsive to the
                                             committee's previous
                                             subpoenas. Documents
                                             include several e-mails
                                             related to the Vice
                                             President. New e-mails have
                                             a bearing on the Hsi Lai
                                             Temple event and White
                                             House fundraising coffees.
                                             However, the universe of e-
                                             mails reconstructed appears
                                             not to have been searched
                                             for other issues of
                                             interest to the committee.
September 26, 2000........................  Committee on Government
                                             Reform holds its fifth
                                             hearing on the e-mail
                                             scandal. The Justice
                                             Department refuses to
                                             provide the committee with
                                             the number of full time
                                             attorneys assigned to their
                                             e-mail investigation.


             FINDINGS OF THE COMMITTEE ON GOVERNMENT REFORM

    A computer problem caused a failure to archive e-mail 
messages sent from outside the White House to over 400 White 
House officials from September 1996 until November 1998. 
Consequently, White House lawyers were unable to review 
information in order to determine whether it should be turned 
over to investigators in order to comply with subpoenas. As the 
Committee on Government Reform began to investigate this 
matter, it became clear that congressional, Justice Department, 
and independent counsel investigations were harmed by this 
failure. Earlier this year the White House was forced to admit 
that it had not complied with subpoenas issued by the Committee 
on Government Reform. On September 22, 2000, the White House 
made its first production of recovered e-mails to the 
committee. A number of those e-mails are highly relevant to the 
committee's investigation of campaign finance matters and had 
not been provided to the committee in the preceding 3\1/2\ 
years. Furthermore, the recently released e-mails point to 
individuals who would have been interviewed years ago, if their 
involvement in matters under investigation had been known 
earlier.
    Soon after the committee began its investigation, it also 
learned of other information management failures. Most 
significantly, the committee learned that the Vice President's 
Office took affirmative steps to keep from storing its e-mail 
records in the only system that would permit full and accurate 
subpoena compliance, thereby ensuring incomplete document 
productions. In addition, approximately 1 year of e-mail 
records from the Vice President's Office were never backed up, 
meaning that any e-mails that were deleted during that critical 
time period are lost forever. Unlike the other White House e-
mail problems, the Office of the Vice President problems stem 
from a conscious decision made by the Vice President's Office, 
and span at least 6 years of the Clinton Presidency.
    The implications of these revelations are profound. When 
the Nixon White House was forced to admit that there was an 
18\1/2\ minute gap on a recorded tape, there was a firestorm of 
criticism. The ``gap'' created by hundreds of thousands of 
missing e-mails, and by a Vice Presidential staff decision to 
manage records so they could not be searched, is of no less 
consequence. If senior White House personnel were aware of 
these problems, and if they failed to take effective measures 
to recover the withheld information--or inform those with 
outstanding document requests--then the e-mail matter can 
fairly be called the most significant obstruction of 
congressional investigations in U.S. history. While the White 
House's obstruction in Watergate related only to the Watergate 
break-in, the potential obstruction of justice by the Clinton 
White House reaches much further. The e-mail problem effects 
almost every investigation of the administration, from campaign 
finance to Monica Lewinsky.
    It is important to remember that the White House first 
discovered that there was a problem with its subpoena 
compliance at critical periods in two of the most significant 
investigations in our recent history: the inquiry that led to 
the impeachment of President Clinton, and the Justice 
Department investigation into efforts by China and other 
foreign entities to influence U.S. elections. This report 
presents information that personnel in the Clinton White House 
knew that the e-mail problems necessarily meant that there had 
been incomplete document production to investigators, and that 
senior personnel did nothing to correct the problem until it 
was independently discovered. The failure to report the missing 
e-mails is the latest in a long string of actions meant to 
thwart congressional and criminal investigations focused on the 
White House. These actions include a White House Counsel's 
refusal to comply with a document subpoena for months until 
threatened with a contempt citation, the fraudulent use of 
legal privileges to withhold documents, the failure to produce 
videotapes of the President until they were independently 
discovered, and the intentional concealment of relevant 
documents in the Counsel's office itself.
    The gravity of the White House obstruction became much 
clearer on September 22, 2000, when the White House released e-
mails reconstructed by the Federal Bureau of Investigation. 
Although the FBI only reconstructed a small percentage of 
available backup tapes, the recently produced e-mail revealed 
significant new evidence, and identified new witnesses who have 
never been interviewed. The new information in the e-mails 
would have been highly relevant to the Justice Department's 
three interviews of the President and five interviews of the 
Vice President. In fact, the new evidence directly undermines 
testimony previously given by the Vice President.
    The Committee on Government Reform has conducted an 
investigation into the White House e-mail problems, and the 
concomitant failure by the White House to produce documents to 
Congress, the Justice Department, and a number of independent 
counsels. From the outset, the committee set about determining 
whether senior White House officials were aware of the problem, 
what steps they had taken to cure the problem, and why Congress 
had not been informed. The committee held 5 days of hearings, 
issued 5 document subpoenas, and interviewed 34 individuals. It 
has been hampered in its investigation by a White House staff 
that is more interested in covering up the problem than in full 
disclosure.
    This report describes what the committee learned, and this 
preliminary section explains the findings of the committee. The 
committee's findings have been grouped in seven categories: (1) 
an explanation of why e-mail records are critical to the 
committee's investigations; (2) evidence that the White House 
Counsel's Office failed to cooperate with the committee; (3) 
findings that the e-mail problem was understood by senior White 
House staff; (4) a description of evidence that the White House 
obstructed numerous investigations; (5) a recommendation that a 
special counsel be appointed to investigate the e-mail matter; 
(6) a recommendation that a special master should be appointed 
to supervise the review and production of responsive White 
House e-mail after the reconstruction process has been 
completed; and (7) a finding that the White House decision to 
keep the e-mail matter secret has added to the cost of 
reconstructing the e-mails.

     E-mail Records Are Critical to the Committee's Investigations

 E-mail communication is indispensable to fact-finding. 
Technological innovations have made e-mail one of the most 
effective methods of communication. It is not possible to 
conduct a thorough investigation without reviewing all relevant 
information about a subject, and e-mail provides a particularly 
candid insight into people's thoughts and communications. For 
example, when the committee investigated President Clinton's 
decision to grant clemency to 16 Puerto Rican terrorists in 
1999, it was significant that one senior adviser to the 
President e-mailed the White House Deputy Chief of Staff, the 
White House Director of Intergovernmental Affairs, and two 
Deputy Assistants to the President: ``[t]he VP's Puerto Rican 
position would be helped.''
    E-mail communications have been no less important in other 
investigations. When a key National Security Counsel aide was 
asked about giving photographs to DNC fundraiser Johnny Chung, 
a man he described as a ``hustler,'' he replied by e-mail ``to 
the degree it motivates him to continue contributing to the 
DNC, who am I to complain?'' Prior to the Hsi Lai Temple event, 
when the Vice President was e-mailed by one of his staff 
members that ``[w]e've confirmed the fundraisers for Monday, 
April 29th,'' he replied, also by e-mail, ``[I]f we have 
already booked the fundraisers then we have to decline.''
    The production of recently reconstructed e-mails on 
September 22, 2000, to this committee shows that the concerns 
about withheld e-mails are not hypothetical. One e-mail from 
the person ``desking the VP's trip to CA on 4/29'' states that 
the Vice President was committed to do a fundraising event in 
Los Angeles on April 29, 1996. The e-mail was drafted on April 
9, 1996, and the only event in Los Angeles as of that date was 
a luncheon at the Hsi Lai Temple. This information is 
significant because as of April 9, 1996, the Hsi Lai Temple 
event was considered a fundraiser, and there is no mention of 
an event at another venue--a direct contradiction of 
representations that a separate fundraising event had been 
scheduled and then canceled at the last minute. Another e-mail 
from Vice President Gore's political director, in discussing a 
``coffee list,'' asks whether ``these are FR coffees right?'' * 
It is significant that the author of this e-mail, Karen 
Skelton, has never been interviewed by the Justice Department. 
Yet another e-mail to the Vice President himself offers him 
suggestions on how to avoid having his e-mails recorded by the 
White House recordkeeping system. The information in these e-
mails is not only important for evaluating whether the Vice 
President committed perjury in any of his Justice Department 
interviews, it also shows that it is impossible to come to a 
final conclusion about underlying campaign finance matters 
without a complete review of all the previously withheld 
information.
---------------------------------------------------------------------------
    * When the White House released these documents, White House staff 
suggested that ``FR'' could stand for ``finance-related,'' not 
``fundraiser.'' However, other documents authored by the same 
individual leave little doubt that she used the abbreviation ``FR'' to 
refer to fundraisers. For example, in a March 18, 1997, e-mail she 
writes: ``one FR date before 2 pm today.'' In another e-mail authored 
on the same day she uses ``FR information'' for the subject description 
and then goes on to talk about a specific fundraising event in explicit 
detail. She also uses ``FR'' in the following construction: ``The 
questions on the FR are . . . [.]''
---------------------------------------------------------------------------
    The White House e-mail problems began in September 1996, a 
particularly significant period in the White House fundraising 
scandal. Within a month, articles about fundraising 
improprieties began to surface in major publications, 
triggering a torrent of communication between participants in 
various elements of the scandal. There is, therefore, a 
legitimate expectation that there would be significant e-mail 
traffic that has not been produced to this committee. The 
archiving problems have also prevented most of the e-mails from 
a much longer period of time in the Office of the Vice 
President from being searched in response to subpoenas. This is 
important because the Vice President is at the center of 
significant aspects of the campaign fundraising investigation. 
Indeed, the September 22, 2000, production of e-mails to this 
committee shows how significant some of the withheld e-mails 
are.
    There is also a realistic expectation of additional 
information responsive to subpoenas in the Puerto Rican 
terrorist issue and to the Hudson, WI gaming permit matter. At 
present, the Justice Department is apparently not even making 
an effort to extract e-mails discussing these issues. Although 
obstruction of the impeachment inquiry is not the focus of an 
investigation by this committee, the e-mail problems also cover 
almost the entire period that led to the impeachment of 
President Clinton.

  The White House Has Failed to Cooperate Fully With the Committee's 
                             Investigation

 The White House and White House employees have not 
cooperated fully with this committee's investigation of the e-
mail problems. Assistant to the President Mark Lindsay, former 
Deputy Counsel to the President Cheryl Mills, and former White 
House supervisor Laura Callahan declined to be interviewed by 
the committee, thus necessitating the issuance of subpoenas. It 
is rare to have government employees elect not to cooperate 
with congressional investigations, and the failure of Callahan 
and Lindsay to be interviewed impeded the committee's 
investigation.
    Another example of the White House failure to cooperate 
occurred in May 2000, when an Associate Counsel to the 
President dodged service of a congressional subpoena in an 
effort not to testify before Congress about his own role in the 
White House e-mail problems. This conduct by a legal adviser to 
the President was shameful.
    Document production has also been a source of some 
frustration to the committee. For example, an important 
document drafted by White House computer supervisor Daniel A. 
Barry was provided to the committee the day after Barry 
testified before the committee. This purposeful action by the 
White House prevented the committee from questioning Barry 
effectively about this document when he was under oath. 
Doubtless, it took more time, thought, and effort to withhold 
the document than it would have taken to produce it in a timely 
fashion. By holding the document back, however, the White House 
obtained a small tactical advantage.
    The White House also initially refused to provide the 
committee with the ``test'' e-mail messages furnished to the 
White House Counsel to determine if the e-mail problem was 
responsible for ongoing document production problems. As with 
other actions of the Counsel's Office, the initial 
obstructionist position wasted time. If the committee had not 
followed up on this matter, it would still not know the extent 
of the White House's deficient efforts to solve the e-mail 
problem.
    As soon as the e-mail problem was discovered in early 2000, 
White House and Justice Department officials made public 
statements diminishing the scope and importance of the problem. 
If the White House was prepared to tolerate these self-serving 
and inaccurate statements, there is far less reason to believe 
subsequent statements made to investigators by those who 
continue to protest that nothing improper was done.

The E-Mail Problem Was Explained to Senior White House Staff and Their 
  Assertions That a ``Disconnect'' Caused Them Not to Understand the 
            Ramifications of the Problem Are Not Believable

 White House senior staff, including the Counsel to the 
President and the Deputy Chief of Staff, were clearly told 
about the e-mail problem. The fact that a memorandum about the 
e-mail problem was drafted for the White House Deputy Chief of 
Staff within days of supervisors being informed of the problem 
illustrates that White House staff understood that this was a 
matter of significance. The memorandum conveys very clearly 
that incoming internet e-mail was not being captured by the 
ARMS system, and that ARMS was responsible for ``identification 
and retrieval of documents in response to information 
requests.'' Of course, the Counsel to the President, as the 
person responsible for producing documents pursuant to 
subpoenas, was required to have a very clear understanding of 
the importance of ARMS to document production.
    John Podesta, who is now the White House Chief of Staff, 
and who had extensive experience dealing with scandal-related 
matters, told the committee that in his role as Deputy Chief of 
Staff at the time, he understood that the problem might have an 
impact on subpoena compliance.
    Mark Lindsay, now an Assistant to the President and then 
the top lawyer at the Office of Administration, discussing what 
he told senior White House personnel, informed the committee: 
``I remember being very specific about the technical problem 
and the fact that incoming e-mail was probably not being ARMS 
managed.'' He also indicated that he understood that there was 
a potential impact on searches for documents. It is important 
to note that when he was first informed of the e-mail problem, 
Lindsay personally spoke to the contract employees, with whom 
he had never spoken before or since.
    Given the high profile treatment of the issue, the easily 
understood description of the problem in the memorandum from an 
Assistant to the President to the White House Deputy Chief of 
Staff, and the briefings that accompanied the memorandum, it is 
implausible that senior White House staff did not understand 
the ramifications of the White House e-mail problem.
 On two separate occasions in 1998, after particularly 
important developments in the e-mail problem, a Washington 
superlawyer contacted White House lawyers. In September 1998, 
employees went to Northrop Grumman management months after 
discovering the e-mail problem. They talked about being 
threatened, how they were told not to write things down, and 
how they thought the law required a speedy reconstruction of 
the e-mails. Northrop Grumman then retained Washington 
superlawyer Earl Silbert. He talked to Northrop Grumman counsel 
and an employee. He then called the White House Counsel's 
Office. Two months later, in December 1998, a magazine article 
explained some of the elements of the e-mail story. Northrop 
Grumman forwarded the article to the White House. Earl Silbert 
was again brought into the loop and again called the White 
House Counsel's Office. Silbert now states that he does not 
remember with whom he talked to or what was discussed on either 
of these calls. The fact of the calls indicates that the White 
House Counsel's Office may have had exposure to the e-mail 
problem in addition to the initial briefing and memorandum. 
Thus, White House claims of a ``disconnect'' become difficult 
to believe.
 The explanation that White House officials failed to 
understand the legal ramifications of the e-mail problem from 
the very beginning is not credible. The e-mail problem was not 
technically complex--a large universe of records had not been 
put in the only place that allowed for comprehensive searches 
of those records. This was understood immediately by technical 
staff, and it was communicated effectively to senior political 
staff. Indeed, the importance of this matter--and the fact that 
it was understood to be important--is seen in the fact that 
this was the only e-mail problem in the history of White House 
computer usage that resulted in a memorandum from an Assistant 
to the President to the President's Deputy Chief of Staff, and 
that involved an immediate briefing of the Counsel to the 
President.
    Given what the committee has learned during its 
investigation, the mere fact that e-mail was not being archived 
in the ARMS system was not the rationale behind the urgency 
with which the problem was communicated to Deputy Chief of 
Staff John Podesta and Counsel to the President Charles Ruff. 
Rather, the urgency came from the fact that people clearly 
understood that there was a potentially very large number of 
documents, in the hundreds of thousands, that had never been 
reviewed and that might be responsive to earlier document 
requests. The fact that this matter came up during the 
investigation that led to the impeachment of the President 
could have only dramatized the potential significance of the 
problem.
    Furthermore, the memorandum and briefing did not languish 
for weeks or months; the memorandum was drafted, approved, 
submitted, and the President's Counsel was briefed within 4 
days of a supervisor first being notified of the problem. As 
one former White House official told the committee: ``you'd 
have to be an idiot not to understand that the problem affected 
subpoena compliance.''
    The only people who claim that they did not understand the 
problem were senior advisors to the President. These people had 
the greatest stake in not doing anything to solve the problem, 
particularly when one considers the intense investigative 
scrutiny the White House was facing in June and July 1998. For 
example, on the day that Charles Ruff was being briefed about 
the e-mail problem, Presidential friend Vernon Jordan appeared 
before the grand jury for a fifth time. The Lewinsky probe was 
proceeding vigorously and individuals were appearing before a 
grand jury, the Secret Service privilege claim was being 
appealed, and Presidential confidant Bruce Lindsey was invoking 
privileges in order to avoid testifying in the Lewinsky matter.
    The fact that the White House was under such pressure would 
have made it even more memorable when senior White House 
advisors were told that there was an entirely new source of 
information that had never been reviewed by White House 
lawyers. In addition, the candid nature of most e-mail messages 
would have made the prospect of a large universe of unreviewed 
e-mail information particularly worrisome.

    Evidence That the White House Obstructed Numerous Investigations

 Contract employees were threatened by White House 
staff. This helped the White House conceal the problem for 
almost 2 years after it was first discovered. Apparently, the 
White House was worried that a contract employee would disclose 
that there was a problem with White House recordkeeping. Thus, 
White House managers threatened employees, prohibited them from 
disclosing the problem to their supervisors, and required that 
no records be committed to paper. White House staff even 
threatened at least one Northrop Grumman employee with jail if 
he disclosed the existence of the problem.
    By successfully intimidating employees and limiting the 
number of people who knew about the e-mail problems, the White 
House caused the following to happen: (1) Congress, the Justice 
Department, and various independent counsels were obstructed in 
their legitimate investigations; (2) months passed before any 
remedial steps were taken; (3) the problem was kept a secret 
until 2000; (4) taxpayers have been forced to pay more money 
for reconstruction efforts than would have been necessary if 
the problem had been disclosed and cured immediately; and (5) 
additional embarrassing information was kept from investigators 
and the public until long after the impeachment vote and until 
the public had substantially lost interest in the investigation 
of Chinese efforts to influence U.S. elections.
    So strong was the impression left by the threats that 
Northrop Grumman contract employees met with supervisors to 
discuss their concerns 2 months after the threats were first 
conveyed. Shortly thereafter, the problem was communicated to 
Earl Silbert, a prominent Washington lawyer hired specifically 
to deal with Northrop Grumman's problems with the White House. 
Two weeks after Silbert called the White House, Laura 
Callahan--who allegedly threatened employees--left the White 
House.
 White House staff told Northrop Grumman contract 
employees that they could not consult with their supervisors. 
The White House's actions show a disregard for the welfare of 
the employees, and a desire not to solve the e-mail problem. As 
a rationale for his secrecy orders, Mark Lindsay claimed that 
he did not want the Northrop Grumman employees to discuss 
sensitive information ``around the water cooler.'' Lindsay's 
explanation admits that he was concerned about news of the e-
mail problem leaking out. However, there was no legitimate 
reason to keep the Northrop Grumman employees from consulting 
with their superiors. At a minimum, it should have been obvious 
that the work performed by employees who are unable to consult 
with their supervisors and who are prohibited from taking notes 
will usually be substandard.
 White House staff told Northrop Grumman employees that 
they could not take notes, indicating premeditated concern that 
the e-mail matter could get White House officials into trouble. 
At the same time they told Northrop Grumman staff not to speak 
about the e-mail problem, White House staff also instructed 
them not to take any notes. It is difficult to perform 
professional tasks when one is not able to take notes. The only 
reasonable explanation for instructing professional staff not 
to take notes is a fear that at some point those notes might 
become public. The White House's decision to work in secrecy 
indicates that there was more concern about public disclosure 
than solving the problem.
 Low-level employees made it very clear that without 
assistance from supervisors, there would be no solution to the 
problem. It is self-evident that if an employee says that it is 
not possible to complete a task without assistance, and no 
assistance is offered, then the task will probably not be 
completed. That is what happened. It is dishonest for the White 
House to argue now--as Counsel to the President Beth Nolan has 
done--that the White House failed to address the problem 
because of a ``disconnect.''
    A Branch Chief in the Office of Administration office that 
was responsible for e-mail matters was asked if he ever got 
directions from his superiors to move forward with the 
restoration project, and he responded ``no.'' When asked: ``at 
any time before the year 2000 did any manager of yours come and 
say you must do something to get this fixed,'' the answer was 
again ``no.'' He added: ``I was waiting for direction to 
proceed along with the funding that's required to do that.'' 
Another employee told the committee that her office could not 
get an answer out of senior supervisors Mark Lindsay or Michael 
Lyle about money to reconstruct the e-mails. This story was 
repeated often to the committee--senior officials who had an 
understanding of the problem simply refused to do anything to 
fix it.
    Another indication of the insincerity of senior management 
regarding intent to cure the problem is the fact that the 
problem was identified in June 1998 and it took until November 
1998 to take steps to prevent incoming e-mail from not being 
properly archived. Thus, even after the problem was identified 
and brought to the attention of the White House Counsel, Deputy 
Chief of Staff and other high-level Presidential advisers, 
White House staff allowed the initial problem to be compounded 
by 5 additional months of unarchived e-mail before a 
prospective solution was implemented. Thus, the failure by 
senior management to effect an immediate cure caused the 
problem to become approximately 20 percent worse.
    In September 1998, ARMS manager Tony Barry wrote: ``I am 
growing increasingly concerned about the seeming lack of 
movement on the Mail2 problem. Do you know where the hold up 
is. We have known about this problem for 4 months now and not a 
single record has been passed to ARMS . . . even worse, the 
root problem has not been fixed.'' When one manager pressed 
Mark Lindsay to do something, she was repeatedly told, ``Mark's 
working on it.'' Lindsay, however, did nothing to provide 
direction to subordinates. He failed to take steps to archive 
the unarchived e-mail, thus ensuring that it was unavailable 
for searches. He and others in the Office of Administration 
also took steps to prevent Congress, the Campaign Financing 
Task Force at the Justice Department, and the independent 
counsels from learning of the problem.
    In sum, the committee believes that the sheer number of 
ignored inquiries for technical direction, contractual 
direction and funding assistance suggests that the lack of 
leadership by OA management is not simply attributable to 
incompetence, or to a series of ``disconnects'' as the White 
House has claimed. Rather, it appears to the committee that the 
failure to give direction was an intentional decision on the 
part of OA management.
 The failure to notify Congress about the e-mail 
problem indicates that the White House wanted to cover up the 
e-mail problem, not solve it. The committee has interviewed 
most principals in the e-mail matter. No one has been able to 
offer a cogent explanation as to why Congress was kept 
uninformed. Michael Lyle, the Director of the Office of 
Administration, was asked why the e-mail problems were not 
raised with Congress. His response perfectly demonstrates the 
state of mind of the White House in this matter: ``[w]hen you 
go to appropriators, they ask a lot of questions.'' If senior 
White House officials were not purposefully obstructing various 
investigations, they would have raised the issue with Congress, 
sought funding to fix the problem, and answered all relevant 
questions.
    Assistant to the President Mark Lindsay told the committee 
that ``my first belief was to do whatever was necessary to fix 
the computer problem.'' This self-serving statement is 
contradicted by the fact that he and his staff took no steps 
``to do whatever was necessary,'' and they did not even ask for 
funding to do the work that was required. The former Deputy 
Director of the Office of Administration stated that she 
understood that if money and personnel were not dedicated to 
the problem, it would not get fixed. Mark Lindsay also 
understood that nothing would happen without funding. As one 
former employee put it: ``[h]e knew because I communicated that 
without this money, [the problem] would not be fixed.''
    For the fiscal years 1996, 1997, 1998, 1999, and 2000, the 
White House Office of Administration asked Congress for 
$169,231,000. It received $186,278,000. Thus, over the 1996-
2000 timeframe, Congress gave the White House over $17 million 
more dollars than it requested. If the White House had informed 
Congress that all oversight of the White House was being 
obstructed by a records management problem, there is no doubt 
that Congress would have provided the funds to cure the 
problem.
 A minimally competent lawyer, much less the two most 
senior White House lawyers, could not have believed that the 
``test'' performed to determine the extent of the e-mail 
problem, had any probative value. Counsel to the President 
Charles Ruff was told, in writing, that there was a problem 
that involved a failure to archive incoming e-mail in the one 
place that could be searched for document request compliance. 
Neither he, nor Deputy Counsel to the President Cheryl Mills, 
performed even a minimally competent analysis to understand the 
scope of the problem. They simply did nothing remotely 
reasonable to determine the impact of the problem on subpoena 
compliance. In fact, it appears that they ultimately compared 
two stacks of documents that were apparently obtained in the 
same way, and from the same place. Predictably, there was no 
difference between the documents. It should have been obvious 
then, as it is now, that the ``test'' conducted shed no light 
on whether the ARMS system was functioning properly. The poor 
effort they made can only be understood in terms of a 
predisposition to cover up the problem.
    Furthermore, 10 months after he first briefed the White 
House Counsel's Office, Mark Lindsay returned and informed the 
Counsel's Office that additional e-mails had not been archived 
because of a computer problem affecting users whose names 
commenced with the letter ``d,'' and that this body of 
information also could not be searched. Thus, a new universe of 
documents existed that had never been properly searched for 
responsiveness to document requests. Given how simple it is to 
explain the problem, and the fact that variations of the same 
problem were explained twice, the White House contention that a 
``disconnect'' had occurred is not believable.
    If the White House was not attempting to cover up 
wrongdoing, it would have responded promptly to the committee's 
request for the e-mails that Charles Ruff and Cheryl Mills used 
to conclude that there was no ongoing problem. Former White 
House Counsel Ruff told the committee that the ``test'' 
involving e-mail from Monica Lewinsky to Ashley Raines stood 
for the proposition that there was no ongoing problem. Seeking 
to verify Ruff's testimony, the committee requested that the 
White House produce the ``test'' batch of e-mails. The White 
House refused. Counsel to the President Beth Nolan argued that 
the batch of e-mails Ruff used in the test was unrelated to the 
committee's investigation. Perhaps realizing the mutual 
exclusivity of her position with Ruff's original reasoning, 
Nolan ultimately reversed herself and produced the documents.
    The initial refusal to make these documents available is 
particularly interesting given another recent development 
regarding the ``test.'' On September 28, 2000, former White 
House lawyer Michelle Peterson filed an affidavit in Federal 
court that comments on the ``test'' and the two stacks of e-
mails that were compared. She stated: ``during the course of my 
testimony to the Grand Jury, it appeared from the documents 
shown to me that I may have been mistaken with respect to one 
or possibly two e-mails.'' Thus, it now appears that even the 
original White House claim that the ``test'' stood for the 
proposition that there was no problem is now in doubt.
 In November 1998, Insight magazine published an 
essentially accurate description of the initial e-mail problem. 
The fact that the White House failed to notify Congress and 
take steps to cure the problem after the publication of this 
article makes it appear that the White House purposefully 
continued to cover up the e-mail problem. Northrop Grumman 
employees working in the White House understood that the 
Insight magazine story was essentially accurate. They provided 
a copy of the article to White House employees. The fact that 
nothing was done to commence work to cure the problems or 
notify Congress indicates a willingness to cover up the 
problem.
 The White House and Justice Department allowed a White 
House staffer to file a false affidavit which helped cover up 
the e-mail problem. On July 9, 1999, Tony Barry--a White House 
employee who fully understood that the e-mail problems 
prevented the White House from complying with subpoenas--signed 
an affidavit that stated: ``since July 14, 1994, e-mail within 
the EOP system administered by the Office of Administration has 
been archived in the EOP Automated Records Management System 
(ARMS.)'' This statement was false, and had the effect of 
covering up the e-mail problem for 8 more months. Although many 
White House lawyers dishonestly continue to argue that this 
statement is technically true, Assistant to the President Mark 
Lindsay recently admitted the obvious when he testified in 
Federal court that this statement was false. There was only one 
reason to permit Barry to sign this false affidavit--a desire 
on the part of White House and the Justice Department lawyers 
who represented the White House to cover up the e-mail problem 
so that Congress, the Justice Department Campaign Financing 
Task Force, and various independent counsels would not know 
that their investigations had been obstructed. Ongoing 
representations that Barry's statements are ``technically 
correct'' indicate an element of bad faith that should be taken 
into account when assessing White House credibility.
    Barry also testified at a deposition that internet e-mail 
coming into the White House would have been captured by ARMS. 
Shortly thereafter, Barry learned that this testimony was not 
true. Neither Barry, nor the Justice Department, nor the White 
House, corrected this testimony.
 The testimony of White House lawyers that they could 
not recall key facts and events is not credible. Information 
that there was a large universe of documents that had not been 
reviewed apparently had such minimal impact on White House 
lawyers that they failed to take competent steps to determine 
the extent of the problem. It is more likely that they 
understood the extent of the problem and simply did nothing 
effective to solve it. The current failures of recollection 
about various important matters by White House lawyers is 
simply not credible.
 A decision by the Vice President's Office to have his 
e-mail records managed separately from the rest of the White 
House meant that the Vice President's Office could not 
effectively comply with subpoenas. Recognition that the law 
requires records to be managed in such a manner that they will 
be preserved led to the creation of the White House's Automated 
Records Management System (ARMS). Furthermore, the ARMS system 
provided White House lawyers the only possibility of effective 
compliance with subpoenas. However, Counsel to the Vice 
President Todd Campbell personally decided that the Vice 
President would not store his records in a way that would 
permit compliance with document requests. Users would be able 
to search what was in their electronic mailbox at any given 
time, but they would not be able to produce records that had 
been deleted, as one is able to do with a proper records 
management system. Thus, it is clear that searches for e-mails 
in the Office of the Vice President were incomplete. Only those 
e-mails that OVP staff chose to print out or had saved on their 
computers could have been retrieved.
    There can be little doubt that the Vice President's 
advisers knew that their actions would permit his office to 
operate in a manner that would make it less susceptible to 
oversight. In effect, they ``reinvented government'' to stay 
above the law and congressional oversight.
    Based on what the committee has learned thus far, it is 
highly likely that the Vice President, or his staff, made a 
decision that prevented e-mails from being preserved in a 
manner that would lead to the production of e-mail 
communications to Congress, the Justice Department, or other 
potential investigators, such as independent counsels. The Vice 
President's Office appears to have adopted a prophylactic 
program to guarantee that fewer documents would exist in the 
event that document requests were made. In fact, the OVP system 
prevented many incoming, outgoing and internal e-mails from 
being preserved, and prevented most from being searched 
throughout the Vice President's time in office.

  A Special Counsel Must Be Appointed to Investigate the E-mail Matter

 The Justice Department is on both sides of the same 
case. Justice Department lawyers have represented the White 
House and have helped cover up the underlying problem. In fact, 
they prepared a critical affidavit that, according to an 
Assistant to the President, was ``not true.'' As of the writing 
of this report, however, the Attorney General has the same 
lawyers who helped prepare the false affidavit representing the 
White House in Federal district court. Indeed, the false 
affidavit that was prepared by Justice Department lawyers 
appears to have resulted in one substantive investigative 
step--letters from the Justice Department and the Office of 
Independent Counsel to the man who signed the affidavit 
promising that he is not a target of the investigation. This 
letter was sent out before key interviews were conducted, and 
it appears to be part of an effort to sweep this matter under 
the carpet.
 The Justice Department has devoted insufficient 
resources to this case. The Justice Department has allegedly 
had one part-time lawyer conducting the criminal probe into the 
e-mail problem, and she has recently left the Justice 
Department. At present, it appears that no full time Justice 
Department lawyers are assigned to the case. The fact that the 
Justice Department has devoted few personnel to the e-mail 
investigation also indicates that it is not being taken 
seriously by the Clinton administration. Perhaps more 
important, the Justice Department is currently devoting more 
lawyers to defending the White House than to investigating 
possible criminal obstruction of its own campaign finance 
investigation. Thus, there is not even an appearance of 
impartiality.
 The Justice Department has failed to interview a 
number of key witnesses. The failure to talk to witnesses early 
in the investigation means that there has been considerable 
time for collaboration and deterioration of memories. 
Nevertheless, it is important to interview as many individuals 
as possible, and the Justice Department has failed thus far. A 
special counsel would interview relevant witnesses and, if 
necessary, bring witnesses before a grand jury.
 The Justice Department is overstating the ability of 
the Office of Independent Counsel Ray to investigate the White 
House e-mail problems. In an effort to deflect attention from 
its understaffed and woefully inadequate investigation of the 
potential criminal aspects of the e-mail problem, the Justice 
Department has repeatedly referred to the fact that Office of 
Independent Counsel (OIC) is also investigating the e-mail 
matter. When making these statements, Justice Department 
personnel have made misleading references to the OIC's 
jurisdiction. The Office of the Independent Counsel has no 
jurisdiction to pursue allegations that Congress or the other 
independent counsels have been obstructed. Therefore, it cannot 
investigate the effect of the e-mail problem on the campaign 
finance investigation, or other areas of concern to this 
committee. It is unseemly for the Justice Department to 
misstate this important fact, and it indicates a willingness on 
the part of some Justice Department officials to put the onus 
for the investigation on the independent counsel.
 A special counsel is needed to investigate obstruction 
of justice and perjury charges against Mark Lindsay, Laura 
Callahan, Cheryl Mills, Charles Ruff, Daniel A. Barry, and the 
Justice Department lawyers who advised Barry to submit a false 
affidavit in Federal court and who failed to correct Barry's 
false deposition testimony. As this report makes clear, there 
are significant unanswered questions regarding the White House 
e-mail problems. At a minimum, however, there should be a 
serious investigation of the conduct of Mark Lindsay, Laura 
Callahan, Cheryl Mills, Charles Ruff and Daniel A. Barry. In 
addition, serious consideration should be given to the conduct 
of the Justice Department attorneys who assisted Tony Barry in 
the preparation of the false affidavit filed in Federal court. 
On June 11, 1998, Barry also testified during a civil 
deposition that internet e-mail coming into the White House 
would have been recorded in ARMS. At the time of his deposition 
testimony, Barry most likely did not know his statement was 
false. Shortly thereafter, however, Barry learned facts about 
the e-mail problem that made his statement untrue. At that 
point, both he and his government attorneys were legally 
obligated to correct the record of his deposition testimony. 
They did not.

   A Special Master Should Be Appointed to Supervise the Review and 
  Production of Responsive White House E-mail and the Reconstruction 
                                Process

 A special master should be appointed to supervise the 
review and production of White House e-mail and the 
reconstruction process. Within a matter of months, the current 
White House Counsel's Office will no longer exist. Given the 
immediacy of this practical problem, it is important to ensure 
fairness, accuracy and continuity in the review and production 
of responsive documents. This can only be achieved by the 
appointment of a special master to supervise the document 
production process.

The White House Decision to Keep the E-mail Matter Secret Has Added to 
                 the Cost of Reconstructing the E-mails

 If the White House had not delayed attempts to cure 
the e-mail problems until 2000, it would have been far less 
expensive to archive e-mail and make responsive records 
available to Congress and other investigative bodies.
                                                 Union Calendar No. 593
106th Congress                                           Rept. 106-1023
                        HOUSE OF REPRESENTATIVES
 2d Session                                                 Vol. 1 of 2

======================================================================


 THE FAILURE TO PRODUCE WHITE HOUSE E-MAILS: THREATS, OBSTRUCTION, AND 
                          UNANSWERED QUESTIONS

                                _______
                                

December 4, 2000.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

   Mr. Burton, from the Committee on Government Reform submitted the 
                               following

                             EIGHTH REPORT

    On October 5, 2000, the Committee on Government Reform 
approved and adopted a report entitled, ``The Failure to 
Produce White House E-Mails: Threats, Obstruction, and 
Unanswered Questions.'' The chairman was directed to transmit a 
copy to the Speaker of the House.

 I. Why the Committee Investigated the White House Failure to Manage E-
                              mail Records

    The Committee on Government Reform (``the committee'') is 
the primary oversight committee of the House of 
Representatives. Its unique charter grants it broad authority 
to conduct investigations into allegations of waste, fraud, and 
abuse throughout the government. During the 1990s, the 
committee has conducted oversight investigations into such 
wide-ranging issues as illegal foreign campaign fundraising, 
Federal vaccine policy, Presidential grants of clemency to 
members of a terrorist organization, and the Branch Davidian 
standoff in Waco, TX. The committee, through its oversight 
activities, functions as a check on the executive branch.
    An important investigative tool that the committee utilizes 
in the performance of its oversight function is the subpoena. 
Subpoenas allow the committee to compel the production of 
documents and the presence of witnesses.\1\ All persons and 
entities, including the White House and its employees, have a 
legal obligation to comply with the committee's subpoenas. 
Those who fail to comply with a committee subpoena risk 
criminal prosecution for contempt of Congress,\2\ prosecution 
for obstruction of a congressional investigation,\3\ or 
prosecution for fraud and false statements.\4\
---------------------------------------------------------------------------
    \1\ U.S. House of Representatives Rule XI(2)(m) and Committee on 
Government Reform Rule 18(d). Specifically, the committee rule permits 
that ``the chairman of the full committee shall . . . authorize and 
issue subpoenas as provided in House Rule XI(2)(m), in the conduct of 
any investigation or activity or series of investigations or activities 
within the jurisdiction of the Committee.''
    \2\ U.S.C. Sec. Sec. 192, 194 (1994 & Supp. IV 1998).
    \3\ The relevant portion states, in part, that ``[w]hoever 
corruptly . . . obstructs, or impedes or endeavors to influence, 
obstruct, or impede . . . the due and proper exercise of the power of 
inquiry under which any inquiry or investigation is being had by . . . 
any committee of either House . . . --(s)hall be fined under this title 
or imprisoned not more than five years, or both.'' 18 U.S.C. Sec. 1805 
(1994 & Supp. IV 1998).
    \4\ ``[W]hoever, in any matter within the jurisdiction of the . . . 
legislative . . . branch of the Government of the United States, 
knowingly and willfully--(1) falsifies, conceals, or covers up by any 
trick, scheme, or device a material fact; (2) makes any materially 
false, fictitious, or fraudulent statement or representation; or (3) 
makes or uses any false writing or document knowing the same to contain 
any materially false, fictitious, or fraudulent statement or entry; 
shall be fined under this title or imprisoned not more than 5 years, or 
both.'' 18 U.S.C. Sec. 1001 (1994 & Supp. IV 1998).
---------------------------------------------------------------------------
    In January 1997, as part of the committee's oversight of 
the executive branch, the committee commenced an investigation 
into political fundraising improprieties and possible 
violations of law stemming from the 1996 elections. Since 
January 1997, the committee has issued a total of 40 subpoenas 
to the White House or White House officials. This figure is 
comprised of 31 document subpoenas \5\ and 9 subpoenas to 
testify before the committee.\6\ Prior to resorting to the 
subpoenas, the committee attempted to secure the White House's 
cooperation with informal document requests. White House 
Counsel Charles Ruff did promise Chairman Burton the White 
House's full cooperation with document production. However, it 
soon became apparent that the cooperation would not be 
forthcoming. Therefore, the committee issued its first document 
subpoena in March 1997.\7\
---------------------------------------------------------------------------
    \5\ A chart of all document subpoenas issued since January 1997, 
followed by the subpoenas in chronological order, can be found at 
appendix II.
    \6\ A chart of all subpoenas to testify before the Committee on 
Government Reform issued since January 1997, can be found at appendix 
III.
    \7\ The Senate Committee on Governmental Affairs, as part of its 
campaign finance investigation, also encountered problems with White 
House document requests. Originally, the Senate committee submitted 
document requests. This was done--

      In response to the White House Counsel's pledges of 
      cooperation and the Committee's optimism that the document 
      production problems that burdened prior Congressional 
      investigations into the Clinton Administration could be 
      avoided, the Committee, at the request of the White House, 
      elected to proceed with the production of White House 
      documents without first issuing a subpoena to the White 
      House. Instead, on April 9, 1997, the Committee delivered a 
      request for production of documents in the form of a letter 
---------------------------------------------------------------------------
      to the White House Counsel's office.

``Investigation of Illegal or Improper Activities in Connection with 
1996 Federal Election Campaigns,'' Senate Committee on Governmental 
Affairs, S. Rept. No. 105-107, at 4278-4279 (1998) (footnotes omitted). 
On July 31, 1997, after months of broken promises and delay by the 
White House, the committee had no choice but to issue a subpoena for 
the requested documents. Id. at 4280.
    Even though the committee turned to the practice of issuing 
subpoenas to ensure it would receive all necessary information 
in its oversight inquiries, the White House failed to produce 
key information on many occasions. The central issue of this 
report--the White House's mismanagement of its e-mail system 
and the resulting failure to comply with many of the 
committee's subpoenas--must be seen against this backdrop of 
the Clinton White House's refusal to cooperate with 
congressional committees. It evidences White House 
recalcitrance toward congressional oversight. More 
fundamentally, by elevating short-term political needs over 
long-term Constitutional requirements, the White House has 
shown an intolerable disregard for our Constitutional system of 
government.

  A. White House Document Production: A Pattern of Delay and Omission

    For over 3 years, this committee has been hampered in its 
efforts to conduct oversight by the White House's failure to 
comply fully with subpoenas and document requests. This 
frustration is not limited exclusively to this committee. 
Rather, it has been experienced in both houses of Congress.
    Unfortunately, some senior White House aides have been 
oblivious to their legal and Constitutional responsibilities. 
For example, White House Deputy Chief of Staff Harold Ickes was 
quoted as advocating a `` `foot-dragging, f - - k-you attitude' 
toward subpoenas,'' and that practice appears to have been 
adopted by other White House lawyers.\8\ When a senior aide to 
the President advocates such a policy, it becomes particularly 
difficult to believe the current representations that the e-
mail problems are not the result of improper or illegal 
activities. As the Washington Post editorialized 3 years ago, 
focusing specifically on Vice President Gore's response to the 
Hsi Lai Temple controversy:
---------------------------------------------------------------------------
    \8\ Susan Schmidt & Michael Weisskopf, ``Truth at Any Cost'' 15 
(2000).

        It is emblematic of the way this administration has 
        dealt with inconvenient facts time after time when it 
        has found itself in difficulty. It puts up a false 
        front, offers a misleading version of events. If and 
        when that fails, as often occurs, it puts up another, 
        and another--as many as it takes. Then administration 
        officials bemoan the cynicism with which what they have 
        to say is so often greeted and wonder aloud, or pretend 
        to wonder, why they are not believed. . . . The 
        dispensing of truth in reluctant dribs and drabs does 
        indeed have the corrosive effect that the White House 
        itself periodically deplores.\9\
---------------------------------------------------------------------------
    \9\ ``The Truth in Dribs and Drabs,'' the Washington Post, Jan. 17, 
1997, at A20.

It is not an insignificant fact that the White House produced 
new and important information about the Hsi Lai Temple event on 
September 22, 2000--a full 3 years and 8 months after these 
observations were made.

1. Problems Faced in Other Investigations

    The following conclusions are those of committee chairmen 
who have conducted oversight of the Clinton White House. Taken 
together, they depict a widespread dissatisfaction with how the 
White House has treated its legal and Constitutional 
responsibilities in the face of congressional oversight 
jurisdiction.

  Senate Campaign Fundraising Investigation--The 
Senate Governmental Affairs Committee devoted an entire section 
in its 1996 campaign fundraising investigation report on the 
White House's consistently uncooperative and dilatory approach 
to document production.

   In that report, the committee stated that the White House 
consistently failed ``to abide by any reasonable production 
schedule--as well as its frequent production of documents 
either immediately before or even after deposition or hearing 
testimony relating to the author or subject of the 
documents[.]'' \10\ For example, ``[l]ate in the afternoon of 
July 29, 1997, after the completion of [Senate] testimony [on 
Charlie Trie's source of funds for contributions to the 
Democratic National Committee], the White House hand-delivered 
to the committee a package of documents containing WAVES 
records revealing that Ng Lap Seng [the Macau-based businessman 
and financial supporter of Trie] had visited the White House 
ten times between June 22, 1994 and October 21, 1996.'' \11\ 
``These records had been requested from the White House three 
months earlier.'' \12\
---------------------------------------------------------------------------
    \10\ ``Investigation of Illegal or Improper Activities in 
Connection with 1996 Federal Election Campaigns,'' Senate Committee on 
Governmental Affairs, S. Rept. No. 105-167, at 4280 (1998) (emphasis in 
original).
    \11\ Id. at 4283-4284.
    \12\ Id. at 39 n.5.

   In addition, ``the White House's intentional omission from 
the document search directive disseminated among White House 
employees of any indication of the breadth of the materials 
sought by the Committee caused a six-month delay in the 
production of the critically important White House 
videotapes.'' \13\
---------------------------------------------------------------------------
    \13\ Id. at 4289-4290.

   The White House also produced highly relevant documents 
after the December 31, 1997, termination of the committee's 
investigation. For example, the White House produced documents 
regarding Johnny Chung, a major figure in the campaign finance 
investigation, on January 16, 1998.\14\
---------------------------------------------------------------------------
    \14\ Id. at 4280-4281.

  White House Travel Office Investigation--In 1996, 
the Committee on Government Reform and Oversight, under 
Chairman Bill Clinger, voted to hold White House Counsel Jack 
Quinn, White House Director of Administration David Watkins, 
and White House aide Matthew Moore in contempt of Congress for 
failure to produce subpoenaed documents regarding the 
investigation of White House Travel Office firings.\15\
---------------------------------------------------------------------------
    \15\ ``Proceedings Against John M. Quinn, David Watkins, and 
Matthew Moore (Pursuant to Title 2, United States Code, Sections 192 
and 194),'' House Committee on Government Reform and Oversight, H. 
Rept. No. 104-598 (1996). The committee found that:

      This White House embarked on an unmistakable course which 
      frustrated, delayed, and derailed investigators from the 
      White House itself, the GAO, the Federal Bureau of 
      Investigation, and the administration's own Justice 
      Department Office of Professional Responsibility and Public 
      Integrity Sections. That is what has brought the Committee 
      to this unfortunate impasse. This White House simply 
      refuses to provide this Committee with the subpoenaed 
      documents that will help us bring this Travel Office 
      investigation to a close, something [Chairman Bill Clinger 
      has] sought to do for nearly three years. Documents have 
      been misplaced in ``stacks,'' or ``book rooms'' or storage 
      boxes, where they languished for months if not years, 
      despite subpoenas and document requests from numerous 
---------------------------------------------------------------------------
      official investigative bodies.

Id. at 3. For example, ``a Travel Office notebook kept by the late 
Deputy Counsel Vince Foster was withheld from relevant investigators, 
including the Independent Counsel, for two years.'' Id. at 4. ``The 
compliance date for the subpoenas was more than three months ago. The 
time for the White House to seek to avoid contempt has come and gone. 
The White House neither has complied with this committee's subpoenas 
nor has it offered a legally rational basis for its refusal to 
comply.'' Id. at 5.

  Whitewater Investigation--The Senate Special 
Committee to Investigate the Whitewater Development Corporation 
was ``hindered by parties unduly delaying the production of, or 
withholding outright, documents critical to its investigation. 
. . . [T]he White House has most often and most notably engaged 
in this course of action[.]'' \16\ For example, ``[o]n June 2, 
1995, the [Whitewater] Committee sent its first request for 
documents to the White House. Documents continued to trickle in 
from the White House until as late as May 11, 1996.'' \17\
---------------------------------------------------------------------------
    \16\ ``Progress of the Investigation into Whitewater Development 
Corporation and Related Matters and Recommendation for Future 
Funding,'' Senate Special Committee to Investigate Whitewater 
Development Corporation and Related Matters, S. Rept. No. 104-204, at 
11 (1996).
    \17\ ``Investigation of Whitewater Development Corporation and 
Related Matters,'' Senate Special Committee to Investigate Whitewater 
Development Corporation and Related Matters, S. Rept. No. 104-280, at 
237 (1996).

   The report also discusses how the Whitewater Committee 
``was forced to engage in protracted efforts to obtain 
documents [that] often were produced months after they were 
first requested or subpoenaed.'' \18\ One of the more notable 
examples occurred when Bruce Lindsey, Deputy Counsel to the 
President, produced responsive documents to the Whitewater 
Committee the day after committee funding expired.\19\
---------------------------------------------------------------------------
    \18\ Id.
    \19\ Id. at 239 (emphasis added).

   On December 19, 1995, the Whitewater Committee recommended 
that the Senate bring a civil action to compel William Kennedy, 
Associate Counsel to President Clinton, to comply with the 
committee's subpoena.\20\ On December 20, 1995, the full Senate 
adopted the resolution to bring the action.\21\ On the brink of 
a civil contempt proceeding, the White House produced the 
documents on December 22, 1995.\22\ These documents were 
``highly relevant to the Committee's investigation.'' \23\
---------------------------------------------------------------------------
    \20\ ``Refusal of William H. Kennedy, III, to Produce Notes 
Subpoenaed by the Special Committee to Investigate Whitewater 
Development Corporation and Related Matters,'' Senate Special Committee 
to Investigate Whitewater Development Corporation and Related Matters, 
S. Rept. No. 104-191, at 20 (1995).
    \21\ S. Res. 104-199.
    \22\ ``Investigation of Whitewater Development Corporation and 
Related Matters,'' Senate Special Committee to Investigate Whitewater 
Development Corporation and Related Matters, S. Rept. No. 104-280, at 
238 (1996).
    \23\ Id.

  Waco Investigation--In the 1996 Government Reform 
and Oversight and Judiciary Committees' joint investigation of 
law enforcement activities at Waco, the committees did not 
receive important documents from the White House until just 
days before congressional hearings.\24\
---------------------------------------------------------------------------
    \24\ ``Investigation into the Activities of Federal Law Enforcement 
Agencies Toward the Branch Davidians,'' House Committee on Government 
Reform and Oversight and House Committee on the Judiciary, H. Rept. No. 
104-749 (1996).

      Despite public commitments and private assurances of 
      cooperation by the relevant departments, the subcommittees 
      experienced a lack of cooperation which clearly frustrated 
      hearing preparations. . . . [R]epresentatives of the White 
      House . . . attempted to narrow the scope of the 
      subcommittees' requests and restrict access to a wide array 
      of information. The first significant documents were 
      delivered only 3 weeks prior to the hearings, some just 
      days before, and tens of thousands of others were received 
      after the hearings had already begun. This ``wait-and-
      dump'' strategy rendered meaningful staff review of many 
      key documents virtually impossible prior to commencement of 
---------------------------------------------------------------------------
      the hearings.

Id. at 8.

  White House Database Investigation--The Committee on 
Government Reform and Oversight also faced unprecedented 
attempts by the White House to withhold documents and mislead 
the committee: \25\
---------------------------------------------------------------------------
    \25\ ``Investigation of the Conversion of the $1.7 Million 
Centralized White House Computer System, Known as the White House 
Database, and Related Matters,'' House Committee on Government Reform 
and Oversight, H. Rept. No. 105-828, at 7 (1998).

        The investigation . . . uncovered evidence which 
        reveals that persons in the White House Counsel's 
        Office, which was charged with responding to the 
        Committee's inquiry, were themselves central figures in 
        the scheme to put the Database to prohibited uses. 
        Those same persons, with ample motivation to protect at 
        least themselves, actively sought to provide misleading 
---------------------------------------------------------------------------
        explanations and conceal and alter documents.

        These actions severely hampered the Committee in the 
        exercise of its proper oversight role and needlessly 
        prolonged the investigation at taxpayer expense. More 
        importantly, despite the best efforts to find the facts 
        and to present them to the American people, the 
        Committee may never know many of the facts which would 
        be revealed by the production of contemporaneous 
        documents which the Committee has specifically sought, 
        but which the White House reports ``cannot be found.'' 
        \26\
---------------------------------------------------------------------------
    \26\ Id.

  Warner Creek Investigation--Starting at the 
beginning of the 106th Congress, the House Resources Committee 
experienced lengthy delays in trying to obtain documents from 
the White House regarding the Warner Creek matter.\27\ The 
Warner Creek investigation was an oversight review of Forest 
Service Law Enforcement activities initiated to examine the 
Forest Service's response to an 11-month environmentalist 
protest and occupation of Federal land that blocked a pending 
Forest Service timber sale site in Oregon. In July 1999, the 
U.S. House of Representatives Office of General Counsel 
concluded that the White House did not properly invoke 
executive privilege regarding documents it withheld.\28\ The 
committee, however, did not receive the documents until August 
2000.
---------------------------------------------------------------------------
    \27\ Letter from Geraldine R. Gennet, general counsel, and Michael 
L. Stern, senior counsel, U.S. House of Representatives, Office of 
General Counsel, to the Honorable Don Young, chairman, Committee on 
Resources 1 (July 27, 1999) (exhibit 189).
    \28\ Id.
---------------------------------------------------------------------------

2. Problems Faced by the Campaign Fundraising Investigation

    This committee is also all too familiar with White House 
patterns of delay and omission. The following briefly describes 
White House dilatory and obstructionist practices:

  On January 15, 1997, the committee made a document 
request of the White House that was due on January 30, 1997. On 
January 17, 1997, White House Counsel Jack Quinn claimed that 
this January 30 deadline was not feasible. Yet, on January 24, 
the White House released a number of the documents dealing with 
the White House coffees to the press. These documents, however, 
were not produced to the committee until January 29--5 days 
later.\29\
---------------------------------------------------------------------------
    \29\ See letter from the Honorable Dan Burton, chairman, Committee 
on Government Reform, to Charles F.C. Ruff, Counsel to the President, 
the White House 1 (Jan. 31, 1997) (exhibit 165).

  By May 1997, the committee was facing consistent 
delays in receiving documents from the White House, despite the 
fact that it had subpoenaed them 2 months earlier.\30\ As a 
result, the committee scheduled a contempt vote against White 
House Counsel Charles Ruff for May 15, 1997. Only with this 
deadline staring them in the face did the White House finally 
agree to begin producing documents.\31\
---------------------------------------------------------------------------
    \30\ See appendix I.
    \31\ In a letter to President Clinton, Chairman Burton recounted 
the committee's experiences with document production and the scheduled 
contempt vote:

      Upon scheduling of that hearing, your counsel, Charles 
      Ruff, candidly admitted to me that the contempt hearing 
      finally ``focused'' his attention on promptly responding to 
      the committee's subpoenas and he committed to complete 
      production by mid-June 1997. I believed then, as I believe 
      now, that it is unfortunate that it took the scheduling of 
      a contempt hearing to ``focus'' White House attention on 
      complying with congressional subpoenas. The recent events 
      with the White House videotapes of fundraising events 
      demonstrates that the White House still is not complying 
---------------------------------------------------------------------------
      with our subpoenas.

Letter from the Honorable Dan Burton, chairman, Committee on Government 
Reform, to President Clinton 1 (Oct. 6, 1997) (exhibit 166).

  Although first subpoenaed on March 4, 1997, the 
White House took 7 months to produce White House Communications 
Agency videotapes, including tapes of the White House coffees 
and other fundraisers. These tapes were highly relevant to the 
committee's investigation. Regarding the lengthy delay in 
production, the Washington Post observed the following:

        And now the White House has found and turned over to 
        congressional investigators videotapes of some of the 
        coffees the President gave for campaign contributors 
        last year. . . . It's enough to give good faith a bad 
        name. The attitude of this White House toward the truth 
        whenever it is in trouble is the same. Don't tell it, 
        or tell only as much of it as you absolutely must, or 
        as helps. . . . They keep asking indignantly, even a 
        little petulantly, over there why they're not believed 
        as they keep putting out their successive versions of 
        the story. Can anyone really believe they don't know 
        the answer? Can anyone believe this is on the up and 
        up? \32\
---------------------------------------------------------------------------
    \32\ ``Giving Good Faith a Bad Name,'' the Washington Post, Oct. 7, 
1997, at A16.

  On November 6 and 7, 1997, the committee held a 2-
day hearing devoted exclusively to addressing the White House's 
failure to comply with committee subpoenas regarding the 
investigation of fundraising abuses and the funneling of 
foreign money into political campaigns.\33\
---------------------------------------------------------------------------
    \33\ ``White House Compliance with Committee Subpoenas,'' hearings 
before the House Committee on Government Reform, 106th Cong. (1997).

  In July 1998, the White House belatedly produced 
documents regarding Vice President Gore's fundraising from the 
White House. The documents, requested by the committee in March 
1997, contained handwritten notations by Vice President Gore's 
Deputy Chief of Staff David Strauss. Although Special Counsel 
to the President Lanny Breuer characterized the production as 
``not new documents,'' the committee found them highly relevant 
to its ongoing campaign finance investigation.\34\ In fact, the 
Strauss notes were so important to the Department of Justice, 
as well as to this committee, that it triggered a 90-day 
preliminary investigation to determine whether Attorney General 
Reno should appoint an independent counsel to investigate Vice 
President Gore's fundraising in the 1996 campaign.
---------------------------------------------------------------------------
    \34\ Letter from the Honorable Dan Burton, chairman, Committee on 
Government Reform, to Charles F.C. Ruff, Counsel to the President, the 
White House (Sept. 1, 1998) (exhibit 167).

  The White House relentlessly dragged out the 
document production process, failing to produce documents until 
months after the subpoena deadlines. Additionally, the White 
House was notorious for producing documents late at night or on 
Friday evenings. When documents were delivered, they were often 
heavily redacted. Included in document productions were 
thousands of documents that lacked the necessary information to 
be helpful to the investigation, including identification of 
the sources that produced or created the documents as called 
for by the subpoena. Finally, the Clinton administration abused 
executive privilege, claiming it over documents simply as a 
delaying tactic, or worse, hoping the committee would abandon 
---------------------------------------------------------------------------
the request.

    These obstructionist maneuvers wasted valuable time and 
countless taxpayer dollars. Regrettably, this committee is 
forced to concur with the Senate Governmental Affairs 
Committee's warning that ``lawful authorities who are 
investigating criminal conduct and who are subpoenaing White 
House records, [must] exercise extreme caution in assuming that 
any White House document production is either complete or 
accurate.'' \35\
---------------------------------------------------------------------------
    \35\ ``Investigation of Illegal or Improper Activities in 
Connection with 1996 Federal Election Campaigns,'' Senate Committee on 
Governmental Affairs, S. Rept. No. 105-167, at 4290 (1998).
---------------------------------------------------------------------------

3. Observations by Third Parties Regarding White House Document 
        Production

    In trying to understand the rationale behind the White 
House's approach to congressional inquires, President Clinton's 
own advisors have provided some excellent insight. For example, 
President Clinton's personal lawyer, David Kendall said, ``[i]f 
they want it, . . . they can litigate for it.'' \36\ While 
Kendall appears to have been referring to impeachment-related 
matters, this attitude seemed to carry over to all document 
requests. White House Special Counsel Jane Sherburne, who 
handled scandals and document productions for the White House, 
reportedly adopted the `` `foot-dragging, f - - k-you attitude' 
toward subpoenas'' that Harold Ickes advocated.\37\ Even 
President Clinton's confidant and Deputy White House Counsel 
Bruce Lindsey ``advised other [White House staffers] not to 
give investigators an inch.'' \38\
---------------------------------------------------------------------------
    \36\ Susan Schmidt & Michael Weisskopf, ``Truth at Any Cost'' 14 
(2000).
    \37\ Id. at 15.
    \38\ Id. at 14.
---------------------------------------------------------------------------
    The above observations, when put into actual practice as 
noted in the many examples, illustrate a systematic effort by 
the White House to delay and obstruct the investigations of 
this committee. They also show a deliberate effort by the White 
House to undermine the rule of law for partisan purposes and to 
evade legitimate oversight scrutiny. The current 
administration's repeated pattern of refusal to produce 
documents pursuant to congressional subpoenas displays a 
fundamental refusal to appreciate the legitimate exercise of 
Congress' oversight jurisdiction.
    The ``victory at all costs'' approach has taken a toll on 
our system of government. In attempting to hamper congressional 
investigations, the White House Counsel's Office has approached 
every controversy as though the only thing that mattered was 
keeping embarrassing information from becoming public. Special 
Counsel John C. Danforth, commenting on the Waco tragedy, aptly 
describes what he believes to be the appropriate role for 
government lawyers:

        Lawyers in private practice often volunteer as little 
        information as possible. But playing it close to the 
        line is not acceptable for people representing the 
        United States government. Government lawyers have 
        responsibilities beyond winning the cases at hand. They 
        are not justified in seeking victory at all costs. A 
        government lawyer should never hide evidence or shade 
        the truth, and must always err on the side of 
        disclosure.

        Government lawyers carry on their shoulders 
        responsibility for not only the prosecution of specific 
        cases, but also for public confidence in our system of 
        government--the ``consent of the governed'' enshrined 
        in the Declaration of Independence. Indeed, this 
        responsibility rests heavily on the shoulders of all 
        government officials.\39\
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    \39\ John C. Danforth, Special Counsel, ``Interim Report to the 
Deputy Attorney General Concerning the 1993 Confrontation at the Mt. 
Carmel Complex, Waco, Texas,'' at ii-iii (July 21, 2000).

From the committee's perspective, White House lawyers who have 
supervised document productions on behalf of President Clinton 
would do well to reflect upon these words.
    It is with these troubles and frustrations as background 
that this committee has attempted to understand why the White 
House failed to notify this committee for almost 2 years that 
there was a serious problem with its e-mail search capability. 
To date, an entire universe of documents has never been 
searched in response to subpoenas from the committee, the 
Department of Justice, the courts, and several independent 
counsels. This report also undertakes the necessarily 
frustrating task of attempting to understand why the White 
House was dilatory in taking steps to remedy the problem so 
that it could produce relevant information in response to those 
requests.

       B. The significance of e-mail records to this committee's 
                             investigations

    As this report will describe in detail, the missing White 
House e-mail problem involved several technical errors in the 
White House's computer system. These curable problems, which 
the White House knew existed but chose not to rectify, 
prevented hundreds of thousands of e-mails to the White House 
from being properly archived. Thus, the White House Counsel's 
Office was unable to review 2\1/2\ years of missing e-mails for 
responsive information, thereby ensuring that the White House 
failed to comply with document requests and subpoenas from this 
committee, as well as other congressional committees, the 
Department of Justice, and several independent counsels.
    Because of the extensive nature of the e-mail problem, the 
committee now knows that the White House has failed to comply 
with subpoenas in the committee's campaign fundraising 
investigation, and may have failed to comply with subpoenas in 
four other investigations.\40\ The White House's failure to 
turn over documents may have kept additional investigative 
leads from the committee, as well as hindering the committee 
from pursuing its investigations more expeditiously and 
effectively. Furthermore, this White House-imposed delay also 
has permitted the White House to attack Congress for the length 
of time it has taken to conclude legitimate oversight 
activities. Congress is thus placed in an untenable position--
either close an investigation before all relevant evidence is 
received, or be criticized unfairly for taking the time 
required to do a thorough job.
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    \40\ The investigations include Secretary of the Interior Bruce 
Babbit's decision to reject a gaming permit in Hudson, WI, the Waco 
tragedy, President Clinton's decision to pardon FALN terrorists, and, 
most recently, the missing White House e-mails. See appendix I for a 
listing of all items the committee has subpoenaed from the White House 
in its investigations. On Mar. 17, 2000, the White House also admitted 
that the e-mail problem affected the committee's subpoenas. Letter from 
Beth Nolan, Counsel to the President, the White House, to the Honorable 
Dan Burton, chairman, Committee on Government Reform 7 (Mar. 17, 2000) 
(within appendix I). The committee, however, rejected Nolan's Waco 
analysis: ``[T]he Waco matter precedes August 1996, when the first 
configuration error occurred. Thus, we do not believe that [the missing 
e-mail problem] would have affected a search of ARMS for e-mails 
responsive to [the Waco] subpoena.'' Id. Chairman Burton responded that 
``[i]t is not unreasonable to suspect that individuals might have 
provided commentary on these allegations during the period that e-mails 
were not being properly managed.'' Letter from the Honorable Dan 
Burton, chairman, Committee on Government Reform, to Beth Nolan, 
Counsel to the President, the White House, 3 (Mar. 19, 2000) (within 
appendix I).
---------------------------------------------------------------------------
    Aside from the failure to take corrective measures to 
remedy the e-mail problem and the failure to comply fully with 
congressional subpoenas, the White House also engaged in other 
questionable conduct regarding the handling of the e-mail 
problem. When the White House did produce documents, the White 
House Counsel's Office never informed the committee of the 
existence of an entire universe of documents that had not been 
searched for responsiveness. Rather, it suggested that all 
records, including e-mail, had been searched. Such failures of 
communication by White House counsel are, at a minimum, 
unacceptable. The White House must comply fully with subpoenas 
and, if it cannot, it has an obligation to inform the 
committee.
    The White House was first put on notice that there was a 
failure to manage e-mail records in June 1998. Therefore, 
earlier false certifications that Congress did in fact have all 
relevant documents, and that searches had been completed, 
should have been corrected. Even if one credits White House 
arguments that the problem was not properly understood when 
White House Counsel Ruff and Assistant to the President 
Virginia Apuzzo were notified, at some point the White House 
should have notified Congress that obligatory searches had not 
been conducted. This applies, in particular, to two 
investigations in which the White House Counsel's Office had 
provided clear indications that all responsive documents had 
been produced to this committee: the 1996 campaign finance 
scandal and Secretary of the Interior Bruce Babbitt's decision 
to reject a gaming permit in Hudson, WI.\41\ It is troubling 
that the White House failed in its obligation to notify the 
committee when it learned that these prior certifications were 
rendered inaccurate.
---------------------------------------------------------------------------
    \41\ Regarding the 1996 campaign finance scandal, Counsel to the 
President Charles Ruff and White House Special Counsel Lanny Breuer 
made three certifications to the committee that were later invalidated 
by the e-mail problem. On June 27, 1997, Ruff wrote that:

      [T]his letter serves to certify that, to the best of my 
      knowledge, the White House has produced all documents 
      responsive to the Committee's subpoenas, with the exception 
      of those documents that appear on the privilege logs that 
      we have provided to the Committee. . . . [I]n order to 
      ensure to the maximum extent possible that no responsive 
      documents have been overlooked, I have directed my staff to 
      continue their efforts to see to it that all areas that may 
      contain such documents have been searched and that all 
---------------------------------------------------------------------------
      responsive documents have been produced.

Letter from Charles F.C. Ruff, Counsel to the President, the White 
House, to the Honorable Dan Burton, Committee on Government Reform 
(June 27, 1997) (exhibit 140).
  On Oct. 21, 1997, Ruff provided another certification that the White 
House had produced all responsive documents: ``I believe that, with the 
production of these documents we have satisfied all of the outstanding 
requests except for any recent informal requests my staff may have 
received.'' Letter from Charles F.C. Ruff, Counsel to the President, 
the White House, to Richard D. Bennett, chief counsel, Committee on 
Government Reform and Oversight 1 (Oct. 21, 1997) (exhibit 54). In this 
letter, the White House stated that:

      [O]n Friday, we delivered the remaining product of our 
      completed search for electronic mail records. This search 
      covered the time period dating from July 1994. As we have 
      indicated, because of the nature of the White House 
      electronic mail system, electronic mail messages from the 
      period July 1994 to December 1995 only recently became 
      readily searchable. Electronic mail messages from before 
      July 1994 are not currently searchable, although certain 
      limited scattered records for this period do exist and have 
      been searched. At this time, we have completed the search 
      of the electronic mail system from July 1994 (including any 
      earlier searchable scattered records) for the White House 
      Office, the Office of the Vice President, the Office of 
      Policy Development and the National Security Council. My 
      staff is informed by the professional staff of the Office 
      of Information Systems and Technology that a search of 
      these components--which include the political units of the 
      EOP--will yield any responsive e-mail either sent to or 
      from any individual in any of those offices. Search of 
      these units was designed to capture all e-mails responsive 
      to the Committee's requests.

  Id. at 2. On Feb. 20, 1998, Special Counsel to the President Lanny 
Breuer wrote: ``I understand that all e-mails currently searchable 
regarding Mr. Trie have been provided to the Committee.'' Letter from 
Lanny Breuer, Special Counsel to the President, the White House, to 
Barbara Comstock, chief investigative counsel, Committee on Government 
Reform and Oversight (Feb. 20, 1998) (exhibit 142).
  Regarding Secretary of the Interior Bruce Babbit's decision to reject 
a gaming permit in Hudson, WI, Counsel to the President Charles Ruff 
provided one certification to the committee that was later invalidated 
by the e-mail problem. On Jan. 16, 1998, Ruff wrote: ``[t]o the best of 
our knowledge, we have provided the Committee with all responsive 
materials that we have located as a result of our EOP-wide search for 
documents relating to the St. Croix Meadows Greyhound Racing Park.'' 
Letter from Charles F.C. Ruff, Counsel to the President, the White 
House, to the Honorable Dan Burton, chairman, Committee on Government 
Reform (Jan. 16, 1998) (exhibit 141).
    These false certifications misled the committee and may 
have encouraged certain members of the committee to make 
inaccurate statements. For example, on October 8, 1998, 17 
members of this committee \42\ all unwittingly claimed that 
``[t]here are currently no outstanding disputes over document 
production issues between the White House and this Committee. 
Thus, contrary to the majority's claim of obstruction, the 
majority has, in fact, received every document it sought.'' 
\43\
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    \42\ The 17 members include Representative Henry Waxman, the 
ranking minority member, Representative Tom Lantos, Representative 
Robert Wise, Representative Major Owens, Representative Edolphus Towns, 
Representative Paul Kanjorski, Representative Gary Condit, 
Representative Bernard Sanders, Representative Carolyn Maloney, 
Delegate Eleanor Holmes Norton, Representative Chaka Fattah, 
Representative Elijah Cummings, Representative Dennis Kucinich, 
Representative Rod Blagojevich, Representative Danny Davis, 
Representative Thomas Allen, and Representative Harold Ford, Jr.
    \43\ ``Investigation of Political Fundraising Improprieties and 
Possible Violations of Law, Interim Report,'' House Committee on 
Government Reform and Oversight, H. Rept. No. 105-829, at 3991 (1998).
---------------------------------------------------------------------------
    Like Congress, President Clinton also may have been misled 
by White House staff regarding the missing e-mails. At a White 
House photo opportunity on February 15, 2000, the following 
exchange with the press took place:

        Q. Mr. President, did the White House deny 
        congressional committees' access to e-mails and 
        subpoenas [sic]?

        President Clinton: (Laughs.) No, I believe that we have 
        complied with every request, and there have been 
        thousands. (Laughter.) If the American people knew how 
        much of their money we'd have to spend complying with 
        requests for . . . e-mails, they might be quite amazed, 
        but we certainly have done our best to do that. There 
        has never been an intentional effort to do that, and I 
        think that we are in full compliance. I believe we are. 
        That's what Mr. Podesta told me right before we came 
        out.\44\
---------------------------------------------------------------------------
    \44\ President Clinton, remarks at White House photo opportunity, 
Washington, DC (Feb. 15, 2000).

As ensuing revelations have made clear, the President's 
statement was not true--the White House was not in full 
compliance with congressional, Office of Independent Counsel, 
and Justice Department document requests.
    Notwithstanding the political spin of the President and his 
spokesmen, this committee has learned that White House Counsel 
Charles Ruff, Deputy Chief of Staff John Podesta, Assistant to 
the President Virginia Apuzzo, and Office of Administration 
Counsel Mark Lindsay all immediately understood the potential 
significance of the e-mail problem. Deputy White House Counsel 
Cheryl Mills was tasked with determining the parameters of the 
problem. Based on a test with no coherent rationale, she 
falsely reported that the White House did not have a problem 
with past or future document production. For reasons to be 
explained in the body of this report, the committee rejects the 
current suggestion that incompetence on the part of Cheryl 
Mills and other White House attorneys led to the current 
failure to comply with congressional, independent counsel, and 
Justice Department subpoenas.
    The committee is concerned that the White House has 
undermined investigations within the committee's jurisdiction, 
and ignored its responsibility to the American people. At a May 
4, 2000, hearing before this committee, President Clinton's 
former White House Counsel, Charles Ruff agreed with the 
committee's concerns regarding e-mail production:

        This Committee has every obligation to inquire into the 
        circumstances surrounding those events in order to 
        determine . . . whether indeed there was any 
        impropriety . . . and . . . whether the White House is 
        responding appropriately to the Committee's concerns. I 
        view all of those as entirely legitimate inquiries[.] 
        \45\
---------------------------------------------------------------------------
    \45\ ``Missing White House E-mails: Mismanagement of Subpoenaed 
Records,'' hearings before the Committee on Government Reform, 106th 
Cong. 116 (May 4, 2000) (statement of Charles F.C. Ruff, former Counsel 
to the President, the White House) (all citations to testimony from 
this series of hearings are to the preliminary transcripts).

The committee continues to seek vigorously all subpoenaed 
information from the White House, and awaits production of 
information from the missing White House e-mails.\46\
---------------------------------------------------------------------------
    \46\ See appendix I. Because congressional subpoenas expire at the 
end of each Congress, the committee had to reissue subpoenas for White 
House e-mail related to the investigation into illegal fundraising 
activities for the 106th Congress (Mar. 16, 2000, and June 1, 2000). 
Since the subpoenas for the FALN and Waco matter were issued in the 
106th Congress, they continue to remain in effect.
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           II. The E-mail Problems Explained: A Brief Summary

    Federal law requires that Federal and Presidential records 
be preserved and archived.\47\ This requirement extends beyond 
paper records to electronic records such as e-mail 
messages.\48\ In an effort to facilitate full compliance with 
these and other legal requirements, the White House developed 
the Automated Records Management System, (ARMS), which began 
operating on July 14, 1994.\49\ ARMS was developed under the 
direction of Computer Specialist Daniel A. ``Tony'' Barry, an 
employee in Information Systems and Technology (IS&T), a 
division of the White House Office of Administration (OA).\50\
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    \47\ The Presidential Records Act (PRA), 44 U.S.C. Sec. Sec. 2201-
2207 (1988), and the Federal Records Act (FRA), 44 U.S.C. 
Sec. Sec. 2101-2118, 2901-2909, 3101-3107, 3301-3324 (1988), and their 
implementing regulations provide requirements for the management and 
disposition of Presidential and Federal agency records, respectively.
    \48\ See 44 U.S.C. Sec. 2201(1) (defining ``documentary materials'' 
as ``all books, correspondence, memorandums [sic], documents, papers, 
pamphlets, [etc.], including, but not limited to, audio, audio-visual, 
or other electronic or mechanical recordations'') (emphasis added). See 
also Armstrong v. Executive Office of the President (``Armstrong II''), 
1 F.3d 1274 (D.C. Cir. 1993). Although the Armstrong cases apply to 
Federal records--not Presidential records--Counsel to the President and 
to the Vice President have conceded in internal documents that a 
reviewing court would likely extend the Armstrong e-mail records 
management holding to Presidential records. See White House document 
production E 5395 (exhibit 159).
    \49\ Interview with Daniel A. ``Tony'' Barry, Computer Specialist, 
Office of Administration, in Washington, DC (Mar. 7, 2000).
    \50\ OA is the unit within the Executive Office of the President 
(EOP) responsible for all administrative matters throughout the EOP, 
including the White House itself. Among its areas of responsibility are 
the computer equipment and infrastructure, which are handled by its 
IS&T division. Most of the OA staff are career government employees, 
but the leadership is Presidentially appointed.
---------------------------------------------------------------------------
    When first designed and implemented, ARMS received and 
archived e-mail from an early computer e-mail system known as 
OASIS All-in-One. ARMS received and retained copies of all 
incoming and outgoing Executive Office of the President (EOP) 
e-mail messages in a word-searchable format in order to 
preserve an accurate record of all e-mail traffic for archiving 
and other purposes. It was also routinely searched in order to 
comply with subpoenas from investigative bodies such as the 
Department of Justice (DOJ), Offices of Independent Counsel 
(OIC) and Congress, as well as requests under the Freedom of 
Information Act (FOIA).\51\
---------------------------------------------------------------------------
    \51\ Letter from Beth Nolan, Counsel to the President, the White 
House, to the Honorable Dan Burton, chairman, Committee on Government 
Reform 2 (Mar. 17, 2000) (within appendix I).
---------------------------------------------------------------------------
    During 1996, various offices within the EOP began 
converting from All-in-One to systems such as Lotus Notes. The 
new e-mail program required specially developed software in 
order to format and send records to ARMS for archiving and 
later retrieval. This software was known as the Notes/ARMS 
interface.\52\ It is the failure of the Notes/ARMS interface in 
September 1996, and the failure of senior White House officials 
to respond properly to the resulting technical problems, that 
led to the mismanagement of an enormous number of e-mails 
potentially responsive to subpoenas from various entities, 
including this committee.
---------------------------------------------------------------------------
    \52\ Interview with John Spriggs, senior engineer, Northrop 
Grumman, in Washington, DC (Mar. 7, 2000).
---------------------------------------------------------------------------
    The failure to manage records appropriately extended to at 
least three distinct problem areas: the ``Mail2'' problem, the 
``D-user'' problem, and the Office of the Vice President (OVP) 
problem.\53\ This section provides a brief description of these 
technical problems. At the outset, it is important to note that 
while understanding the technical aspects of the problems can 
be difficult, it is very easy to understand the result--a large 
universe of documents could not be searched. While it has been 
clear for months that these e-mails had not been searched, 
recently the committee has confirmed that, because of the 
incomplete searches, responsive documents sought under lawful 
subpoenas were actually withheld from the committee and the 
Justice Department for years. Not until September 22, 2000, did 
this committee finally receive the first of these e-mails 
related to its campaign fundraising investigation.\54\ It is 
unclear how many more responsive e-mails have been withheld 
from Congress and the Justice Department.
---------------------------------------------------------------------------
    \53\ On Aug. 31, 2000, the White House notified the committee of a 
new e-mail problem involving recent messages from May 4, 2000, to the 
present. These messages were transferred to ARMS with mismatched 
headers and body formats. See letter from Lisa Klem, Associate Counsel 
to the President, the White House, to James C. Wilson, chief counsel, 
Committee on Government Reform (Aug. 31, 2000) (within appendix I).
    \54\ Letter from Steven Reich, Senior Associate Counsel to the 
President, the White House, to James C. Wilson, chief counsel, 
Committee on Government Reform (Sept. 22, 2000) (within appendix I). 
See, e.g., White House document production E 8701, E 8755, E 8787, E 
8807, E 8843, E 8862 (exhibits 193-198).
---------------------------------------------------------------------------

                          a. the mail2 problem

    In September 1996, the EOP began operating four e-mail 
servers. The servers were each to be named MAIL1, MAIL2, MAIL3, 
and MAIL4. These server names are case sensitive, meaning that 
the computer distinguished between ``Mail2'' and ``MAIL2.'' 
While the other three servers were properly named with all 
capital letters, a technician's error led one server to be 
mislabeled ``Mail2'' \55\ instead of ``MAIL2.'' As a result of 
this error, the portion of the Notes/ARMS interface that was to 
collect incoming internet e-mail and send it to ARMS for 
archiving and later searching did not function for any users 
whose account resided on the Mail2 server. The committee has 
found no evidence that the improper casing was intentional or 
the product of any improper purpose.
---------------------------------------------------------------------------
    \55\ ``Missing White House E-mails, Mismanagement of Subpoenaed 
Records,'' hearings before the Committee on Government Reform, 106th 
Cong. 20 (Mar. 23, 2000) (testimony of Yiman Salim, Lotus Notes 
developer, Northrop Grumman).
---------------------------------------------------------------------------
    The Mail2 server held approximately 500 e-mail accounts, 
the vast majority of which belonged to users in the subdivision 
of the EOP known as the White House Office (WHO).\56\ The WHO 
consists of the senior personnel who work in the White House 
proper, including the West Wing. Although the error originated 
in September 1996, it was not corrected prospectively until 
November 20, 1998, more than 2 years later. One of the reasons 
more than 2 years passed is that for most of the time, the 
error went undetected.\57\ However, even after it was detected, 
another 5 months passed before the error was prospectively 
cured.
---------------------------------------------------------------------------
    \56\ Id. at 19.
    \57\ Letter from Beth Nolan, Counsel to the President, the White 
House, to the Honorable Dan Burton, chairman, Committee on Government 
Reform 4 (Mar. 17, 2000) (within appendix I).
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1. Tony Barry Discovered a Problem in January 1998

    The first hint that there might be a problem with incoming 
e-mail arose in January 1998. Tony Barry, who developed and 
continues to administer ARMS, was performing a search of the 
system pursuant to a request from the White House Counsel's 
Office. Such searches were a regular part of his job 
responsibilities. On average, he performed two or three 
searches per month.\58\ The searches assisted the White House 
Counsel's Office and the counsels' offices for other divisions 
of the EOP in complying with FOIA requests and subpoenas. This 
particular search, however, related to records subpoenaed by 
the Federal grand jury investigating criminal allegations that 
the President had engaged in obstruction of justice and witness 
tampering in the Monica Lewinsky matter.
---------------------------------------------------------------------------
    \58\ Inverview with Daniel A. ``Tony'' Barry, Computer Specialist, 
Office of Administration, in Washington, DC (Mar. 7, 2000).
---------------------------------------------------------------------------
    In reviewing the results of his search, Barry noticed that 
some e-mails seemed to be missing. He could determine from the 
content that an apparent exchange of messages seemed to be one-
sided. In other words, it appeared as if only half of the 
conversation had been captured. The e-mail conversation was 
between Ashley Raines, a White House user on the Mail2 server, 
and Monica Lewinsky, who was then working at the Pentagon, on 
an e-mail system external to the White House system. The 
outgoing messages from Raines were captured in ARMS, but the 
incoming messages from Lewinsky were not.\59\
---------------------------------------------------------------------------
    \59\ ``Missing White House E-mails, Mismanagement of Subpoenaed 
Records,'' hearings before the Committee on Government Reform, 106th 
Cong. 101-102 (Mar. 23, 2000) (testimony of Daniel ``Tony'' Barry, 
Computer Specialist, Office of Administration).
---------------------------------------------------------------------------
    Barry brought this issue to the attention of John Spriggs 
and sought his assistance in determining the source of the 
problem and locating the missing e-mail. Spriggs was, and still 
is, a contract employee working onsite at the EOP for Northrop 
Grumman, an outside contractor hired to administer the White 
House computer system.\60\ After some investigation, Spriggs 
was able to determine that the incoming e-mail from Lewinsky 
had entered the White House system.\61\ However, neither Barry 
nor Spriggs could ascertain why these messages had not been 
archived in ARMS. Barry wrote what he referred to as an 
incident report to his supervisor, Jim Wright.\62\ Generally, 
Barry sent his weekly activity reports to Wright via e-
mail.\63\ Contrary to this general practice, however, Barry did 
not send this particular report via e-mail, but rather hand 
delivered a paper copy to Wright.\64\ Furthermore, Barry did 
not refer to Lewinsky and Raines by name, but rather by the 
generic designations ``INTERNETUSER1'' and ``EOPUSER1.'' \65\ 
This was also contrary to his general practice.\66\
---------------------------------------------------------------------------
    \60\ Technically, some of the individuals referred to in this 
report as ``Northrop Grumman employees'' or ``contractors'' for ease of 
reference are actually subcontractors to Northrop Grumman employed by 
other companies.
    \61\ Interview with John Spriggs, senior engineer, Northrop 
Grumman, in Washington, DC (Mar. 7, 2000).
    \62\ White House document production E 3443 (exhibit 49). The White 
House did not produce this document to the committee until after the 
first and only hearing at which Tony Barry testified. Another version 
of the document was provided prior to the hearing. However, that 
version lacked a handwritten notation present on the later version 
which indicated the date of the document. None of the versions list a 
sender, recipient, or subject line. See id. at E 2496 (exhibit 160).
    \63\ Interview with Daniel A. ``Tony'' Barry, Computer Specialist, 
Office of Administration, in Washington, DC (Mar. 7, 2000).
    \64\ Interview with James Wright, IS&T Data Center Branch Chief, 
Office of Administration, in Washington, DC (June 1, 2000).
    \65\ White House document production E 3443 (exhibit 49).
    \66\ See, e.g., id. at E 4286 (exhibit 129), in which Barry 
specifically references Sidney Blumenthal in a description of a problem 
with his e-mail account.
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    Neither Wright nor Barry informed either the White House 
Counsel--the office that had requested the search--or Wright's 
supervisor of the incident.\67\ Nor did they provide a copy of 
the incident report or the incoming Lewinsky e-mails to 
Wright's superiors or the White House Counsel's Office.\68\ No 
further evaluation or diagnosis of the problem was done until 
nearly 6 months later.
---------------------------------------------------------------------------
    \67\ Interview with Daniel A. ``Tony'' Barry, Computer Specialist, 
Office of Administration, in Washington, DC (Mar. 7, 2000).
    \68\ Interview with James Wright, IS&T Data Center Branch Chief, 
Office of Administration, in Washington, DC (June 1, 2000).
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2. Robert Haas and Yiman Salim Discovered That the Problem Was Systemic

    Sometime in early June 1998,\69\ two contract employees for 
Northrop Grumman were doing unrelated research on the Notes/
ARMS interface.\70\ One of the two, Yiman Salim, was a new 
employee learning how the system worked. The other, Robert 
Haas, was explaining the system to her when he attempted to 
show her a list of e-mails that had not yet been collected by 
the Notes/ARMS interface. This list was called the 
``$unrecorded view.'' \71\ It should have been a short list 
because the Notes/ARMS interface is supposed to collect 
incoming e-mails from users' in boxes once every few minutes. 
However, Haas noticed that there were thousands and thousands 
of e-mails not yet collected, dating as far back as September 
1996.\72\ Both Haas and Salim knew immediately that there was 
``a big problem.'' \73\ They notified their Northrop Grumman 
manager, Betty Lambuth and explained the situation to her. 
Lambuth then requested that they draft an e-mail to her with 
the details. Lambuth reported the problem to her EOP 
counterpart, Laura Callahan,\74\ that evening.
---------------------------------------------------------------------------
    \69\ Evidence suggests that the contractors actually discovered the 
Mail2 problem on June 12, 1998. First, several key witness recalled 
having learned about it sometime in June 1998. See, e.g., interview 
with Yiman Salim, Lotus Notes developer, Northrop Grumman, in 
Washington, DC (Mar. 7, 2000); interview with John Spriggs, senior 
engineer, Northrop Grumman, in Washington, DC (Mar. 7, 2000); 
declaration of Kathleen Gallant, former IS&T Director, Office of 
Administration, at para. 3 (May 10, 2000) (exhibit 154). Second, Haas 
recalls having sent an e-mail to Betty Lambuth outlining his discovery 
of the problem soon after he discovered it and, on the following 
Monday, discussing the problem with the other contractors and Lindsay 
and Callahan. See interview of Robert Haas, Lotus Notes administrator, 
Northrop Grumman, in Washington, DC (Mar. 7, 2000). That e-mail is 
dated June 12, 1998. See White House document production E 0181 
(exhibit 12). Also, several witnesses told committee staff that Betty 
Lambuth was at a doctor's appointment the Monday following the initial 
discovery. Interview with Steve Hawkins, former program manager, 
Northrop Grumman (Mar. 7, 2000). One document indicates Betty Lambuth 
sent an e-mail with the subject line ``Doctor's Appointment'' on 
Sunday, June 14, 1998. Northrop Grumman document production NGL 00825 
(exhibit 187). However, other evidence suggests that the problem may 
have been discovered earlier. For example, a document, marked ``draft'' 
and describing the problem in detail, is dated ``Tuesday, May 16.'' See 
id. at NGL 00516 (exhibit 65). Inasmuch as May 16th did not fall on a 
Tuesday and June 16th did, the date on that document is likely 
incorrect and should probably be read as June 16th. Nonetheless, Haas 
told committee staff that it took him about 4 weeks to produce an audit 
of unrecorded e-mail. Interview of Robert Haas, Lotus Notes 
administrator, Northrop Grumman, in Washington, DC (Mar. 13, 2000). See 
Northrop Grumman document production NGL 00291-00365 (exhibit 62). See 
also section III.B.1, below (discussing audit). That audit is dated, 
June 18, 1998. Obviously, if Haas spent several weeks preparing the 
audit and if he discovered the problem on June 12th, he could not have 
completed the audit by June 18th. Given the foregoing, the committee is 
unable to state definitively exactly when the contractors discovered 
the problem. However, for the purposes for this report, the committee 
will presume that the contractors discovered the problem on June 12, 
1998.
    \70\ Interview with Yiman Salim, Lotus Notes developer, Northrop 
Grumman, in Washington, DC (Mar. 7, 2000).
    \71\ Id.
    \72\ Interview with Robert Haas, Lotus Notes administrator, 
Northrop Grumman, in Washington, DC (Mar. 7, 2000).
    \73\ Interview with Yiman Salim, Lotus Notes developer, Northrop 
Grumman, in Washington, DC (Mar. 7, 2000).
    \74\ Ms. Callahan's name at the time was Laura Crabtree. She has 
since married and assumed her husband's name.
---------------------------------------------------------------------------
    After a short period of technical diagnosis by a handful of 
Northrop Grumman employees, the general scope of the problem 
became clear. A substantial number of incoming internet e-mail 
messages to White House users spanning a period of more than 2 
years had not been archived in ARMS as had been believed. 
Consequently, all past searches of ARMS seeking e-mail from 
that time period had been significantly incomplete. 
Furthermore, all such future searches of ARMS would continue to 
be incomplete until a process known as ``reconstruction'' could 
occur. Reconstruction refer to the process of extracting e-mail 
from backup tapes.\75\ Despite the continuing, incomplete 
nature of ARMS searches, the White House took no action to 
obtain funding for Mail2 reconstruction from Congress until 
March 20, 2000,\76\ after the committee had begun interviewing 
witnesses and announced public hearings on this matter.
---------------------------------------------------------------------------
    \75\ White House document production E 0934 (exhibit 23).
    \76\ Letter from Chairman Jim Kolbe, Subcommittee on Treasury, 
Postal Service, and General Government, Committee on Appropriations, to 
Mark Lindsay, Assistant to the President for Management and 
Administration, the White House 1 (Apr. 27, 2000) (exhibit 145).
---------------------------------------------------------------------------
    The Mail2 problem, the first to come to the attention of 
congressional investigators, began sometime in September 1996, 
just 2 months before the Presidential election. This was a 
critical period in the investigation of fundraising 
improprieties, as many illegal acts were just starting to come 
to light. It is easy to imagine a high level of e-mail traffic 
between participants in some of these now well-known events. 
Indeed, the production of documents to this committee by the 
White House on September 22, 2000, shows that there was 
significant probative information that was withheld from 
Congress.

                         B. The D-User Problem

    A second and separate error involved the e-mail of users 
whose first names begin with the letter ``D'' (``D-users'') and 
involved all four EOP mail servers from October 21, 1998, to 
June 1, 1999.\77\ Unlike the Mail2 problem, which impacted only 
users in the White House Office, this problem spanned all of 
the EOP e-mail servers, preventing the archiving of any 
incoming mail to approximately 190 people in the EOP.\78\ The 
problem was discovered in April 1999, but not corrected 
prospectively until approximately 2 months later.\79\
---------------------------------------------------------------------------
    \77\ Letter from Beth Nolan, Counsel to the President, the White 
House, to the Honorable Dan Burton, chairman, Committee on Government 
Reform 5 (Mar. 17, 2000) (within appendix I).
    \78\ Northrop Grumman document production NGL 00530 (exhibit 79). 
Individuals whose e-mail was not archived during the affected period 
include: Dawn Chirwa, Dorothy Cleal, Dimitri Nionakis, DeVere Patton, 
Douglas Sosnik, and Dorian Vanessa Weaver.
    \79\ Letter from Beth Nolan, Counsel to the President, the White 
House, to the Honorable Dan Burton, chairman, Committee on Government 
Reform 6 (Mar. 17, 2000) (within appendix I).
---------------------------------------------------------------------------
    The cause of the problem was an error by a computer 
technician working on the Notes/ARMS interface. Due to the 
rapidly increasing volume of e-mail, the Notes/ARMS interface 
had to be modified so that it would process incoming mail in 
batches rather than archiving it all at once. A programmer 
split the process into batches based on ranges of letters in 
the alphabet. However, the programmer inadvertently excluded 
the letter D, so that users whose last names began with A 
through C were archived in one batch, and then those with E 
through G and so on. One reason the error went undetected for 
approximately 5 months is that users whose last names began 
with J were included in the process twice, making the total 
number of letters processed appear to be all 26 letters in the 
alphabet even through the letter D was omitted.\80\ As with the 
Mail2 problem, there is no indication that this problem was 
anything but inadvertent human error.
---------------------------------------------------------------------------
    \80\ White House document production E 0829-0830 (exhibit 161).
---------------------------------------------------------------------------
    Since the Notes/ARMS interface did not function properly 
for D-users, it failed to collect, format, and archive their 
incoming mail into ARMS. Once this problem was discovered, 
Yiman Salim, who had helped discover and remedy the Mail2 
problem, wrote an auditing program in order to avoid similar 
problems going undetected in the future. The auditing program 
alerts the technicians if e-mail is not being archived properly 
so that the problem can be diagnosed and solved in a timely 
fashion.\81\
---------------------------------------------------------------------------
    \81\ ``Missing White House E-mails, Mismanagement of Subpoenaed 
Records,'' hearings before the Committee on Government Reform, 106th 
Cong. 22 (Mar. 23, 2000) (testimony of Yiman Salim, Lotus Notes 
developer, Northrop Grumman). Not only does the committee question why 
it took 2 years to discover the problem, but also why the problem was 
not discovered when the Notes/ARMS interface was originally installed 
in October 1996. As is apparent from the forgoing, OA did not 
independently validate and verify (IV&V) the interface when it was 
installed to determine whether all records were being properly 
recorded. There can be little doubt that the problem would have been 
found earlier than it actually was (if not entirely avoided) had the 
interface been IV&V'ed, as according to standard industry practices. 
This point was not lost on Congressman Jim Kolbe, whose subcommittee 
appropriates funds for OA. See letter from the Honorable Jim Kolbe, 
chairman, Subcommittee on Treasury, Postal Service, and General 
Government, to Mark Lindsay, Assistant to the President for Management 
and Administration, the White House (Apr. 27, 2000) (exhibit 145).
---------------------------------------------------------------------------

              C. The Office of the Vice President Problems

    In some respects, the series of problems in the Vice 
President's Office may be the most serious and extensive of 
all, though the committee only learned of these OVP issues in 
the course of its Mail2 investigation. Many witnesses remain to 
be questioned, and many documents remain to be analyzed. 
Generally speaking, however, the committee has learned that 
these problems prevented many incoming, outgoing, and internal 
e-mails from being preserved, and prevented most from being 
searched throughout the Vice President's tenure. This is a much 
longer period than that of the other problems. Two additional 
factors are most troubling: (1) rather than being the product 
of merely technical errors, several aspects of the OVP problems 
appear to have resulted from conscious decisions by 
policymakers about records management; and (2) unlike with 
other systems in the EOP, vast quantities of OVP e-mail cannot 
even be recovered from backup tapes and are most likely lost 
forever.
    Unlike users in the rest of the EOP, the OVP decided 
shortly after the creation of ARMS that it would not use ARMS 
to manage its electronic records.\82\ Instead, the OVP decided 
to rely on backup tapes as the sole method of electronic 
records management.\83\ This decision created a host of 
difficulties, and it also guaranteed that the Vice President's 
records would never be properly reviewed to ensure compliance 
with subpoenas and document requests because backup tapes are, 
by nature, not readily searchable. In fact, only if all backup 
tapes were searched at the time of each request would document 
production have been complete. This could hardly have been lost 
on the Vice President's staff.
---------------------------------------------------------------------------
    \82\ Telephone interview with Hon. Todd Campbell, former Counsel to 
the Vice President, the White House (Aug. 18, 2000).
    \83\ Id. See also White House document production E 6369 (exhibit 
162).
---------------------------------------------------------------------------
    One of the reasons for managing electronic records properly 
is to be able to respond to investigative subpoenas and other 
document requests. Relying solely on backup tapes as a method 
of records management, as the OVP did, makes it difficult and 
costly to search the records. In fact, the difficulty in 
searching backup tapes was one of the fundamental reasons for 
the creation of ARMS.\84\ In addition to the benefits of being 
able to search and retrieve records, ARMS provides redundancy, 
so that if either the backup tapes or ARMS happens to fail, the 
e-mail messages would still be preserved.
---------------------------------------------------------------------------
    \84\ See ``Missing White House E-mails, Mismanagement of Subpoenaed 
Records,'' hearings before the Committee on Government Reform, 106th 
Cong. 83-84 (Mar. 23, 2000) (testimony of Robert Haas, Lotus Notes 
administrator, Northrop Grumman).
---------------------------------------------------------------------------
    By relying solely on backup tapes and failing to have its 
e-mail archived in ARMS, the OVP created a situation that led 
directly to the loss of at least 1 year's worth of 
messages.\85\ Early in the Vice President's tenure, his office 
administered its own mail server rather than allowing the IS&T 
division of OA to do so. In March 1998, IS&T took over 
management of the OVP mail server because that office had lost 
a key member of its server administration staff and could no 
longer administer the server.\86\ When the server was 
transferred to IS&T, a technician failed to configure properly 
the scheduled backups, excluding the location where the e-mail 
messages were stored. This error went undetected until April 2, 
1999, more than a year later.\87\ Because most OVP users' e-
mail was not being archived in ARMS, the failure of these 
backups means that it is impossible to reconstruct and search 
the vast majority of OVP e-mail messages sent and received 
during the relevant period.
---------------------------------------------------------------------------
    \85\ Letter from Steven F. Reich, Senior Associate Counsel to the 
President, the White House, to James C. Wilson, chief counsel, 
Committee on Government Reform 4 (June 7, 2000) (within appendix I).
    \86\ White House document production E 6369 (exhibit 162).
    \87\ Id.
---------------------------------------------------------------------------
    This problem is compounded by what was, at a minimum, a 
failure of communication within the EOP about whether the OVP 
e-mail was being ARMS-managed. The White House Counsel's Office 
purportedly conducted ARMS searches under the erroneous belief 
that that they would capture OVP records.\88\ At the same time, 
OVP was purportedly managing e-mail records solely by backup 
tapes.\89\ For a substantial period of time, the reality is 
that neither was true. In July 1999, responsibility for 
administering the OVP e-mail server's backup system was 
transferred to IS&T personnel who began overwriting backup 
tapes on a 3-week cycle rather than preserving them. Senior 
Northrop Grumman Engineer John Spriggs testified:
---------------------------------------------------------------------------
    \88\ Interview with Michelle Peterson, former Associate Counsel to 
the President, the White House, in Washington, DC (June 1, 2000). See 
also letter from Steven Reich, Associate Counsel to the President, the 
White House, to James C. Wilson, chief counsel, Committee on Government 
Reform 2 (June 7, 2000) (within appendix I).
    \89\ Telephone interview with Hon. Todd Campbell, former Counsel to 
the Vice President, the White House (Aug. 18, 2000). See also White 
House document production E 6369 (exhibit 162).

        We, OA, began to do the backup systems for the OVP-
        underscore-l server, but at that point I'm not aware of 
        any instructions to do records management by that same 
        method for the OVP. My understanding is that by July of 
        1999, we were given instructions--Jim Wright gave 
        instructions to actually start doing a three-week cycle 
        on the backups for all of our servers, which included 
        the OVP-underscore-l server, so that now we are on a 
        three-week cycle. Every three weeks they overwrite the 
        existing tapes. And so if OVP is doing records 
        management with tape backups, then they have a 
        problem.\90\
---------------------------------------------------------------------------
    \90\ ``Missing White House E-mails, Mismanagement of Subpoenaed 
Records,'' hearings before the Committee on Government Reform, 106th 
Cong. 181-182 (Mar. 23, 2000) (testimony of John Spriggs, senior 
engineer, Northrop Grumman).

    The committee's investigation into these and related OVP 
electronic records management failures is ongoing. The OVP e-
mail problems are discussed in detail below, in section 
III.D.3.

           III. The White House Concealed the E-Mail Problems


    A. Mark Lindsay and Laura Callahan Threatened Contract Employees

    When Northrop Grumman contract employee Betty Lambuth 
learned from Robert Haas and Yiman Salim that there was a major 
e-mail records management problem, she immediately attempted to 
notify her superior, Steve Hawkins.\91\ Hawkins was not 
available, so Lambuth decided to inform White House employee 
Laura Callahan.\92\ At the time, Callahan was Desktop Systems 
Branch Chief for the IS&T division of OA. After Lambuth 
explained that there was a major problem with e-mail not being 
properly archived in ARMS, Callahan seemed to have understood 
the gravity of the situation immediately. According to Lambuth, 
Callahan said, ``yes, it's very serious. Let me go talk to Ada 
Posey's office.'' \93\ Ada Posey was then the Director of OA.
---------------------------------------------------------------------------
    \91\ Interview with Betty Lambuth, former Lotus Notes team manager, 
Northrop Grumman, in Washington, DC (Mar. 21, 2000).
    \92\ Id. Lambuth, like many IS&T personnel, drew sharp distinctions 
between contract employees, like those working for Northrop Grumman, 
and personnel who were employees at the EOP.
    \93\ Id.
---------------------------------------------------------------------------

1. Laura Callahan Relayed Mark Lindsay's Threat to Betty Lambuth

    When Callahan returned, she allegedly told Lambuth that she 
had spoken about the e-mail problem to Mark Lindsay, then the 
General Counsel for OA.\94\ Callahan allegedly told Lambuth 
that Lindsay directed that, ``if you or any of your staff tell 
anyone, especially, Steve Hawkins or Jim Wright, about the 
problem, you will lose your jobs, be arrested and go to jail.'' 
\95\ Both Mark Lindsay and Laura Callahan squarely denied this 
allegation at the committee's first hearing on this matter.\96\ 
According to Lambuth, she then requested to hear those 
instructions directly from Lindsay himself. Callahan said that 
she understood and agreed. Lambuth related Lindsay's message to 
the rest of the team and told them that she ``wanted to hear it 
straight from Lindsay.'' \97\
---------------------------------------------------------------------------
    \94\ Id.
    \95\ See declaration of Betty Lambuth, former Lotus Notes team 
manager, Northrop Grumman, at para. 5, Alexander v. FBI (D.D.C. Feb. 
24, 2000) (CA 96-2123) (exhibit 190).
    \96\ ``Missing White House E-mails, Mismanagement of Subpoenaed 
Records,'' hearings before the Committee on Government Reform, 106th 
Cong. 221, 229, 244 (Mar. 23, 2000) (testimony of Laura Callahan, IS&T 
Desktop Services Branch Chief, Office of Administration, and Mark 
Lindsay, Assistant to the President for Management and Administration, 
the White House).
    \97\ Interview with Betty Lambuth, former Lotus Notes team manager, 
Northrop Grumman, in Washington, DC (Mar. 21, 2000). However, none of 
the other Lotus Notes team members corroborated this aspect of 
Lambuth's testimony.
---------------------------------------------------------------------------
    Lambuth then went to see Paulette Cichon, Deputy Director 
of OA.\98\ Lambuth assumed that Cichon had been present when 
Lindsay gave Callahan the instructions to keep the problem 
secret because Cichon asked Lambuth, ``how are things going?'' 
\99\ However, Cichon denied ever hearing Mark Lindsay give any 
such instruction or make any such threat.\100\ Lambuth told 
Cichon that she had not yet heard from Lindsay.\101\ Cichon 
then took Lambuth to Lindsay's office.\102\ After they went 
into Lindsay's office, Lambuth alleges that Lindsay explicitly 
repeated the precise instructions she claims to have heard from 
Callahan: that Lambuth was not to tell anyone about the problem 
and that, if she or any of her staff did, they would lose their 
jobs, be arrested, and go to jail.\103\ When asked about the 
tone of the meeting, Lambuth stated that Lindsay made his 
remarks matter-of-factly, not in a confrontational manner. 
Because Lambuth already heard the ``jail'' comment during her 
conversation with Callahan, the comment did not shock or 
surprise her when it came from Lindsay.\104\
---------------------------------------------------------------------------
    \98\ Id.
    \99\ Id.
    \100\ Interview with Paulette Cichon, former Deputy Director, 
Office of Administration, in Washington, DC (Apr. 18, 2000).
    \101\ Interview with Betty Lambuth, former Lotus Notes team 
manager, Northrop Grumman, in Washington, DC (Mar. 21, 2000).
    \102\ Id.
    \103\ Id. After having been interviewed by minority staff without 
majority staff present, Paulette Cichon signed a statement in which she 
noted that she recalled no such threat. See statement of Paulette 
Cichon, Deputy Director, Office of Administration (Mar. 29, 2000) 
(exhibit 157). Her husband witnessed the statement. See id.
    \104\ Id.
---------------------------------------------------------------------------
    Lambuth understood Lindsay's warning to mean that if any 
one employee disclosed the problem all of Lambuth's staff would 
be arrested and have their security clearance stripped.\105\ In 
other words, if any one employee spoke, the entire team would 
be penalized.\106\ Lambuth feared that the threat of arrest 
amounted to a threatened loss of security clearance that would 
damage her ability to obtain employment in the future. In an 
interview with committee staff she explained, ``regardless of 
what happens with the arrest, there is no quick or easy way to 
recover your clearance.'' \107\
---------------------------------------------------------------------------
    \105\ Id.
    \106\ Id.
    \107\ Id.
---------------------------------------------------------------------------

2. Betty Lambuth Relayed the Secrecy Instructions to Her Team

    Lambuth did not speak to her team until the following 
Monday.\108\ At that time, she reported that Lindsay 
specifically instructed them to ``record nothing. Do no e-mails 
on this matter. Absolutely no telephone calls on this matter.'' 
\109\ Lambuth's claim in this regard is corroborated not only 
by other contract employees, but also by Tony Barry, who told 
committee staff that at his first meeting on the e-mail issue, 
Lambuth told him they had been instructed not to take any 
notes.\110\ Barry told her that he would document the meeting 
in his weekly report as always to his supervisor, Jim 
Wright.\111\ The instruction to avoid making records is also 
corroborated by handwritten notes about the Mail2 problem 
produced to the committee by Northrop Grumman which state in 
part, ``1. Instructed never to commit to paper.'' \112\
---------------------------------------------------------------------------
    \108\ Id.
    \109\ Id.
    \110\ See interview with Daniel A. ``Tony'' Barry, ARMS Manager, 
Office of Administration, in Washington, DC (Mar. 7, 2000).
    \111\ See id.
    \112\ Norththrop Grumman document production NGL 00795 (exhibit 
199). Northrop Grumman counsel was unable to identify the author of the 
handwritten notes. Letter from Richard Oparil, partner, Piper Marbury 
Rudnick & Wolfe, to James C. Wilson, chief counsel, Committee on 
Government Reform (Sept. 20, 2000) (within appendix I).
---------------------------------------------------------------------------
    Lambuth specifically communicated that Lindsay emphasized 
keeping the matter secret from the program manager, Steve 
Hawkins, and the Contracting Officers' Technical Representative 
(COTR), Jim Wright.\113\ This claim is also corroborated by 
John Spriggs and Robert Haas in their testimony before the 
committee.\114\
---------------------------------------------------------------------------
    \113\ Interview with Betty Lambuth, former Lotus Notes team 
manager, Northrop Grumman, in Washington, DC (Mar. 21, 2000). Projects 
with which Northrop Grumman employees were tasked were to be performed 
under the general direction of the contracting officer and the 
technical direction of the COTR. White House document production E 8330 
(exhibit 206). See also interview with Steve Hawkins, former program 
manager, Northrop Grumman, in Washington, DC (Mar. 7, 2000).
    \114\ ``Missing White House E-mails, Mismanagement of Subpoenaed 
Records,'' hearings before the Committee on Government Reform, 106th 
Cong. 31-32, 48-49 (Mar. 23, 2000) (testimony of Robert Haas, Lotus 
Notes administrator, Northrop Grumman and John Spriggs, senior 
engineer, Northrop Grumman).
---------------------------------------------------------------------------

3. The E-mail Team Met With Laura Callahan and Mark Lindsay

    The Monday following the initial discovery and reporting of 
the e-mail problem, Laura Callahan requested a meeting with all 
of the contract employees then aware of the issue.\115\ At 10 
a.m., Northrop Grumman contract workers Robert Haas, Yiman 
Salim, Sandy Golas and John Spriggs, along with their manager, 
Betty Lambuth, met in Laura Callahan's office. Mark Lindsay 
participated in the meeting via speakerphone.\116\ Callahan and 
Lindsay told the Northrop Grumman employees that the e-mail 
issue was extremely sensitive and cautioned them not to tell 
anyone about it.\117\ Callahan and Lindsay also instructed the 
contract employees to say nothing without their explicit 
authorization,\118\ and they specifically prohibited disclosure 
to co-workers, spouses, and the Northrop Grumman supervisors, 
including--by name--Program Manager Steve Hawkins, COTR Jim 
Wright, and Senior Manager Bob Whiteman.\119\ They were also 
instructed to write down as little as possible related to the 
project, not to work on any networked computers or to send any 
further e-mail relating to the project.\120\ This statement is 
also corroborated by contemporaneous statements to IS&T 
Director Kathleen Gallant.\121\ Laura Callahan then allegedly 
asked each person in the room individually if they understood 
the consequences of speaking about the e-mail problem.\122\
---------------------------------------------------------------------------
    \115\ Interview with Robert Haas, Lotus Notes administrator, 
Northrop Grumman, in Washington, DC (Mar. 7, 2000).
    \116\ Id. See also ``Missing White House E-mails, Mismanagement of 
Subpoenaed Records,'' hearings before the Committee on Government 
Reform, 106th Cong. 31, 45 (Mar. 23, 2000) (testimony of Robert Haas, 
Lotus Notes administrator, Northrop Grumman and Sandra Golas, VAX 
Systems administrator, Northrop Grumman).
    \117\ Interview with Robert Haas, Lotus Notes administrator, 
Northrop Grumman, in Washington, DC (Mar. 7, 2000).
    \118\ Id.
    \119\ Id. See also ``Missing White House E-mails, Mismanagement of 
Subpoenaed Records,'' hearings before the Committee on Government 
Reform, 106th Cong. 31-32, 48-49 (Mar. 23, 2000) (testimony of John 
Spriggs, senior engineer, Northrop Grumman).
    \120\ Interview with Robert Haas, Lotus Notes administrator, 
Northrop Grumman, in Washington, DC (Mar. 7, 2000).
    \121\ Interview with Kathleen Gallant, former IS&T Director, Office 
of Administration, in Chantilly, VA (May 17, 2000).
    \122\ Interview with Robert Haas, Lotus Notes administrator, 
Northrop Grumman, in Washington, DC (Mar. 7, 2000).
---------------------------------------------------------------------------
    At some point during the meeting, Lindsay ended his 
involvement via speakerphone.\123\ After Lindsay was no longer 
participating, Bob Haas asked what would happen if he told 
someone about the e-mail problem without authorization. 
Callahan responded, ``there would be a jail cell with your name 
on it.'' \124\ Haas' testimony is directly corroborated on the 
use of the word ``jail'' by both Betty Lambuth and Sandy 
Golas.\125\ It is indirectly corroborated by Steve Hawkins who, 
while not in the room when the threat was made, heard 
contemporaneous statements about the threat from Sandy Golas 
and Robert Haas.\126\ Haas, Golas, and Lambuth each recalled 
Callahan's ``jail cell'' comment. Salim and Spriggs have no 
specific recollection of the comment, but did not dispute their 
colleagues' recollections.
---------------------------------------------------------------------------
    \123\ Id. See also ``Missing White House E-mails, Mismanagement of 
Subpoenaed Records,'' hearings before the Committee on Government 
Reform, 106th Cong. 32 (Mar. 23, 2000) (testimony of Robert Haas, Lotus 
Notes administrator, Northrop Grumman).
    \124\ Interview with Robert Haas, Lotus Notes administrator, 
Northrop Grumman, in Washington, DC (Mar. 7, 2000).
    \125\ See ``Missing White House E-mails, Mismanagement of 
Subpoenaed Records,'' hearings before the Committee on Government 
Reform, 106th Cong. 32, 45 (Mar. 23, 2000) (testimony of Robert Haas 
and Sandra Golas, respectively). See also id. at 25 (testimony of Betty 
Lambuth).
    \126\ Id. at 31, 45, 136.
---------------------------------------------------------------------------

4. Corroborating Evidence and Testimony

    This committee first learned these basic facts in a series 
of interviews with the Northrop Grumman contract employees in 
March 2000. Most of the story was repeated by these witnesses 
at a March 23, 2000, committee hearing. However, this was not 
the first time that these employees have told this story. 
Rather, they told a number of individuals in 1998 that they had 
been threatened.
            a. Robert Haas Told Steve Hawkins About the Threats
    Several witnesses have corroborated the alleged threats by 
their independent recollections of the behavior and statements 
of the Northrop Grumman employees in the summer and early fall 
of 1998. Robert Haas' claim that Laura Callahan threatened him 
with jail, for example, is corroborated by Steve Hawkins. 
Hawkins was not in the Monday morning meeting in Laura 
Callahan's office in which Haas claims he was threatened. 
However, Haas contemporaneously explained the threat to 
Hawkins.\127\
---------------------------------------------------------------------------
    \127\ Id. at 145-146 (testimony of Steve Hawkins, former program 
manager, Northrop Grumman).
---------------------------------------------------------------------------
            b. Sandra Golas Risked Her Job by Refusing to Tell Steve 
                    Hawkins About the E-mail Problem
    Steve Hawkins, Jim Wright, John Spriggs, and Sandy Golas 
all gave the committee similar accounts of an incident that 
occurred shortly after the alleged jail threat. Sandy Golas had 
returned to her office.\128\ Jim Wright, the COTR, came in and 
asked her what she was doing, as he routinely did.\129\ Her 
response was that she could not tell him.\130\ He told her 
that, as the COTR, his job required that he know about the 
projects on which she was working.\131\ He immediately escorted 
her to the office of the program manager, Steve Hawkins, where 
Golas also refused to divulge what she was doing.\132\ Hawkins 
told her she was being insubordinate and must tell him or be 
fired.\133\ She responded, ``if it's a choice of being 
insubordinate or going to jail, I guess I'll have to be 
insubordinate.'' \134\ Hawkins, Wright, and Golas each gave 
consistent accounts regarding this incident. Their testimony is 
highly corroborative evidence that Golas had heard threats of 
jail earlier that day. Golas clearly feared retaliation and 
imprisonment if she told Hawkins--her superior--what work she 
was doing at the direction of the White House. Hawkins' 
testimony about Golas' appearance and demeanor is also 
corroborative of the threat allegations. Indeed, Hawkins 
stated: ``Well, once I asked Ms. Golas to come to my office, 
she was very nervous, to say the least, very fidgety.'' \135\
---------------------------------------------------------------------------
    \128\ Interview with Sandy Golas, VAX Systems administrator, 
Northrop Grumman, in Washington, DC (Mar. 7, 2000).
    \129\ Interview with Jim Wright, former COTR and IS&T Data Center 
Branch Chief, Office of Administration, in Washington, DC (June 8, 
2000).
    \130\ Id.
    \131\ Id.
    \132\ Id.
    \133\ Interview with Sandy Golas, VAX Systems administrator, 
Northrop Grumman, in Washington, DC (Mar. 7, 2000).
    \134\ ``Missing White House E-mails, Mismanagement of Subpoenaed 
Records,'' hearings before the Committee on Government Reform, 106th 
Cong. 45-46 (Mar. 23, 2000) (testimony of Sandra Golas, VAX Systems 
administrator, Northrop Grumman).
    \135\ Id. at 54 (testimony of Steve Hawkins, former program 
manager, Northrop Grumman).
---------------------------------------------------------------------------
    Following her refusal to speak, Hawkins gave Golas 30 
minutes to consider her decision.\136\ She returned to his 
office with Bob Haas and John Spriggs.\137\ According to 
Hawkins, all three of them were ``extremely nervous.'' \138\ 
They told him that their immediate supervisor, Betty Lambuth, 
had ordered them not to talk about the work.\139\ The three of 
them relayed to him what had occurred in the earlier meeting 
with Callahan and Lindsay.\140\
---------------------------------------------------------------------------
    \136\ Interview with Sandy Golas, VAX Systems administrator, 
Northrop Grumman, in Washington, DC (Mar. 7, 2000).
    \137\ ``Missing White House E-mails, Mismanagement of Subpoenaed 
Records,'' hearings before the Committee on Government Reform, 106th 
Cong. 54 (Mar. 23, 2000) (testimony of Sandra Golas, VAX Systems 
administrator, Northrop Grumman).
    \138\ Id. at 55.
    \139\ Interview with Steve Hawkins, former program manager, 
Northrop Grumman, in Washington, DC (Mar. 7, 2000).
    \140\ ``Missing White House E-mails, Mismanagement of Subpoenaed 
Records,'' hearings before the Committee on Government Reform, 106th 
Cong. 55 (Mar. 23, 2000) (testimony of Sandra Golas, VAX Systems 
administrator, Northrop Grumman).
---------------------------------------------------------------------------
            c. Steve Hawkins Discussed the Threats With Lindsay and 
                    Callahan
    Hawkins contacted Lambuth and ordered her to come to his 
office as soon as possible.\141\ Lambuth told Hawkins she was 
merely repeating the instructions of then-General Counsel for 
the Office of Administration, Mark Lindsay.\142\ She explained 
that she had been ordered by Laura Callahan and Mark Lindsay 
not to discuss the matter.\143\
---------------------------------------------------------------------------
    \141\ Interview with Steve Hawkins, former program manager, 
Northrop Grumman, in Washington, DC (Mar. 7, 2000).
    \142\ Id.
    \143\ Id. This account corroborates Betty Lambuth's testimony and 
is particularly reliable given the friction between Hawkins and Lambuth 
which eventually led to Hawkins having Lambuth removed from the 
contract.
---------------------------------------------------------------------------
    Steve Hawkins was then called to a meeting with Mark 
Lindsay in his office. When Hawkins arrived, Laura Callahan was 
already present.\144\ They wanted to know why Hawkins had 
become involved in the e-mail matter.\145\ Hawkins expressed 
his concern that employees were being directed without the 
knowledge or involvement of their supervisors, and that they 
were being directed to perform work potentially outside the 
scope of the contract between Northrop Grumman and the 
EOP.\146\ Hawkins testified about the meeting with Lindsay and 
Callahan:
---------------------------------------------------------------------------
    \144\ Id.
    \145\ Id.
    \146\ Id.

        Mr. LaTourette. And let me stop you there. When you 
        talked to the majority staff, I believe, you recall a 
        comment being made to you by Ms. [Callahan] that 
---------------------------------------------------------------------------
        everything was fine before you stepped in.

        Mr. Hawkins. Absolutely.

        Mr. LaTourette. Is that a direct quote from Ms. 
        [Callahan] to you?

        Mr. Hawkins. That was a direct quote.

        Mr. LaTourette. OK. And at this time were you aware 
        what the problem was, that there was this e-mail e-
        server problem?

        Mr. Hawkins. No, sir. I didn't have any idea, other 
        than I had a COTR breathing down my neck, I had a CO--
        the contracting officer--telling me to stay in bounds 
        of my contract. And, first of all, as I told Mr. 
        Lindsay, my contract was with the U.S. Government and 
        it was not with Mr. Lindsay nor was it with Ms. 
        Posey.\147\
---------------------------------------------------------------------------
    \147\ ``Missing White House E-mails, Mismanagement of Subpoenaed 
Records,'' hearings before the Committee on Government Reform, 106th 
Cong. 144 (Mar. 23, 2000) (testimony of Steve Hawkins, former program 
manager, Northrop Grumman).

Hawkins replied to Callahan by saying that he ``did not 
appreciate her threatening the Northrop Grumman employees.'' 
\148\ Callahan did not deny Hawkins' accusation, but merely 
turned and left the room.\149\ Callahan's failure to refute 
such a serious charge, especially when made in the presence of 
her superior, Mark Lindsay, is especially disturbing. Most 
individuals in a similar situation would have denied such a 
charge in order to avoid negative employment or legal 
consequences. Callahan's failure to do so may indicate 
confidence that Lindsay would take no action to report or 
discipline her for making such a threat. This would be 
consistent with Betty Lambuth's account in which Lindsay was 
the original source of the threat, which Callahan merely 
repeated--first to Lambuth and then to Haas.\150\
---------------------------------------------------------------------------
    \148\ Declaration of Steve Hawkins, former program manager, 
Northrop Grumman, at para.5 (May 18, 2000) (exhibit 158). This 
declaration was provided to the committee after the first hearing to 
clarify a matter that became a point of contention at that hearing. 
Majority and minority members disputed whether or not Hawkins claimed 
to have mentioned threats to Mark Lindsay and Laura Callahan, both of 
whom denied hearing of any such allegations until the news reports of 
February 2000. ``Missing White House E-mails, Mismanagement of 
Subpoenaed Records,'' hearings before the Committee on Government 
Reform, 106th Cong. 144-145, 338-339 (Mar. 23, 2000) (testimony of 
Steve Hawkins and colloquy between Chairman Burton and Ranking Minority 
Member Waxman). As is made clear from the declaration, although unclear 
in the hearing transcript, Hawkins did not confront Lindsay and 
Callahan with his knowledge of a specific threat of jail. However, he 
did confront them about the threat more generally and unequivocally 
expressed his displeasure with White House personnel threatening his 
employees.
    \149\ Declaration of Steve Hawkins, former program manager, 
Northrop Grumman, at para.6 (May 18, 2000) (exhibit 158).
    \150\ Interview with Betty Lambuth, former Lotus Notes team 
manager, Northrop Grumman, in Washington, DC (Mar. 21, 2000).
---------------------------------------------------------------------------
    According to Hawkins, Lindsay flatly refused to yield to 
Hawkins' request to follow proper procedure and allow Northrop 
Grumman managers to know about the nature of the project in 
order to supervise their employees.\151\ On this point, Hawkins 
directly contradicted Lindsay who testified as follows: ``I 
wanted the information to be limited, but the definition of 
`group' is the group of people necessary to solve the problem. 
That means if Northrop Grumman chose to bring in 20 people who 
were going to actually solve the problem, that was fine with 
me.'' \152\ As the program manager, Hawkins was the most senior 
Northrop Grumman employee onsite and was responsible for 
supervising his employees' activity to ensure that they were 
within the scope of the contract.\153\ Yet, Hawkins claims 
Lindsay refused to inform him about the nature of the work the 
contractors were being directed to perform.\154\ Hawkins also 
testified that he felt threatened by Mark Lindsay during their 
meeting:
---------------------------------------------------------------------------
    \151\ See section III.A.6.a (discussing relevant contract 
provisions setting forth scope of contract).
    \152\ ``Missing White House E-mails, Mismanagement of Subpoenaed 
Records,'' hearings before the Committee on Government Reform, 106th 
Cong. 257 (Mar. 23, 2000) (testimony of Mark Lindsay, Assistant to the 
President for Management and Administration, the White House).
    \153\ Interview with Steve Hawkins, former program manager, 
Northrop Grumman, in Washington, DC (Mar. 7, 2000).
    \154\ Id.

        Mr. Hawkins. It was very specific in the contract that 
        the COTR gave directions to the program manager and no 
        one else. And, therefore, I took the position that I 
        could not support this project and would not do it 
        without an internal work order, which was compliant 
        with our contract. At two or three points in the 
        conversation, it got very tense. Matter of fact, Mr. 
        Lindsay said over and over, ``I hope you appreciate my 
        position here.'' And I repeated back to him, ``I hope 
---------------------------------------------------------------------------
        you appreciate my position here.''

        Mr. Souder. What do you think he meant by, ``I hope you 
        appreciate my position?''

        Mr. Hawkins. I took it straight as a strong arm. I took 
        it as a direct assertion that my employees should go do 
        this work and I should not be involved. To the 
        contrary, the contracting officer, which was [Dale] 
        Helms, Mr. Jim Wright, gave me explicit instructions 
        when we talked, ``Don't `crater in,' '' and I never did 
        at any time. And I did feel threatened the whole 
        meeting with Mr. Lindsay.\155\
---------------------------------------------------------------------------
    \155\ ``Missing White House E-mails, Mismanagement of Subpoenaed 
Records,'' hearings before the Committee on Government Reform, 106th 
Cong. 106-107 (Mar. 23, 2000) (testimony of Steve Hawkins, former 
program manager, Northrop Grumman).
---------------------------------------------------------------------------
            d. The Northrop Grumman Employees Met in a Park and a 
                    Coffee Shop in Order to Maintain Secrecy
    The atmosphere of intimidation created by OA management is 
also evident in the behavior of the Northrop Grumman employees. 
For example, all five testified that they began meeting off the 
EOP premises in order to comply with the secrecy directives. 
They specifically mentioned having technical meetings about the 
Mail2 problem in a nearby park and at Starbucks.\156\ It was 
not only unusual for them to have attempted to work on complex 
technical issues outside the normal environment, but also 
ineffective. As Sandra Golas testified:
---------------------------------------------------------------------------
    \156\ Id. at 26, 51.

        We weren't provided any place that we could go to work, 
        and so this was our place where we would go to have 
        discussions. We didn't have any equipment, so we really 
        couldn't do a whole lot of testing, so it was really 
        difficult for us to come away with any conclusions in 
        any one period of time, so we had a number of 
        meetings.\157\
---------------------------------------------------------------------------
    \157\ Id. at 134 (testimony of Sandra Golas, VAX Systems 
administrator, Northrop Grumman).

Given that it limited their ability to remedy the problem, 
leaving the workplace in order to discuss Mail2 issues is more 
likely the product of fear and intimidation about the 
consequences of divulging the problem than any other 
explanation. These actions by the Northrop Grumman contractors 
are strong corroborating evidence supporting their testimony 
that they were threatened into secrecy.
            e. The Northrop Grumman Employees Told Kathleen Gallant 
                    About the Threats
    Shortly thereafter, contractors Betty Lambuth, Robert Haas, 
John Spriggs, and Sandy Golas also told Kathleen Gallant, 
Director of the IS&T division of OA, about the threats they had 
received. They told Gallant, who was Laura Callahan's superior, 
that Callahan had threatened them with jail if they disclosed 
information about the e-mail problem to unauthorized 
persons.\158\ Gallant told committee staff that there was ``no 
doubt in their mind that they took [the threats] seriously.'' 
\159\ Steve Hawkins came to Gallant and told her that no one 
would work on the project. Gallant suggested that he get his 
Northrop Grumman corporate counsel involved to reassure the 
contractors that they would not go to jail.\160\ Immediately 
upon learning of the threats, Gallant removed Callahan from any 
responsibility for the Mail2 issue. The decision to remove 
Callahan was not documented, but Gallant cited the following 
reasons: (1) Callahan went outside the chain-of-command in 
directing the Northrop Grumman employees; (2) Callahan was 
exercising authority over staff members not in her charge; and 
(3) Gallant ``most certainly'' credited as true the contract 
employee's account that they were threatened.\161\
---------------------------------------------------------------------------
    \158\ Declaration of Kathleen Gallant, former IS&T Director, Office 
of Administration, Alexander v. FBI (D.D.C. May 10, 2000) (CA 96-2123) 
(exhibit 154).
    \159\ Interview with Kathleen Gallant, former IS&T Director, Office 
of Administration, in Chantilly, VA (May 17, 2000).
    \160\ Id.
    \161\ Id.
---------------------------------------------------------------------------
            f. The Northrop Grumman Employees Told Joe Vasta About the 
                    Threats
    Later that summer, on August 28, 1998, Robert Haas, John 
Spriggs, and Sandy Golas requested a meeting with Joe Vasta, 
Northrop Grumman's deputy program manager.\162\ Vasta would 
later succeed Steve Hawkins as program manager. The employees 
were reportedly worried that a new member of their team, Jim 
Webster, was learning details about the Mail2 problem and could 
not be trusted not to speak about it.\163\ This corroborates 
Lambuth's testimony that she had conveyed to the other 
contractors Lindsay's warning that if any one of them talked, 
all of them would be fired. Vasta's account illustrates that 
the contractors remained in fear of some retribution upon the 
group if any single member were to reveal the e-mail problem. 
John Spriggs told committee staff: ``Clearly, we were under 
duress. The pressure was continuing. We felt like we were 
between a rock and a hard place.'' \164\ They had been directed 
to fix the problem, but to do so without telling anyone, even 
their corporate management. Without a manager and without 
guidance, the employees were seeking assistance in dealing with 
the no-win situation imposed on them by Lindsay and Callahan. 
According to Spriggs, they wanted to give Vasta enough 
information about their dilemma to communicate the gravity of 
the situation while revealing ``as little information as 
possible.'' \165\
---------------------------------------------------------------------------
    \162\ Interview with Joseph Vasta, former program manager, Northrop 
Grumman, in Washington, DC (June 27, 2000).
    \163\ Id.
    \164\ Telephone interview with John Spriggs, senior engineer, 
Northrop Grumman, in Washington, DC (Sept. 12, 2000).
    \165\ Id.
---------------------------------------------------------------------------
    At the August 28, 1998, meeting, Robert Haas repeated to 
Vasta that he had been threatened with jail if he spoke about 
the project.\166\ John Spriggs corroborated Vasta's 
recollection of the meeting generally, and specifically on the 
issue of Haas' being threatened with jail.\167\ Vasta took 
handwritten notes at the meeting, but the committee has been 
unable to obtain copies of them to date. After the meeting, 
John Spriggs reminded Vasta that they were to collect all notes 
regarding the project.\168\ In order to gain the trust of the 
employees, Vasta relinquished his contemporaneous notes to 
Spriggs.\169\ Spriggs told committee staff that because of 
Lindsay and Callahan's instructions, their general practice was 
to collect all Mail2 related notes and give them to Robert 
Haas, who kept them in ``a burn bag.'' \170\ Unfortunately, 
however, Vasta's notes have disappeared.\171\ However, Vasta 
later wrote a memo dated September 9, 1998, regarding the 
meeting. While the specific threat of jail is not recorded in 
the typewritten memo, the general circumstances of the meeting 
were described as follows:
---------------------------------------------------------------------------
    \166\ Interview with Joseph Vasta, former program manager, Northrop 
Grumman, in Washington, DC (June 27, 2000).
    \167\ Telephone interview with John Spriggs, senior engineer, 
Northrop Grumman, in Washington, DC (Sept. 12, 2000).
    \168\ Id.
    \169\ Interview with Joseph Vasta, former program manager, Northrop 
Grumman, in Washington, DC (June 27, 2000).
    \170\ Telephone interview with John Spriggs, senior engineer, 
Northrop Grumman, in Washington, DC (Sept. 12, 2000).
    \171\ Id. On June 28, 2000, the committee specifically requested, 
pursuant to its earlier subpoena, a copy of Vasta's handwritten notes 
from the White House. Associate Counsel to the President Edward 
McNicholas responded on July 6, 2000, ``we have not been able to 
determine that the EOP ever had possession of any such notes. As a 
result, you may wish to contact counsel for Northrop Grumman on this 
matter.'' Letter from Edward McNicholas, Associate Counsel to the 
President, the White House, to James C. Wilson, chief counsel, 
Committee on Government Reform (July 6, 2000) (within appendix I). See 
also letter from Richard Oparil, partner, Piper Marbury Rudnick & 
Wolfe, to James C. Wilson, chief counsel, Committee on Government 
Reform (Sept. 20, 2000) (within appendix I). The committee contacted 
not only counsel for Northrop Grumman, but also Mr. Spriggs' and Mr. 
Haas' personal counsel. To date, no one has produced the notes to the 
committee.

        Members of the project team were called into a meeting 
        (date of the meeting is not clear) and were told they 
        were working on a special project that could not be 
        discussed with anyone. In this meeting, a government 
        employee declared the project was to be held in 
        confidence and could not be discussed with anyone. When 
        Steve [Hawkins] asked if the government employee 
        providing this direction was Laura [Callahan], the 
        employee said[,] ``[h]e would not deny she was the 
        source.'' \172\
---------------------------------------------------------------------------
    \172\ Joseph Vasta document production (exhibit 155).

    The memo also corroborates the testimony of several of the 
contractors that they were instructed not to take notes or make 
written records of their work on the e-mail problem--a charge 
denied by both Lindsay and Callahan.\173\ However, according to 
Vasta's memo, ``they said they were told they could not discuss 
the project with anyone, could not create soft copy or hard 
copy notes about the effort, and all meetings about the project 
had to be out of earshot of people who were not on the team.'' 
\174\
---------------------------------------------------------------------------
    \173\ ``Missing White House E-mails, Mismanagement of Subpoenaed 
Records,'' hearings before the Committee on Government Reform, 106th 
Cong. 282 (Mar. 23, 2000) (testimony of Mark Lindsay, Assistant to the 
President for Management and Administration and Laura Callahan, former 
IS&T Desktop Systems Branch Chief).
    \174\ Joseph Vasta document production (exhibit 155).
---------------------------------------------------------------------------
            g. The Northrop Grumman Employees Told Joseph Lucente and 
                    Northrop Grumman Counsel About the Threats
    On September 9, 1998, Robert Haas and his fellow Northrop 
Grumman employees told yet more people about the threats when 
they sought legal advice about working on the secretive Mail2 
project from their in-house corporate legal counsel.\175\ 
According to Joseph Lucente, a senior Northrop Grumman manager 
who helped facilitate and attended the meeting, Robert Haas 
told him that he had been threatened with jail.\176\ The 
evidence also suggests that 2 days later, on September 11, 
1998, Haas had a telephone conversation with an outside counsel 
hired by Northrop Grumman, former Watergate prosecutor Earl 
Silbert. Haas testified to the following in Federal court:
---------------------------------------------------------------------------
    \175\ Haas also claims to have contemporaneously told his sister, 
his wife, and members of his wife's family about the threats. 
Transcript of Evidentiary Hearing at 133, Alexander v. FBI (D.D.C. Aug. 
14, 2000) (CA 96-2123).
    \176\ Interview with Joseph Lucente, director of contracts and 
subcontracts, Northrop Grumman, in Washington, DC (May 1, 2000). 
Lucente specifically confirmed that what the employees told him at the 
meeting was consistent with their testimony before the committee at the 
Mar. 23, 2000, hearing. See id.

        Q. One of the lawyers' name was Earl Silbert? Remember 
---------------------------------------------------------------------------
        Earl Silbert's name?

        A. The name is familiar. I'm not sure if--if he works 
        for Northrop Grumman, there was a guy from California 
        and a local guy that we met with, but I'm sorry, I 
        don't remember the names.

        Q. You remember the way of referring to him by the name 
        of Gray Beard?

        A. Oh, I never met with the person referred to as Gray 
        Beard. That was a phone conversation from the Northrop 
        Grumman lawyer's office. He called a person he referred 
        to as a Gray Beard. And I recanted [sic] my story to 
        him.

        Q. That was during the meeting that you're describing 
        in Reston?

        A. Yes, yes.

        Q. Mr. Haas, during this meeting out at headquarters in 
        Reston of Northrop Grumman, you may have testified to 
        this already, but just to make sure the answer is on 
        the record, you did relay the threats that had 
        occurred?

        A. Yes.\177\
---------------------------------------------------------------------------
    \177\ Transcript of Evidentiary Hearing at 56-57, 60, Alexander v. 
FBI (D.D.C. Aug. 14, 2000) (CA 96-2123).

The committee subpoenaed Earl Silbert's billing records and 
received redacted versions along with a privilege log 
describing generally the activities Silbert billed to Northrop 
Grumman.\178\ The privilege log indicates that on September 11, 
1998, Earl Silbert had a ``teleconference with Northrop Grumman 
counsel and a company employee.'' \179\ It also lists a second 
teleconference on the same day with ``Northrop Grumman 
employees.'' \180\ During an interview with committee staff, 
Silbert's lawyer said that the second privilege log entry 
listing multiple employees was a mistake and should have read, 
``Northrop Grumman counsel.'' \181\ Silbert refused to reveal 
the identity of the Northrop Grumman employee to whom he spoke 
in the first September 11th call, citing work-product 
privilege. However, the testimony of Robert Haas quoted above, 
together with Silbert's billing records, suggest very strongly 
that it was Haas to whom Silbert spoke on that date and that 
Silbert is the ``gray beard'' of whom Haas spoke. Haas further 
testified as follows:
---------------------------------------------------------------------------
    \178\ Earl Silbert document production (exhibit 202) (privilege 
log).
    \179\ Id.
    \180\ Id.
    \181\ Interview with Earl Silbert, partner, Piper Marbury Rudnick & 
Wolfe, in Washington, DC (Sept. 25, 2000).

        Q. And you also expressed your concern, did you not, 
        that the Mail2 reconstruction should be done quickly 
        because of the need to comply with the law, the 
---------------------------------------------------------------------------
        Presidential Records Act?

        A. Yes, yes.

        Q. And that this concerned you and your colleagues?

        A. Yes.

        Q. You also told people out at headquarters that you 
        had been instructed not to write anything down about 
        this whole matter?

        A. That's correct.

        Q. And you told them that you felt quite threatened and 
        abused by this whole thing, correct?

        A. Yes.

        Q. And that you were frightened?

        A. Yes.\182\
---------------------------------------------------------------------------
    \182\ Transcript of Evidentiary Hearing at 57, Alexander v. FBI 
(D.D.C. Aug. 14, 2000) (CA 96-2123).

    Silbert's billing records indicate that soon after this 
initial teleconference, he called someone in the White House 
Counsel's Office. According to those records, that conversation 
took place on September 28, 1998. When the committee sought to 
interview Silbert, his lawyer claimed that an interview would 
be fruitless because Silbert would refuse to answer questions 
about his contacts with the White House on the grounds of 
attorney-client privilege. After the committee issued a 
subpoena to compel Silbert to appear at a hearing, he agreed to 
be interviewed privately by committee staff. However, at that 
interview, Silbert claimed to be unable to recall anything at 
all about his contact with the White House, not even the 
identity of the person with whom he spoke.\183\ Nonetheless, 
the evidence strongly suggests that Robert Haas informed Earl 
Silbert in 1998 of essentially the same material facts to which 
he testified before the committee this year.
---------------------------------------------------------------------------
    \183\ Id.
---------------------------------------------------------------------------
    Silbert's September 28, 1998, conversation with someone in 
the White House Counsel's Office is of particular interest to 
the committee for a number of reasons. First, if Silbert 
complained to the White House Counsel's Office that White House 
Staff had threatened the Northrop Grumman employees into 
silence, it would undermine the claims that the White House 
Counsel's Office was unaware of the threats. Charles Ruff, 
Cheryl Mills and Michelle Peterson (all with the White House 
Counsel's Office) have stated that they were unaware of the 
threats against the Northrop Grumman employees until press 
accounts surfaced in 2000. Second, if Silbert made those kinds 
of complaints to the Counsel's Office, it would dramatically 
undermine claims that the Counsel's Office never appreciated 
the significance of the problem. It should be noted that 2 
weeks after Silbert's call to the White House, Laura Callahan 
discontinued her employment with the EOP.\184\ As described 
above, several Northrop Grumman employees recalled that 
Callahan threatened them into concealing the problem from their 
Northrop Grumman managers. Callahan left the EOP soon after 
Silbert's conversations with Haas and someone at the White 
Counsel Counsel's Office. Those facts are consistent with the 
possibility that not only did Silbert learn that Callahan might 
have threatened the employees, but also that Silbert might have 
conveyed that information to the person at the White House 
Counsel's Office with whom he spoke.
---------------------------------------------------------------------------
    \184\ See ``Missing White House E-mails, Mismanagement of 
Subpoenaed Records,'' hearings before the Committee on Government 
Reform, 106th Cong. 222 (Mar. 23, 2000) (Callahan testifying that she 
left EOP on Oct. 10th or 11th, 1998).
---------------------------------------------------------------------------
            h. Mark Lindsay Consulted OA Counsel on His Own Secrecy 
                    Instructions
    Deputy OA Counsel Adam Greenstone told committee staff that 
in 1998, Mark Lindsay, then his immediate superior, asked him 
an apparently hypothetical question, the significance of which 
Greenstone did not understand until much later. According to 
Greenstone, who handles employment law issues for the OA 
General Counsel's Office, Lindsay asked him ``if a group of 
employees discover a problem, to find the solution is it 
appropriate to ask them not to discuss it with co-workers?'' 
\185\ Greenstone answered ``yes.'' \186\ He said Lindsay was 
only looking for a hypothetical reaction and not a formal legal 
opinion.\187\
---------------------------------------------------------------------------
    \185\ Interview with Adam Greenstone, Deputy Counsel, Office of 
Administration, in Washington, DC (May 22, 2000).
    \186\ Id.
    \187\ Id.
---------------------------------------------------------------------------
    At the time of the conversation with Lindsay, Greenstone 
did not understand that this question had anything to do with 
Mail2. However, Greenstone also recalled a conversation in 
which Kate Anderson, a colleague of his in the OA General 
Counsel's Office, stated that Steve Hawkins was angry because 
Northrop Grumman employees were told to do work without 
Hawkins' knowledge.\188\ After the discussion with Anderson, 
Greenstone finally understood that Lindsay's hypothetical was 
connected to the Mail2 error and contract dispute.\189\ In a 
related proceeding in Federal court, Lindsay confirmed under 
oath that his question was, in fact, connected to the Mail2 
problem and resulting contract dispute:
---------------------------------------------------------------------------
    \188\ Id.
    \189\ Id.

        Q. Let me read it again. If a group of employees 
        discovers a problem, is it appropriate to ask them not 
        to discuss it with anyone else? You asked him that 
---------------------------------------------------------------------------
        question, did you not?

        A. I may have, yes.

        Q. So you did?

        A. I believe I did.

        Q. And you asked him that question because you had told 
        Laura [Callahan] to instruct the Northrop Grumman 
        employees that they should not discuss the Mail2 
        problem outside of their group?

        A. Outside of the people who needed to work on it, 
        yes.\190\
---------------------------------------------------------------------------
    \190\ Transcript of Evidentiary Hearing at 76-77, Alexander v. FBI 
(D.D.C. Aug. 23, 2000) (CA 96-2123).

Lindsay's question to Greenstone indicates that he was, at 
least at one time, considerably less confident about the 
propriety of his secrecy instructions than he appeared to be at 
the committee's hearings. Greenstone noted that Lindsay did not 
specify in the hypothetical that the employees were contractors 
or that the co-workers were actually supervisors.\191\ 
Greenstone added that if either additional factor had been 
mentioned, he would have told Lindsay that the instruction was 
improper.\192\ He said he would have responded, ``it should go 
through the proper contractor channels.''\193\
---------------------------------------------------------------------------
    \191\ Interview with Adam Greenstone, Deputy Counsel, Office of 
Administration, in Washington, DC (May 22, 2000).
    \192\ Id.
    \193\ Id.
---------------------------------------------------------------------------

5. Inconsistencies in the Contractors' Testimony Are Easily Reconciled

    The testimony of the Northrop Grumman employees is in all 
material respects consistent. However, as would be expected 
when a number of individuals describe events from years before, 
there are some minor variations. These inconsistencies are 
natural and to be expected. In fact, their absence could 
indicate a fabrication, in which witnesses collude to tell the 
exact same story. There is no evidence of any motive for these 
six employees to invent such a story. If such a motive did 
exist, it is highly unlikely that they would have created a 
story with the level of detail and intricacy exhibited here.
    For example, only three of the five Northrop Grumman 
employees present for the meeting with Callahan in which 
Lindsay participated by speakerphone recall hearing the alleged 
``jail cell'' threat to Haas. Yiman Salim and John Spriggs did 
not recall hearing that comment. However, neither of them 
disputed their colleagues' testimony. Neither of them had an 
affirmative recollection that no such threat occurred, and 
neither offered any reservations about Haas' credibility on the 
point. Indeed, Ranking Minority Member Henry Waxman also found 
Robert Haas' testimony credible:

        Mr. Haas, who seemed credible to me, clearly believed 
        he had been threatened with jail by Mrs. Callahan. He 
        told us that, in a meeting with Mrs. Callahan and his 
        four coworkers, he flippantly asked what would happen 
        if he discussed the computer glitch with others. He 
        remembers Mrs. Callahan warning him that, ``there would 
        be a jail cell with his name on it.'' \194\
---------------------------------------------------------------------------
    \194\ ``Missing White House E-mails, Mismanagement of Subpoenaed 
Records,'' hearings before the Committee on Government Reform, 106th 
Cong. 18 (Mar. 30, 2000).

    Furthermore, testimony from Steve Hawkins indicates that 
shortly after the threat was made, Robert Haas told Hawkins of 
the threat in the presence of Spriggs and Golas.\195\ According 
to Hawkins, Spriggs seemed more calm than other two, but 
Hawkins described him as ``concerned'' and said that all three 
of them appeared to be ``extremely nervous.'' \196\ This 
indicates that while Spriggs may not have had an independent 
recollection of the threat, he heard Haas' contemporary re-
telling of the event to Hawkins and offered no objection or 
dissent about whether the threat had occurred. In fact, 
according to Hawkins' testimony, Spriggs' behavior at the time 
was consistent with his having either witnessed a threat 
himself or believing Haas' claim of being threatened.
---------------------------------------------------------------------------
    \195\ Id. at 55 (Mar. 23, 2000) (testimony of Steve Hawkins, former 
program manager, Northrop Grumman).
    \196\ Id. at 55.
---------------------------------------------------------------------------
    Betty Lambuth is the only witness who claims that Mark 
Lindsay threatened her with jail. This is not necessarily 
inconsistent with the testimony of other Northrop Grumman 
employees that they were threatened by Laura Callahan because 
it allegedly occurred at a separate meeting. However, there is 
less corroborating evidence for Lambuth's testimony with regard 
to Lindsay than there is for the others' testimony with regard 
to Callahan. After Lambuth claimed that Paulette Cichon had 
overheard Lindsay threaten her, Cichon told committee staff 
that she recalled no such threat. Cichon was initially 
interviewed by minority staff without majority staff present. 
As a result of that interview, Cichon provided a written 
statement to the minority, which was neither notarized nor 
sworn, in which she described a meeting she attended with Mark 
Lindsay and Betty Lambuth.\197\ Cichon's written statement as 
well as her later interview with both majority and minority 
staff directly contradicts Lambuth's sworn account. According 
to Cichon, Lindsay merely authorized Lambuth to speak to Cichon 
about the problem. Cichon does not recall hearing Mark Lindsay 
make any sort of threat to Lambuth.\198\
---------------------------------------------------------------------------
    \197\ Statement of Paulette Cichon, former Deputy Director, Office 
of Administration (Mar. 29, 2000) (exhibit 157).
    \198\ Id.
---------------------------------------------------------------------------
    While Cichon's statements fail to corroborate Lambuth's on 
the primary issue of Lindsay's alleged threat, Cichon does 
corroborate other important aspects of Lambuth's testimony. For 
example, Cichon said that Lambuth appeared ``apprehensive or 
uncomfortable'' speaking about the problem.\199\ This supports 
Lambuth's claim that she was afraid to discuss the matter with 
anyone absent express authorization from Mark Lindsay and is 
consistent with her having been intimidated earlier. Kathleen 
Gallant provided a similar account in which Lambuth was 
apprehensive and reluctant to speak to her about the problem 
until specifically and personally authorized to do so by Mark 
Lindsay.\200\
---------------------------------------------------------------------------
    \199\ Id.
    \200\ Interview with Kathleen Gallant, former IS&T Director, Office 
of Administration, in Chantilly, VA (May 17, 2000).
---------------------------------------------------------------------------
    None of these apparent inconsistencies significantly 
diminish the fact that at least half a dozen witnesses believed 
that contract employees were threatened by White House 
officials. More amazing is that this occurred at the height of 
the Monica Lewinsky scandal, while a Federal grand jury was 
investigating the President of the United States for perjury, 
witness tampering, and obstruction of justice. If any of the 
contractors' allegations were politically motivated, they would 
surely have come forward at the height of the impeachment 
debate. Instead, all of these witnesses kept silent and kept 
doing their jobs throughout impeachment. Meanwhile, those 
accused of threatening the contract employees are still 
employed in the administration and no disciplinary action has 
been taken against them.
    Of course, Mark Lindsay and Laura Callahan have denied that 
they threatened anyone. However, their denials must be viewed 
in proper perspective. First, they had a powerful motive to 
threaten the Northrop Grumman employees. The White House was in 
the middle of the impeachment investigation, and the last thing 
it needed was news that thousands of potentially responsive e-
mails had not been searched. Second, Lindsay's credibility must 
be evaluated in the context of his behavior throughout the e-
mail matter. As explained in this report, Mark Lindsay was at 
the center of the White House's failure to fix the e-mail 
problem or to notify Congress of the problem's existence. When 
questioned about this matter, he has strained credulity beyond 
reasonable limits on numerous occasions. Finally, there is 
scant evidence to support the denials of Lindsay and Callahan. 
Only one witness, Paulette Cichon, offered any factual 
statement corroborating Lindsay or Callahan, and as described 
above, even her story confirmed a key aspect of the Northrop 
Grumman employees' testimony. Furthermore, Cichon has reason to 
be supportive of Lindsay and Callahan because she may in part 
be accountable for the failure to take effective steps to cure 
the problem or notify Congress.
    The only other witnesses on the threat issue who made 
favorable statements about Lindsay and Callahan were 
essentially character witnesses who made general statements 
about Lindsay and Callahan lacking the propensity to make 
threats. For example, Virginia Apuzzo said that she could not 
imagine Callahan threatening anyone and that it was not 
Lindsay's style to make threats.\201\ However, other witnesses 
contradicted these assessments. For example, former OA Director 
Ada Posey said that Lindsay ``ruled like Mussolini,'' \202\ and 
former IS&T Director Kathleen Gallant said Callahan ``would 
embarrass people by criticizing them publicly. She berated 
them, chastised them.'' \203\ The paucity of evidence in favor 
of Lindsay and Callahan must be weighed against the mountains 
of evidence supporting the conclusion that Mark Lindsay and 
Laura Callahan threatened Northrop Grumman employees.
---------------------------------------------------------------------------
    \201\ Interview with Virginia Apuzzo, former Assistant to the 
President for Management and Administration, the White House, in 
Kingston, NY (May 24, 2000).
    \202\ Interview with Ada Posey, former Director, Office of 
Administration, in Washington, DC (May 18, 2000).
    \203\ Interview with Kathleen Gallant, former IS&T Director, Office 
of Administration, in Chantilly, VA (May 17, 2000).
---------------------------------------------------------------------------

6. Lindsay and Callahan Kept the E-mail Problem Secret From Individuals 
        Who Needed to Know About It

    As described above, Mark Lindsay and Laura Callahan 
threatened Northrop Grumman employees to remain silent about 
the problem. Another result of these threats, other than 
keeping the problem from the attention of Congress and the 
public, was that it required the Northrop Grumman employees to 
work in secret. This prevented them from working on the problem 
with proper supervision or assistance and, therefore, delayed a 
solution to the problem. However, as described below, Lindsay 
and Callahan also attempted to keep the e-mail problem secret 
from EOP officials who should have been involved in the process 
of fixing the problem, and whose involvement would have been 
advantageous.
            a. Lindsay and Callahan Did Not Disclose the Problem to the 
                    Program Manager and the COTR
    Apparently recognizing that there was an effort to conceal 
the problem from the contractors' on-site managers, 
Representative Waxman asked Hawkins at a hearing before the 
committee for his opinion as to why the problem might have been 
concealed from him:

        Mr. Waxman. I just have one last question. Mr. Hawkins, 
        people didn't want them to talk to you. Was that 
        because they might have had a fear that you might have 
        come back and said, ``This is outside the scope of the 
        Northrop Grumman contract,'' and you might not go out 
        and fix it?

        Mr. Hawkins. I believe their intent, because they had a 
        computer failure, they should have at least 
        acknowledged within their own Civil Service and follow 
        contractual guidelines. I believe, in my own opinion, 
        that they did try to cover up the fact that they had a 
        computer glitch and there were e-mails involved and it 
        did include the President and Monica Lewinsky. I had--
        at no time did I ever feel that they were trying to be 
        up-front and open and honest because of my discussions 
        with Mr. Lindsay.\204\
---------------------------------------------------------------------------
    \204\ ``Missing White House E-mails, Mismanagement of Subpoenaed 
Records,'' hearings before the Committee on Government Reform, 106th 
Cong. 92-93 (Mar. 23, 2000).

    So concerned was management at OA with concealing the 
nature of the problem from Steven Hawkins, Northrop Grumman's 
program manager on the EOP facilities contract, that they also 
sought to keep Jim Wright, who was then the COTR, from knowing 
about the problem.\205\ Hawkins told committee staff that he 
once ran for office as a Republican.\206\ It is not known 
whether his party affiliation was known by EOP or OA 
management. However, his political affiliation suggests one 
motive for keeping him uninformed of the e-mail problem.
---------------------------------------------------------------------------
    \205\ The COTR is the functional equivalent of the program manager 
but on the government side. He is the government's onsite 
representative and, therefore, is the primary government onsite 
official with whom the program manager interacts. With regard to work 
being done on the EOP facilities contract, the practice was that 
projects with which Northrop Grumman employees were tasked required 
authorization by either the COTR or the contracting officer. Interview 
with Jim Wright, former COTR and IS&T Data Center Branch Chief, Office 
of Administration, in Washington, DC (June 8, 2000) (citing base 
contract and Federal Acquisition Regulations).
    \206\ Interview with Steve Hawkins, former program manager, 
Northrop Grumman (Mar. 7, 2000).
---------------------------------------------------------------------------
    Unlike Hawkins, Wright was an EOP employee. As described 
above, several Northrop Grumman employees recall that Lindsay 
and Callahan specified that Hawkins and Wright were not to be 
told about the problem.\207\ In addition, on July 23, 
1998,\208\ Catherine Anderson, Assistant General Counsel for 
OA, recommended Wright's immediate removal as COTR because 
Wright and Hawkins were ``not operating at arm's length.'' 
\209\ Without knowing the precise context of Anderson's 
recommendation, it nonetheless corroborates that the Northrop 
Grumman employees might have been instructed not to inform 
Wright of the problem.
---------------------------------------------------------------------------
    \207\ ``Missing White House E-mails, Mismanagement of Subpoenaed 
Records,'' hearings before the Committee on Government Reform, 106th 
Cong. 31-32, 48-49 (Mar. 23, 2000) (testimony of John Spriggs, senior 
engineer, Northrop Grumman).
    \208\ During this time, there was no movement in either remedying 
the problem's effect on future searches or reconstructing the 
unrecorded e-mail from the backup tapes. See White House document 
production E 3990 (exhibit 119).
    \209\ Id. at E 8149 (exhibit 168). When making that recommendation, 
Anderson specified Wright's removal in reference to ``non-Y2K related 
work,'' which would encompass the Mail2 problem. Id. Interview with Jim 
Wright, former COTR and IS&T Data Center Branch Chief, Office of 
Administration, in Washington, DC (June 8, 2000) (understood Anderson 
recommended Wright's immediate removal as COTR because he was ``too 
close'' to Hawkins); interview with Kathleen Gallant, former IS&T 
Director, Office of Administration, in Chantilly, VA (May 17, 2000) 
(same).
---------------------------------------------------------------------------
    It is noteworthy that the White House's concealment of the 
employees' work on the Mail2 problem from their Northrop 
Grumman managers deviated from contractual provisions requiring 
active involvement by the contracting officer, his COTR and the 
project manager. The task order operative when the employees 
discovered the problem \210\ requires that
---------------------------------------------------------------------------
    \210\ The salient provisions are found within the statement of work 
(SOW) attached to task order OA8004, which provides for Northrop 
Grumman's support for facilities management and information technology 
functions for the EOP. See White House document production E 8319 
(exhibit 206). Generally, a SOW is attached to a task order and its 
provisions, setting forth the duties and obligations of the parties to 
the underlying contract, are incorporated by reference. The committee 
has received no documentation that indicates that task order OA8004 was 
abrogated. Accordingly, that task order, dated Sept. 30, 1997, appears 
to have been operative when the contract employees discovered the Mail2 
problem.

        [a]ll work shall be performed under the general 
        direction of the CO and the technical direction of the 
        COTR. The Contractor's [project manager] will maintain 
        continuing day-to-day contact about all operational 
        matters with the COTR, or other IS&T managers as 
        designated by the COTR. Contact procedures will be 
        established by the COTR and the CO in consultation with 
        the [project manager].\211\
---------------------------------------------------------------------------
    \211\ Id. at E 8330 (exhibit 206).

    Significantly, the task order also provides that ``[t]he 
Government will not exercise any supervision or control over 
Contractor employees or subcontractors performing services 
under this task order. Contractor employees and subcontractors 
shall be accountable solely to the Contractor and its 
management, who, in turn, shall be accountable to the 
Government.'' \212\ The task order also states that ``[t]he 
Contractor shall be responsible for managing and overseeing the 
activities of all Contractor personnel, as well as the 
activities of subcontractors and vendors used in performance of 
this [Statement of Work (SOW)]'' and that ``[t]he Contractor 
shall provide the management and administrative activities[.]'' 
\213\
---------------------------------------------------------------------------
    \212\ Id. at E 8324 (exhibit 206) (emphasis added).
    \213\ Id. at E 8324 (exhibit 206) (emphasis added).
---------------------------------------------------------------------------
    Under the task order, the COTR monitors and administers the 
contractor's performance and notifies the contractor and 
contracting officer of any deficiencies observed.\214\ The task 
order also restricts each contract employee from working more 
than 40 hours per year on other projects outside of required 
task, unless the CO or COTR has granted permission to a written 
request to exceed this limit.\215\
---------------------------------------------------------------------------
    \214\ Id. at E 8323 (exhibit 206). See also id. at E 8368.
    \215\ Id. at E 8379-8380 (exhibit 206).
---------------------------------------------------------------------------
    As described above, Lindsay and Callahan sought to conceal 
Northrop Grumman's work on the problem from their managers, 
namely Steve Hawkins, Northrop Grumman's program manager, and 
Jim Wright, the COTR. Also, as discussed below in section 
III.D.1, Northrop Grumman Program Director Jim DeWire 
subsequently approved OA Director Ada Posey's request that the 
contractors work on a project without disclosure to their 
managers. However, before DeWire authorized this special 
arrangement, Posey did not specify, and DeWire did not 
understand, the nature of the project.\216\ Nonetheless, the 
provisions cited above require disclosure to and direction from 
the contracting officer, his COTR and the project manager. In 
addition, the task order plainly provides, ``in no event will 
any understanding, agreement, modification, change order, or 
other matter deviating from the terms of the contract be 
effective or binding upon the government unless proper, formal 
contractual documents are executed by the Contracting Officer 
prior to completion of the task.'' \217\ Those provisions 
underscore the position Hawkins took in his meeting with 
Lindsay: ``my contract was with the United States Government 
and it was not with Mr. Lindsay nor was it with Ms. Posey.'' 
\218\ Under the express language of the contract, Hawkins' 
position appears to have been well-grounded. There can be 
little doubt that their deliberate concealment of the problem 
from both Wright or Hawkins prevented the White House from 
properly managing the problem and, ultimately, complying with 
outstanding congressional and grand jury subpoenas.
---------------------------------------------------------------------------
    \216\ See section III.D.2, below.
    \217\ Id. at E 8323 (exhibit 206).
    \218\ See ``Missing White House E-mails, Mismanagement of 
Subpoenaed Records,'' hearings before the Committee on Government 
Reform, 106th Cong. 144 (Mar. 23, 2000).
---------------------------------------------------------------------------
            b. Lindsay Concealed the Problem From the Contracting 
                    Officer and Chief of the Procurement Branch
    Sometime in June 1998, Hawkins told Dale Helms, Contracting 
Officer and Chief of the Procurement Branch for the Executive 
Office of the President, that Callahan directed the employees 
to remedy the problem without management involvement.\219\ 
Rather than confront Callahan directly, Helms spoke to Lindsay 
about this issue and said that he would like to be involved and 
needed to know what was happening with the contract in the 
future.\220\ Lindsay agreed to this, but noted that in some 
cases there might be sensitivity concerns that might require 
that he not discuss it with Helms.'' \221\ However, despite 
Helms' assertion that he ``wasn't terribly happy'' with his 
meeting with Lindsay, Helms failed to pursue the matter any 
further.\222\
---------------------------------------------------------------------------
    \219\ Interview with Dale Helms, CO and IS&T Procurement Branch 
Chief, Office of Administration, in Washington, DC (June 5, 2000).
    \220\ Id.
    \221\ Id.
    \222\ Id.
---------------------------------------------------------------------------
    In an interview with the committee, Helms indicated that he 
likely expressed his concern to Lindsay in the abstract and did 
not specifically refer to the Mail2 problem. \223\ Helms 
justified his ambivalence regarding Hawkins' concern by noting 
that cases involving ``the automated data processor, security 
concerns associated with the firewall and other security issues 
we deal with,'' required that he not be told certain 
things.\224\ However, when asked whether the Mail2 problem was 
within the category of cases to which Lindsay referred, Helms 
was simply unresponsive: ``[the Mail2 problem] is not something 
that is in any way a secret. I took from our conversation the 
assurance that he would inform me except in certain situations. 
He did not say that [in this case] you were not informed 
because there is a security issue.'' \225\ Helms further stated 
that his level of involvement on a day-to-day basis did not 
require that he be informed all the time.\226\ He also noted 
that he was typically involved in only management-level 
discussions with Northrop Grumman on tasks they were working on 
and until there was a need for contractual modification, he 
would not necessarily be informed.\227\ Nonetheless, Helms 
conceded that the Mail2 problem was the only time he ever had 
to talk to someone at Lindsay's level about such 
confidentiality protocols.\228\
---------------------------------------------------------------------------
    \223\ Id.
    \224\ Id.
    \225\ Id.
    \226\ Id.
    \227\ Id.
    \228\ Id. Curiously, Lindsay appears not to have mentioned to Helms 
a special arrangement made between Northrop Grumman Program Director 
Jim DeWire and OA Director Ada Posey, in which DeWire authorized that 
work on the Mail2 project proceed without disclosing it to Northrop 
Grumman's management. Interview with Jim DeWire, program director, 
Northrop Grumman, in Washington, DC, (June 15, 2000) (discussing 
``special task order'' made with Posey). However, as discussed below, 
DeWire's authorization was conditioned on Posey's certifying that the 
project was legal and within the scope of the contract. Id. But see 
section III.A.6.c, ``Remedying the Problem,'' below (noting Posey was 
not informed sufficiently about Mail2 problem to certify that it was 
legal or within scope of base contract).
---------------------------------------------------------------------------
    As described in the previous section, the task order for 
the EOP facilities contract identifies the contracting officer 
and his technical representative as government officials 
responsible for overseeing Northrop Grumman's administration of 
the White House's computer systems. In fact, Jim Wright was 
Tony Barry's direct superior. Barry was individually 
responsible for searching e-mails on ARMS when the White House 
was producing documents requested under subpoenas. In that 
context, it is unclear why Lindsay apparently concluded that 
the contracting officer and his technical representative did 
not have a need to know about the e-mail problem, which Lindsay 
understood to have affected ARMS and, therefore, subpoena 
compliance. Lindsay's refusal to disclose the problem to those 
officials delayed a solution to the problem. It also appears to 
have exacerbated the cost of fixing the problem.
            c. Lindsay Failed to Inform Adequately the Director of 
                    Office of Administration About the Problem
    Lindsay testified to having immediately and fully informed 
Ada Posey, who was then the Director of the Office of 
Administration, about the problem as soon as he learned about 
it.\229\ However, whether he actually did so is questionable. 
Lindsay knew of the problem no later than June 15, 1998.\230\ 
Posey confirmed to the committee that Lindsay informed her that 
the ARMS system did not appear to be capturing certain 
records.\231\ Posey was unsure, however, as to when Lindsay so 
informed her and believes that, by the time he informed her, he 
might have mentioned that there was a test being performed 
manually to determine ``if subpoenas had been fully complied 
with.'' \232\ Lindsay testified that he would never have 
ordered that a search be done before receiving direction to do 
so from White House Counsel.\233\ So, Lindsay might have 
initially spoken to Posey about the problem after he consulted 
with Counsel to the President Charles Ruff--on June 19, 
1998.\234\ As OA Director, Posey was Lindsay's direct 
supervisor. It is unclear why Lindsay failed to inform his 
direct supervisor as soon as he learned about the problem.
---------------------------------------------------------------------------
    \229\ ``Missing White House E-mails, Mismanagement of Subpoenaed 
Records,'' hearings before the Committee on Government Reform, 106th 
Cong. 200 (Mar. 23, 2000) (testimony of Mark Lindsay, Assistant to the 
President for Management and Administration, the White House).
    \230\ Interview with Robert Haas, Lotus Notes administrator, 
Northrop Grumman (Mar 7, 2000); White House document production E 0181 
(exhibit 12).
    \231\ Interview with Ada Posey, former Director for the Office of 
Administration, in Washington, DC (May 18, 2000).
    \232\ Id.
    \233\ See e.g., ``Missing White House E-mails, Mismanagement of 
Subpoenaed Records,'' hearings before the Committee on Government 
Reform, 106th Cong. 201 (Mar. 23, 2000) (``[N]or would I have [directed 
a particular search for e-mail] without the direction of White House 
Counsel.'').
    \234\ Id. at 31 (Ruff confirming that he first spoke with Lindsay 
regarding problem on June 19, 2000).
---------------------------------------------------------------------------
    In any case, it appears that Lindsay provided Posey only 
the barest of explanations regarding the problem. For example, 
Lindsay failed to show Posey many important documents about the 
problem, including the memorandum he drafted for Virginia 
Apuzzo, which went to Deputy Chief of Staff John Podesta and 
Counsel to the President Charles Ruff.\235\ That memorandum 
fully explained the problem. Lindsay also failed to show Posey 
the letter from Joseph Lucente, the Director of Contracts for 
Northrop Grumman, to Dale Helms, the Contracting Officer for 
the EOP, which recorded Northrop Grumman's finding that 
Callahan directed the contractors to remedy the problem without 
involvement by Northrop Grumman managers.\236\ Posey observed 
that, with regard to both letters, she should have been both 
informed and involved.\237\
---------------------------------------------------------------------------
    \235\ Interview with Ada Posey, former Director for the Office of 
Administration, in Washington, DC (May 18, 2000); Transcript of 
Evidentiary Hearing at 48, Alexander v. FBI (D.D.C. Aug. 17, 2000) (CA 
No. 96-2123). See also White House document production E 3373-3374 
(exhibit 3).
    \236\ See Northrop Grumman document production NGL 00503 (exhibit 
64).
    \237\ Interview with Ada Posey, former Director for the Office of 
Administration, in Washington, DC (May 18, 2000); Transcript of 
Evidentiary Hearing at 48, Alexander v. FBI (D.D.C. Aug. 17, 2000) (CA 
No. 96-2123) (regarding Podesta memo); interview with Ada Posey, former 
Director for the Office of Administration, in Washington, DC (May 18, 
2000) (regarding Lucente letter).
---------------------------------------------------------------------------
    OA was the executive agency responsible for managing, among 
other things, the White House computer system. Within that 
system was ARMS, which the White House used to search e-mail in 
complying with subpoenas. As described above, OA Director Ada 
Posey was Lindsay's direct supervisor, and it is unclear why 
Lindsay apparently concluded that the OA Director did not have 
a need to know significant details about the e-mail problem, 
which Lindsay understood to have affected ARMS and, therefore, 
subpoena compliance. At a minimum, Lindsay's refusal to 
disclose fully the problem to Posey likely hindered a solution 
to the problem.
            d. Implications of the White House's Secrecy
    Mark Lindsay's extensive efforts to keep the e-mail problem 
secret undermines the White House's self-serving explanation 
that no one at OA actually understood the problem's profound 
subpoena compliance implications. There simply is no innocent 
explanation for briefing the White House Deputy Chief of Staff 
and the Counsel to the President about the Mail2 problem, while 
at the same time keeping Northrop Grumman managers ignorant of 
the problem.
    At a March 23, 2000, hearing before the committee, Lindsay 
conceded that he instructed Callahan that ``this was a matter . 
. . that needed to be kept in bounds with those people who 
needed the information to perform repairs to the system. I 
believed that very, very much.'' \238\ However, Lindsay 
attempted to justify his original instruction to Callahan by 
observing that:
---------------------------------------------------------------------------
    \238\ See ``Missing White House E-mails, Mismanagement of 
Subpoenaed Records,'' hearings before the Committee on Government 
Reform, 106th Cong. 198-199 (Mar. 23, 2000).

        I knew that in many cases there were investigations 
        being conducted about individuals who were at the White 
        House. I preferred very much that those individuals not 
        hear about the way they were being treated by people 
        who were talking around at the water cooler, but they 
        learned in official processes and procedures. I felt 
        very, very strongly about that.\239\
---------------------------------------------------------------------------
    \239\ See id. at 199.

This explanation is disingenuous, self-serving and 
unpersuasive. Lindsay's justification does nothing to explain 
his withholding information from various Northrop Grumman and 
OA managers, particularly given the fact that this appears to 
be the only time that Lindsay took affirmative steps to keep 
such supervisors uninformed. Communications between engineers 
and their managers about solving a technical problem are not 
tantamount to office gossip around the water cooler. These 
managers were all senior officials within the EOP with 
responsibility to manage the EOP's computer systems. Therefore, 
Lindsay's explanation is without merit.
    The instructions to keep work on the Mail2 problem secret 
even from Northrop Grumman managers were improper and should 
not have been given. Regardless of whether the instructions 
were enforced with a threat, it was outrageous and inexcusable 
for Lindsay and Callahan to put the contractors in the 
untenable position of keeping their work secret from their 
employer. Such behavior by OA management toward career, 
technical employees shows an astonishing level of disdain for 
their well-being and disrespect for their work. Sadly, however, 
it is consistent with what Mark Lindsay once told Ada Posey 
about his ambition to move from OA to the White House Office. 
According to Posey, Lindsay told her, ``I don't care about the 
OA people. That's your thing. I don't know them, and I don't 
care what happens to them.'' \240\
---------------------------------------------------------------------------
    \240\ Interview with Ada Posey, former Director, Office of 
Administration, in Washington, DC (May 18, 1998).
---------------------------------------------------------------------------

  B. The Office of Administration Repeatedly Informed the White House 
                        About the E-mail Problem

    Although the e-mail problem was concealed from those within 
the White House who could have assisted in solving the problem, 
it was reported to some senior aides to the President almost 
immediately. In fact, on several occasions, OA management 
reported the problem to the White House in detail sufficient to 
convey both the nature and the scope of the problem. However, 
regardless of these clear communications, White House lawyers 
have publicly claimed that there was a ``disconnect'' between 
technical staff and management.\241\ The evidence obtained by 
this committee tells a very different story. It shows that the 
technical staff understood what was, in essence, a very simple 
problem. It shows that the problem was communicated to OA 
General Counsel Mark Lindsay, Deputy Chief of Staff John 
Podesta, Counsel to the President Charles Ruff, and Assistant 
to the President for Management and Administration Virginia 
Apuzzo. As detailed below, the committee finds that each of 
these high-level White House employees immediately understood 
fundamental elements of the problem and each understood its 
potential implications for subpoena compliance--both past and 
future. Notwithstanding clear communication between technical 
staff and high-level White House management, there was a 
failure to remedy an obvious problem.
---------------------------------------------------------------------------
    \241\ See, e.g., ``Missing White House E-mails, Mismanagement of 
Subpoenaed Records,'' hearings before the Committee on Government 
Reform, 106th Cong. 137 (Mar. 30, 2000) (testimony of Counsel to the 
President Beth Nolan) (``I think there was a disconnect between those 
who were doing the searching for subpoenas and those who were handling 
the computer issues.''); id. at 50 (May 4, 2000) (testimony of former 
Counsel to the President Charles F.C. Ruff). See also letter from Beth 
Nolan, Counsel to the President, to the Honorable Dan Burton, chairman, 
Committee on Government Reform (Mar. 17, 2000) (within appendix I).
---------------------------------------------------------------------------

1. Robert Haas Performed an Audit Outlining the Magnitude of the 
        Problem

    In mid-June 1998, the Northrop Grumman employees told 
Lambuth about the Mail2 problem. Lambuth then informed 
Callahan, who in turn notified Lindsay.\242\ Sometime after 
Callahan first reported the problem to Lindsay, Lindsay claims 
to have immediately notified Posey and Apuzzo.\243\ He then 
directed his staff to prepare a memorandum to White House 
Counsel.\244\ This memorandum would later take the form of a 
memorandum from Apuzzo to Podesta and will be discussed below.
---------------------------------------------------------------------------
    \242\ ``Missing White House E-mails, Mismanagement of Subpoenaed 
Records,'' hearings before the Committee on Government Reform, 106th 
Cong. 292-293 (Mar. 23, 2000) (testimony of Mark Lindsay, Assistant to 
the President for Management and Administration, the White House).
    \243\ Id. at 200 (Lindsay stating that he informed Apuzzo and 
Posey). But see section III.A.6.c, above (arguing that Lindsay 
insufficiently informed Posey); n.304, below (noting delay in Lindsay's 
notification to Apuzzo).
    \244\ ``Missing White House E-mails, Mismanagement of Subpoenaed 
Records,'' hearings before the Committee on Government Reform, 106th 
Cong. 107 (May 4, 2000) (testimony of Mark Lindsay, Assistant to the 
President for Management and Administration, the White House).
---------------------------------------------------------------------------
    When Lindsay was first told about the problem, he claimed 
that he ``did not know the breadth or scope of the issue.'' 
\245\ He further claimed that his ``instruction to [his] staff 
was to investigate and conduct a review to try to identify the 
breadth and scope of the problem.'' \246\ Soon afterwards, 
Betty Lambuth asked Robert Haas to determine how much e-mail 
had not been archived and the date of the earliest e-mail not 
archived.\247\
---------------------------------------------------------------------------
    \245\ Id.
    \246\ Id. According to Lindsay, ``[m]y recollection of any 
conversations that I had with people at this time was that my number 
one objective was to make sure . . . that I got the information so that 
I could report that information to my superiors so that we understood 
what was going on.'' Id. at 255-256 (Mar. 23, 2000).
    \247\ See interview with Robert Haas, Lotus Notes administrator, 
Northrop Grumman, in Washington, DC (Mar. 7, 2000). At about this time, 
Lambuth also asked Haas to ``search for incoming e-mails from Monica 
Lewinsky and to run a search of four or five names.'' See id. This task 
is considered in depth in section III.C, below.
---------------------------------------------------------------------------
    On June 18, 1998, Haas completed his audit. As of that 
date, he found that a large number of e-mails were not 
archived, and that the date of the earliest e-mail that was not 
archived was in October 1996.\248\ Haas' audit also indicated 
that a considerable number of those e-mails that were not 
properly archived resided in the e-mail accounts of various 
White House staff members who were possible witnesses or 
subjects in congressional and independent counsel 
investigations or civil litigation. Those staff members 
included, among others, Cheryl Mills \249\ (3,071 unrecorded e-
mails), Phillip Caplan \250\ (944 unrecorded e-mails), Bruce 
Lindsey (17 unrecorded e-mails), Ira Magaziner \251\ (3,693 
unrecorded e-mails), Betty Currie (811 unrecorded e-mails), 
Ashley Raines (1,477 unrecorded e-mails), Charles Duncan (791 
unrecorded e-mails), Bob Nash (959 unrecorded e-mails), Evan 
Ryan (2,106 unrecorded e-mails), Douglas Sosnik (47 unrecorded 
e-mails), Maria Echeveste (329 unrecorded e-mails), Sidney 
Blumenthal (126 unrecorded e-mails), and Jeffrey Farrow (40 
unrecorded e-mails). Haas turned in his audit to Lambuth and 
does not know what she did with it after he gave it to 
her.\252\ In fact, the White House has claimed not even to have 
known of the document's existence until March 21, 2000.\253\
---------------------------------------------------------------------------
    \248\ See Northrop Grumman document production NGL 00291-00365 
(exhibit 62). Non-archived e-mails totaled 246,083 as of June 18, 1998. 
Generally, for each affected account existing on June 18, 1998, the 
audit shows among other things: (1) the date of its creation; (2) the 
total number of e-mails existing on the server; and (3) the total 
number of e-mails existing on the server that were not records managed 
by ARMS.
    \249\ See n.658 and accompanying text (discussing Mills' 
involvement in various criminal and congressional investigations and 
materiality as witness in e-mail investigation).
    \250\ Caplan, former Assistant to the President and Staff 
Secretary, authored a memorandum--important in the campaign finance 
investigations--in which he advised that $1 million be maintained as a 
reserve to fund the cost of paying campaign fundraising fines. The 
memorandum evoked a handwritten response from the President, formulated 
simply as ``ugh.'' Representative Shays cited that memo to illustrate 
the considerable evidentiary value that even a single document can have 
in an investigative context. See ``Missing White House E-mails, 
Mismanagement of Subpoenaed Records,'' hearings before the Committee on 
Government Reform, 106th Cong. 125 (Mar. 30, 2000).
    \251\ Magaziner, a consultant to the First Lady on health care 
policy, was implicated in a civil suit arising from the formulation of 
the First Lady's health care plan and its violation of openness laws.
    \252\ See interview with Robert Haas, Lotus Notes administrator, 
Northrop Grumman, in Washington, DC (Mar. 7, 2000); ``Missing White 
House E-mails, Mismanagement of Subpoenaed Records,'' hearings before 
the Committee on Government Reform, 106th Cong. 61 (Mar. 23, 2000).
    \253\ See letter from Dimitri Nionakis, Associate Counsel to the 
President, the White House, to James C. Wilson, chief counsel, 
Committee on Government Reform 1 (Mar. 21, 2000) (within appendix I) 
(noting, in producing audit, that ``OA and IS&T personnel were 
previously unaware that this document existed or that anyone had 
estimated the number of unrecorded e-mails''). Ruff and Mills testified 
to never having seen the Haas audit before their appearance before the 
committee. See ``Missing White House E-mails, Mismanagement of 
Subpoenaed Records,'' hearings before the Committee on Government 
Reform, 106th Cong. 128 (May 4, 2000) (testimony of Charles F.C. Ruff, 
former Counsel to the President, the White House and Cheryl Mills, 
former Deputy Counsel to the President, the White House).
---------------------------------------------------------------------------
    Lindsay testified that he never saw the audit.\254\ Despite 
Lindsay's contention that he had not seen the audit, the 
evidence suggests that OA management might have nonetheless 
known of the problem's potential magnitude. First, Lindsay 
affixed his initials to a document dated on the same day as the 
audit.\255\ That document plainly sets forth the scope of the 
problem.\256\ In particular, that document reflects that ARMS 
failed to capture e-mails from 464 user accounts within the 
White House Office alone.\257\ Further, Lindsay asterisked 
language on this document that the type of user e-mail traffic 
that would fail the ARMS scan included incoming internet e-
mail.\258\ In fact, on this document, Lindsay noted that 
``[t]his list does not include `regular' internal e-mail.'' 
\259\ The document also sets forth a ``sampling of the volume 
of e-mail records that reside in each users'' . . . view [that 
contains e-mail rejected by ARMS that had been saved].'' \260\ 
Second, in an interview with the committee, Kathleen Gallant, 
former Associate Director for IS&T, indicated that she was well 
aware of the problem's general magnitude.\261\ She also 
recalled a meeting with Lindsay, Callahan and Paulette Cichon, 
former Deputy Director for Information Management at OA, during 
which the audit was discussed.\262\ In that meeting, which 
Gallant, Callahan, and Lambuth attended, Lambuth said that 
several hundred thousand e-mails and over 400 users were 
affected by the problem.\263\ Third, Cichon confirmed in a 
committee interview that she heard from Gallant that the number 
of affected e-mails was large and that she once heard it was 
more than 100,000.\264\ Although Cichon was unsure whether 
Gallant had told her that the number of affected e-mails was 
100,000, she recalls having contemporaneously heard that 
figure.\265\ Finally, budgetary materials referring to the 
Mail2 problem suggest that OA management recognized the 
problem's potential magnitude. By December 1998, consideration 
was given to obtaining funding for Mail2 reconstruction from 
the Armstrong Resolution Account, an account established 
pursuant to settlement in the Armstrong civil litigation.\266\ 
In that context, the Financial Management Division of OA worked 
up cost estimates for Mail2 reconstruction and, in so doing, 
increased the cost estimate for the project from $650,000 in 
fiscal year 1999 to $1 million in fiscal year 2000.\267\ An 
increase of this magnitude in the cost estimate can be 
attributed only to an accompanying increase in what was known 
about the problem. According to Joseph Kouba, a budget analyst 
with the Financial Management Division, IS&T staff provided him 
with justification for the increased cost estimate.\268\ Mark 
Lindsay was responsible for appropriations issues at OA and was 
in fact hired to work closely with the appropriators on OA's 
behalf.\269\ Accordingly, whether or not Lindsay or Callahan 
actually saw Haas' audit, the evidence shows that OA management 
likely knew of the problem's potential magnitude. Nevertheless, 
OA management apparently failed to inform their superiors that 
at least 100,000 e-mails were affected, some of which were 
responsive to outstanding congressional subpoenas.\270\
---------------------------------------------------------------------------
    \254\ See id. at 126-129 (testimony of Mark Lindsay, Assistant to 
the President for Management and Administration, the White House).
    \255\ See White House document production E 3461-3463 (exhibit 50) 
(entitled, ``Lotus Notes to ARMS Interface Anomaly,'' June 18, 1998, 
and marked ``draft'').
    \256\ Id.
    \257\ Id.
    \258\ See id. at E 3462 (exhibit 50).
    \259\ Id.
    \260\ Id. (emphasis added).
    \261\ Interview with Kathleen Gallant, former IS&T Director, Office 
of Administration, in Chantilly, VA (May 17, 2000).
    \262\ Id. (June 20, 2000).
    \263\ Id. Although Gallant was uncertain as to whether Lindsay was 
in the room when Lambuth made this comment, she was confident that at 
least Callahan was present. See id. Regardless of whether Lindsay was 
in the room when Lambuth made her comment, it is unlikely that Callahan 
would have withheld this information from Lindsay.
    \264\ Interview with Paulette Cichon, former Deputy Director for 
Information Systems, Office of Administration, in Washington, DC (Apr. 
18, 2000).
    \265\ Id.
    \266\ See White House document production E 3357 (exhibit 32); id. 
at E 3333 (exhibit 147).
    \267\ See id.
    \268\ Interview with Joseph Kouba, former Budget Analyst, Financial 
Management Division, Office of Administration, in Washington, DC (May 
12, 2000). Regrettably, Kouba could not recall specifically how IS&T 
staff justified the estimate. Id.
    \269\ See Ada Posey, former Director of Office of Administration, 
Executive Office of the President, in Washington, DC (May 18, 2000).
    \270\ See, e.g., White House document production E 8701, E 8755, E 
8787, E 8807, E 8843, E 8862 (exhibits 193-198) (reconstructed e-mail 
responsive to the committee's campaign fundraising subpoenas).
---------------------------------------------------------------------------

2. The Office of Administration Promptly Informed Senior White House 
        Staff of the E-mail Problem

    On June 19, 1998, the day after Haas completed his audit to 
determine the breadth of the e-mail problem, Lindsay drafted a 
memorandum, which was sent from Virginia Apuzzo, the Assistant 
to the President for Management and Administration, to John 
Podesta, the Deputy Chief of Staff to the President.\271\ This 
memorandum, which Apuzzo asked Lindsay to prepare after Lindsay 
informed her of the problem, was entitled, ``Technical Anomaly 
in Automated E-mail Records Management System.'' \272\ The 
memorandum, which Lindsay drafted with the assistance of his 
IS&T staff, plainly describes ARMS, stating that ``[t]he main 
utility of the [ARMS] system is to provide a central e-mail 
repository with search and retrieval capability'' \273\ and 
that ARMS is important in complying with document 
requests.\274\ The memorandum also clearly describes the Mail2 
problem:
---------------------------------------------------------------------------
    \271\ White House document production E 3373-3374 (exhibit 3).
    \272\ Id.
    \273\ Id.
    \274\ Id.

        This memorandum is to advise you of an anomaly in the 
        system involving the Mail2 server, which primarily 
        supports the day-to-day e-mail traffic of the White 
        House Office (WHO). . . . In identifying which messages 
        to save from Mail2, the ARMS system was designed to 
        recognize user identifications with an electronic 
        ``stamp'' which reads ``Mail2''. However, when user 
        identifications for WHO . . . were entered into the 
        system, the majority were hand-keyed using all capital 
        letters as ``MAIL2''. Because ARMS was not programmed 
        to recognize the all capital version, messages in 
        certain categories for these Mail2 users have not been 
        captured by or transferred to ARMS. These omitted types 
        of e-mails include: Incoming Internet e-mail[.] \275\
---------------------------------------------------------------------------
    \275\ Id.

    After Apuzzo received the memorandum, she forwarded copies 
to White House Counsel Charles F.C. Ruff and John Podesta.\276\ 
Apuzzo sent the memorandum to Podesta in an envelope with a 
``red dot'' affixed.\277\ Apuzzo used red dots to bring 
particular documents to Podesta's immediate and individual 
attention.\278\
---------------------------------------------------------------------------
    \276\ Interview with Virginia Apuzzo, former Assistant to the 
President for Management and Administration, the White House, in 
Kingston, NY (May 25, 2000).
    \277\ Id.
    \278\ Id. (stating that a red dot ``gets John [Podesta] to read it 
instead of his secretary'' and marks document for ``high priority'').
---------------------------------------------------------------------------
    Podesta recalls that he spoke to Lindsay about the problem 
and that the conversation covered what was in the 
memorandum.\279\ Thus, Podesta knew that the Mail2 problem 
affected ARMS, that ARMS was important for responding to 
information requests (of which subpoenas are an example) and 
that the problem was ongoing. However, although Podesta 
understood these salient aspects of the Mail2 problem, he 
recently explained that as Deputy Chief of Staff, his 
responsibility was to see only that the records management 
aspects of the problem were solved.\280\ Podesta felt that 
responding to subpoenas and other information requests was 
within the exclusive purview of the White House Counsel's 
Office.\281\ Accordingly, Podesta said that he contented 
himself with directing Lindsay to address these problems and to 
brief Ruff so that Ruff could address any issues relating to 
subpoena compliance.\282\
---------------------------------------------------------------------------
    \279\ Interview with John Podesta, Chief of Staff for the 
President, the White House, in Washington, DC (May 30, 2000).
    \280\ Id.
    \281\ Id.
    \282\ Id. Podesta's delegation of responsibility for fixing the 
problem to Lindsay is not unreasonable. However, less reasonable is 
Podesta's complete failure to follow-up at all on how the problem was 
handled or to inquire about how the problem was finally resolved. In 
fact, Podesta's failure to do so resulted in no movement in 
reconstruction of the e-mails for over 2 years. It is noteworthy that 
reconstruction of the e-mails not only relates to document production 
but also falls well within the White House's legal archiving 
obligations to the National Archives and Records Administration (NARA), 
which Podesta conceded was within his purview. See id. Accordingly, 
Podesta's complete failure to follow-up on handling of the problem was 
unreasonable.
---------------------------------------------------------------------------
    The memorandum shows that high-level White House management 
actually knew as early as June 19, 1998, that: (1) there was a 
problem with the automated records management system associated 
with the White House's Mail2 server; and (2) the problem 
resulted in a failure to capture a universe of records 
potentially responsive to outstanding subpoenas. The memorandum 
also reflects the seriousness with which the White House 
originally considered the problem. Mere technical glitches are 
not reported to the Deputy Chief of Staff or the White House 
Counsel.\283\ In fact, it is indicative of the significance 
attributed to the problem that so many high-level White House 
employees were informed about it. Accordingly, the mere 
existence of the memorandum belies the White House's 
representation that, because of a ``disconnect,'' they 
mistakenly considered the problem to be a relatively innocuous 
glitch.
---------------------------------------------------------------------------
    \283\ See interview with John Podesta, Chief of Staff to the 
President, the White House, in Washington, DC (May 30, 2000) (noting 
that technical ``glitches'' are not reported to Deputy Chief of Staff); 
interview with Paulette Cichon, former Deputy Director for Information 
Management, Executive Office of the President, in Washington, DC (Apr. 
14, 2000) (same).
---------------------------------------------------------------------------
    The memorandum also squarely contradicts the White House's 
current position that, when it originally discovered the Mail2 
problem, it was unable sufficiently to comprehend the problem's 
subpoena compliance implications. In a hearing before the 
committee, only after about 5 minutes of rigorous cross-
examination did Mark Lindsay reluctantly concede to Congressman 
Shays what was plain from the language of the memorandum--that 
the problem affected the White House's ability to conduct 
electronic searches of the e-mail system for information 
responsive to subpoenas.\284\ Indeed, the problem's subpoena 
compliance implications were so obvious to former IS&T Director 
Kathleen Gallant that she told committee staff that ``[y]ou'd 
have to be an idiot not to have understood that the problem 
affected subpoena compliance.''\285\ Also, while testifying 
before the committee, Charles Ruff noted that as soon as he 
heard about the problem, he was concerned about the extent to 
which the problem might affect the White House's ability to 
comply with outstanding subpoenas.\286\ The foregoing casts 
serious doubt on the testimony of Michael Lyle, presently OA 
Director, who stated in defense of not having submitted a Mail2 
appropriations request earlier, ``in 19--in the time frame I 
was operating under, I'm not aware and don't know--and I 
believe my staff is not aware of any subpoena compliance 
issues.'' \287\
---------------------------------------------------------------------------
    \284\ See ``Missing White House E-mails, Mismanagement of 
Subpoenaed Records,'' hearings before the Committee on Government 
Reform, 106th Cong. 112 (May 4, 2000).
    \285\ Interview with Kathleen Gallant, former IS&T Director, Office 
of Administration, in Chantilly, VA (May 17, 2000).
    \286\ See ``Missing White House E-mails, Mismanagement of 
Subpoenaed Records,'' hearings before the Committee on Government 
Reform, 106th Cong. 31 (May 4, 2000).
    \287\ See id. at 70 (May 3, 2000). See also id. at 116-117.
---------------------------------------------------------------------------
    Overall, the Podesta memo and other facts communicated to 
senior advisors to the President support the proposition that 
they actually knew or should have known about the Mail2 problem 
and its profound subpoena compliance implications. In that 
context, the White House's failure to act decisively to satisfy 
its subpoena compliance obligations in congressional, 
Department of Justice, and independent counsel investigations 
is inexcusable.

3. The Office of Administration Informed Current White House Counsel 
        Beth Nolan About the E-mail Problems in January 2000

    On January 18, 2000, Michael Lyle, Lindsay's successor as 
Director of the Office of Administration, Jack Young, General 
Counsel for OA, and Katherine Anderson, Assistant OA General 
Counsel, briefed Beth Nolan regarding records management 
issues.\288\ Nolan was Ruff's successor as White House Counsel. 
At this briefing, OA staff first informed Nolan of the Mail2 
and the D-user problems.\289\ According to Nolan, she 
``understood from the briefing that [the Mail2 and D-user 
problems] were highly technical and had a historical impact on 
[the White House's] archival system.'' \290\ She also claimed 
that she did not take away from that briefing that the problems 
had ``ongoing consequences--in particular, effects on document 
requests.'' \291\
---------------------------------------------------------------------------
    \288\ Statement of Beth Nolan, Counsel to the President, the White 
House, to Committee on Government Reform, Mar, 23, 2000; interview with 
Michael Lyle, Director, Office of Administration, in Washington, DC 
(Apr. 27, 2000); interview with Katherine Anderson, Assistant General 
Counsel, Office of Administration, in Washington, DC (May 2, 2000). See 
also White House document production E 3412-3417 (exhibit 51).
    \289\ Statement of Beth Nolan, Counsel to the President, the White 
House, to Committee on Government Reform, Mar. 23, 2000.
    \290\ Id.
    \291\ Id.
---------------------------------------------------------------------------
    It is difficult to understand why Nolan did not understand 
that the e-mail problems had ongoing subpoena compliance 
consequences.\292\ The bullet-point outline supporting the 
briefing describes that ``[d]ue to human error . . . some lotus 
notes [sic] e-mail for users on [the] Mail2 [server] were not 
records managed in ARMS.'' \293\ Nolan contemporaneously knew 
that ARMS was used to search for e-mail responsive to 
outstanding subpoenas.\294\ The outline further notes that the 
Mail2 problem affected 464 database users in the White House 
Office alone and impacted incoming internet e-mail.\295\
---------------------------------------------------------------------------
    \292\ It is interesting to note that Podesta appreciated that the 
problem was ongoing when he was briefed but Nolan, who was responsible 
for document production, did not. See interview with John Podesta, 
Chief of Staff to the President, the White House, in Washington, DC 
(May 30, 2000) (indicating he knew problem was ongoing).
    \293\ See White House document production E 3416 (exhibit 51). The 
outline erroneously notes that the Mail2 problem was discovered in 
November 1998--it was in January 1998 and, later, in June 1998.
    \294\ See e.g., interview with Michael Lyle, Director, Office of 
Administration, in Washington, DC (Apr. 27, 2000) (recalling that at 
January 2000 briefing Nolan asked whether e-mail problems, which 
related to Notes/ARMS interface, affected subpoena compliance ability). 
See also interview with Katherine Anderson, Assistant General Counsel, 
Office of Administration (May 2, 2000) (same).
    \295\ See White House document production E 3416 (exhibit 51). The 
outline notes that the total volume of affected e-mail was not then 
known. As described above, Haas' audit, which was completed on June 18, 
1998, showed that, as of that date, about 250,000 e-mails were 
affected.
---------------------------------------------------------------------------
    With regard to the D-user problem, the outline notes that 
``[d]uring the configuration of the L[otus] N[otes]/ARMS test 
environment, it was discovered that . . . user's [sic] accounts 
with the first names beginning with the letter `D' have not 
been records managed via ARMS since November 1998.'' \296\ It 
also notes that e-mail coming into the accounts of 42 users in 
the White House Office were affected.\297\
---------------------------------------------------------------------------
    \296\ Id. at E 3417 (exhibit 51).
    \297\ Id.
---------------------------------------------------------------------------
    At the briefing, Nolan asked Lyle whether the problems 
would have affected prior searches for e-mails in compliance 
with subpoenas.\298\ Lyle and Anderson responded that they were 
unsure how to answer Nolan's question but recalled for Nolan 
that Lindsay and the White House Counsel's Office handled that 
issue when it first arose in 1998.\299\ To determine how the 
Counsel's Office handled the problem in 1998, Lyle offered to 
check with Lindsay and the Counsel's office.\300\ In response 
to their inquiry, Lindsay told Lyle and Young that he touched 
base with either White House Counsel's Office or the Justice 
Department.\301\ Unfortunately, what Lindsay told Lyle or Young 
about his conversation with Counsel's Office is unknown.
---------------------------------------------------------------------------
    \298\ Interview with Michael Lyle, Director, Office of 
Administration, in Washington, DC (Apr. 27, 2000). See also interview 
with Katherine Anderson, Assistant General Counsel, Office of 
Administration, in Washington, DC (May 2, 2000).
    \299\ Interview with Michael Lyle, Director, Office of 
Administration (Apr. 27, 2000). See also interview with Katherine 
Anderson, Assistant General Counsel, Office of Administration (May 2, 
2000).
    \300\ Interview with Katherine Anderson, Assistant General Counsel, 
Office of Administration, in Washington, DC (May 2, 2000). It should be 
noted that when the committee interviewed Lyle about a week earlier, in 
response to the same line of questioning, he failed to mention either 
his offer to Nolan or his subsequent follow-up with Lindsay--much less 
what Lindsay told him as a result of that follow-up.
    \301\ Id.
---------------------------------------------------------------------------
    Nonetheless, at the January 18, 2000, briefing, Anderson 
told Nolan that most of the affected records were likely 
Presidential, rather than Federal agency records.\302\ She also 
told Nolan that although the Armstrong case did not require the 
reconstruction of those e-mails, she could have them 
reconstructed if she wanted to do so \303\--indicating that 
reconstruction of the e-mails might be unnecessary.
---------------------------------------------------------------------------
    \302\ Id.
    \303\ Id. However, Anderson also suggested that Nolan confer with 
the Office of Legal Counsel at DOJ as to whether the Presidential 
Records Act required the reconstruction of Presidential records. See 
id.
---------------------------------------------------------------------------
    If it is true that at the January 18, 2000, briefing, Nolan 
indeed failed to reach a complete understanding of the e-mail 
problem's ongoing subpoena compliance consequences, she plainly 
failed to exercise the minimal due diligence expected of a 
White House Counsel. Consistent with how the Mail2 problem was 
originally handled, whatever ``disconnect'' actually occurred 
between the Office of Administration and the White House 
Counsel's Office was either a function of intentional disregard 
or gross negligence rather than of technical complexity. 
Furthermore, negligence is an unlikely explanation, given the 
obvious importance to White House Counsel of the existence of 
unsearched--and possibly damaging--documents. It is also worth 
noting that the people who now claim that they did not 
understand the implications of the e-mail problem were people 
who have been vigorous in their efforts to keep Congress from 
getting information. It strains credulity to argue that 
otherwise intelligent lawyers such as Charles Ruff, Beth Nolan, 
and Cheryl Mills simply failed to grasp what is in essence an 
extremely simple matter. Rather, the likely explanation is that 
they either disregarded what they had been told because they 
did not want to open a Pandora's box of new documents, or they 
overstated their own incompetence to justify their inaction.

    c. the white house counsel failed to address the e-mail problem

1. The ``Test Search''

    As described above, Mark Lindsay prepared a detailed 
memorandum describing the e-mail problem. This memo was sent by 
Virginia Apuzzo to John Podesta and Charles Ruff on June 18, 
1998.\304\ Accordingly, Lindsay directed his staff to prepare a 
memorandum for Ruff.\305\ This memorandum prompted Lindsay to 
brief Ruff who was then not aware of the problem, on the same 
day.\306\ Despite Lindsay's assertion that he could not recall 
what he specifically told Ruff, he remembers that he told him 
``essentially the material or the information that is contained 
in the memorandum--that there was a glitch with the computer 
system where incoming e-mails may not have been collected by 
the ARMS records management system.'' \307\ Lindsay further 
testified, ``I remember being very specific about the technical 
problem and the fact that incoming e-mail was probably not 
being ARMS managed. I remember being very specific about 
that.'' \308\
---------------------------------------------------------------------------
    \304\ See ``Missing White House E-mails, Mismanagement of 
Subpoenaed Records,'' hearings before the Committee on Government 
Reform, 106th Cong. 209, 257 (Mar. 23, 2000). The testimony of other 
witnesses casts serious doubt on Lindsay's testimony that he informed 
Apuzzo of the problem as soon as he learned about it. As established 
above, Lindsay would have learned about the problem on or before June 
15, 1998--when Lindsay had his telephone conference with Callahan and 
the Lotus Notes group. Haas recalls that at that meeting, which 
occurred the Monday after the Lotus Notes group discovered the problem, 
Callahan told him that ``[he] could not tell even Ms. Virginia Apuzzo 
anything if she asked.'' See id. at 32 (Mar. 23, 2000).
    Further, when Lindsay finally informed Apuzzo of the problem, 
Apuzzo directed Lindsay to inform Ruff immediately. See id. at 256-257 
(testimony of Mark Lindsay, Assistant to the President, the White 
House); id. at 111 (May 4, 2000) (same). However, Ruff recalls that 
Lindsay first informed him of the problem at a briefing on the Podesta 
memorandum on June 19, 2000. See id. at 31. Taken together, the 
testimony suggests that Lindsay waited at least 4 days to inform White 
House Counsel about the problem after having been instructed by the 
Assistant to the President for Management and Administration to inform 
him immediately. This is not likely. Far more likely is that Lindsay 
simply failed to inform Apuzzo about the problem until some time after 
he first learned about it. What precisely Lindsay did in the interim to 
address the problem is unclear.
    The memorandum has been referred to in hearings before the 
committee as ``the Podesta memo'' because, although originally drafted 
for Ruff, it was ultimately drafted for John Podesta, former Deputy 
Chief of Staff for the President. See White House document production E 
3373-3374 (exhibit 3). See generally section III.B.2, above (discussing 
``the Podesta memo'').
    \305\ See ``Missing White House E-mails, Mismanagement of 
Subpoenaed Records,'' hearings before the Committee on Government 
Reform, 106th Cong. 107 (Mar. 23, 2000).
    \306\ See id. at 31 (May 4, 2000).
    \307\ See id. at 246 (Mar. 23, 2000). Ruff generally recalls that 
Lindsay told him that there was a failure with the ARMS system and that 
the failure disabled ARMS from capturing incoming e-mail. See id. at 31 
(May 4, 2000).
    \308\ Id. at 304 (Mar. 23, 2000).
---------------------------------------------------------------------------
    Ruff agreed that at the briefing, Lindsay told him about 
``some failure in the ARMS process. That meant that for a 
period of time . . . incoming [e-mails] were not being captured 
in ARMS and, therefore, had potentially eluded whatever 
searches had been conducted for e-mails in the past.'' \309\ 
Ruff also recalled that ``the heart of the explanation [was] 
that the ARMS system, which was supposed to capture both 
incoming and outgoing [e-mail], was not capturing incoming.'' 
\310\ However, Ruff's immediate concern at the time was the 
Lewinsky independent counsel's grand jury investigation of the 
White House.\311\ Notwithstanding the obvious distraction of 
the Lewinsky matter, it is hard to understate the potential 
impact of learning about a second--and perhaps equally 
serious--problem at the time of the looming impeachment crisis. 
The prospect of a universe of additional unreviewed documents 
that could compound the Lewinsky matter, or even re-ignite 
another scandal, could hardly have been lost on a senior White 
House attorney. In any event, Lindsay's briefing to Ruff 
concluded with a consensus between Lindsay and Ruff that they 
``needed to go and see what could be done, [to] see whether in 
fact [they] had a past or recurring problem.'' \312\
---------------------------------------------------------------------------
    \309\ Transcript of interview with Charles F.C. Ruff, former 
Counsel to the President, the White House, in Washington, DC, at 26 
(Apr. 6, 2000).
    \310\ Id. at 26-27.
    \311\ Id. at 27.
    \312\ Id. at 30-31.
---------------------------------------------------------------------------
    Ruff informed the committee that he came away from the 
meeting with Lindsay believing that ``there would be a manual 
method of reconstructing these things and discussed that, [he] 
think[s], with Ms. Mills.'' \313\ Accordingly, Ruff understood 
that there would be follow-up between the Counsel's Office and 
OA, an effort to determine the nature of the problem, and 
ultimately, a report as to the results of the search.\314\ As 
mentioned above, Ruff subsequently approached Cheryl Mills, 
Deputy White House Counsel, and asked her to make sure that the 
problem had not in fact tainted the White House's ability to 
find materials that were responsive to the independent 
counsel's inquiry.\315\
---------------------------------------------------------------------------
    \313\ Id. at 28.
    \314\ Id. at 31.
    \315\ Id. at 27. At a hearing before the committee, Ruff recalled 
``[and] it is not a detailed recollection . . . that, following the 
meeting with Mr. Lindsay, [he] discuss[ed] the matter with Ms. Mills. 
[He] believe[d] that the next steps--and [he] [could not] tell the 
committee exactly what those steps were--was [sic] to make further 
inquiry into whether or not the problem that Mr. Lindsay described did 
indeed have an adverse affect on [the White House's] collection and 
production of documents.'' See ``Missing White House E-mails, 
Mismanagement of Subpoenaed Records,'' hearings before the Committee on 
Government Reform, 106th Cong. 33 (May 4, 2000) (emphasis added).
---------------------------------------------------------------------------
    From her conversation with Ruff, Mills testified as having 
understood:

        [T]here had been a problem with certain e-mails that 
        might not have been captured, that [the Office of 
        Administration] was gathering them, that they were 
        going to forward them to our office. We were going to 
        then need to make a determination whether or not those 
        e-mails had or had not been produced and if they had 
        not been produced that we needed to produce them 
        immediately.\316\
---------------------------------------------------------------------------
    \316\ Id. at 33-34. As if it were a mantra, Mills asserted this 
position even to questions to which it was not responsive. See id. at 
35, 40-41, 47, 48, 90 and 168. Mills testified to never having seen the 
Podesta memo. Transcript of Evidentiary Hearing at 128-29, Alexander v. 
FBI (D.D.C. Sept. 1, 2000) (CA No. 96-2123). However, as Judge Lamberth 
observed in a hearing in Alexander, common sense suggests that Ruff 
would have given Mills a copy of the memo when he asked her for her 
assistance. Id.

    Shortly after he briefed Ruff, the White House Counsel's 
Office gave Lindsay a list of individuals whose inboxes were to 
be searched.\317\ Lindsay conveyed those names to his staff 
and, after they completed their search, Lindsay returned the 
gathered documents to the Counsel's Office for comparison with 
other documents previously produced to the Independent 
Counsel's Office.\318\ However, Lindsay could not recall who at 
the White House Counsel's Office provided him the names of the 
individuals whose documents were to be gathered.\319\
---------------------------------------------------------------------------
    \317\ ``Missing White House E-mails, Mismanagement of Subpoenaed 
Records,'' hearings before the Committee on Government Reform, 106th 
Cong. 247 (Mar. 23, 2000); id. at 166-167 (Mar. 4, 2000) (Lindsay 
speculating that Callahan might have requested search).
    \318\ See id. at 247 (Mar. 23, 2000). Lindsay confirmed that he 
passed the information he received from White House Counsel on to 
Callahan. See id. at 38 (May 4, 2000). This is corroborated by 
Lambuth's recollection that she received Lindsay's instruction ``[to] 
print out e-mails involving Monica Lewinsky'' through ``an 
intermediary'' before passing the instruction on to Haas. See interview 
with Betty Lambuth, former Computer Systems Manager, Office of 
Administration, in Washington, DC (Mar. 21, 2000). Haas independently 
learned that Callahan relayed Lindsay's instruction to Lambuth. See 
interview with Robert Haas, Lotus Notes administrator, Northrop 
Grumman, in Washington, DC (Mar. 7, 2000). At this critical point in 
the chronology, the decisionmaking appears to lie with Mills and/or 
Callahan. This is supported by Ruff's assurance that ``I can vouch for 
this much. I knew that a search was being conducted by one of the 
members--one or more members of my staff . . . [who] I am certain was 
talking to the Office of Administration.'' ``Missing White House E-
mails, Mismanagement of Subpoenaed Records,'' hearings before the 
Committee on Government Reform, 106th Cong. 45 (May 4, 2000). However, 
Mills has testified that she never knew Callahan and never spoke to 
Lindsay about OA's handling of the matter. See Transcript of 
Evidentiary Hearing at 65, 113, Alexander v. FBI (D.D.C. Sept. 1, 2000) 
(CA 96-2123).
    Collectively, Haas, Spriggs and Barry corroborate that two of the 
names on the list were Ashley Raines and Betty Currie. See interview 
with Robert Haas, Lotus Notes administrator, Northrop Grumman, in 
Washington, DC (Mar. 7, 2000); interview with John Spriggs, senior 
engineer, Northrop Grumman, in Washington, DC (Mar. 7, 2000); and 
interview with Daniel A. ``Tony'' Barry, Computer Specialist, Office of 
Administration, in Washington, DC (Mar. 7, 2000). This accords with 
Ruff's testimony that, upon learning of the problem, he was most 
immediately concerned about its affect on the outstanding Lewinsky 
investigation. See transcript of interview with Charles F.C. Ruff, 
former Counsel to the President, the White House, in Washington, DC, at 
27, 53 (Apr. 6, 2000).
    \319\ ``Missing White House E-mails, Mismanagement of Subpoenaed 
Records,'' hearings before the Committee on Government Reform, 106th 
Cong. 36 (May 4, 2000).
---------------------------------------------------------------------------
    It appears that four or five names were passed from Mark 
Lindsay to Betty Lambuth and, in turn, to Robert Haas.\320\ 
Haas was asked to search for incoming e-mails from Monica 
Lewinsky in the inboxes of those four or five individuals.\321\ 
Haas then went into the inboxes of the four or five individuals 
whose names were provided to him and sorted the e-mails by 
sender to find e-mail from Monica Lewinsky.\322\ Haas then gave 
his search results to Lambuth in an accordion file.\323\ 
Lambuth recalls delivering the folder to Lindsay, who was then 
in a meeting in the Old Executive Office Building.\324\ After 
Lindsay received the accordion folder, he walked it over to the 
White House Counsel's Office in the West Wing, but could not 
recall with whom he left the folder.\325\ Lindsay likely left 
the file with one of Mills' assistants.\326\
---------------------------------------------------------------------------
    \320\ See n.318, above.
    \321\ See interview with Robert Haas, Lotus Notes administrator, 
Northrop Grumman, in Washington, DC (Mar. 7, 2000). Lindsay recalls 
from ``[t]he person who conveyed the request for the search to [him]'' 
that the terms were ``names of certain individuals.'' ``Missing White 
House E-mails, Mismanagement of Subpoenaed Records,'' hearings before 
the Committee on Government Reform, 106th Cong. 167-168 (May 4, 2000). 
He believes that the person who conveyed the request to him was 
Callahan. See id. at 167.
    \322\ See interview with Robert Haas, Lotus Notes administrator, 
Northrop Grumman, in Washington, DC (Mar. 7, 2000).
    \323\ Id.
    \324\ Interview with Betty Lambuth, former Lotus Notes team 
manager, Northrop Grumman (Mar. 20, 2000).
    \325\ ``Missing White House E-mails, Mismanagement of Subpoenaed 
Records,'' hearings before the Committee on Government Reform, 106th 
Cong. 88-90 (May 4, 2000).
    \326\ Id. at 210 (Mar. 23, 2000) (Lindsay testifying he deposited 
results at White House Counsel's Office); id. at 90 (May 4, 2000) 
(Mills recalling she likely retrieved results left by Lindsay from her 
assistant).
---------------------------------------------------------------------------
    After Mills received the e-mails produced by the test 
search, she provided them to Michelle Peterson, an Associate 
White House Counsel.\327\ She directed Peterson to review the 
e-mails to determine whether they were duplicative of e-mails 
already produced to the Independent Counsel's Office in the 
Lewinsky matter.\328\ Mills chose Peterson for this task 
because Peterson was the primary White House lawyer responsible 
for document production in the Lewinsky investigation.\329\
---------------------------------------------------------------------------
    \327\ Id. See also interview with Michelle Peterson, former 
Associate Counsel to the President, the White House, in Washington, DC 
(June 8, 2000).
    \328\ See ``Missing White House E-mails, Mismanagement of 
Subpoenaed Records,'' hearings before the Committee on Government 
Reform, 106th Cong. 91 (May 4, 2000).
    \329\ Id. at 39.
---------------------------------------------------------------------------
    Peterson recalled that Mills told her that there was a 
problem with the Counsel's Office's search for documents in the 
Lewinsky matter ``and with OA,'' that Counsel's Office was 
expecting a stack of e-mails, and that she needed to review 
that stack to determine if it was duplicative of what had 
already been produced.\330\ Apparently, from her discussion 
with Mills, Peterson understood that the problem affected the 
Lewinsky production and ``was related to OA.'' \331\
---------------------------------------------------------------------------
    \330\ See interview with Michelle Peterson, former Associate 
Counsel to the President, the White House, in Washington, DC (June 8, 
2000).
    \331\ Id. Peterson was less than clear when asked whether Mills 
told her that the problem was limited to the Lewinsky productions or 
more systemic in nature, as explained in the Podesta memo. Peterson 
observed that Mills said that there was a problem with the Lewinsky 
search. Id. Peterson took that comment to mean that it related to OA/
IS&T. ``I can't recall that Ms. Mills said it was limited to OA. But, 
the only group that could have had a problem with e-mails would have 
been OA/IS&T. But, I have no specific recollection of Ms. Mills telling 
me that. It may have been just the understanding I obtained by my 
review of the documents.'' Id. When asked for clarification, Peterson 
recalled, ``I have a picture that the documents came from OA/IS&T.'' 
Id. ``I was either told that the problem was limited to `Monica 
Lewinsky' or I came to that understanding because it was consistent 
with the Ashley Raines documents.'' Id. She also stated, ``I do not 
have a specific recollection that OA computers weren't properly 
searched. I took it to mean that some e-mails at OA had not been 
recovered in this search.'' Id.
---------------------------------------------------------------------------
    After Peterson received the stack of e-mails from Mills, 
she looked through them quickly, since she was already very 
familiar with the documents that had been produced to the 
independent counsel in the Lewinsky matter.\332\ After a 
cursory examination, the documents in question appeared to 
Peterson to have been previously produced to the independent 
counsel.\333\ Peterson then put the documents side-by-side in 
chronological order.\334\ Peterson examined two stacks: one was 
e-mail from Monica Lewinsky to Ashley Raines which Peterson 
received from Mills, and the other was Ashley Raines' e-mail 
that had already been produced to the independent counsel.\335\ 
Upon close examination over a 4 or 5 hour period, Peterson 
determined that the documents she received from Mills were 
duplicative of those that had already been produced to the 
independent counsel and informed Mills of her findings.\336\
---------------------------------------------------------------------------
    \332\ Id.
    \333\ Id.
    \334\ Id.
    \335\ Id. (noting that ``[o]ur stack for comparison came from 
people within the White House producing their e-mails.'').
    \336\ Id. (noting that ``[she] [did not] remember sitting and 
reading the documents in detail--the thing that took time was putting 
them in chronological order''). The volume of documents that had 
already been produced to the OIC was likely a lot larger than what 
Peterson received from Mills. Interview with Peterson. Id.
    Peterson learned what she knew about the problem simply from her 
one telephone call with Mills. Id. And, after Peterson reported her 
finding to Mills, ``That [was] it. Nothing else. Nothing else happened. 
There were no further conversations. [After I found it was 
duplicative,] it was a non-issue.'' Id. ``I was never involved in 
conversations about how to fix the problem or even what the problem 
was.'' Id.
---------------------------------------------------------------------------
    According to Peterson, she was never involved in selecting 
which documents would be pulled by OA to match up against the 
previous production to the independent counsel.\337\ Nor had 
Peterson any knowledge as to the origin of the e-mails Mills 
provided to her.\338\ After completing her comparison of the 
documents, Peterson placed the documents into an accordion 
folder and sent the files over to either Records Management or 
to Charles Easely, Director of White House Security.\339\
---------------------------------------------------------------------------
    \337\ Id.
    \338\ See id. See also ``Missing White House E-mails, Mismanagement 
of Subpoenaed Records,'' hearings before the Committee on Government 
Reform, 106th Cong. 170 (May 4, 2000) (Mills noting, ``I do not know 
whether [Peterson formulated the search terms], though I would be 
surprised, primarily because I provided the materials that came over 
from the Office of Administration to her for her to conduct her 
review[.]'').
    \339\ See interview with Michelle Peterson, former Associate 
Counsel to the President, the White House, in Washington, DC (June 8, 
2000).
---------------------------------------------------------------------------
    The results of Peterson's analysis were passed on to Ruff. 
Ruff informed the committee that ``at some point . . . I was 
told--and I do not remember specifically by whom, probably Ms. 
Mills, but it may have been another member of my staff--that 
the search had been conducted and that there was a match 
between what we had turned over and what had been produced in 
the search.'' \340\ Ruff specified:
---------------------------------------------------------------------------
    \340\ Transcript of interview with Charles F.C. Ruff, former 
Counsel to the President, the White House, in Washington, DC, at 72 
(Apr. 6, 2000). At an interview with the committee, Ruff elaborated as 
to what Mills reported to him after Peterson completed her search. See 
id. at 28 (``The next thing [Ruff] recall[ed] [after having spoken with 
Mills] . . . was being informed [likely by Mills] that . . . a search 
had been conducted of the incoming E-mails for . . . Ms. Raines . . . 
[and] that [the] search reflected . . . that what was found matched 
what had already been produced to the independent counsel, and thus 
[he] believed [he] had an assurance that, indeed, [their] past searches 
had not been tainted and believed as well that [their] forward going 
capacity to search was not affected by that.''), 47-48 (``[That there 
was no problem that would undermine White House document productions] 
was my very clear understanding at the end of that meeting--or if Ms. 
Mills was not at the meeting, at the end of my subsequent conversation 
with her. . . . [T]he word coming back to me, and I cannot remember a 
specific conversation to you, left me with the understanding that what 
we thought might be a major problem, could be a major problem, in fact 
was not and that we were all right. . . . I believe that my subsequent 
conversations would have been with Ms. Mills and perhaps others on my 
staff responsible for the overall document production. I don't remember 
whether I had a subsequent meeting with Mr. Lindsay. I don't think so. 
But it would not be out of the realm of possibility[.]'').

        [T]he conclusion that was given to me and that as I 
        understood it was that, in fact, there was no defect in 
        our prior searches, and thus that there was no need to 
        visit them because we presumably had gotten whatever 
        responsive materials there were to be gotten in 
        response to your subpoenas or anybody else's 
        subpoenas.\341\
---------------------------------------------------------------------------
    \341\ Transcript of interview with Charles F.C. Ruff, former 
Counsel to the President, the White House, in Washington, DC, at 71 
(Apr. 6, 2000).

    Ruff concluded that ``there was no reason to believe that 
there was a retrospective problem [with the ARMS system].'' 
\342\ Thus, ``having believed that the problem didn't exist, 
[Ruff] moved on to other things.'' \343\ Of course, if anyone 
had made an effort to consult with the technical employees, 
they would have been told that e-mails could not be searched in 
the ARMS system and, therefore, there was a major potential 
subpoena compliance problem. Mark Lindsay had in fact consulted 
with the technical employees, and it is inconceivable that he 
failed to pass what he knew to be true along to others in the 
White House.
---------------------------------------------------------------------------
    \342\ See transcript of interview with Charles F.C. Ruff, former 
Counsel for the President, the White House, in Washington, DC (Apr. 6, 
2000). See also id. at 29 (``My recollection is that once I was advised 
of the match between what had been found and what had previously been 
produced and understood, . . . that that gave us assurance that the 
integrity of our earlier searches [was maintained].'').
    \343\ See id. at 29. Ruff noted that he ``didn't believe there was 
a problem after the report came back to me.'' Id. at 73. After having 
understood that the ``glitch'' ``did not affect [his Office's] prior 
production and collection of information, [he] put it aside and went on 
to other pressing matters.'' Id. at 132.
---------------------------------------------------------------------------

2. The White House Counsel's Office Grossly Mishandled the E-mail 
        Problem

    The White House Counsel's Office grossly mishandled the 
Mail2 problem. Although senior White House officials were told 
that the e-mail problem was significant and systemic, and knew 
that understanding the problem's extent was a gravely important 
matter, their ultimate efforts were worse than negligent. 
Indeed, the actions undertaken to learn about the problem 
appear to have been purposefully designed to preserve the 
status quo rather than remedy it. The failure of the White 
House Counsel's Office to address the problem in 1998 led to 
the problem's being kept from Congress until 2000. The problem 
was a convenience to those who had concerns about the emergence 
of damaging information, and the White House did nothing to 
upset this convenience.
    The White House Counsel's Office did two things that cannot 
logically be explained. First, it treated the problem as if it 
pertained only to e-mails relating to the independent counsel's 
Monica Lewinsky investigation when, in fact, it was a technical 
problem that affected all e-mails, regardless of content. 
Second, the White House Counsel's Office ordered a test search 
that, even under the best of circumstances, could not have 
proved whether the ARMS system had or had not missed responsive 
e-mails. Both errors were so fundamental that they cannot be 
dismissed as mere incompetence. Rather, they suggest that the 
White House simply chose not to understand the problem or 
determine its effect on its legal obligations to produce 
documents under subpoena.
    Almost as soon as he was told that the White House had a 
significant e-mail problem that had a potential effect on its 
subpoena compliance obligations, Charles Ruff twisted that 
information to mean that there was a potential problem only 
with the Lewinsky document production. However, such an 
understanding was unjustified and contradicted by every piece 
of evidence that had been provided to Ruff. On June 19, 1998, 
when Ruff was first informed about the problem, he was provided 
with a memorandum that clearly explained the Mail2 problem. As 
noted above, the memorandum explained that the problem was 
preventing ARMS from capturing e-mail incoming to the White 
House. Nothing in that memorandum suggested that the Mail2 
problem was limited to e-mails relating only to the Lewinsky 
investigation:

        This memorandum is to advise you of an anomaly in the 
        system involving the Mail2 server, which primarily 
        supports the day-to-day e-mail traffic of the White 
        House Office (WHO). . . . In identifying which messages 
        to save from Mail2, the ARMS system was designed to 
        recognize user identifications with an electronic 
        ``stamp'' which reads ``Mail2''. [sic] However, when 
        user identifications for WHO . . . were entered into 
        the system, the majority were hand-keyed using all 
        capital letters as ``MAIL2''. [sic] Because ARMS was 
        not programmed to recognize the all capital version, 
        messages in certain categories for these Mail2 users 
        have not been captured by or transferred to ARMS. These 
        omitted types of e-mails include: Incoming Internet e-
        mail[.] \344\
---------------------------------------------------------------------------
    \344\ White House document production E 3373-3374 (exhibit 3) 
(memorandum from Assistant to the President Virginia Apuzzo to Deputy 
Chief of Staff to the President John Podesta, June 19, 1998).

    The plain language of the memorandum was further explained 
to Ruff by Lindsay, who himself had been briefed by his 
technical staff, who had a clear understanding of how the 
problem impacted subpoena compliance. Lindsay briefed Ruff on 
the e-mail problem the day Ruff received the memorandum. 
Lindsay specified to the committee that his briefing of Ruff 
addressed those issues set forth in the memorandum.\345\ He did 
not give any suggestion that the e-mail problem was somehow 
limited to the Lewinsky investigation.
---------------------------------------------------------------------------
    \345\ See ``Missing White House E-mails, Mismanagement of 
Subpoenaed Records,'' hearings before the Committee on Government 
Reform, 106th Cong. 30 (Mar. 23, 2000). See also id. at 130 (May 4, 
2000) (``the information I provided Mr. Ruff is roughly the information 
that was provided in the June 18th memorandum from Ms. Apuzzo. That is 
sum and substance of what I understand we conveyed.'').
---------------------------------------------------------------------------
    Finally, common sense supports the conclusion that the 
Mail2 problem could not have been limited to e-mails relating 
to the Lewinsky matter. It would be a strange technical error 
indeed that limited itself to e-mails relating to one 
particular investigation. Like all technical errors, the Mail2 
problem could not, and did not, discriminate as to the content 
of the e-mail messages. When he appeared before the committee 
on May 4, 2000, Ruff was asked, ``[t]his was a very broad 
problem. How is it confined down to a very narrow search of 
just the Lewinsky case?'' \346\ He responded, ``[m]y 
understanding of the problem was that the problem existed. I 
did not know how broad it was or what effect it had. Thus, in 
my view, a search particularly focused on compliance with the 
Lewinsky--with the independent counsel's subpoena in the 
Lewinsky matter was a device for determining whether indeed the 
problem described to me had had an affect on our compliance 
with subpoenas.'' \347\ However, when Ruff was asked how the 
search as conducted could have provided him with dispositive 
information as to the underlying extent of the problem, he 
responded, ``I will tell you that I did not--I don't believe I 
knew then, no recollection of knowing then, nor do I know now 
or have any recollection right now what exactly was done and 
what instructions were given. . . . I do not recall having any 
personal conversations on the subject with OA or anybody else. 
So I unhappily direct you to my colleagues.'' \348\
---------------------------------------------------------------------------
    \346\ ``Missing White House E-mails, Mismanagement of Subpoenaed 
Records,'' hearings before the Committee on Government Reform, 106th 
Cong. 45 (May 4, 2000).
    \347\ Id. at 45, 50-51 (May 4, 2000). Ruff was concerned that the 
problem might effect the White House's ability to comply with 
outstanding subpoenas. Id. at 31. However, ``[his] focus initially was 
on the Lewinsky subpoenas because those were the ones of the most 
immediate and practical concern to [his] office.'' See id. at 50-51. 
See also id., at 119 (focus was on Lewinsky production ``because it was 
the nearest in time and in June of '98 the most sort of prominent [sic] 
I think in all our minds in the Counsel's Office'').
    \348\ See transcript of interview with Charles F.C. Ruff, former 
Counsel to the President, the White House, in Washington, DC, at 67-68 
(Apr. 6, 2000). Ruff's argument that determining whether the stack of 
documents his office received from OA was duplicative of those 
documents that had already been provided to the Lewinsky independent 
counsel could have meaningfully informed him as to whether the problem 
tainted all prior searches is specious, at best. This is underscored by 
the basis current Counsel for the President, Beth Nolan, cited for 
withholding the production of the search results from the committee. 
According to Nolan, the batch of e-mails Ruff cited as a basis for 
concluding that the problem did not taint the White House's prior 
searches was unrelated to the committee's investigation of the White 
House's Mail2 problem. See ``Missing White House E-mails, Mismanagement 
of Subpoenaed Records,'' hearings before the Committee on Government 
Reform, 106th Cong. 251-256 (May 4, 1999). See also letter from Dimitri 
Nionakis, Associate Counsel to the President, the White House, to James 
C. Wilson, chief counsel, Committee on Government Reform (Apr. 28, 
2000) (within appendix I). So, she withheld the documents. However, 
perhaps realizing the mutual exclusivity of her position with Ruff's 
original reasoning, Nolan ultimately reversed herself and produced the 
documents.
---------------------------------------------------------------------------
    When asked to explain why he never attempted to determine 
whether the Mail2 problem had affected other investigations, 
Ruff claimed that the results of the test search gave him 
confidence that there was no problem. However, the test search 
proved nothing, and even Ruff and Mills, who were apparently 
making minimal effort to understand the problem, should have 
seen the flaws in their search. The basic problem with the 
White House Counsel's test search is that, even under the best 
of circumstances, it could prove nothing about whether ARMS was 
capturing all e-mails that were responsive to subpoenas. Either 
Ruff, or more likely Mills, directed the Office of 
Administration to search the e-mail boxes of several users and 
print out all of the e-mails those users had received from 
Monica Lewinsky.\349\ So, by its very nature, the White House's 
test search could not capture any e-mail that those users had 
received from Lewinsky and then deleted.\350\ Thus, to the 
extent that White House's prior production of e-mails to the 
independent counsel was the product of an ARMS search, there 
could have been no reasonable expectation that a review of the 
e-mails in the users' inboxes would indicate whether ARMS was 
working properly. Indeed, if a user had deleted a particular e-
mail (as he likely would an incriminating e-mail), it would not 
be in his inbox; and, if ARMS was malfunctioning--as it was--it 
would not be in ARMS either.
---------------------------------------------------------------------------
    \349\ Before the committee, Mills denied having done so. ``Missing 
White House E-mails, Mismanagement of Subpoenaed Records,'' hearings 
before the Committee on Government Reform, 106th Cong. 35, 36 (May 4, 
2000). However, other testimony suggests the contrary. Ruff stated, ``I 
can vouch for this much. I knew that a search was being conducted by 
one of the members--one or more members of my staff . . . [who] I am 
certain was talking to the Office of Administration.'' Id. at 45. At a 
hearing before the committee on May 4, 2000, Beth Nolan, current 
Counsel for the President, testified that she completed her internal 
investigation into the Mail2 problem and still could not conclude who 
formulated the search terms or what they were. See id. at 224-225. She 
further testified that she and her staff asked ``everyone [they] could 
think of.'' See id. However, when the committee asked former associate 
counsels Michelle Peterson and Sally Paxton whether they had spoken 
with White House Counsel's Office about the Mail2 problem anytime after 
they left the office through the present, they both responded in the 
negative. Interview with Michelle Peterson, former Associate Counsel to 
the President, the White House, in Washington, DC (June 8, 2000); 
interview with Sally Paxton, former Special Associate Counsel to the 
President, the White House, in Washington, DC (June 22, 2000). This 
suggests that Nolan had not spoken to former members of the White House 
Counsel's Office. The only remaining former member of Counsel's Office 
who was exposed to the Mail2 problem was Mills. Peterson and Paxton's 
exposure to the problem have been confirmed as narrow, with respect to 
the former, and non-existent, with respect to the latter. See, e.g., 
interview with Michelle Peterson, former Associate Counsel to the 
President, the White House, in Washington, DC (June 8, 2000); interview 
with Sally Paxton, former Special Associate Counsel to the President, 
the White House, in Washington, DC (June 22, 2000). In fact, neither 
Peterson nor Paxton discussed with the Office of Administration the 
work they were doing on the Mail2 problem. Accordingly, given Ruff's 
assurance that the search was being conducted by someone in his office 
who was dealing with the Office of Administration, the likelihood is 
that Mills devised or helped devise, the test search.
    \350\ Any e-mail deleted by a user would not be found in the user's 
inbox. Rather, it can be found only in the ARMS system (if ARMS were 
working properly) or on back-up tapes.
---------------------------------------------------------------------------
    To the extent that the production to the independent 
counsel was the product of a manual search of the server, the 
White House's test would appear even more ludicrous, as it 
would essentially be comparing two sets of identical e-mails 
from the same source--neither of which related in any way to 
the ARMS system. For that reason, the search designed by the 
White House Counsel's Office could not possibly indicate 
whether ARMS was functioning properly. Therefore, the only way 
that the White House could accurately determine whether ARMS 
missed deleted, responsive e-mail would be by searching the 
backup tapes, and this was not done.
    Ruff failed to provide any adequate explanation for these 
considerable oversights. Rather, he attempted to make a blanket 
acceptance of responsibility and, thus, avoid any serious 
scrutiny of his failures: ``[a]s has been the case from the 
very first moment that you and I talked, I take--I took 
responsibility then, I take responsibility now for the work of 
my office and my staff. And in that sense the buck stops with 
me.'' \351\ He continued:
---------------------------------------------------------------------------
    \351\ ``Missing White House E-mails, Mismanagement of Subpoenaed 
Records,'' hearings before the Committee on Government Reform, 106th 
Cong. 44 (May 4, 2000).

        [I]t was my judgment or misjudgment and my 
        misunderstanding of the circumstances that led me to 
        conclude--and for that I blame no one other than my own 
        failure of understanding, that led me to conclude that 
        indeed the problem did not have an adverse effect on 
        our prior productions. In that sense, I take 
        responsibility for not pursuing further the inquiry 
        that I thought had been adequately pursued by the 
        search that had been conducted.\352\
---------------------------------------------------------------------------
    \352\ Id. at 131-132.

    However, Ruff noted that he relied extensively on Cheryl 
Mills to help him determine whether the problem in fact tainted 
prior searches. Ruff stated that he based his determination 
that no prior searches were tainted on ``[s]imply, the 
conclusion that was described to me [by Mills] and my 
acceptance of that conclusion.'' \353\ He continued, ``I did 
not have a full and detailed understanding of the steps that 
had been taken from the end of my meeting with Mr. Lindsay 
until that message was conveyed to me.'' \354\
---------------------------------------------------------------------------
    \353\ Transcript of interview with Charles F.C. Ruff, former 
Counsel for the President, the White House, in Washington, DC, at 69 
(Apr. 6, 2000).
    \354\ Id.
---------------------------------------------------------------------------
    Other White House personnel also deserve substantial blame 
for what happened. For example, Cheryl Mills, who Ruff charged 
with helping him determine the problem's actual extent, denied 
knowing how the search was actually conducted, stating, ``I 
didn't have the requisite knowledge to express . . . concern 
[regarding the sufficiency of the search], if I were to have 
that type of concern.'' \355\ Similarly, Mark Lindsay, who 
acknowledged that he received a set of names from White House 
Counsel's Office to conduct the test search, could not recall 
the names or even who at Counsel's Office provided him with the 
names.\356\ Cheryl Mills could not recall who devised the 
search terms,\357\ what the search terms were \358\ or why the 
search terms would have been sufficient to determine whether 
any additional messages responsive to outstanding subpoenas 
existed.\359\ In that context, it is difficult to understand 
how Mills could have reasonably assured Ruff with any degree of 
confidence that the unrecorded e-mails were duplicative of 
those that had already been provided pursuant to grand jury and 
congressional subpoenas.\360\
---------------------------------------------------------------------------
    \355\ ``Missing White House E-mails, Mismanagement of Subpoenaed 
Records,'' hearings before the Committee on Government Reform, 106th 
Cong. 170 (May 4, 2000). Ruff testified that in discussing the problem 
with Mills, he sought to ``inquir[e] . . . whether or not the problem 
that Mr. Lindsay described did indeed have an adverse affect on [the 
White House's] collection and production of documents.'' See id. at 33 
(emphasis added). Ruff conceded that the problem that Lindsay described 
at the June 19th briefing and in the Podesta memo related to an ARMS 
failure. See transcript of interview with Charles F.C. Ruff, former 
Counsel to the President, the White House, in Washington, DC, at 22 
(Apr. 6, 2000). See also id. at 26-27 (recalling that ``the heart of 
the explanation [was] that the ARMS system, which was supposed to 
capture both incoming and outgoing [e-mail], was not capturing 
incoming.''). As established above, the Podesta memo and the briefing 
sufficiently conveyed that the problem affected the e-mail system's 
interaction with ARMS and that it affected subpoena compliance. Given 
the foregoing, Mills understood, or should have understood, from Ruff 
that the White House Counsel's Office was to determine that e-mails 
found to have been unrecorded by ARMS were, in fact, produced to all 
investigative authorities. See ``Missing White House E-mails, 
Mismanagement of Subpoenaed Records,'' hearings before the Committee on 
Government Reform, 106th Cong. 33-34, 35, 40-41, 46, 48, 90, 168 (May 
4, 2000) (Mills recalling Ruff's instructions). Therefore, Mills knew 
or should have known that Ruff would rely on her assurance as the basis 
for concluding that there was no systemic problem with the ARMS system. 
In that context, her failure to understand the proposition the search 
was intended to support is implausible. By contrast, Peterson, whose 
involvement with the problem was isolated to comparing the two stacks 
of documents, was asked whether she had any concern that her comparison 
was being done with a stack of unknown origin. See interview with 
Michelle Peterson, former Associate Counsel to the President, the White 
House, in Washington, DC (June 22, 2000). Consistent with her narrow 
exposure to the problem, Peterson answered, ``Since everything in the 
stack had been produced. I had no reason to believe that it wasn't 
produced. All I was told was that there's a problem, [a search has] 
been done, compare it to see if everything went out. When I compared 
them, they'd all been produced. In my limited, ministerial duty, there 
wasn't a problem. I was given a very specific task and I did it.'' Id.
    \356\ See ``Missing White House E-mails, Mismanagement of 
Subpoenaed Records,'' hearings before the Committee on Government 
Reform, 106th Cong. 247 (Mar. 23, 2000).
    \357\ See id. at 35, 36 (May 4, 2000).
    \358\ See id. at 167-168.
    \359\ See n.349, above.
    \360\ Interestingly, when Mills testified in Federal court in the 
Alexander hearings, after having done so before the committee, she 
appears to have materially changed her testimony as to what Ruff told 
her about the scope of the problem. When asked in court what Ruff told 
her about the problem after Lindsay briefed him, Mills stated: ``[h]e 
indicated to me it was--to the best of my recollection that there was 
[sic] certain e-mails that may or may not have been captured in a 
search, in particular with respect to the OIC investigation, Monica 
Lewinsky and other matters, and that OA was in the process of 
collecting these materials.'' Transcript of Evidentiary Hearing at 64, 
Alexander v. FBI (D.D.C. Sept. 1, 2000) (CA 96-2123) (emphasis added). 
The testimony regarding Ruff's telling Mills that the problem might 
have affected ``other matters'' in addition to the Lewinsky 
investigation is new. If Ruff in fact told Mills that the problem might 
have affected prior searches, Mills' reliance on the inherently faulty 
Lewinsky test search is made all the more unreasonable. This would mean 
that Mills likely understood that the problem was systemic and had 
potentially tainted prior searches. As unlikely as it is for Ruff to 
have misunderstood the problem so fundamentally, it is considerably 
more unlikely that both Ruff and Mills did so.
---------------------------------------------------------------------------
    In summary, the Mail2 problem was understood as affecting 
the ARMS process, which enables the archiving of e-mail for 
subpoena compliance purposes. The problem was regarded as so 
substantial that it required both a memorandum and briefing to 
the Deputy Chief of Staff and the Counsel to the President 
shortly after its discovery. Moreover, the problem's 
implications were regarded as so serious that Mark Lindsay 
personally spoke to his Lotus Notes Group--members of his 
computer staff with whom he had never spoken before or 
since.\361\ At that meeting, Lindsay directed the group not to 
disclose their work on the problem to their onsite managers. 
Plainly, nothing about this problem at that time was regarded 
as ordinary or typical. Despite the seriousness of the problem, 
the test that the White House Counsel's Office conjured to 
determine the problem's actual scope was careless and clueless. 
Charles Ruff immediately ignored the true scope of the problem 
and instead acted as if it were limited to Lewinsky-related 
material alone, despite considerable evidence to the contrary. 
Then, relying on his subordinates, he apparently ordered an 
inadequate test search supposedly designed to determine the 
problem's impact. The test was so ill-conceived that one cannot 
help but question the motives behind it.
---------------------------------------------------------------------------
    \361\ Transcript of Evidentiary Hearing at 28, Alexander v. FBI 
(D.D.C. Aug. 15, 2000) (CA 96-2123).
---------------------------------------------------------------------------

3. Contacts Between Earl Silbert and the White House

    As explained above, it is difficult to believe that the 
White House Counsel's Office failed to understand the e-mail 
problem, which was explained to it clearly by the Office of 
Administration. However, the failure of the White House 
Counsel's Office looks even more suspect when Earl Silbert's 
activities are closely examined. As discussed above in section 
III.A.4.g, Earl Silbert was apparently hired by Northrop 
Grumman as outside counsel after some of the employees met with 
company representatives about their discovery of the problem 
and the fact that they had been threatened. Silbert was a 
former Watergate prosecutor and professional associate of 
Charles Ruff. During the 1998 timeframe, Silbert had contact 
with the White House on a number of investigative matters, as 
he represented James Riady, a target in the 1996 campaign 
financing investigations; Peter Knight, a former Clinton/Gore 
campaign manager and lobbyist involved in a criminal 
investigation into illegal fundraising; and Erskine Bowles, 
President Clinton's Chief of Staff in the independent counsel's 
Lewinsky investigation and this committee's investigation into 
the White House's misuse of the White House database.\362\ As 
described above, Silbert had a telephone conference with 
Northrop Grumman's counsel and a Northrop Grumman contractor, 
likely Robert Haas, on September 11, 1998, that is, 2 days 
after the employees met with senior manager Joseph Lucente and 
Northrop Grumman's in-house counsel. Silbert had subsequent 
conversations with Northrop Grumman counsel on September 12, 15 
and 22, 1998.\363\
---------------------------------------------------------------------------
    \362\ See ``White House Acknowledges Riady Talk,'' Associated Press 
(Sept. 28, 1999) (identifying Silbert as counsel to Riady); interview 
with Earl Silbert, partner, Piper Marbury Rudnick & Wolfe, in 
Washington, DC (Sept. 25, 2000) (Silbert confirming representation of 
Knight during criminal investigation); ``Lewinsky Legal Team Brings 
Credibility,'' the Washington Post, June 4, 1998 at A09 (identifying 
Silbert as counsel to Bowles in Lewinsky investigation); deposition of 
Erskine Bowles, ``Investigation of the Conversion of the $1.7 Million 
Centralized White House Computer System, Known as the White House 
Database, and Related Matters,'' House Committee on Government Reform 
and Oversight (May 5, 1998) (Silbert appearing as counsel to Bowles in 
congressional investigation). Inasmuch as his clients were targeted or 
implicated in various criminal and congressional investigations, 
Northrop Grumman's reconstruction of potentially inculpatory e-mails 
would be contrary to the interests of Silbert's administration clients. 
Accordingly, simultaneous representation of both Northrop Grumman and 
those administration clients created a conflict of interest.
    \363\ See Earl Silbert document production (exhibit 202) (privilege 
log describing billing records). Because Silbert claimed the billing 
records were privileged, the records were provided to the committee 
reacted.
---------------------------------------------------------------------------
    On September 28, 1998, Silbert contacted someone at the 
White House Counsel's Office.\364\ However, when Silbert was 
interviewed by committee staff, he was unable to remember 
having made that call--much less with whom he spoke or what was 
discussed.\365\ Nonetheless, the timing of the call in relation 
to the meeting among the employees and Northrop Grumman's in-
house counsel makes it clear that the call was made as a result 
of Northrop Grumman management's being informed of the problem. 
Although it is unclear with whom Silbert spoke at the White 
House or what he discussed, Silbert likely understood a number 
of facts about the e-mail problem when he called the White 
House: (1) at least one Northrop Grumman employee claimed that 
he was threatened with jail by a White House staffer and was 
frightened; \366\ (2) White House staff were forcing Northrop 
Grumman staff to work in secret; \367\ (3) White House staff 
were forcing Northrop Grumman staff to perform work that likely 
exceeded the scope of the contract; \368\ and (4) Northrop 
Grumman employees felt that the law required a speedy solution 
to the problem.\369\ Therefore, it is difficult to believe that 
Silbert did not pass all of this highly relevant information on 
to the White House when he called on September 28, 1998.
---------------------------------------------------------------------------
    \364\ See id.
    \365\ Interview with Earl Silbert, partner, Piper Marbury Rudnick & 
Wolfe, in Washington, DC (Sept. 25, 2000).
    \366\ See, e.g., interview with Robert Haas, Lotus Notes 
administrator, Northrop Grumman, in Washington, DC (Mar. 7, 2000) 
(stating that Callahan told him that ``there would be a jail cell with 
your name on it'' if he disclosed e-mail problem).
    \367\ At Silbert's interview with committee staff, Silbert's 
counsel conceded that, in the course of representing Northrop Grumman, 
Silbert reviewed a document related to Joseph Lucente's Sept. 14, 1998, 
letter, which noted that Northrup Grumman found that Laura Callahan 
directed its employees to evaluate and remedy the problem without 
Northrop Grumman management involvement. See interview with Earl 
Silbert, partner, Piper Marbury Rudnick & Wolfe, in Washington, DC 
(Sept. 25, 2000). However, Silbert was not in a position to say whether 
or not it was a final draft. See id.
    \368\ Lucente's Sept. 14, 1998, letter, also noted that effort 
required to remedy the problem substantially exceeded the scope of work 
contemplated under the base contract. See id.
    \369\ See, e.g., Transcript of Evidentiary Hearing at 57, Alexander 
v. FBI (D.D.C. Aug. 14, 2000) (CA 96-2123) (Haas noting that he was 
concerned that Mail2 reconstruction needed to be done quickly because 
of requirements under Presidential Records Act).
---------------------------------------------------------------------------
    The only indication as to the substance of Silbert's call 
comes from the courtroom testimony of Mark Lindsay in the 
Alexander case. In that case, Lindsay recalled that Special 
Counsel to the President Lanny Breuer told him that Silbert 
expressed concern about the ``scope of the contract.'' \370\ 
When asked whether Breuer expressed concern about the Mail2 
problem, Lindsay responded:
---------------------------------------------------------------------------
    \370\ See Transcript of Evidentiary Hearing at 139, Alexander v. 
FBI (D.D.C. Aug. 23, 2000) (CA 96-2123).

        I don't think that came up at all. I don't think it was 
        a matter of that. I think it was a very, very general 
        reference about scope of work. I don't think he knew 
        about what the work was necessarily, but just that 
        there was some kind of concern about scope, if my 
---------------------------------------------------------------------------
        memory serves me correctly.




        

           *         *         *         *         *
        And I think it was just raised to him about, hey, I 
        heard that there's something about, you know, the scope 
        of this contract, and our folks want to get this work. 
        Is there a problem? He called me and essentially said, 
        well, is there a problem with whatever, just as a 
        courtesy. And I said, no, I think we've got it 
        resolved.\371\
---------------------------------------------------------------------------
    \371\ Id. at 140.

Even if these representations were true, the ``resolution''--
which consisted of doing nothing and allowing the problem to 
become more expensive to cure--suggests improper motive.
    The foregoing suggests that Silbert spoke to Breuer and 
that at a minimum a ``scope of contract'' issue was 
discussed.\372\ However, Lindsay's testimony leaves many 
unanswered questions about Silbert's September 28, 1998, call 
to the White House. Breuer was a Special Counsel at the White 
House Counsel's Office generally in charge of investigative 
matters.\373\ If Silbert was concerned with contractual matters 
involving Northrop Grumman, it is unclear why he would have 
contacted Breuer rather than, for example, someone at the 
Office of the General Counsel at OA. It is also unclear how 
Breuer could have meaningfully discussed a ``scope of 
contract'' issue relating to the Mail2 problem with Silbert 
without knowing the underlying facts about the problem, which 
would have necessarily included information about the ARMS 
failure and probably information about the threats as well. 
And, if Breuer did indeed learn about the threats from Silbert, 
it is unlikely that he would have withheld such information 
from his superior, Charles Ruff.\374\
---------------------------------------------------------------------------
    \372\ The committee was unable to interview Breuer prior to the 
completion of this report.
    \373\ Transcript of interview with Charles F.C. Ruff, former 
Counsel to the President, the White House, in Washington, DC, at 63 
(Apr. 6, 2000).
    \374\ When asked whether he was aware of an impasse between 
Northrop Grumman and OA with regard to the scope of the facilities 
contract, Ruff responded, ``More to the point, I have no recollection 
of even knowing that there was an ongoing issue with respect to what 
Northrop was doing, what anybody was doing with respect to the 
reconstruction of this process.'' Id. at 57. In fact, Ruff testified 
that he was not even sure that he contemporaneously knew that Northrop 
Grumman was the contractor. Id. at 34. Ruff also testified to having 
absolutely no contemporaneous knowledge about the employees' having 
been instructed to keep the problem secret from their Northrop Grumman 
managers or the fact that they were threatened. Id. at 34, 84-85.
---------------------------------------------------------------------------
    If Silbert did discuss the threats or the legal 
ramifications of the e-mail problem with Breuer, or anyone else 
in the White House Counsel's Office, the repercussions would be 
significant. First, Ruff and a number of other White House 
Counsel staff have testified that they were unaware of the 
allegations that Northrop Grumman personnel were threatened 
until 2000. Second, if Silbert explained the facts of the e-
mail problem and its legal consequences, it makes it difficult 
for the White House to claim that it failed to understand the 
problem. Rather, it makes it appear that the White House 
engaged in a conscious effort to cover up the problem. However, 
given the failure of Silbert to recall his discussion, it will 
be difficult to reach definitive conclusions regarding his 
September 28, 1998, contact with the White House.

4. The December 1998, Insight Article

    On December 4, 1998, Insight magazine published the first 
news account to mention the possibility of missing White House 
e-mail.\375\ As evidenced by the article's having been attached 
to a COTR report, dated December 11, 1998, that article was 
discussed in a COTR meeting, which took place on December 9, 
1998.\376\ That meeting was attended by Joseph Vasta, Steve 
Hawkins' replacement as program manager, and other senior 
managers at Northrop Grumman.\377\
---------------------------------------------------------------------------
    \375\ Paul M. Rodriguez, ``Computer Glitch Leads to Trove of `Lost' 
E-mails at White House,'' Insight on the News, Dec. 28, 1998, at 6. 
Although the cover of the magazine is dated Dec. 28, 1998, the article 
was first published on Dec. 4, 1998.
    \376\ See Northrop Grumman document production NGL 00252 (exhibit 
63).
    \377\ See id.
---------------------------------------------------------------------------
    The article was provided to the White House by Northrop 
Grumman staff at the COTR meeting on December 11, 1998. The 
White House was aware of the article before its publication, as 
the reporter had asked the White House to comment about the e-
mail allegations. Deputy White House Press Secretary Barry Toiv 
informed the reporter that the missing e-mails ``appear[ed] to 
duplicate some already turned over to requesters like Starr.'' 
\378\ Nevertheless, the publication of the Insight article 
appears to have initiated another call from Earl Silbert to the 
White House. On December 15, 1998, Silbert spoke to Northrop 
Grumman Counsel, and on December 30, 1998, he called the White 
House Counsel's Office.\379\ Again, when he was questioned by 
committee staff, Silbert was unable to recall with whom he 
spoke at the Counsel's Office or what was discussed.
---------------------------------------------------------------------------
    \378\ Paul Rodriguez, ``Looking for Information in All the Wrong 
Places,'' Insight on the News, Dec. 28, 1998, at 6.
    \379\ See Earl Silbert document production (exhibit 202).
---------------------------------------------------------------------------
    The December 1998 contact between Silbert and the White 
House is significant in that Silbert might have discussed the 
threats made against the Northrop Grumman employees, the legal 
ramifications of the e-mail problem, or even the fact that 
those issues seemed to have been leaked to the press. To the 
extent that those serious issues were raised with the White 
House, the White House's claims that it failed to fully 
comprehend the e-mail problem are further diminished.

5. The White House Failed to Inform the Committee of the Problem

    By June 19, 1998, Mark Lindsay, Charles Ruff, and John 
Podesta had all been told that there was a systemic problem 
with ARMS. Despite knowledge of the problem reaching these 
senior officials so early, none of the parties with outstanding 
document requests--Congress, the Offices of Independent 
Counsel, or the Department of Justice--were officially notified 
of the ongoing e-mail problems until March 17, 2000.
    Given the foregoing, it is troubling that no one in the 
White House came forward to confirm that the story was 
essentially accurate. That no one was able to confirm the 
essential truth of the story shows an almost purposeful effort 
to avoid the matter. Recently, some have attempted to argue 
that because there were unofficial descriptions of the problem 
in a news magazine, Congress was on notice that e-mails had not 
been produced.\380\ This, of course, is an absurd position. To 
argue that an article in Insight magazine absolves the White 
House Counsel's Office from providing proper notification that 
subpoenas have not been complied with and that past 
certifications are false is, at a minimum, silly. Should those 
who make such an argument stipulate that everything printed 
about the Clinton administration is true, the argument would be 
slightly less absurd. Nevertheless, it would still be very 
misguided.
---------------------------------------------------------------------------
    \380\ See, e.g., ``Missing White House E-mails, Mismanagement of 
Subpoenaed Records,'' hearings before the Committee on Government 
Reform, 106th Cong. 53 (May 3, 2000) (statement of Ranking Minority 
Member Henry Waxman).
---------------------------------------------------------------------------
    In fact, the White House kept the e-mail problem under 
wraps until there was significant public exposure by the press, 
a series of developments in the Alexander case, and prompting 
by this committee. On February 15, 2000, the Washington Times 
published the first news story of the e-mail problem that 
included the threat allegations.\381\ The committee sent 
letters inquiring about the e-mail problems and threat 
allegations on February 16, 2000, and March 8, 2000. Finally, 
in response to the committee's letters, the White House 
acknowledged the existence of e-mail problems to the committee 
in a March 17, 2000, letter from White House Counsel Beth Nolan 
to Chairman Burton.\382\
---------------------------------------------------------------------------
    \381\ Jerry Seper and Andrew Cain, ``White House Accused of Cover-
Up: Ex-Worker Tells of Hidden E-mails,'' the Washington Times, Feb. 15, 
2000, at A1.
    \382\ Letter from Beth Nolan, Counsel to the President, the White 
House, to the Honorable Dan Burton, chairman, Committee on Government 
Reform (Mar. 17, 2000) (within appendix I).
---------------------------------------------------------------------------
    This failure to inform investigative agencies of the Mail2 
problem has been explained repeatedly by the White House to be 
the result of a ``disconnect.'' \383\ Charles Ruff and Cheryl 
Mills have testified that, based on the test search discussed 
above, they believed that there had been no defect in prior 
searches conducted in response to subpoenas. Mark Lindsay has 
testified that once he explained the problem to the Counsel's 
Office, ``then it was up to them to provide the--particularly 
the legal folks--to provide the legal analysis based on the 
information.'' \384\
---------------------------------------------------------------------------
    \383\ See, e.g., ``Missing White House E-mails, Mismanagement of 
Subpoenaed Records,'' hearings before the Committee on Government 
Reform, 106th Cong. 140 (Mar. 30, 2000) (testimony of Beth Nolan, 
Counsel to the President, the White House).
    \384\ Id. at 238 (May 4, 2000) (testimony of Mark Lindsay, 
Assistant to the President for Management and Administration, the White 
House).
---------------------------------------------------------------------------
    As it turned out, the failure of the ARMS system and the 
need to reconstruct responsive e-mails remained a pressing 
problem for Lindsay's OA employees responsible for conducting 
such searches. As seen in an August 13, 1998, e-mail, Tony 
Barry specifically stated, ``I feel that the records must be 
recreated and any searches need to be reperformed if the 
requestors feel it is necessary[.] . . . This seems like a 
daunting proposition, but I do not see any other alternative.'' 
\385\ Kathleen Gallant stated in an e-mail on the same date, 
``I also agree with Tony about the new searches that will have 
to be done. We need direction from OA counsel on that front.'' 
\386\
---------------------------------------------------------------------------
    \385\ White House document production E 0999 (exhibit 52). For a 
detailed discussion of the failure of the White House Office of 
Administration to respond to requests by staff to reconstruct the e-
mails, see section III.E.1.a, below.
    \386\ White House document production E 1002 (exhibit 40).
---------------------------------------------------------------------------
    Whether or not Lindsay subsequently communicated the 
concerns of his staff to the White House Counsel's Office 
remains uncertain. However, it is the view of the committee 
that Lindsay's failure to inform the White House Counsel's 
Office of the continuing problem cannot reasonably be described 
as the result of a ``disconnect'' between Lindsay and OA staff. 
Based on the totality of the evidence discussed in section 
III.E below, it seems implausible to the committee that the 
concerns of Tony Barry, Jim Wright, Kathleen Gallant, and 
others were not communicated to Mark Lindsay. As a result, it 
is the view of the committee that Mark Lindsay should have 
taken steps to repair the ARMS system, reconstruct the missing 
e-mails, and inform the White House Counsel of the continuing 
inadequacy of ARMS searches stemming from the Mail2 anomaly. 
Lindsay's efforts, however, appear to have been focused more on 
attempts to keep anyone from finding out about the problem, and 
not on taking steps to cure the problem through either e-mail 
reconstruction or congressional notification.

  D. additional problems hampered efforts to repair the e-mail system

    Within the Executive Office of the President, the Mail2 
problem was only one of a series of problems with the e-mail 
system. Each problem that successively arose compounded the 
scope of the original Mail2 problem and, accordingly, affected 
the White House's subpoena compliance obligations.

1. ``Stopping the Bleeding''--the Prospective Management of the Mail2 
        Problem

    In mid-June 1998, Jim DeWire, the project manager at 
Northrop Grumman, learned from Steve Hawkins, Northrop 
Grumman's program manager for the EOP computer systems 
contract, that some of the Northrop Grumman employees were 
working on ``a project'' and refused to disclose the nature of 
the project.\387\ Shortly after his conversation with Hawkins, 
DeWire received a call from Director Ada Posey telling him she 
had a sensitive task for the Northrop Grumman employees, the 
details of which needed to be kept from the onsite Northrop 
Grumman managers.\388\ Typically, DeWire was not informed about 
technical issues. In response, DeWire asked Posey to certify 
that the task was legal and within the scope of the contract 
between Northrop Grumman and the EOP.\389\ She gave him oral 
assurances on both points in the phone conversation and he 
accepted those assurances at face value.\390\ He did not 
question Posey about why the project was sensitive.\391\ Posey 
did not tell DeWire which government supervisor would direct 
the activity. After DeWire authorized that work on this 
``project'' continue without disclosure to the Northrop Grumman 
managers, he called Hawkins back to tell him there would be 
this special arrangement.\392\ In accepting Posey's assurances 
and authorizing the ``special task order,'' DeWire did not 
confer with Northrop Grumman counsel.\393\ Hawkins 
unequivocally objected to DeWire's decision to accept Posey's 
assurances at face value and his authorization to Posey to 
proceed with the ``special task order.'' \394\
---------------------------------------------------------------------------
    \387\ Interview with Jim DeWire, program director, Northrop 
Grumman, in Washington, DC (June 15, 2000).
    \388\ Id. Posey's telephone call to DeWire is made all the more 
curious given that she was told so little about the project relating to 
the Mail2 problem. See III.A.6.c, above (describing Lindsay's and 
Callahan's failure to provide timely disclosure to Posey). Posey told 
the committee that she cannot remember this conversation, let alone who 
Jim DeWire is.
    \389\ Interview with Jim DeWire, program director, Northrop 
Grumman, in Washington, DC (June 15, 2000).
    \390\ Id.
    \391\ Id. DeWire's acquiescence is made all the more curious by his 
explicit instruction to Hawkins (prior to Hawkins' meeting with 
Lindsay) ``don't `crater in.' '' In accepting Posey's bald assurances, 
DeWire apparently did precisely as he advised Hawkins not to do.
    \392\ Id.
    \393\ Id. In September 1998, Joseph Vasta, Northrop Grumman's 
deputy program director, intervened and facilitated a meeting between 
the Northrop Grumman and Ralph Pope, Northrop Grumman's general 
counsel, regarding the employees' concern that ``what they were working 
on was not legal.'' Id. Interview with Joseph Vasta, former program 
manager, Northrop Grumman, in Washington, DC (June 27, 2000). Only then 
did DeWire consult with and defer to counsel's determination that the 
work requested was outside the scope of the contract. See interview 
with Jim DeWire, program director, Northrop Grumman, in Washington, DC 
(June 15, 2000).
    \394\ See interview with Jim DeWire, program director, Northrop 
Grumman, in Washington, DC (June 15, 2000).
---------------------------------------------------------------------------
    Without authorization or direction from Northrop Grumman 
management, the ``special task order'' proceeded as follows. 
Northrop Grumman employees were to correct the Mail2 problem in 
two phases: in the first of the two phases, the employees would 
effectively ``stop the bleeding,'' that is, implement a 
solution that would enable the accounts in the Mail2 server to 
be records managed prospectively.\395\ John Spriggs and Yiman 
Salim worked together in ``stopping the bleeding'' on both the 
hardware and software aspects of the problem.\396\ With only 
Posey's bald assurance that the project was within the scope of 
the contract and legal, and without the authorization of 
Northrop Grumman's onsite managers, the White House purportedly 
``stopped the bleeding'' on or about November 23, 1998.\397\ 
The second of the two phases was the Mail2 reconstruction 
project. As of November 23, 1998, the Northrop Grumman 
employees were ``not aware of the status of this [phase].'' 
\398\ The White House decided to undertake this project in 
March 2000--almost 2 years after it first sufficiently 
appreciated the need for reconstructing the e-mails.
---------------------------------------------------------------------------
    \395\ See White House document production E 0159-0160 (exhibit 55).
    \396\ Id.
    \397\ Id.
    \398\ Id.
---------------------------------------------------------------------------

2. The D-User Problem--the ``Bleeding Continues''

    Although the White House thought that it had ``stopped the 
bleeding,'' it discovered another problem with its e-mail 
system in April 1999.\399\ This problem was called the D-user 
problem. The technical cause and scope of the problem is 
discussed above in section II.B. However, it is noteworthy here 
that the D-user problem resulted in ARMS failing to capture e-
mail from nearly 200 accounts (of users whose name began with 
the letter ``D'') within the EOP, including 42 in the White 
House Office, from November 1998 through May 1999.\400\
---------------------------------------------------------------------------
    \399\ See id. at E 3948-3950 (exhibit 125) (with forwarded e-mails 
from IS&T staff announcing problem attached). See also letter from Beth 
Nolan, Counsel to the President, the White House, to the Honorable Dan 
Burton, chairman, Committee on Government Reform 5 (Mar. 17, 2000) 
(within appendix I); statement of Beth Nolan, Counsel to the President, 
the White House, to Committee on Government Reform, Mar. 23, 2000, at 
5-6.
    \400\ Letter from Beth Nolan, Counsel to the President, the White 
House, to the Honorable Dan Burton, chairman, Committee on Government 
Reform 5 (Mar. 17, 2000) (within appendix I); statement of Beth Nolan, 
Counsel to the President, the White House, to Committee on Government 
Reform, Mar. 23, 2000.
---------------------------------------------------------------------------
    There is no dispute that the White House contemporaneously 
knew about the D-user problem.\401\ In fact, Lindsay testified 
that he handled the D-user problem in the same manner as he 
handled the Mail2 problem. He notified his superiors and spoke 
to someone at the White House Counsel's Office, although he 
could not recall with whom he spoke.\402\ Curiously, neither 
Ruff, Mills, Peterson nor Paxton recalled having spoken with 
Lindsay about the D-user problem.\403\ By its very nature, the 
D-user problem compounded the scope of the original Mail2 
problem and, accordingly, affected the White House's subpoena 
compliance obligations.
---------------------------------------------------------------------------
    \401\ White House document production E 3948-3950 (exhibit 125).
    \402\ ``Missing White House E-mails, Mismanagement of Subpoenaed 
Records,'' hearings before the Committee on Government Reform, 106th 
Cong. 176-178, 179 (May 4, 2000) (testimony of Mark Lindsay).
    \403\ Id. at 183-184 (Ruff testifying that he could not recall 
having been told and Mills testifying that she was actually not told 
about the D-user problem).
---------------------------------------------------------------------------

3. The Vice President's E-mail Problems

            a. One Year's Worth of OVP E-mail Was Irretrievably Lost
    In an interview with Dorothy Cleal, former director for 
IS&T at OA, regarding the Mail2 problem, the committee learned 
of the existence of a memorandum prepared by the Office of 
Administration regarding a problem with the backing up of e-
mail at the Office of the Vice President.\404\ At that time, 
the committee had not received any documents from the White 
House about such an e-mail problem. Accordingly, the committee 
sought certification from the White House that all records 
relating to the OVP problem and responsive to its e-mail 
investigation subpoena had been produced to the committee.\405\ 
On June 7, 2000, White House Counsel responded by informing the 
committee that its ``May 16, 2000 letter regarding non-records 
managed e-mail has led us to discover that a technical 
configuration error apparently prevented e-mail on the OVP 
server from being backed-up from the end of March 1998 through 
early April 1999.'' \406\ The failure to ARMS-manage OVP 
accounts resulted in the permanent loss of more than a year's 
worth of e-mail both to and from OVP staff. As the letter from 
the White House Counsel's Office indicates, the White House 
disclosed this information only because of this committee 
insisted that OVP-related records be produced pursuant to its 
earlier subpoena.
---------------------------------------------------------------------------
    \404\ Dorothy Cleal mentioned that, after e-mail in the OVP server 
were discovered not to have been backed up, Moe Vela, Staff Secretary 
to the Vice President, told her that the Vice President wanted a 
memorandum to him which explained ``why IS&T was so incompetent.'' 
Interview with Dorothy Cleal, former IS&T Director, Office of 
Administration, in Washington, DC (May 15, 2000). Ms. Cleal told the 
committee that in February or March 1999 she drafted a four-page 
memorandum to the Vice President on that issue. Id. White House Counsel 
has reported that it has not been able to locate any OA memoranda to 
the Vice President regarding the non-records management of e-mail. See 
letter from Steven F. Reich, Esq., Senior Associate Counsel to the 
President, the White House, to James C. Wilson, chief counsel, 
Committee on Government Reform (June 7, 2000) (within appendix I).
    \405\ See letter from James C. Wilson, chief counsel, to Beth 
Nolan, Counsel to the President, the White House (May 16, 2000) (within 
appendix I). On May 16, 2000, the committee informed White House 
Counsel that ``[i]t has come to [the Committee's] attention . . . that 
there may be documents relating to non-records managed e-mails from the 
Office of the Vice President (OVP) that have not been produced in 
response to the Committee's March 9, 2000, subpoena.'' Id. The 
committee noted that ``[b]ecause OVP is a part of EOP, any memoranda or 
other records relating to the failure to records manage properly OVP e-
mails are responsive to the Committee's subpoena.'' Id.
    \406\ Letter from Steven Reich, Senior Associate Counsel to the 
President, the White House, to James C. Wilson, chief counsel, 
Committee on Government Reform 4 (June 7, 2000) (within appendix I).
---------------------------------------------------------------------------
    In searching for the memorandum from Cleal to the Vice 
President, the White House located and produced several drafts 
of other memoranda from Cleal to various White House personnel 
describing ``Office of the Vice President Computer Problems.'' 
\407\ Both the draft and final versions of the document include 
an explanation of the failure of the backup system, but neither 
specifically explain that it had been failing for more than a 
year.\408\ An earlier version of the document included a bullet 
under the heading ``Actions Taken:'' reading, ``Department of 
Justice was notified by the Office of Administration, General 
Counsel about the loss of the Vice President's E-mail files.'' 
\409\ The later version signed by both Mark Lindsay and Dorothy 
Cleal does not include the bullet about notifying the Justice 
Department.\410\ This discrepancy is among the many OVP-related 
issues the committee has not yet been able to examine 
thoroughly due to the White House's belated disclosure of the 
OVP problems.
---------------------------------------------------------------------------
    \407\ See, e.g., White House document production E 6526 (exhibit 
173); id. at E 6962 (exhibit 204).
    \408\ Id. at E 6527 (exhibit 173); id. at E 6963 (exhibit 204).
    \409\ Id. at E 6529 (exhibit 173).
    \410\ Id. at E 6962 (exhibit 204).
---------------------------------------------------------------------------
    However, through documents produced in response to its 
subpoenas and witness interviews, the committee was able to 
determine the following preliminary facts regarding the Vice 
President's e-mail problems. In March 1998, Bill Van Horn, a 
Northrop Grumman employee, converted the OVP server into a new 
operating system, Windows NT 4.0.\411\ While converting the 
server, Van Horn added a partition so that OVP would have 
IS&T's standard server configuration.\412\ A partition is a 
division of a single physical hard disk drive that is seen by 
the operating system as a separate physical disk, or logical 
drive. This partition--an ``E:'' drive--stored all of the OVP's 
e-mail files.\413\ However, the E: drive was not included in 
the server's backup schedule.\414\ As a result, successive 
backups of the OVP server failed to capture e-mails that were 
transferred to the E: drive.\415\ Apparently, this oversight 
was not discovered until April 1999 in the context of 
attempting to restore from the Vice President's personal laptop 
3 days of e-mail lost due to the corruption of his mail file on 
the server.\416\ An e-mail blind carbon-copied to Vice 
President Gore instructs OVP staff, ``[i]f you sent an email 
[sic] to the Vice President between 12am [sic] on Tuesday, 
March 30th through 2pm [sic] Friday, April 2, would you please 
resend it to him via email [sic] with a notation that you are 
forwarding one from this period. Please use discretion in 
discussing this network/Lotus Notes problem.'' \417\ 
Ultimately, IS&T corrected the problem and enabled the OVP's e-
mail to be backed up prospectively.\418\
---------------------------------------------------------------------------
    \411\ See White House document production E 5201-5203 (exhibit 
170); id. at E 6404-6406 (exhibit 172); id. at E 6526-6530, E 6398-
6399, E 6400-6402 (exhibits 173-175). See also id. at E 6369 (exhibit 
162) (anonymous and undated summary of events titled, ``Received from 
John Spriggs'' handwritten); letter from Steven Reich, Senior Associate 
Counsel to the President, the White House, to James C. Wilson, chief 
counsel, Committee on Government Reform (June 7, 2000) (within appendix 
I).
    \412\ See n.411.
    \413\ See n.411.
    \414\ See n.411.
    \415\ See n.411.
    \416\ See n.411.
    \417\ White House document production E 6562 (exhibit 207). This 
belatedly-produced document possibly indicates an intent by the White 
House--consistent with its mishandling of the Mail2 and D user 
problems--to conceal the OVP problem. Although the committee is 
presently unable to arrive at any definitive conclusions, the 
implications of this document are troubling.
    \418\ See n.411.
---------------------------------------------------------------------------
            b. The Vice President's Claim to Be Ignorant of His 
                    Office's Records Management Problems Is Not 
                    Credible
    When the Vice President was asked whether he knew about his 
office's failure to backup e-mail for over a year, he said:

        No, the problem I asked about was three days of e-mails 
        that disappeared and computers crash, and that's what 
        happened. And I asked them to make sure it didn't 
        happen again. And I don't know about the backup tapes. 
        I read about that in the papers recently. I don't know 
        anything about why that happened or how it happened. 
        I'm not an expert on computers.\419\
---------------------------------------------------------------------------
    \419\ ``The Edge with Paula Zahn'' (Fox News television broadcast, 
June 14, 2000).

However, despite his claim to the contrary, it is clear that 
the Vice President is extremely computer savvy and highly 
involved in issues related to information systems both 
generally and within his own office. For example, documents 
indicate that the Vice President personally interviewed at 
least three technical contract employees from Northrop 
Grumman.\420\ Furthermore, Northrop Grumman Program Manager 
Steve Hawkins wrote in an October 9, 1998, e-mail, ``Mr. Gore 
calls upon our technical staff while on business trips for 
updated software or to troubleshoot a problem he might be 
having with one of his laptops or his new palmtop machine.'' 
\421\ Another document includes handwritten notes from 
Associate OVP Counsel Kumiki Gibson to OVP Counsel Jack Quinn 
that read, ``As you know, VP is very concerned about e-mail.'' 
\422\ Moreover, as described in the Washington Post:
---------------------------------------------------------------------------
    \420\ See White House document production E 7419 (exhibit 186).
    \421\ Id. at E 6696 (exhibit 208).
    \422\ Id. at E 5561 (exhibit 201).

        Gore is an e-mail addict, people on his staff say. 
        Every day he reads through more than a hundred messages 
        and sends out almost as many, sometimes doing it from 
        his residence late into the night. During staff 
        meetings in his office, White House aides say, he often 
        has one eye on his computer screen, scanning through 
        new arrivals in his mail box. . . . Gore keeps himself 
        wired into Netscape and the rest of the Silicon Valley 
        crowd through informal monthly meetings with about two 
        dozen technology leaders. The group, nicknamed ``Gore-
        Tech,'' has met over pizza and beer to discuss issues 
        such as using software to filter objectionable material 
        on the internet and improving communication between 
        teachers and parents though computer networks. ``We 
        don't have to talk down to him,'' said Marc Andreessen, 
        the 26-year-old co-founder of Netscape and a regular 
        member of the group. ``He has a very good conceptual 
        understanding of technology.'' \423\
---------------------------------------------------------------------------
    \423\ Rajiv Chandrasekaran, ``Gore's Best Friend is his Computer,'' 
the Washington Post, Nov. 29, 1997, at A01.

Given his sophisticated understanding of e-mail and personal 
involvement in related issues, Vice President Gore would 
certainly have been capable of understanding that managing 
records solely by backup tapes would render word-searching of 
his e-mail messages prohibitively time-consuming, expensive, 
and would risk permanent loss in the event of a backup system 
failure. Furthermore, even if he did not personally know, 
members of his staff would have certainly known that the OVP 
was not conducting searches of the backup tapes.
    That his office was using backup tapes to manage e-mail 
records was also likely communicated to the Vice President in a 
February 1996 e-mail from a member of his staff. The newly 
reconstructed e-mail--among those recently produced to the 
committee by the White House--also indicates a desire to 
prevent e-mails from being recorded in any form. This message 
conveys to the Vice President a possible way to exchange e-mail 
with a political advisor, Carter Eskew, while preventing the 
messages from being recorded on a government computer:

        Reminder: All internet e-mails are recorded on the 
        White House computers. According to Michael, the only 
        way not to have your e-mails backed up on government 
        computers would be to get a Clinton/Gore computer in 
        your office and set it up for private e-mails. 
        QUESTION: How would you like to proceed on this? \424\
---------------------------------------------------------------------------
    \424\ White House document production E 8701 (exhibit 193).

It should be noted that if the Vice President replied to this 
e-mail using his OVP computer, his response should be on one of 
the backup tapes yet to be reconstructed by the White House. In 
any event, the mere fact that his staff elevated this decision 
to the Vice President's level is consistent with his having 
been involved in records management decisions as well.
    Documents also demonstrate conclusively that the Vice 
President was, in fact, personally involved in decisions 
related to the Armstrong case and its implications for 
preserving e-mail. For example, in a June 28, 1995, e-mail an 
OA staff member wrote:

        This seems worth bringing to your attention because 
        among the series of e-mails is one from the Vice 
        President expressing dismay at the restrictions that 
        Armstrong places on internet access. As you can see 
        from the e-mail that he is responding to (the last in 
        the series), it appears that OA is being made to be the 
        bad guy (``As you know I pressed hard to get internet 
        features other than normal EMAIL available through the 
        system and OA would not budge.'') We need to straighten 
        out this misimpression right away especially given the 
        VP's personal concern. Perhaps we could arrange a 
        meeting with the VP's staff to explain why we have to 
        be concerned about capturing external e-mail, and to 
        offer to work with the VP and NPR to provide them the 
        access they seek through a means that properly complies 
        with records requirements.\425\
---------------------------------------------------------------------------
    \425\ Id. at E 6533 (exhibit 205).

    Unlike the e-mail problems with the White House's e-mails, 
a considerable number of the unrecorded e-mails at the OVP were 
irretrievably lost. This is because the OVP chose not to be a 
part of the ARMS system used by the rest of the EOP. Instead, 
it chose to rely exclusively printouts of e-mail by individual 
staff members and the use of backup tapes as the means of 
records managing its e-mail. By contrast, the White House 
Office's e-mails were stored both on backup tapes and on ARMS, 
providing a redundant records management system. Thus, if one 
system were to fail, the other would render the failure less 
catastrophic. In the case of the White House Office, ARMS 
partially failed, but the e-mail may be recovered from backup 
tapes.\426\ In the case of the OVP, the backup tape system 
failed, but the e-mail cannot be retrieved from ARMS.\427\
---------------------------------------------------------------------------
    \426\ Six months of White House e-mail cannot be recovered from 
backup tapes because they were inadvertently recycled. Interview with 
Kathleen Gallant, former IS&T Director, Office of Administration, in 
Chantilly, VA (May 17, 2000).
    \427\ The committee has also received testimony that, from July 
1999 through some unspecified time, OVP e-mail in addition to the 
year's loss discussed above might have been irretrievably deleted. John 
Spriggs, an e-mail specialist with IS&T, testified that by July 1999, 
IS&T was overwriting backup tapes of the OVP server on a 3-week cycle. 
As Spriggs appropriately noted that ``[i]f OVP is doing records 
management with tape backups, they have a problem.'' See ``Missing 
White House E-mails, Mismanagement of Subpoenaed Records,'' hearings 
before the Committee on Government Reform, 106th Cong. 182 (Mar. 23, 
2000). This remains an area of inquiry for the committee.
---------------------------------------------------------------------------
            c. The OVP's Decision to Avoid ARMS-management Hindered 
                    Subpoena Compliance
    The decision not to use ARMS was made by Todd Campbell, 
former Counsel to the Vice President, and now a Federal judge 
in Tennessee. Campbell stated that he made the decision in 
consultation with Kumiki Gibson, a former Associate Counsel to 
the Vice President, and Michael Gill, a former Staff Secretary 
whose responsibilities included management of the computer 
system at the OVP.\428\ Campbell explained that he made his 
decision not to use ARMS because he was told by Michael Gill 
that it would require OVP to use All-in-One, an older and less 
desirable e-mail system.\429\
---------------------------------------------------------------------------
    \428\ Telephone interview with Hon. Todd Campbell, former Counsel 
to the Vice President (Aug. 18, 2000).
    \429\ Id.; interview with Michael Gill, former Staff Secretary, 
Office of the Vice President, in Washington, DC (July 24, 2000). It is 
unclear as to whether Gill's advice was accurate. By September 1996, 
ARMS interfaced with the Lotus Notes system. Interview with Daniel A. 
``Tony'' Barry, Computer Specialist, Office of Administration, in 
Washington, DC (Mar. 12, 2000). Given Gill's lack of experience with 
the management of information systems, it is not surprising that he did 
not know about the potential for the Notes/ARMS interface. Interview 
with Michael Gill, former Staff Secretary, Office of the Vice 
President, in Washington, DC (Jul. 24, 2000) (noting that, with a 
background in finance, he had no appreciable experience with systems 
administration, information systems management or Lotus Notes prior to 
working at OVP). Gill departed the OVP in December 1996.
---------------------------------------------------------------------------
    Because the White House has not completed its production of 
relevant documents concerning this matter, it is difficult to 
reach definitive conclusions.\430\ However, given the fact that 
the OVP did not properly implement the other two methods of 
records management--saving hard copies of e-mails or 
electronically backing them up--the decision not to use ARMS 
was ill-considered.
---------------------------------------------------------------------------
    \430\ Another factor making it difficult to reach definitive 
conclusions is that two significant witnesses involved with the OVP 
problem, Kumiki Gibson and Jonathan Gill, have not yet made themselves 
available for interviews.
---------------------------------------------------------------------------
    It is difficult to understand why the OVP chose not to use 
the White House's ARMS system. Similarly, there appears to be 
no sensible rationale for relying on manual printouts and use 
of backup tapes. In deciding not to have OVP e-mail ARMS-
managed, the OVP effectively decided that it should not have to 
manage its e-mail in the same manner chosen by the White House 
Office. More meaningfully, it also effectively decided that it 
did not need to have the capability to word search 
electronically its e-mail when complying with outstanding 
subpoenas. This could not have been lost on senior staff in the 
Vice President's Office. When asked whether he directed that 
the backup tapes be searched in response to subpoenas, Judge 
Campbell said he did not.\431\ He could not offer any 
explanation as to why not.\432\ Campbell noted that searching 
the tapes would be a slow and expensive process, but admitted 
that he was not aware of the cost or difficulty of searching 
the backup tapes at that time.\433\
---------------------------------------------------------------------------
    \431\ Telephone interview with Hon. Todd Campbell, former Counsel 
to the Vice President (Aug. 18, 2000).
    \432\ Id.
    \433\ Id.
---------------------------------------------------------------------------
    The committee continues to investigate this matter, 
focusing on the OVP's decision not to use ARMS. The OVP's 
decisions raise troubling questions, for example: (1) whether 
it was reasonable in the context of reoccurring problems with 
its backup system for the OVP to rely on backup tapes to 
records manage its e-mail electronically; \434\ and (2) whether 
it was proper in the context of subpoena compliance for the OVP 
to rely on backup tapes to records manage its e-mail 
electronically, particularly when the backup tapes were not 
used to retrieve e-mail. The committee will also consider more 
fundamental questions such as who at the OVP knew about its 
failure to records manage its e-mails, what they knew about it, 
when they knew about it, and why investigative bodies were not 
informed in a timely fashion that e-mail records were not being 
properly searched.
---------------------------------------------------------------------------
    \434\ Another issue the committee is exploring is whether OVP's 
reliance on the backup system to records manage its e-mail was 
reasonable in the context of a recurrently problematic backup system. 
Some documents the committee has received describe the loss of records 
from Feb. 22, 1994, through Mar. 19, 1994. See, e.g., White House 
document production E 5651 and E 6321 (exhibit 209).
---------------------------------------------------------------------------

          E. Office of Administration Management Failed to Act

    Whether the result of incompetence, indifference, or 
willfulness, the cavalier attitude of the White House Counsel's 
Office toward the e-mail problems was also apparent in the 
White House Office of Administration. Despite his testimony to 
the committee that his ``No. 1 priority'' was to solve the e-
mail problems, Mark Lindsay allowed the project to languish. 
Even though his staff repeatedly expressed their clear concerns 
regarding the technical problems, the funding needed to solve 
them, and the ramifications for document requests, Lindsay and 
others in OA management failed to provide the leadership or 
obtain the resources necessary for a timely solution. 
Notwithstanding his egregious failures, Lindsay was promoted 
and is now an Assistant to the President.

1. The Office of Administration Failed to Provide Direction

    The first and most obvious failure of Office of 
Administration management--and in particular Mark Lindsay--was 
the creation of an atmosphere of fear and intimidation among 
the Lotus Notes team. This issue is discussed above in detail 
in section III.A. Nevertheless, it should be noted here that 
the threats to Northrop Grumman contractors were responsible 
for the entire reconstruction project starting on the wrong 
foot. By directing the contract employees to operate in 
secrecy, Mark Lindsay and Laura Callahan placed Betty Lambuth, 
Robert Haas, and the rest of the Lotus Notes team in an 
untenable position with respect to their own managers at 
Northrop Grumman. By providing insufficient independent 
direction to the staff to remedy the Mail2 problem, OA 
management failed to compensate for these restrictions.
    Another problem plaguing the Office of Administration was 
the high rate of turnover among the staff. Essential personnel 
left OA at the same time that the Mail2 problem emerged. In 
some cases, the Mail2 problem was a contributing factor to the 
departure of staff. As discussed above in section III.A.6.c, 
Ada Posey was kept out of the loop regarding many of the 
decisions that involved the e-mail problems.\435\ She also felt 
she had little authority to get things done.\436\ Posey 
explained to committee staff that she refused to tolerate the 
situation, and she left the White House in December 1998.\437\ 
Posey told the committee that her leaving was partially, though 
not directly, related to the Mail2 problem.\438\
---------------------------------------------------------------------------
    \435\ Interview with Ada Posey, former Director, Office of 
Administration, in Washington, DC (May 18, 2000).
    \436\ Id.
    \437\ Id.
    \438\ Id.
---------------------------------------------------------------------------
    Kathleen Gallant, who was widely respected in OA, departed 
in October 1998.\439\ Paulette Cichon left OA in August 
1998.\440\ As Gallant explained to committee staff, Cichon's 
departure was one of the reasons that Gallant left, in addition 
to ``a series of events in OA'' that made her unhappy.\441\ 
``Given the leadership of OA, it was not a good place to 
stay,'' said Gallant.\442\ Assistant to the President Virginia 
Apuzzo asked Gallant not to leave, as did a number of other 
employees.\443\ The departures of Posey and Gallant made the 
leadership vacuum in OA even worse.
---------------------------------------------------------------------------
    \439\ Interview with Kathleen Gallant, former IS&T Director, Office 
of Administration, in Chantilly, VA (May 17, 2000).
    \440\ Id.
    \441\ Id.
    \442\ Id.
    \443\ Id.
---------------------------------------------------------------------------
            a. Lower Level OA Employees Wanted to Solve the Problem
    The difficulties faced by OA staff in receiving direction 
toward a solution were expressed early on by Tony Barry. On 
July 24, 1998, Barry sent the first of several e-mail messages 
detailing the lack of movement toward correcting the 
problem.\444\ In an e-mail of August 13, 1998, his tone became 
more serious. As he wrote to Jim Wright:
---------------------------------------------------------------------------
    \444\ White House document production E 3990 (exhibit 119).

        I am concerned about several aspects of this problem. 
        As far as I can tell, there is no movement under way to 
        fix the problem and recover the lost records from the 
        backup tapes. When I talk to Sandy, John or Bob they 
        tell me that there is no movement on this project from 
        their side and the last activity was the meeting we had 
        with Betty before she left (7/28). . . . I appologize 
        [sic] for the rambling nature of this memo but I hope 
        it captures my concerns and frustration level.\445\
---------------------------------------------------------------------------
    \445\ Id. at E 0998-0999 (exhibit 52).

    Nearly a month later, Barry sent another e-mail of a 
similar tone to both Wright and Gallant. On September 10, 1998, 
he wrote, ``I am growing increasingly concerned about the 
seeming lack of movement on the Mail2 problem. Do you know 
where the hold up is. We have known about this problem for 4 
months now and not a single record has been passed to ARMS . . 
. even worse, the root problem has not been fixed.'' \446\ 
Again, on September 25, 1998, Barry sent an e-mail to Gallant 
and Wright with the subject line, ``Concerned.'' He wrote, ``It 
has been about 2 week [sic] since I sent my last `concerned 
memo' regarding the Mail2 problem and I am still not seeing any 
movement on fixing the problem. I need to know, for my own 
sanity, exactly what my role in this project should be.'' \447\
---------------------------------------------------------------------------
    \446\ Id. at E 4009 (exhibit 113).
    \447\ Id. at E 4063 (exhibit 109).
---------------------------------------------------------------------------
    In his interview with the committee, Jim Wright stated that 
he agreed with Barry's concerns.\448\ Wright told the committee 
that he tried to ``get the holdup fixed upstairs'' through 
Gallant.\449\ Wright pestered Gallant every Monday at their 
weekly meetings and forwarded Daniel Barry's e-mail to 
Gallant.\450\ He told the committee, however, that Gallant 
could never get an answer from management.\451\
---------------------------------------------------------------------------
    \448\ Interview with Jim Wright, former COTR and IS&T Data Center 
Branch Chief, Office of Administration, in Washington, DC (June 8, 
2000).
    \449\ Id.
    \450\ Id. See also White House document production E 3989 (exhibit 
119).
    \451\ Interview with Jim Wright, former COTR and IS&T Data Center 
Branch Chief, Office of Administration, in Washington, DC (June 8, 
2000).
---------------------------------------------------------------------------
    Gallant corroborated this account to committee staff.\452\ 
In an interview, Gallant stated that ``on multiple occasions'' 
she brought the concerns of Barry and others to the attention 
of Mark Lindsay.\453\ Because of his admonition about secrecy, 
Gallant took Lindsay aside at the end of Ada Posey's weekly 
staff meetings to discuss the lack of direction and the need 
for funding.\454\ Gallant also said that, while she had no 
specific recollection of forwarding Barry's ``concerned'' e-
mails to Lindsay, doing so would have been consistent with her 
past practice.\455\ Despite these repeated reminders, Gallant 
explained to the committee, she could never get a straight 
answer from Lindsay, or anyone around him.\456\ She further 
stated that the response was always ``Mark's working on it,'' 
but nothing would ever get done.\457\ As with the increasing 
frustration expressed in Barry's e-mails, Gallant said she 
eventually realized that her requests related to this issue 
were going nowhere.\458\
---------------------------------------------------------------------------
    \452\ Interview with Kathleen Gallant, former IS&T Director, Office 
of Administration, in Chantilly, VA (July 20, 2000). See also White 
House document production E 1002 (exhibit 40), in which Gallant states 
to Wright and Barry in an e-mail, ``I also agree with Tony about the 
new searches that will have to be done. We need direction from OA 
counsel on that front.'' At this time, Mark Lindsay was OA General 
Counsel.
    \453\ Interview with Kathleen Gallant, former IS&T Director, Office 
of Administration, in Chantilly, VA (July 20, 2000).
    \454\ Id.
    \455\ Id.
    \456\ Id. (May 17, 2000).
    \457\ Id.
    \458\ Id.
---------------------------------------------------------------------------
            b. Disputes as to the Scope of the Contract Hindered a 
                    Solution to the Problems
    Another factor in the delay in remedying the problem was 
the dispute between the White House and Northrop Grumman as to 
the scope of the contract. As discussed above, the decisions to 
have White House employees direct Northrop Grumman employees in 
secrecy and to keep program managers such as Steve Hawkins 
uninformed, created an environment that quickly degenerated 
into distrust and inaction. This led to a paralysis that in 
part prevented a solution to the e-mail problem. But even when 
Northrop Grumman informed the White House of their 
dissatisfaction with the treatment of the contract employees, 
OA management failed to take steps to resolve the dispute.
            i. Hawkins Objected to Lindsay's Handling of the Contract
    Steve Hawkins testified to the committee that after he 
learned through Jim Wright of the problems of secrecy with the 
Northrop Grumman employees, Mark Lindsay confronted him at a 
meeting in Lindsay's office.\459\ According to Hawkins, Lindsay 
asked him why he had gotten involved. Hawkins testified that he 
told Lindsay that it was because of the contract.\460\ Hawkins 
further stated: ``It was very specific in the contract that the 
COTR gave direction to the program manager and no one else. 
And, therefore, I took the position that I could not support 
this project and would not do it without an internal work 
order, which was compliant with our contract.'' \461\ In his 
own testimony, Lindsay confirmed that this meeting took place 
and that Hawkins complained about the work being outside the 
scope of the contract.\462\ Hawkins further testified that 
Lindsay said repeatedly at the meeting, ``I hope you appreciate 
my position here.'' \463\ Asked what he thought Lindsay's 
statement meant, Hawkins said he ``took it straight as a strong 
arm. I took it as a direct assertion that my employees should 
go do this work and I should not be involved.'' \464\ At this 
point, however, Hawkins and Northrop Grumman did not know what 
exactly the secret project--which was so mysterious that it was 
called ``Project X'' by the employees--entailed.
---------------------------------------------------------------------------
    \459\ ``Missing White House E-mails, Mismanagement of Subpoenaed 
Records,'' hearings before the Committee on Government Reform, 106th 
Cong. 106 (Mar. 23, 2000) (testimony of Steve Hawkins, former program 
manager, Northrop Grumman).
    \460\ Id.
    \461\ Id.
    \462\ Id. at 279 (testimony of Mark Lindsay, Assistant to the 
President for Management and Administration, the White House).
    \463\ Id. at 106 (testimony of Steve Hawkins, former program 
manager, Northrop Grumman).
    \464\ Id. at 106-107.
---------------------------------------------------------------------------
            ii. The Lucente Letter
    On August 28, 1998, Joe Vasta of Northrop Grumman had a 
meeting with Haas, Spriggs, Golas and Salim.\465\ Vasta had 
just succeeded Steve Hawkins as the Program Manager. The 
Northrop Grumman employees explained to Vasta the threats as 
well as the secrecy that they were ordered to work under by OA 
management.\466\ According to Jim DeWire, Vasta informed him 
over the phone that the Northrop Grumman employees were 
concerned that what they were working on was not legal.\467\ As 
a result, DeWire arranged a meeting between these employees and 
Northrop Grumman corporate counsel, Ralph Pope.\468\ That 
meeting took place on September 9, 1998, and included Joseph 
Lucente, director of contracts and subcontracts for the 
company.\469\ As a result of this meeting, Northrop Grumman 
drafted a letter of September 14, 1998, signed by Lucente.\470\ 
The letter stated in part:
---------------------------------------------------------------------------
    \465\ Interview with Joe Vasta, former program manager, Northrop 
Grumman, in Washington, DC (June 27, 2000). The Aug. 28, 1998, meeting 
was intended to familiarize Vasta with the Mail2 problem. Vasta stated 
to the committee that, in this meeting, the Northrop Grumman contract 
employees told Vasta about the threats and secrecy. Vasta also stated 
that, at the end of this meeting, John Spriggs confiscated the notes 
Vasta had just taken on these details.
    \466\ Id.
    \467\ Interview with Jim DeWire, program director, Northrop 
Grumman, in Washington, DC (June 15, 2000). As discussed in section 
III.D.1, DeWire had originally agreed to Ada Posey's special 
arrangement, so long as the work was inside the scope of the contract 
and legal.
    \468\ Id.
    \469\ Interview with Joseph Lucente, director of contracts and 
subcontracts, Northrop Grumman, in Washington, DC (May 1, 2000).
    \470\ Northrop Grumman document production NGL 00503 (exhibit 64).

        Ms. [Callahan] directed the Company employees to 
        evaluate the problem and undertake remedial action, 
        without Northrop Grumman management involvement. Since 
        that time, Company employees have studied the nature 
        and extent of the dysfunction and have undertaken with 
        some incomplete remedial efforts. Based on our review, 
        the level of effort required to remedy the dysfunction 
        will substantially exceed the scope of work 
        contemplated under the referenced contract. As a 
        consequence we are not proceeding with our efforts to 
        remedy the dysfunction until we have received further 
        contractual direction.\471\
---------------------------------------------------------------------------
    \471\ Id.

    Lucente and Vasta both stated to the committee that they 
did not receive feedback from anyone at the White House 
responding to the September 14, 1998, letter.\472\ Dale Helms 
stated to the committee that he believed the White House 
responded to the September 14, 1998, letter from Northrop 
Grumman by submitting a Statement of Work (SOW) to the 
company.\473\ As far as Helms was concerned, the October 20, 
1998, SOW provided the feedback Northrop Grumman had 
requested.\474\ The SOW, however, did not address the issue of 
White House employees directing contractors without management 
involvement. Lucente and Vasta apparently did not view the SOW 
as providing sufficient contractual direction. It is likely 
that Lucente and Vasta were referring to direction that should 
be received under the base contract. In any event, OA 
management did not take timely action necessary to remedy the 
confusion over the scope of the contract and the management of 
Northrop Grumman employees.
---------------------------------------------------------------------------
    \472\ Interview with Joseph Lucente, director of contracts and 
subcontracts, Northrop Grumman, in Washington, DC (May 1, 2000); and 
interview with Joe Vasta, former program manager, Northrop Grumman, in 
Washington, DC (June 27, 2000).
    \473\ Interview with Dale Helms, CO and IS&T Procurement Branch 
Chief, Office of Administration, in Washington, DC (June 5, 2000).
    \474\ Id.
---------------------------------------------------------------------------
    Northrop Grumman responded to the SOW from the White House 
with an Internal Work Order (IWO), presented on December 2, 
1998. This ``Rough Order of Magnitude'' to study the costs of 
recovering the unrecorded e-mails was for $602,492.\475\ This 
estimate did not include the actual cost of reconstruction. 
According to Ada Posey and others, the White House balked at 
this estimate. Posey said she had ``absolute sticker shock'' at 
the cost.\476\ She told the committee that she wanted Northrop 
Grumman to know that the estimate was unacceptable.\477\ Dale 
Helms, on the other hand, told the committee that the White 
House simply chose not to fund the proposal.\478\ It is not 
clear whether Posey's specific cost concerns were ever 
communicated to Northrop Grumman.\479\
---------------------------------------------------------------------------
    \475\ Northrop Grumman document production NGL 00268 (exhibit 72).
    \476\ Interview with Ada Posey, former Director, Office of 
Administration, in Washington, DC (May 18, 2000).
    \477\ Id.
    \478\ Interview with Dale Helms, CO and IS&T Procurement Branch 
Chief, Office of Administration, in Washington, DC (June 5, 2000).
    \479\ See, e.g., White House document production E 0943 (exhibit 
29). This e-mail shows that Barry communicated to Vasta that they could 
not proceed as described in the IWO, but it does not explicitly mention 
the cost.
---------------------------------------------------------------------------
    Apparently, OA staff were not kept informed of the 
progress--or lack thereof--in resolving the contractual 
difficulties between the White House and Northrop Grumman. The 
long-running confusion and hold-up over contractual issues is 
evidenced in several e-mails from Tony Barry. In November 1998, 
Barry sent two e-mails indicating that Northrop Grumman needed 
technical guidance on the Mail2 IWO.\480\ And as late as 
October 1999, Barry attempted to receive direction from OA 
management on the IWO issue. As he wrote to Kate Anderson on 
October 26, 1999, ``I am trying to find out the status (From 
[sic] your perspective) on the `Mail2' issue and the related `D 
problem.' . . . NG put together an IWO for recovering the data 
(&600K +) [sic]. I am now trying to find out If [sic] this 
needs to be accomplished. Any help would be appreciated.'' 
\481\ Anderson responded to Barry saying, ``I will check with 
Mark Lindsay and Mike Lyle.'' \482\ It is unclear whether 
Anderson followed through on this assurance.\483\ It is clear, 
however, that rather than actively seek another solution, the 
White House did nothing to resolve this contractual logjam. In 
fact, the White House did not seek another contractor for the 
job until after this committee began its investigation in March 
2000, leaving the reconstruction project to languish for a year 
and a half.
---------------------------------------------------------------------------
    \480\ White House document production E 0944, E 0945 (exhibits 30-
31).
    \481\ Id. at E 4484 (exhibit 164).
    \482\ Id.
    \483\ Barry received an e-mail response from Anderson on Nov. 8, 
1999, stating ``Tony: Please forward me a copy of [Northrop Grumman's] 
IWO.'' White House document production E 4486 (exhibit 200). Although 
it seems strange that someone in the OA Counsel's office would be 
requesting a copy of the IWO from a computer specialist at such a late 
date, it is unclear why this request was made or what was done with it.
---------------------------------------------------------------------------
            c. The White House's Inaction Caused Numerous Additional 
                    Problems
    Even though the root problem with the ARMS system was 
prospectively fixed in November 1998, the problems plaguing OA 
staff were far from over. After ``the bleeding'' was stopped, 
responsibility for the reconstruction phase of the project was 
given to Karl Heissner.\484\ At a committee hearing on May 4, 
2000, Heissner was asked by committee counsel, ``did you ever 
get directions from your superiors to move forward?'' Heissner 
testified, ``[n]o, sir.'' \485\ Counsel further asked, ``[a]t 
any time before the year 2000 did any manager of yours ever 
come and say you must do something to get this fixed?'' 
Heissner again testified, ``[n]o, sir.'' \486\ Heissner also 
testified, ``I was waiting for direction to proceed along with 
the funding that's required to do that.'' \487\
---------------------------------------------------------------------------
    \484\ See White House document production E 4007 (exhibit 103). See 
also ``Missing White House E-mails, Mismanagement of Subpoenaed 
Records,'' hearings before the Committee on Government Reform, 106th 
Cong. 22 (May 4, 2000) (testimony of Karl Heissner, IS&T Systems 
Integration and Development Branch Chief, Office of Administration).
    \485\ Id. at 96.
    \486\ Id.
    \487\ Id. at 95.
---------------------------------------------------------------------------
    The failure by OA management to give direction to Heissner 
caused additional problems for the staff responsible for 
records management. The fact that so many tapes had not been 
reconstructed created inventory problems and added significant 
costs to the entire backup process necessary for archiving and 
subpoena compliance. Nell Doering summarized these concerns in 
an e-mail sent to Dorothy Cleal, Jim Wright, and Chuck Sigman 
on March 17, 1999. She wrote:

        The Server 2 Backup Tapes that were not records managed 
        need to be restored and ultimately put into ARMS. These 
        tapes have not been inventoried, documented, sampled, 
        tested, or anything else according to Tony Barry. . . . 
        Sooooo [sic]--as I understand it from Tony--the backup 
        tapes just keep piling up and now are a complete mess 
        and a mounting problem. As long as the backup tapes 
        keep piling up--its costing money. It will cost money 
        to do nothing.\488\
---------------------------------------------------------------------------
    \488\ White House document production E 3837 (exhibit 116).

Doering continued in her e-mail to explain the results of 
---------------------------------------------------------------------------
inaction. She listed them as:

        1. Continue to buy more backup tapes. At what cost?? 2. 
        Unnecessary backup tapes keep piling up. 3. We still 
        will not have an inventory, documentation, etc. of 
        these backup tapes and is danger [sic] of loss and/or 
        damage. 4. If a solution to restoring the backup tapes 
        is not resolved soon--this information will not get 
        into ARMS in time for the reconversion to the NARA 
        format. 5. This will probably mean a separate recovery 
        project just for these backup tapes at a later time. 
        Given it is getting close to transition--this is really 
        not acceptable.\489\
---------------------------------------------------------------------------
    \489\ Id. at E 3839 (exhibit 116).

    Despite such warnings about the administrative difficulties 
and costs of inaction, the reconstruction project did not 
commence for another year, that is, not until after it was 
discussed by the media in a light unfavorable to the White 
House.

2. The White House's Failure to Secure Funding Delayed a Solution

    The failure by OA management to respond to staff requests 
to fix the ARMS system and reconstruct unrecorded e-mail 
extended not only to moving forward with the technical fix, but 
also to securing the moneys necessary to solve the problem. 
Lindsay, Lyle, and others in OA management failed to take steps 
necessary to fund a timely solution to the e-mail problem.
    In her interview on April 14, 2000, Paulette Cichon, former 
Deputy Director of OA, attributed the lack of movement to 
resolve the e-mail problems to the lack of ``funding and 
bodies.'' \490\ Cichon stated that she understood that, if 
there was no money and no personnel, nothing would happen to 
fix the problem.\491\ According to Kathleen Gallant, the need 
for funding was communicated directly to Mark Lindsay. Gallant 
stated in an interview that ``[h]e knew because I communicated 
that without this money, it would not be fixed.'' \492\ 
Nevertheless, Mark Lindsay did not request the necessary 
funding until March 20, 2000--after this committee had 
scheduled hearings on the matter.\493\ It could not have been 
lost on senior White House staff that delay and inaction have 
considerably postponed a full solution to the problem.
---------------------------------------------------------------------------
    \490\ Interview with Paulette Cichon, former Deputy Director, 
Office of Administration, in Washington, DC (Apr. 14, 2000). It should 
be noted that Cichon did not originally return the calls of the 
majority staff of the committee. Instead, she made first contact with 
the committee through the minority staff, providing them with a written 
statement.
    \491\ Id.
    \492\ Interview with Kathleen Gallant, former IS&T Director, Office 
of Administration, in Chantilly, VA (May 17, 2000).
    \493\ See letter from the Honorable Jim Kolbe, chairman, 
Subcommittee on Treasury, Postal Service, and General Government, to 
Mark Lindsay, Assistant to the President for Management and 
Administration, the White House (Apr. 27, 2000) (exhibit 145).
---------------------------------------------------------------------------
            a. Internal Funding Requests Were Ignored
    The OA employees responsible for correcting the e-mail 
problems sought funding from within to remedy the situation. As 
she testified in her May 10, 2000, affidavit, former Director 
of IS&T, Kathleen Gallant, ``requested that Mark Lindsay and 
Ada Posey take action to determine if National Security Council 
(NSC) funds allocated by law for the ARMS system as it related 
to NSC . . . which still had a large amount of unspent funds, 
could be directed to shoring up the ARMS system.'' \494\ 
Management, however, ignored her requests. As Gallant further 
testified: ``[d]espite my repeated requests, . . . nothing of 
consequence was ever done to reallocate funds, and therefore no 
funds were available to purchase the equipment needed to 
rectify the email [sic] problem.'' \495\
---------------------------------------------------------------------------
    \494\ Declaration of Kathleen Gallant, former IS&T Director, Office 
of Administration, at para. 12 (May 10, 2000) (exhibit 154).
    \495\ Id. at para. 13.
---------------------------------------------------------------------------
    Gallant further stated that she asked Mark Lindsay 
personally about the progress of funding. Gallant said she 
discussed funding with Lindsay several times. She told him, 
``[w]e're in dire straits here. We need to do something.'' 
\496\ She said that Lindsay himself mentioned the possibility 
of transferring the NSC funds as opposed to asking Congress for 
additional appropriations.\497\ Despite these discussions, 
Lindsay never acted to approve a transfer of funds to purchase 
the hardware necessary to recover the e-mails.\498\
---------------------------------------------------------------------------
    \496\ Interview with Kathleen Gallant, former IS&T Director, Office 
of Administration, in Chantilly, VA (May 17, 2000).
    \497\ Id. (July 20, 2000).
    \498\ Id. (May 17, 2000).
---------------------------------------------------------------------------
    In his interview with the committee, Jim Wright 
specifically corroborated Gallant's account about reallocation 
of existing funds. He stated that use of NSC funds to fix the 
e-mail problem was pushed because of the significant amount of 
leftover money in the account.\499\ Several other witnesses 
interviewed by the committee corroborated Gallant's statements 
more generally, stating that several employees in the Office of 
Administration sought funding, but that management never took 
action. Dorothy Cleal told the committee that her staff kept 
pushing for money to fix the e-mail problem and that she 
supported them.\500\ Nell Doering stated to the committee that 
her office could not get an answer out of either Lyle or 
Lindsay about getting money to reconstruct the e-mails.\501\
---------------------------------------------------------------------------
    \499\ Interview with James Wright, IS&T Data Center Branch Chief, 
Office of Administration, in Washington, DC (June 1, 2000).
    \500\ Interview with Dorothy Cleal, former IS&T Director, Office of 
Administration, in Washington, DC (May 15, 2000).
    \501\ In her interview, Doering also stated that she thought she 
remembered Tony Barry suggested using Armstrong money to reconstruct 
the e-mails, but that he was denied. Interview of Nell Doering, 
Supervisory Management Analyst, OA, in Washington, DC (May 26, 2000).
---------------------------------------------------------------------------
            b. For Two Years, the White House Failed to Seek the 
                    Appropriations Necessary to Fix the Problem
    As was the case in failing to notify the numerous document 
requestors, the White House also failed to inform congressional 
appropriators of the e-mail problems until after the issue was 
public and this committee had begun its investigation. In fact, 
the Office of Administration did not seek appropriations until 
March 20, 2000, 3 days before Michael Lyle was scheduled to 
testify before Chairman Kolbe's subcommittee.\502\ Mark Lindsay 
sent a letter to Chairman Kolbe requesting the use of 
$1,700,000 in funds previously appropriated to the Armstrong 
Resolution Account for reconstruction of the e-mails.\503\ So, 
between June 19, 1998, and March 20, 2000, no effort was made 
by anyone in the White House to explain the e-mail problems to 
appropriators or to secure the congressional funding necessary 
to reconstruct the unrecorded e-mails. It is particularly 
troubling to the committee that there was a general awareness 
within White House management that without money there would be 
no progress. The White House allowed itself to remain in the 
situation that would prevent compliance with subpoenas. From 
the committee's perspective, the White House's actions are not 
mysterious: without money, documents could not be produced, and 
the fear of unknown oversight problems was thereby eliminated.
---------------------------------------------------------------------------
    \502\ Letter from the Honorable Jim Kolbe, chairman, Subcommittee 
on Treasury, Postal Service, and General Government, to Mark Lindsay, 
Assistant to the President for Management and Administration, the White 
House (Apr. 27, 2000) (exhibit 145). As in other instances, the 
committee finds the timing of this action by the White House to be the 
result of outside pressure, rather than a genuine attempt to solve the 
problem.
    \503\ Id.
---------------------------------------------------------------------------
            i. The March 2, 1999, Appropriations Hearing
    One year before Michael Lyle sat before the House Treasury, 
Postal Service, and General Government Appropriations 
Subcommittee, his predecessor as Director of OA had the same 
opportunity. Mark Lindsay testified before the Subcommittee on 
March 2, 1999.\504\ Lindsay had been hired by Ada Posey to be 
in charge of the appropriations process, and to improve 
relations between OA and congressional appropriators.\505\ 
During the 1999 hearing, Lindsay testified that his office was 
``confident that this budget request will allow the Executive 
Office of the President to maintain a high level of effective 
service to the President and the Nation[.]'' \506\ 
Nevertheless, the budget request did not address the e-mail 
problems. Moreover, at no time in his testimony did Mark 
Lindsay address the failure of the ARMS system or the need to 
use Armstrong funds to reconstruct unrecorded e-mails.\507\ The 
White House let its best and most logical opportunity to 
address and remedy the problem pass without securing the 
funding necessary to do so. As is detailed below, there is 
strong evidence that this failure to act was intentional.\508\
---------------------------------------------------------------------------
    \504\ Such hearings are part of the normal course of the annual 
appropriations process, and are held at a similar time each year so 
that the Director of OA can submit his budget request to the Congress.
    \505\ Interview with Ada Posey, former Director, Office of 
Administration, in Washington, DC (May 18, 2000).
    \506\ ``Treasury, Postal Service, and General Government 
Appropriations for Fiscal Year 2000: Hearings Before a Subcommittee on 
Appropriations--Part 3, Executive Office of the President and Funds 
Appropriated to the President,'' House of Representatives, 106th Cong. 
(1999) (statement of Mark Lindsay, then Director, Office of 
Administration, the White House).
    \507\ Id.
    \508\ This committee also finds it troubling that in his prepared 
remarks on paper for the Mar. 23, 2000, hearing before the 
appropriations subcommittee, Michael Lyle made no reference to the 
Mail2 problem whatsoever. Such an omission raises a question as to 
whether Lyle would have brought the e-mail problems to the attention of 
Chairman Kolbe and the subcommittee if he had not been questioned about 
it.
---------------------------------------------------------------------------
            ii. Deletion of the Mail2 Bullet From the March 1999 
                    Briefing Book
    The White House's preparation process for the March 2, 
1999, hearing is revealing. Several members of the staff of OA 
created a briefing book for Lindsay to prepare him for his 
testimony before Congress. Preliminary drafts of the briefing 
book were reviewed by Dorothy Cleal, Karl Heissner, and Kate 
Anderson, among others.\509\ The version of the draft dated 
February 24, 1999, contained a bullet point on ``Mail 2 
Reconstruction'' that described the problem, as well as the 
cost to reconstruct the e-mails.\510\ Karl Heissner, who e-
mailed his changes that same day, drafted this bullet.\511\ 
Changes to this draft that were submitted by Dorothy Cleal kept 
this bullet in place.\512\ The changes submitted by Kate 
Anderson of OA's Office of General Counsel, however, deleted 
this bullet entirely.\513\ In an interview with the committee, 
Anderson confirmed that she had crossed out the item.\514\ As a 
result, the final version of the briefing book did not include 
the bullet point on Mail2 reconstruction.
---------------------------------------------------------------------------
    \509\ See White House document production E 3946 (exhibit 94); id. 
at E 4382, E 4387, E 4392 (exhibit 132-134).
    \510\ The bullet in the Feb. 24, 1999, the document reads: ``Due to 
a technical anomaly (user identifications hand keyed into the E-mail 
system as all capitals), some White House and OPD e-mail was not 
captured in ARMS. The data not captured may still exist on server 
backup tapes taken periodically during the period of the problem. One 
estimate received for the development of a system to reconstruct 
uncaptured e-mail is $602,000. The cost estimate for the actual record 
recovery is expected at completion of the development of the 
reconstruction system.'' See id. at E 4390, E 4395 (exhibit 133-134).
    \511\ Id. at E 3946 (exhibit 94).
    \512\ Id. at E 4387-4391 (exhibit 133).
    \513\ Id. at E 4392-4396 (exhibit 134).
    \514\ Interview with Kate Anderson, Assistant General Counsel, 
Office of Administration, in Washington, DC (May 10, 2000).
---------------------------------------------------------------------------
    At the May 4, 2000, investigative hearing of this 
committee, Lindsay testified that he was not aware that 
deletion of the Mail2 bullet point had taken place.\515\ 
Congressman Barr then asked Lindsay, ``[w]as the deletion of an 
accurate description of the Mail2 problem from a memo used to 
assist you in informing Congress consistent with trying to do 
your best to resolve the e-mail problem?'' \516\ To this, 
Lindsay responded: ``The briefing book was a briefing book for 
me to testify before Congress. I didn't need briefing points on 
matters that I already knew. I needed briefing points on those 
matters for which I was unfamiliar or had numerical 
information, data, personnel changes, things like that.'' \517\
---------------------------------------------------------------------------
    \515\ ``Missing White House E-mails, Mismanagement of Subpoenaed 
Records,'' hearings before the Committee on Government Reform, 106th 
Cong. 199 (May. 4, 2000) (testimony of Mark Lindsay, Assistant to the 
President for Management and Administration, the White House).
    \516\ Id. (questioning by Congressman Barr).
    \517\ Id. at 199-200 (testimony of Mark Lindsay, Assistant to the 
President for Management and Administration, the White House).
---------------------------------------------------------------------------
    Several aspects of the briefing materials undermine 
Lindsay's explanation. First, the final draft included several 
bullet points on topics about which Lindsay had knowledge, 
including the Y2K issue. Second, the deleted bullet on Mail2 
included numerical information about the estimated costs of 
reconstruction. Third, the final draft also included basic 
information of a non-technical nature such as a bullet point 
reading, ``Capital Investment Plan (CIP): Includes the 
essential investments for modernizing the EOP environment to 
meet the needs of the President, his staff, and the 
technological needs of the American People.'' \518\ And when 
pressed in questioning by Congressman Shays about each of the 
bullet points on the draft, Lindsay backpedaled from his 
original assertion that he did not need briefing points on 
matters that he already knew. The following exchange occurred 
during the May 4, 2000, committee hearing:
---------------------------------------------------------------------------
    \518\ White House document production E 4388 (exhibit 133).

        Mr. Shays. Are you telling me that you didn't know 
        about Method ITT, that you didn't know about IS&T 
        leadership, and therefore you needed that in there? You 
        didn't know about mission critical system highlights? 
        You didn't know about all these other things and these 
        need to be in there but Mail2 problem, no, you knew 
        about that so that didn't need to be in there. Is that 
---------------------------------------------------------------------------
        what you're saying?

        Mr. Lindsay. No, I'm not saying that.

        Mr. Shays. OK. So why don't you give me another story 
        then.

        Mr. Lindsay. The briefing book, obviously I used the 
        briefing book differently than you use your briefing 
        book. I was using it to address not only those issues 
        that were important but those issues where I needed to 
        have cues, either verbal cues or information cues, for 
        me to provide testimony and to respond to the questions 
        which were most likely to come up at the hearing. Y2K 
        issues were issues that I was informed by the members 
        of the Committee were certainly going to be issues that 
        were going to come up at the hearing. Therefore, I 
        would go into greater detail in my briefing book for 
        what information was included.

        Mr. Shays. So the real answer then is since we didn't 
        know about the Mail2 problem you weren't going to be 
        asked about it, no point in having it in your book?

        Mr. Lindsay. No, sir.

        Mr. Shays. Did we know about the problem?

        Mr. Lindsay. I don't know, sir.

        Mr. Shays. Why would we know about the problem? You 
        guys didn't tell anybody.\519\
---------------------------------------------------------------------------
    \519\ ``Missing White House E-mails, Mismanagement of Subpoenaed 
Records,'' hearings before the Committee on Government Reform, 106th 
Cong. 207-208 (May 4, 2000).

The committee finds it implausible that Kate Anderson would 
delete only the draft bullet point relating to Mail2 
reconstruction if, as claimed, the purpose of such edits was to 
eliminate information with which Lindsay was already familiar, 
or that was technical or related to personnel. Therefore, it 
appears that the point was eliminated because a clear decision 
had been made to refrain from raising the issue.
    Lindsay and Anderson also made statements to the committee 
explaining that the bullet on Mail2 reconstruction was deleted 
because it was not an issue likely to come up at the 1999 
appropriations hearing.\520\ This explanation is disingenuous 
at best, and begs the question of how the appropriations 
subcommittee could ask questions about a problem of which it 
had never been informed. Such statements assume the ability of 
appropriators to divine technical problems with the ARMS 
system.
---------------------------------------------------------------------------
    \520\ Interview with Kate Anderson, Associate Counsel, Office of 
Administration, in Washington, DC (May 10, 2000).
---------------------------------------------------------------------------
    A strange and contradictory explanation of the deleted 
bullet point offered by Anderson is that Mail2 reconstruction 
was not seen as relevant.\521\ Anderson stated in an interview 
that Mail2 was not using 1999 funds that had been appropriated, 
and it was not a program for which OA would be seeking 
funds.\522\ She further stated that she deleted the bullet 
point because she ``didn't think it was relevant.'' \523\ 
Despite making such a critical decision about whether to bring 
the Mail2 problem to the attention of Congress, Anderson stated 
that she could not recall whether she spoke to anyone as to 
whether she should take out the bullet.\524\ Nor could she 
recall whether she talked to anyone about the Mail2 
bullet.\525\ Assertions by Anderson that Mail2 reconstruction 
was irrelevant to the appropriations hearing are at odds with 
Lindsay's statement that his ``first belief was to do whatever 
was necessary to fix the computer problem.'' \526\ Since 
obtaining sufficient funding was necessary to reconstruct and 
search the missing e-mail, informing appropriators would have 
been the natural course of action for anyone legitimately 
interested in seeking a solution.
---------------------------------------------------------------------------
    \521\ Id.
    \522\ Id.
    \523\ Id.
    \524\ Id.
    \525\ Id. The committee also finds Anderson's lack of recollection 
on this and other matters troubling.
    \526\ ``Missing White House E-mails, Mismanagement of Subpoenaed 
Records,'' hearings before the Committee on Government Reform, 106th 
Cong. 198 (Mar. 23, 2000) (testimony of Mark Lindsay, Assistant to the 
President for Management and Administration, the White House).
---------------------------------------------------------------------------
    Another strange and contradictory explanation for not 
seeking funding was offered by OA Director Michael Lyle. He 
stated that OA did not inform Congress of the e-mail problems 
before March 2000, because ``the scope and magnitude of solving 
the problem was difficult to get your mind around. When you go 
to appropriators, they ask a lot of questions.'' \527\ First, 
this statement is contradicted by the summary provided by the 
Office of Administration to John Podesta in the original 
memorandum of June 19, 1998.\528\ The Podesta memo shows that 
the OA had a handle on the essence of the ARMS problem 
associated with the White House's Mail2 server, and that the 
problem resulted in a failure to capture a universe of records 
potentially responsive to outstanding subpoenas. Lyle's 
explanation is further contradicted by Mark Lindsay's initials 
on a June 18, 1998, document detailing the scope of the 
problem.\529\ Finally, Lyle's statement is contradicted by 
Lindsay's assertion that he knew the Mail2 issue so well that 
he did not need it to have it inserted into his briefing book.
---------------------------------------------------------------------------
    \527\ Interview with Michael Lyle, Director, Office of 
Administration, in Washington, DC (Apr. 27, 2000).
    \528\ White House document production E 3373 (exhibit 3).
    \529\ Id. at E 3462 (exhibit 50).
---------------------------------------------------------------------------
    The White House has also offered the Y2K issue as a reason 
for not requesting funds. While this issue is handled in more 
detail below, it is important to note here that Michael Lyle 
explained that the removal of the Mail2 bullet was related to 
Y2K. Lyle testified that the reference was left out by his 
staff ``[b]ecause the request for appropriations was not going 
to be requesting funds for the e-mail2 reconstruction . . . 
because a decision was made that the project had to be deferred 
in view of the Y2K crisis.'' \530\ Even assuming that such a 
decision about the relative priority of Mail2 and Y2K properly 
rested with the administration alone, that does not excuse the 
failure to inform the appropriators--or this committee, the 
Justice Department or various independent counsels--of the fact 
of such a decision. Of course, determinations about relative 
funding priorities do not rest solely, or even primarily, with 
the administration, but rather with Congress, the branch 
Constitutionally charged with making such decisions. At the end 
of the day, OA Director Michael Lyle's rationale for not 
raising the e-mail problem with Congress--``when you go to 
appropriators, they ask a lot of questions''--speaks volumes. 
His words are also consistent with the way senior White House 
staff handled the e-mail problem from the time Deputy Chief of 
Staff Podesta, White House Counsel Ruff, Assistant to the 
President Apuzzo, and OA General Counsel Lindsay were first 
told of the e-mail problems.
---------------------------------------------------------------------------
    \530\ ``Missing White House E-mails, Mismanagement of Subpoenaed 
Records,'' hearings before the Committee on Government Reform, 106th 
Cong. 117 (May 3, 2000).
---------------------------------------------------------------------------
    Based on the evidence surrounding the deletion of the Mail2 
bullet point, the subsequent self-serving statements by 
Lindsay, Anderson and Lyle, and the failure over nearly 2 years 
to secure remedial funding, the committee believes that Mark 
Lindsay and others within OA affirmatively decided not to 
inform congressional appropriators of the e-mail problems. The 
committee further believes that the decision not to seek 
appropriations is consistent with the pattern of secrecy and 
obstruction used by senior White House personnel in handling 
the various e-mail problems.
            c. Confusion in OA Over the Use of Armstrong Funds for 
                    Mail2 Reconstruction
    Soon after the March 1999, appropriations hearing, the 
issue of the use of Armstrong funding to reconstruct the 
unrecorded e-mail was discussed among OA management and 
staff.\531\ In March 1999, Budget Analyst Joe Kouba prepared a 
document to be used to brief Virginia Apuzzo on the Armstrong 
account.\532\ Kouba solicited the information that should be 
included in the briefing from Heissner, Doering, and 
Barry.\533\ The original draft included a bullet on Mail2 
reconstruction, but the bullet was eventually deleted as a 
result of a decision made by Michael Lyle. As a result, Apuzzo 
was never briefed on this funding requirement.
---------------------------------------------------------------------------
    \531\ Interview with Michael Lyle, Director, Office of 
Administration, in Washington, DC (Apr. 27, 2000). See n.48, above 
(describing the Armstrong decision).
    \532\ Interview with Joseph Kouba, Financial Management Division 
Budget Analyst, Office of Administration, in Washington, DC (May 12, 
2000).
    \533\ Id.
---------------------------------------------------------------------------
    The series of e-mails surrounding the discussion of the 
briefing bullets are instructive. On March 18, 1999, Joe Kouba 
sent an e-mail on ``Armstrong Talking Points for 3/19'' to Kate 
Anderson, Dotty Cleal, Karl Heissner, Tony Barry, Christina 
VanFossan, Nell Doering, and Michael Lyle. The final bullet 
point on the e-mail stated ``[t]he General Counsel has 
determined that Armstrong funding can be used for the MAIL 2 
reconstruction project. IST is implementing the first steps of 
this project.'' \534\ In her response to this e-mail, Kate 
Anderson wrote, ``Joe: See changes below. As you will note, I 
deleted the last bullet until I confirm with Mike.'' \535\ 
Kouba next forwarded this response to the recipients of the 
original e-mail, stating, ``[l]ooks like MAIL 2 reconstruction 
is back on hold until some additional confirmation is 
received.'' \536\
---------------------------------------------------------------------------
    \534\ White House document production E 3845 (exhibit 98).
    \535\ Id. at E 3863 (exhibit 96).
    \536\ Id.
---------------------------------------------------------------------------
    The next day, Michael Lyle sent an e-mail to Joe Kouba 
stating, ``Joe--please correct the budget materials re OA by 
removing the bullet point relating to Mail 2 Reconstruction. 
Thanks--Mike.'' \537\ Finally, on March 22, 1999, Dorothy Cleal 
sent an e-mail to Christina VanFossan asking, ``[d]o we need to 
confer on this? Should we push Mike to get resolution?'' \538\
---------------------------------------------------------------------------
    \537\ Id. at E 3911 (exhibit 84).
    \538\ Id. at E 3863 (exhibit 96).
---------------------------------------------------------------------------
    Michael Lyle told the committee that he had the bullet 
deleted from the Apuzzo briefing materials because it was 
``plain out [sic], flat out wrong.'' \539\ In a separate 
interview, committee counsel asked Kouba why he would include a 
bullet that was so obviously wrong. Kouba assumes he may have 
asked someone in the legal office, likely Anderson, and she 
told him to include the bullet. Kouba stated, ``I don't make 
stuff up.'' \540\
---------------------------------------------------------------------------
    \539\ Interview with Michael Lyle, Director, Office of 
Administration, in Washington, DC (Apr. 27, 2000).
    \540\ Interview with Joseph Kouba, Financial Management Division 
Budget Analyst, Office of Administration, in Washington, DC (May 12, 
2000).
---------------------------------------------------------------------------
    The committee asked Anderson about the legal determination 
that was made regarding the use of Armstrong funds for 
reconstruction. She told the committee that she was probably 
asked to analyze the funding issue by Lyle.\541\ According to 
Anderson, she eventually concluded that the Armstrong funds 
were unavailable for reconstruction because ``virtually, almost 
all of [the records affected] were Presidential records'' and 
``the account is specific and goes to compliance with the 
court's order.'' \542\ Anderson further stated, ``[a]ctions to 
maintain compliance with Armstrong can't be funded by the 
Armstrong account.'' \543\
---------------------------------------------------------------------------
    \541\ Interview with Katherine Anderson, Associate General Counsel, 
Office of Administration, in Washington, DC (May 10, 2000).
    \542\ Id.
    \543\ Id.
---------------------------------------------------------------------------
    However, the Office of Administration eventually asked the 
appropriations subcommittee to release $1.7 million in 
unobligated Armstrong funds.\544\ The fact that the request was 
not made until March 2000 indicates bad faith on the part of 
OA. By determining that they could not legally use Armstrong 
funds for reconstruction, and at the same time waiting for more 
than a year to ask Congress for permission to use the funds for 
reconstruction, OA was making the jobs of IS&T staff and the 
Northrop Grumman contractors impossible. Reconstruction of the 
unrecorded e-mails was never allowed to get off the ground 
because of OA management's failure to secure funding from any 
of the possible sources.
---------------------------------------------------------------------------
    \544\ Letter from the Honorable Jim Kolbe, chairman, Subcommittee 
on the Treasury, Postal Service, and General Government Appropriations 
to Mark Lindsay, Assistant to the President for Management and 
Administration, the White House (Apr. 27, 2000) (exhibit 145).
---------------------------------------------------------------------------
    In sum, the committee believes that the sheer number of 
ignored inquiries for technical direction, contractual 
direction and funding assistance suggests that the lack of 
leadership by OA management is not simply attributable to 
incompetence, or to a series of ``disconnects'' as the White 
House has described the situation. Rather, it appears to the 
committee that the failure to give direction was an intentional 
decision on the part of OA management.

3. The White House Used Y2K as a Pretext to Avoid Solving the Mail2 
        Problem

    Many of the members of OA management have stated numerous 
times to the committee that the reason the unrecorded e-mails 
were not reconstructed was the primacy of the Y2K issue. Mark 
Lindsay explained to the committee that once ``the bleeding'' 
was stopped on Mail2, he and his staff focused on the Y2K 
problem to the exclusion of e-mail reconstruction.\545\ As he 
testified on May 4, 2000: ``when we were able to resolve the 
Mail2 problem in terms of solving the glitch, the first 
priority that I had was addressing the Y2K problem.'' \546\ 
Michael Lyle testified at the previous hearing, ``[w]ith 
respect to the appropriators in 1999, during our Fiscal Year 
2000 appropriations hearing, the e-mail2 [sic] project was one 
of those projects . . . that we had to set aside for Y2K as our 
focus and our number one priority.'' \547\ The committee does 
not dispute the importance of making the White House and EOP 
computer systems Y2K-compliant. But the committee cannot accept 
the assertion that Y2K issues consumed all other 
responsibilities. At a minimum, the White House was obliged to 
inform Congress that its prioritization of Y2K matters meant 
that it would not attend to the e-mail problems and that it 
would be unable to comply fully with committee subpoenas.
---------------------------------------------------------------------------
    \545\ ``Missing White House E-mails, Mismanagement of Subpoenaed 
Records,'' hearings before the Committee on Government Reform, 106th 
Cong. 154-155 (May 4, 2000) (testimony of Mark Lindsay, Assistant to 
the President for Management and Administration, the White House).
    \546\ Id. at 155.
    \547\ Id. at 69 (May 3, 2000) (testimony of Michael Lyle, Director, 
Office of Administration).
---------------------------------------------------------------------------
            i. Mail2 Reconstruction and Y2K Were Not Mutually Exclusive
    As even a cursory review of the briefing materials for 
Lindsay's March 1999 appropriations testimony indicates, the 
Y2K issue was not the only issue for which OA staff prepared 
Lindsay to testify. The materials included bulleted information 
on OMB migration of budget applications, a new enterprise 
server, the disaster recovery plan, and the reconstruction of 
pre-1994 e-mails pursuant to the Armstrong litigation.\548\ 
This last item, the continuing reconstruction of old e-mails, 
casts serious doubt on Lindsay's and Lyle's statements about 
reconstructing e-mail from the Mail2 server. While the 
reconstruction of pre-1994 e-mails was required by the 
Armstrong decision, the fact that the pre-1994 reconstruction 
was ongoing during the Y2K work shows that other serious work 
could proceed simultaneously with Y2K preparations.
---------------------------------------------------------------------------
    \548\ White House document production E 4382 (exhibit 132).
---------------------------------------------------------------------------
            ii. Mission Critical Systems
    Mark Lindsay also testified that the Office of 
Administration did not consider the Mail2 problem to be 
``mission critical.'' \549\ At first glance, this statement 
appears to be accurate. This designation of a ``mission 
critical system,'' or ``C1,'' was given only to the project of 
making the computer systems Y2K compliant.\550\ All other 
projects were called ``mission support systems,'' or ``C2'' 
through ``C5,'' and therefore not as high of a priority.\551\ 
The Mail2 reconstruction project was given a rating of ``C2,'' 
the second most important rating.\552\
---------------------------------------------------------------------------
    \549\ ``Missing White House E-mails, Mismanagement of Subpoenaed 
Records,'' hearings before the Committee on Government Reform, 106th 
Cong. 359-360 (May 4, 2000) (testimony of Mark Lindsay, Assistant to 
the President for Management and Administration, the White House).
    \550\ Interview with Dorothy Cleal, former IS&T Director, Office of 
Administration, in Washington, DC (May 15, 2000).
    \551\ The ``C1'' designation comes from the White House's mission-
criticality rating system that has a range of ``C1'' to ``C5,'' where 
``C1'' is ``most critical'' and ``C5'' is ``non-mission-critical.'' 
Mail2 reconstruction was rated as a ``C2.'' See Northrop Grumman 
document production NGL 00418 (exhibit 163).
    \552\ Id.
---------------------------------------------------------------------------
    Dorothy Cleal, a White House employee who had significant 
experience in mission-criticality determinations, characterized 
a ``C2'' rating as ``up there'' and ``one that we needed not to 
ignore.'' \553\ So, while Y2K compliance might have been the 
only project designated ``mission critical,'' it does not 
follow that other projects could be ignored. Again, at a 
minimum, it was highly improper--given the White House's legal 
obligations--for information about OA's priorities to be kept 
from Congress.
---------------------------------------------------------------------------
    \553\ Interview with Dorothy Cleal, former IS&T Director, Office of 
Administration, in Washington, DC (May 15, 2000).
---------------------------------------------------------------------------
    The White House further claims that the mission critical 
Y2K project required the entire staff of OA to focus on Y2K. As 
Michael Lyle testified before the committee on May 3, 2000: 
``Our No. 1 purpose was ensuring Y2K compliance, and as I said, 
this was a huge undertaking. It was drawing every American 
personnel resource we had available in the IT, information 
technology, area. All of our staff was working very, very hard 
on that project in one form or another[.]'' \554\ Despite this 
testimony, OA staff actually spent significant time working on 
other issues that cannot reasonably be deemed mission critical. 
For example, projects undertaken by OA staff during the Y2K 
crunch included holiday card applications and the installation 
of 100 new Palm Pilots for White House Office users.\555\ In 
fact, the Palm Pilot installation was tasked in December 1999, 
immediately before the Y2K deadline.\556\ OA's time was also 
consumed by problems created by the White House itself, such 
as, firewall security issues stemming from downloading massive 
amounts of pornography.\557\
---------------------------------------------------------------------------
    \554\ ``Missing White House E-mails, Mismanagement of Subpoenaed 
Records,'' hearings before the Committee on Government Reform, 106th 
Cong. 56 (May 3, 2000) (testimony of Michael Lyle, Director, Office of 
Administration).
    \555\ See, e.g., Northrop Grumman document production NGL 00115 
(exhibit 80); White House document production E 3928 (exhibit 111).
    \556\ Id.
    \557\ See Deb Riechmann, ``White House Battles Employee Porn,'' 
Associated Press (Aug. 10, 2000); Paul Sperry, ``Web-porn Scandal Rocks 
White House,'' WorldNetDaily (Aug. 9, 2000) .
---------------------------------------------------------------------------
            iii. The White House Had $4.8 Million in Leftover, 
                    Unobligated Y2K Funds
    Another factor that casts doubt on the White House claim 
that Y2K was taking up all of the resources of the Office of 
Administration is that $4.8 million in funds appropriated for 
Y2K were never used.\558\ In fact, in his April 27, 2000, 
response to Mark Lindsay's belated request for Mail2 funding, 
Congressman Kolbe stated, ``[t]he [Appropriations] Committee 
believes that the most critical tasks associated with tape 
reconstruction, such as tape restoration and IV&V, can be 
accomplished within these balances. The Committee directs that 
costs associated with these tasks be absorbed from these 
unobligated balances.'' \559\ If, as Mark Lindsay testified, 
Y2K took up resources to the point where the e-mail restoration 
project fell by the wayside, it seems odd that such a 
significant amount of Y2K funding would not be used. 
Ironically, it is the unobligated Y2K funding which the 
appropriators are now directing be used for Mail2 
reconstruction. These unspent Y2K moneys amount to nearly 10 
times the $600,000 that OA management balked at spending to 
begin remedying the Mail2 problem when it first arose in 1998.
---------------------------------------------------------------------------
    \558\ Letter from the Honorable Jim Kolbe, chairman, Subcommittee 
on the Treasury, Postal Service, and General Government Appropriations 
to Mark Lindsay, Assistant to the President for Management and 
Administration, the White House (Apr. 27, 2000) (exhibit 145).
    \559\ Id. at 3.
---------------------------------------------------------------------------
    When shown Congressman Kolbe's letter to Mark Lindsay's 
former boss, Ada Posey, said she was puzzled by the $4.8 
million left over from the Y2K effort, and the fact that 
Lindsay did not inform the appropriators about the 
problem.\560\ Posey stated that she was ``as perplexed as 
anyone that Mr. Kolbe and his staff were not informed [of the 
Mail2 problem].'' \561\ She said that the reason she hired 
Lindsay was to ``have the kind of relationship with the 
Congress that we did not have. I thought that staff knew 
everything we did with IT. I throw up my hands as to why they 
did not know about Mail2--for two more hearings.'' \562\
---------------------------------------------------------------------------
    \560\ Interview with Ada Posey, former Director, Office of 
Administration, in Washington, DC (May 18, 2000).
    \561\ Id.
    \562\ Id.
---------------------------------------------------------------------------
    Posey also said, ``I would have made sure that they were 
aware that there was a lingering $600,000 question. I would 
have covered myself to make sure that we could fix it with 
other funding. Oh, yeah--I would have attempted to share.'' 
\563\ Apparently, the rest of OA management did not share this 
philosophy.
---------------------------------------------------------------------------
    \563\ Id.
---------------------------------------------------------------------------
    The Y2K crisis did not excuse the failure of the White 
House to meet its basic legal requirement to provide the 
Congress, courts, and independent counsels all materials that 
had been lawfully subpoenaed. Even if it did, the White House 
would still have an obligation to inform the requestors that it 
was unable to comply fully with subpoenas due to the pressures 
of the Y2K crisis. No such disclosure was made until after the 
fact, when the committee had already scheduled its hearings.
    The committee believes that the White House has put forward 
the Y2K issue as a pretext for its failure to reconstruct the 
missing e-mails, as well as its failure to inform appropriators 
and document requestors of the Mail2 problem. There is little 
doubt that one of the reasons senior White House staff did not 
inform Congress about e-mail problems is the knowledge that the 
White House's failure to comply with subpoenas would draw 
negative publicity and that Congress would have provided 
funding for a cure, which would have eliminated all self-
serving pretexts and therefore ensured that document searches 
were completed. The failure to notify Congress indicates that 
senior staff affirmatively covered up the problem. 
Consequently, it is difficult to believe any of their after-
the-fact rationalizations.

4. Additional Appropriations Issues

    Mark Lindsay, Michael Lyle and others have also attempted 
to shift blame for the Mail2 problem to congressional 
appropriators for ``fencing'' (i.e. setting aside) funds for 
the information technology investment plan and systems 
architecture. Again, the evidence does not support such 
assertions. Ada Posey explained that she did not believe she 
ever associated the Mail2 problems with fenced funds.\564\ It 
should also be noted that in fiscal year 1997, the fiscal year 
that the White House said was problematic, the Treasury, Postal 
Service, and General Government Appropriations Subcommittee 
appropriated all of the $26,100,000 requested by OA.\565\ In 
fact, for fiscal year 1996, fiscal year 1997, fiscal year 1998, 
fiscal year 1999 and fiscal year 2000, OA requested 
$169,231,000 and received $186,278,000 from Congress.\566\ In 
other words, the Office of Administration received $17,047,000 
more than requested over the past 5 fiscal years.
---------------------------------------------------------------------------
    \564\ Interview with Ada Posey, former Director, Office of 
Administration, in Washington, DC (May 18, 2000).
    \565\ ``Treasury, Postal Service, and General Government 
Subcommittee on Appropriations--Appropriation History (1986--
Present),'' 106th Cong. 44 (1999--with 2000 update).
    \566\ Id. $29,791,000 of these funds came from Y2K transfers 
requested by Office of Management and Budget.
---------------------------------------------------------------------------
    Moreover, as Congressman Kolbe states in his April 27, 
2000, letter: ``[i]n reviewing the chronology of events 
regarding the e-mail glitch, it is clear that the technical 
error caused by the contractor occurred at least three months 
prior to any funds being fenced.'' \567\ Congressman Kolbe 
further states:
---------------------------------------------------------------------------
    \567\ Letter from the Honorable Jim Kolbe, chairman, Subcommittee 
on the Treasury, Postal Service, and General Government Appropriations 
to Mark Lindsay, Assistant to the President for Management and 
Administration, the White House 2 (Apr. 27, 2000) (exhibit 145).

        During testimony before the Committee on March 23, 
        2000, the Director of the Office of Administration 
        indicated that, at least in part, the computer glitch 
        was caused and exacerbated by the fiscal year 1997 
        ``fenced'' appropriations. The Committee is 
        disappointed to learn that the White House is 
        attempting to use the appropriations process as an 
        excuse for poor internal oversight and management of 
        EOP operations.\568\
---------------------------------------------------------------------------
    \568\ Id.

The attempt by the White House to shift the blame for the Mail2 
failure to congressional appropriators is therefore 
disingenuous and ill-founded. Only if Congress had been fully 
informed of the e-mail problems and then denied funding 
requests to fix them would the White House's argument make any 
sense. The use of such spurious arguments casts additional 
doubt on the honesty of those who have made them.
    In his April 27, 2000, letter, Congressman Kolbe also makes 
clear his concern with the failure of OA to inform 
appropriators of the Mail2 problem. He writes: ``[f]inally, the 
Committee is extremely concerned that it took nearly two years 
for the White House to notify the Committee of this critical 
problem and the potential implications for additional moneys to 
both solve the problem and reconstruct the e-mails.'' \569\ 
This statement summarizes the dismay shown by Congressman Kolbe 
toward Michael Lyle at the appropriations hearing of March 23, 
2000, when Lyle became the first White House official to 
describe the Mail2 problem to the subcommittee.\570\ In sum, 
absent notification to the Appropriations Committee, there can 
be no plausible argument that Congress caused or exacerbated 
the e-mail problems. The attempt by the White House to make 
such an argument leads to this committee's legitimate concerns 
that other White House representations are also false.
---------------------------------------------------------------------------
    \569\ Id. Testifying before Judge Lamberth during the e-mail 
evidentiary hearings in the Alexander v. FBI civil suit, Mark Lindsay 
described portions of Congressman Kolbe's Apr. 27, 2000, letter as 
complimentary. Lindsay's testimony clearly overstated any positive 
aspect of Congressman Kolbe's letter. The letter has a critical tone 
throughout, and takes OA to task for its false representations. The 
only positive statement in the letter reads, ``[f]inally, the Committee 
is pleased to learn that the Armstrong Resolution Account continues to 
have an unobligated balance of $1.7 million.'' Id. The committee 
therefore finds it troubling that Mark Lindsay would claim in Federal 
court that the Apr. 27, 2000, letter in any way complimented him.
    \570\ See ``Treasury, Postal Service, and General Government 
Appropriations for Fiscal Year 2001: Hearings on the Executive Office 
of the President: Office of Administration,'' 106th Cong. (2000).
---------------------------------------------------------------------------

IV. The White House has Misled Congress and the Public About the E-mail 
                                Problem


                      A. The White House Response

    According to the White House, the entire e-mail matter, 
including the failure to notify Congress and other 
investigating authorities, resulted from a ``disconnect'' 
between the White House Counsel, the Office of Administration 
Management, and the Northrop Grumman contractors about the 
nature and scope of the problem.\571\ Even if that were true, 
it would not excuse the way the White House has continued to 
deal with this problem after it became well known publicly. 
Rather than admitting the mistake and its magnitude, the White 
House has continued to minimize its significance, ignore its 
consequences, and mislead the public. Rather than candidly 
cooperating with the committee's investigation, this 
administration has stonewalled, relying on obfuscation instead 
of honesty.
---------------------------------------------------------------------------
    \571\ See, e.g., ``Missing White House E-mails, Mismanagement of 
Subpoenaed Records,'' hearings before the Committee on Government 
Reform, 106th Cong. 137 (Mar. 30, 2000) (testimony of Beth Nolan, 
Counsel to the President, the White House).
---------------------------------------------------------------------------

1. The White House Made False and Misleading Statements to the Press

    The first press reports of the e-mail problem came in a 
December 1998 Insight magazine article. That article described 
the scope of the problem accurately, though not in detail: 
``there were problems with a server in a West Wing computer 
system, and engineers from a contractor discovered a blockage 
caused by about 100,000 e-mails, many of which may come under 
subpoenas issued by Capitol Hill panels and independent counsel 
Ken Starr.'' \572\ Later in the article, White House spokesman 
Barry Toiv is said to have confirmed the discovery and review 
of the problem.\573\ However, he also claimed that the e-mails 
``appear to duplicate some already turned over to requesters 
like Starr.'' \574\ When the committee interviewed Toiv, he 
said that the basis of his statement was a representation made 
to him by someone in the White House Counsel's Office, possibly 
Deputy Counsel Cheryl Mills.\575\ In any event, Toiv's comments 
had the effect of providing false assurances to the public that 
the e-mail problems had been solved.
---------------------------------------------------------------------------
    \572\ Paul Rodriguez, ``Looking for Information in All the Wrong 
Places,'' Insight on the News, Dec. 28, 1998, at 6.
    \573\ Id.
    \574\ Id.
    \575\ Interview with Barry Toiv, former Deputy Press Secretary, the 
White House, in Washington, DC (Apr. 2, 2000). Although Toiv could not 
recall with certainty who had told him, Special Associate White House 
Counsel Sally Paxton told committee staff that Toiv called her in 
December 1998 to talk about an inquiry from a reporter. Paxton told him 
that she did not have enough information and suggested that he speak to 
Cheryl Mills. Asked why she directed him to Mills, Paxton said that it 
was her impression that Mark Lindsay had talked to Mills and White 
House Counsel Charles Ruff. Interview with Sally Paxton, former Special 
Associate Counsel to the President, the White House (June 22, 2000).
---------------------------------------------------------------------------
    Following the initial coverage by Insight, the next story 
about the e-mail problem did not appear until February 2000, 
when Sheryl Hall, a former White House computer manager, filed 
an affidavit in the Alexander v. FBI litigation. The details of 
her affidavit were reported in the Washington Times on February 
15, 2000.\576\ In that article, White House spokesman James 
Kennedy was quoted as saying that administration officials had 
made ``a good faith effort to respond in a timely fashion to 
all requests for information'' under subpoena.\577\ As the 
committee's investigation and report demonstrate, this 
statement was false.
---------------------------------------------------------------------------
    \576\ Jerry Seper and Andrew Cain, ``White House Accused of Cover-
up; Ex-worker Tells of Hidden E-mails,'' the Washington Times, Feb. 15, 
2000, at A1.
    \577\ Id.
---------------------------------------------------------------------------
    The day of the Washington Times story, President Clinton 
attended a meeting about security on the World Wide Web. There, 
he was asked questions about the e-mail matter and responded 
with the following statement:

        President Clinton: (Laughs.) No, I believe that we have 
        complied with every request, and there have been 
        thousands.\578\ (Laughter.) If the American people knew 
        how much of their money we'd have to spend complying 
        with requests for . . . e-mails, they might be quite 
        amazed, but we certainly have done our best to do that. 
        There has never been an intentional effort to do that, 
        and I think that we are in full compliance. I believe 
        we are. That's what Mr. Podesta told me right before we 
        came out.\579\
---------------------------------------------------------------------------
    \578\ Apparently the President is laboring under a similar 
misapprehension as White House Spokesman Joe Lockhart. Mr. Lockhart has 
repeatedly stated that the committee issued 700 subpoenas. The 
President said thousands. The actual number of document subpoenas to 
the White House from this committee is 31. See appendix I.
    \579\ President Clinton, ``Remarks at White House Photo 
Opportunity,'' Washington, DC (Feb. 15, 2000). See also Jerry Seper, 
``Three Investigations Begin into White House E-mails; Clinton Believes 
Administration Complied with all Requests,'' the Washington Times, Feb. 
16, 2000, at A1.

When committee staff interviewed Podesta and asked him about 
this statement, he responded by explaining his recollection of 
preparing the President for questions that morning.\580\ He 
said that White House spokesman Joe Lockhart had been briefed 
by the White House Counsel's Office and was told they had made 
a good faith effort to comply.\581\ Mr. Lockhart relayed that 
to the President.\582\ Podesta separately told the President 
that they had turned over thousands of pages of e-mails to the 
OIC and various committees.\583\ Podesta speculated that the 
President confused the two statements from himself and 
Lockhart.\584\
---------------------------------------------------------------------------
    \580\ Interview with John Podesta, Chief of Staff, the White House, 
in Washington, DC (May 30, 2000).
    \581\ Id.
    \582\ Id.
    \583\ Id.
    \584\ Id.
---------------------------------------------------------------------------
    However, the Mail2 and other similar computer errors had 
prevented the White House from searching hundreds of thousands 
of incoming e-mail messages for responsive documents. Those 
errors prevented the White House from being in full compliance 
with virtually every document request from any investigative 
authority made during the affected periods. Podesta had been 
notified of the Mail2 error in July 1998, as had the Counsel's 
Office.\585\ Yet, they allowed the President to claim falsely 
that the White House was in full compliance with all document 
requests. There is no evidence that either Podesta or the 
Counsel's Office attempted to correct the public record 
regarding the President's misleading statements.
---------------------------------------------------------------------------
    \585\ White House document production E 3373-3374 (exhibit 3).
---------------------------------------------------------------------------
    When asked by committee staff whether the President's 
statement was accurate that the White House had actually 
complied with all requests, Podesta's lawyer objected, and 
stated that it was not Podesta's judgment to make.\586\ Podesta 
then said that ``the only thing fair to say is that there is a 
universe of documents, some backup tapes, that have not been 
searched.'' \587\
---------------------------------------------------------------------------
    \586\ Interview with John Podesta, Chief of Staff, the White House, 
in Washington, DC (May 30, 2000).
    \587\ Id.
---------------------------------------------------------------------------
    The White House's misleading statements continued into the 
summer 2000 as new revelations surfaced, detailed in section 
II.C and section III.D.3 of this report, that e-mail in the 
Office of the Vice President had neither been archived in ARMS, 
nor preserved on backup tapes. Another configuration error had 
prevented the OVP backup system from functioning properly. The 
error went undetected for approximately 1 year. Once again, the 
administration attempted to mislead the public by minimizing 
the significance of the problem. According to the Washington 
Post, ``White House spokesman Jim Kennedy said some of the Gore 
Office's e-mail in 1998-1999 would have been saved if it had 
been forwarded to anyone in the White House, which had an 
automatic archival system and its own back-up tapes.'' \588\ 
The White House's statement about the OVP problem ignores the 
cumulative effect of the various e-mail errors. In order for 
the White House archival system, ARMS, to have preserved some 
OVP e-mail forwarded to White House users, it would have to 
have been functioning properly. The Mail2 and D-user errors 
prevented that from happening. Therefore, the assertion that e-
mail forwarded to any White House Office user from the OVP 
would be preserved in ARMS would be false. No incoming e-mails 
to White House Office users were captured in ARMS from late 
1996 until November 1998.\589\ No incoming e-mail to any EOP 
user with a first name beginning with ``D'' was captured in 
ARMS from October 1998 to June 1999.\590\ Both of these errors 
occurred during the period in which OVP e-mail was not being 
properly backed-up to tape or archived in ARMS.\591\
---------------------------------------------------------------------------
    \588\ George Lardner, Jr., ``White House Reports Gore's E-mail for 
a Year Irretrievably Lost,'' the Washington Post, Jun. 9, 2000, at A07.
    \589\ Letter from Beth Nolan, Counsel to the President, the White 
House, to the Honorable Dan Burton, chairman, Committee on Government 
Reform (Mar. 17, 2000) (within appendix I). OVP e-mail was technically 
external to the White House Office. Since the OVP was not being ARMS-
managed, e-mail created by OVP users would not have been archived when 
sent, as would e-mail created by White House Office users. Because of 
the Mail2 error, it would also not have been archived when received by 
a White House Office user. Interview with John Spriggs, senior 
engineer, Northrop Grumman (Mar. 7, 2000).
    \590\ Letter from Beth Nolan, Counsel to the President, the White 
House, to the Honorable Dan Burton, chairman, Committee on Government 
Reform (Mar. 17, 2000) (within appendix I).
    \591\ Letter from Steven F. Reich, Senior Associate Counsel to the 
President, the White House, to James C. Wilson, chief counsel, 
Committee on Government Reform 4 (June 7, 2000) (within appendix I).
---------------------------------------------------------------------------
    As recently as August 18, 2000, the White House was 
continuing to release misleading statements regarding the e-
mail investigation. In a Washington Post article published on 
that date, White House spokesman Jake Seiwert was quoted as 
saying, ``I have no reason to think there's anything that's not 
on either backup tapes or the electronic archives. We have 
searched the entire e-mail system to be as responsive as 
possible.'' \592\ Both sentences are misleading and the second 
is demonstrably false. If Seiwert did not know as much, he 
should have. At the time Seiwert made his statement, the 
undisputed testimony of several witnesses, both in court and at 
congressional hearings, had established that approximately 6 
months' worth of Mail2 backup tapes containing data from the 
period affected by the error were inadvertently 
overwritten.\593\ Therefore, incoming e-mail that was not 
captured in ARMS during that time can never be retrieved, and 
in fact exists on neither ``backup tapes'' nor ``the electronic 
archive.'' The second sentence is also absolutely and 
inexcusably false. Anyone even remotely familiar with the 
testimonial and documentary evidence in the e-mail 
investigation knows full well that the White House has not 
``searched the entire e-mail system to be as responsive as 
possible.'' The White House has readily admitted elsewhere that 
it has not searched the entire system and is currently spending 
millions of dollars on a tape reconstruction effort in order to 
do so.\594\ Mr. Seiwert's statement became an issue bearing on 
Mark Lindsay's credibility recently when it arose in a related 
proceeding in Federal district court before the Honorable Royce 
C. Lamberth. Lindsay was testifying on the e-mail matter and 
was asked about the truthfulness of this statement:
---------------------------------------------------------------------------
    \592\ Neely Tucker, ``E-mail Searches Skip Private Clinton, Gore 
Accounts,'' the Washington Post, Aug. 18, 2000, at A09.
    \593\ See, e.g., interview with Kathleen Gallant, former IS&T 
Director, Office of Administration, in Chantilly, VA (May 17, 2000); 
``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' 
hearings before the Committee on Government Reform, 106th Cong. 147 
(May 4, 2000) (testimony of Karl Heissner, IS&T Systems Integration and 
Development Branch Chief, Office of Administration).
    \594\ Letter from Beth Nolan, Counsel to the President, the White 
House, to the Honorable Dan Burton, chairman, Committee on Government 
Reform (Mar. 17, 2000) (within appendix I).

        Question: It then states, quote, quoting Mr. Seiwert, 
        the Washington Post, ``We have searched the entire e-
        mail system to be as responsive as possible.'' That's 
---------------------------------------------------------------------------
        not true as of August 18, 2000, is it?

        Lindsay: I believe it is true . . . because it's not 
        possible to search those e-mails at this particular 
        moment, so his statement as far as I can tell is 
        exactly correct.\595\
---------------------------------------------------------------------------
    \595\ Transcript of Evidentiary Hearing at 87, Alexander v. FBI 
(D.D.C. Aug. 23, 2000) (CA 96-2123).

    That Lindsay adopted this statement as true while under 
oath in Federal court speaks volumes about his lack of 
credibility. This point was obviously not lost on Judge 
---------------------------------------------------------------------------
Lamberth:

        The Court. Wait. I can't let that go by. I mean, that's 
        beyond spin to say it's impossible and therefore it's 
        possible. I don't understand how you think that can be 
        true? You think that sentence is true?

        Lindsay. That it's either on archives or backup tapes?

        The Court. No, we have searched the entire e-mail 
        system to be as responsive as possible. Now, you know 
        that's not true. You know there are hundreds of backup 
        tapes that haven't been searched, so how can that 
        sentence be true?

        Lindsay. To be as responsive as possible, taking into 
        account the fact that we haven't looked at the backup 
        tapes because we can't.

        The Court. He didn't say that did he?

        Lindsay. No. No.

        The Court. How could that possibly be true if you don't 
        say but we have hundreds that we haven't searched? That 
        can't be a true statement, can it?

        Lindsay. I guess it's because I know that the backup 
        tapes can't be, that's why I answered the way I did.

        The Court. You happen to know it?

        Lindsay. I happen to know that.

        The Court. He sure didn't say it in this statement.

        Lindsay. No, he did not.

        The Court. So it's not true is it? Unless he added your 
        little caveat, this is not true?

        Lindsay. Maybe it's because I'm assuming that people 
        knew that, so I would understand.

        The Court. I'm sorry. I can't let things like that go 
        by.\596\
---------------------------------------------------------------------------
    \596\ Id.

    Despite the persistent questioning, in the end, Lindsay 
never did admit the obvious. While the falsity of one 
particular statement from the White House Press Office may seem 
ultimately insignificant, it is nevertheless instructive. This 
exchange illustrates not only the lack of candor in this 
administration with the press, but also the lengths to which 
Mark Lindsay will go to avoid the truth.

2. The White House Made Specious Arguments to the Committee

    Following the public disclosure of the e-mail problems, the 
White House attempted to minimize its significance to the 
committee as well as to the press. In letters and congressional 
testimony, White House Officials argued in the face of 
overwhelming evidence to the contrary that the Mail2, D-user, 
and OVP problems did not hinder the administration's previous 
attempts to comply with congressional and other subpoenas.
    The first official response to the committee's inquiries on 
the e-mail matter came from the White House Counsel's Office on 
March 17, 2000.\597\ In that response, White House Counsel Beth 
Nolan attempted to minimize the scope and significance of the 
problems while exaggerating the realm of what was unknown. For 
example, Nolan claimed not to know how many e-mails were 
unrecorded. ``OA and IS&T personnel understand that no one has 
estimated the number of e-mails that were unrecorded. If such 
an estimate was made, it was not provided to the EOP.'' \598\
---------------------------------------------------------------------------
    \597\ Letter from Beth Nolan, Counsel to the President, the White 
House, to the Honorable Dan Burton, chairman, Committee on Government 
Reform (Mar. 17, 2000) (within appendix I).
    \598\ Id. at 6.
---------------------------------------------------------------------------
    In reality, both IS&T personnel and OA management had been 
notified 2 years previously of an estimate of the number of e-
mails unrecorded as of June 18, 1998. Kathleen Gallant, former 
Director of IS&T, said that Robert Haas had told her that 
``hundreds of thousands'' of e-mails \599\ were involved and 
that she had seen the audit report he prepared.\600\ That audit 
report was first produced to the committee by Northrop Grumman 
Corp. on March 20, 2000, 3 days after Nolan's initial letter to 
the committee. The following day, Associate White House Counsel 
Dimitri Nionakis produced a second copy of the audit report to 
the committee and wrote in his cover letter, ``I am informed 
that OA and IS&T personnel were previously unaware that this 
document existed or that anyone had estimated the number of 
unrecorded e-mails.'' \601\
---------------------------------------------------------------------------
    \599\ Interview with Kathleen Gallant, former IS&T Director, Office 
of Administration, in Chantilly, VA (May 17, 2000).
    \600\ See Northrop Grumman document production NGL 00291-00365 
(exhibit 62).
    \601\ Letter from Dimitri Nionakis, Associate Counsel to the 
President, the White House, to the Honorable Dan Burton, chairman, 
Committee on Government Reform 1 (Mar. 21, 2000) (within appendix I).
---------------------------------------------------------------------------
    In fact, Kathleen Gallant reported this important 
information about the scope and significance of the problem to 
her immediate superior, Paulette Cichon, Deputy OA Director. 
Cichon confirmed to committee staff that she had heard from 
Kathleen Gallant that it was a large number and had once heard 
that it was more than 100,000.\602\ While she was unsure 
whether she had heard the 100,000 figure from Gallant or 
someone else, she believed she had heard the figure.\603\
---------------------------------------------------------------------------
    \602\ Interview with Paulette Cichon, former Deputy Director, 
Office of Administration, in Washington, DC (Apr. 18, 2000).
    \603\ Id.
---------------------------------------------------------------------------
    So despite the representations made by Nolan and Nionakis 
in their letters to the committee, both OA management and IS&T 
personnel knew of at least a rough estimate of the number of e-
mails unrecorded as of June 18, 1998. Gallant, the Director of 
IS&T, told committee staff that she actually saw the document 
that Nionakis claimed no one in IS&T knew existed.\604\ 
Although Robert Haas said that he never totaled the exact 
number of unrecorded e-mails listed on his audit, he accurately 
estimated the number as being greater than 100,000.\605\ 
Furthermore, another OA manager, Laura Callahan, was present at 
a meeting Kathleen Gallant had with Betty Lambuth, Paulette 
Cichon, and possibly Mark Lindsay.\606\ At that meeting, 
Lambuth said that ``several hundred thousand e-mail and over 
400 users'' were affected.\607\ While Gallant was certain 
Callahan was in the room when Lambuth said that, she could not 
recall definitively that Lindsay was.\608\ However, Gallant 
said she believes that Lindsay probably knew about the Haas 
audit because she knew Callahan was reporting information about 
the problem to him.\609\
---------------------------------------------------------------------------
    \604\ Interview with Kathleen Gallant, former IS&T Director, Office 
of Administration, in Chantilly, VA (July 20, 2000).
    \605\ Interview with Robert Haas, Lotus Notes administrator, 
Northrop Grumman, in Washington, DC (Mar. 7, 2000).
    \606\ Interview with Kathleen Gallant, former IS&T Director, Office 
of Administration, in Chantilly, VA (July 20, 2000).
    \607\ Id.
    \608\ Id.
    \609\ Id.
---------------------------------------------------------------------------
    Nolan's March 17, 2000, letter to the committee also 
asserted that ``[c]urrently, I am informed that there is no way 
to make this calculation [of the number of unrecorded e-mails] 
unless the backup tapes are reconstructed.'' \610\ This 
statement is an example of how the White House emphasized what 
it could not know in order to draw attention away from what it 
actually did know. In other words, rather than replying to the 
charge that officials in OA and the White House Counsel's 
Office should have understood the magnitude of the e-mail 
problem, they merely repeated the true, but irrelevant, fact 
that the precise number is unknowable. The following exchange 
during Mark Lindsay's testimony demonstrates this technique:
---------------------------------------------------------------------------
    \610\ Letter from Beth Nolan, Counsel to the President, the White 
House, to the Honorable Dan Burton, chairman, Committee on Government 
Reform 6 (Mar. 17, 2000) (within appendix I).

        Mr. Barr. You knew that there was a serious problem and 
        you knew that there was a high likelihood that 
        information that was under subpoena by the independent 
        counsel and by at least one committee of the Congress 
---------------------------------------------------------------------------
        was very likely incomplete.

        Mr. Lindsay. I did not know that, sir.

        Mr. Barr. Yes you--you couldn't have helped but have 
        known it because of the nature of this specific problem 
        brought to your attention because of these gaps----

        Mr. Lindsay. Sir, my----

        Mr. Barr [continuing]. In this system because of the 
        Mail2 problems.

        Mr. Lindsay. My staff has been unable to this day to 
        tell me the exact number of e-mails that weren't 
        included.

        Mr. Barr. You don't have to know----

        Mr. Lindsay. They have been unable to----

        Mr. Barr [continuing]. The exact number of e-mails 
        included. There you go again. See? Talking about, you 
        know, something very precise. We're asking a general 
        concern here and a general matter related to a very 
        specific problem.

        Mr. Lindsay. Yes, sir.\611\
---------------------------------------------------------------------------
    \611\ ``Missing White House E-mails, Mismanagement of Subpoenaed 
Records,'' hearings before the Committee on Government Reform, 106th 
Cong. 331-332 (Mar. 23, 2000) (testimony of Mark Lindsay, Assistant to 
the President for Management and Administration, the White House).

While it is true that the exact number of messages unrecorded 
will not be known until the reconstruction project is complete, 
Haas' audit provides a basis for understanding the broad extent 
of the problem.\612\ That the precise number is unknown does 
not mean the general dimensions are a complete mystery.
---------------------------------------------------------------------------
    \612\ Northrop Grumman document production NGL 00291-00365 (exhibit 
62).
---------------------------------------------------------------------------
    Committee staff tallied the number of e-mails listed in the 
unrecorded column for all affected users listed on the Haas 
audit, and the numbers totaled 246,083.\613\ As White House 
officials are quick to note, this number is not a precise 
calculation of the total number of e-mails unrecorded due to 
the various e-mail problems. Rather, it provides a general 
notion of how many e-mails went unrecorded due to the Mail2 
issue, which was just one of the e-mail problems confronting 
the White House.
---------------------------------------------------------------------------
    \613\ Id.
---------------------------------------------------------------------------
    Several considerations tend to suggest that the actual 
total is likely to be higher, while others tend to suggest that 
the actual number may be lower. For example, many of those 
246,083 e-mails may have been transferred to ARMS by virtue of 
being forwarded to a user on an EOP server other than Mail2. A 
number of them may have been archived by virtue of being 
replied to ``with history.'' \614\ To reply with history means 
that the outgoing reply contains a copy of the original 
message. Since outgoing e-mail from White House users on Mail2 
was captured, a reply with history would cause the original to 
be archived.
---------------------------------------------------------------------------
    \614\ See ``Missing White House E-mails, Mismanagement of 
Subpoenaed Records,'' hearings before the Committee on Government 
Reform, 106th Cong. 79 (Mar. 23, 2000) (testimony of Daniel A. ``Tony'' 
Barry, Computer Specialist, Office of Administration). On the issue of 
replying with history, it is unclear whether users in the EOP had a 
uniform default setting which would guarantee that all messages 
included history or a default setting which would guarantee that no 
messages ever included history. It is likely that different users had 
different configurations. Even if the default were to always include 
history, not all incoming messages would have been replied to. More 
probably, the practice would be not to reply with history because it 
creates long conversational chains that substantially increase the size 
of the messages. In an environment plagued with disk space problems, 
such as the EOP, replying with history would only have exacerbated 
them. See, e.g., White House document production E 0542 (exhibit 16).
---------------------------------------------------------------------------
    However, other considerations tend to suggest the total 
number of unrecorded e-mail may be much higher than 246,083. 
Most important is that the unrecorded e-mails in that total are 
merely a snapshot of the server on June 18, 1998. The Mail2 
problem alone continued for another 5 months, at a time when 
the volume of e-mail at the White House was increasing 
exponentially, due in part to the Lewinsky scandal.\615\ In 
addition, Haas' audit fails to address the D-user problem, 
which had not yet begun, and the OVP problem, which involved a 
separate server entirely. Additionally, any e-mail deleted by a 
user prior to June 19, 1998--a practice encouraged by the White 
House--would also not be reflected in the audit. The White 
House routinely sent out e-mail to all EOP users asking them to 
delete e-mail in order to preserve server space and prevent 
system crashes.\616\
---------------------------------------------------------------------------
    \615\ Interview with Paulette Cichon, former Deputy Director, 
Office of Administration, in Washington, DC (Apr. 18, 2000).
    \616\ See, e.g., White House document production E 0542 (exhibit 
16).
---------------------------------------------------------------------------
    Taken together, all of these factors suggest that the total 
number of unrecorded e-mails is at least as likely to be higher 
than 246,083 as it is to be lower. One can engage in disputes 
over minutiae, as illustrated above, and argue that the number 
is likely to be much higher. It is clear, however, that the 
White House steadfastly refused to acknowledge the general 
dimension of the problems, and insisted on quibbling rather 
than coming clean about the impact of these problems on 
subpoena compliance.
    For example, the Counsel to the President attempted to 
minimize the impact on subpoena compliance by reminding the 
committee that ``EOP staff are instructed to search their 
files, including computer records, for responsive information. 
Thus any incoming e-mails still on an individual's server space 
at the time a search was conducted should have been captured by 
individual user searches.'' \617\ Reliance on such manual 
searches by individuals is, however, woefully inadequate for 
many reasons. Indeed, when former Counsel to the President 
Charles Ruff was asked how he conducted searches of his own e-
mail, he was at a complete loss. Were the committee to take the 
time to interview every White House employee, there is little 
doubt that most would not have the skills to conduct thorough 
searches of their own computers.
---------------------------------------------------------------------------
    \617\ Letter from Beth Nolan, Counsel to the President, the White 
House, to the Honorable Dan Burton, chairman, Committee on Government 
Reform 7 (Mar. 17, 2000) (within appendix I).
---------------------------------------------------------------------------
    In addition, many of the individuals relied upon to search 
their e-mail server space for responsive messages are the very 
individuals who are the subject of congressional investigation. 
The incentive to conduct a thorough search or produce 
incriminating, responsive records would be somewhat less than 
compelling. Second, any e-mail deleted before the date of the 
search would only be available through searches of ARMS or the 
backup tapes. This is an especially important consideration 
given that the White House routinely encouraged users to delete 
e-mail to conserve server space.\618\ Third, the following 
testimony from Robert Haas, contradicts Nolan's assertion that 
EOP users were instructed to search their own server space for 
responsive e-mail:
---------------------------------------------------------------------------
    \618\ See, e.g., White House document production E 0542 (exhibit 
16).

        Mr. Waxman. Now, the fact that these e-mails were not 
        in the ARMS system doesn't necessarily mean they 
        weren't turned over to the independent counsel, Ken 
        Starr. When the White House responds to a document 
        request, they do more than simply search the ARMS. They 
        also ask the relevant individuals to search their own 
        e-mail accounts. These individual searches could have 
        turned up the same e-mails that Mr. Haas found. Mr. 
        Haas, do you know whether the Monica Lewinsky e-mails 
        that you found were new e-mails that had not been 
---------------------------------------------------------------------------
        previously turned over to the independent counsel?

        Mr. Haas. I do not know that, but I can state that, 
        with having worked at the agency for 9 years and having 
        received those requests for documents over many years, 
        we were instructed we did not have to search our own 
        mail files. Be advised, the mail files are not on your 
        local hard drive. You are reaching across the network 
        and looking into the server. That's why the ARMS 
        process had to be created to take care of the things 
        that you really couldn't do. The search criteria 
        ability within Lotus Notes at our current site is 
        minimal for finding a group of documents.\619\
---------------------------------------------------------------------------
    \619\ ``Missing White House E-mails, Mismanagement of Subpoenaed 
Records,'' hearings before the Committee on Government Reform, 106th 
Cong. 83-84 (Mar. 23, 2000) (testimony of Robert Haas, Lotus Notes 
administrator, Northrop Grumman) (emphasis added).

    In light of these facts, reliance on individuals' manual 
searches to capture all responsive documents is wholly 
inadequate. The White House has essentially conceded as much by 
its actions. At the very moment that it was misleading the 
public and minimizing the impact of the problems on subpoena 
compliance, it was beginning a multi-million dollar tape 
reconstruction process. In late September of this year, the 
committee finally received the first results of that process. 
The White House produced a small collection of newly 
reconstructed e-mails that proved beyond any doubt that 
reliance on manual searches was inadequate. The new e-mails 
were responsive to committee subpoenas issued over 3 years ago 
and were relevant to Vice President Gore's fundraising 
activities.\620\ The evidence suggests that the White House 
understood the size and impact of the e-mail problems 2 years 
ago. Regardless of whether it did then, it certainly does now.
---------------------------------------------------------------------------
    \620\ See, e.g., White House document production E 8701, E 8755, E 
8787, E 8807, E 8843, E 8862 (exhibits 193-198).
---------------------------------------------------------------------------

       B. The White House's Attempts to Impede the Investigation

    Throughout the course of the committee's investigation of 
the e-mail matter, the White House Counsel's Office has used a 
number of questionable tactics that appear to have no purpose 
other than to impede the investigation. As discussed in section 
I of this report, the delay tactics used by this administration 
are not unique to the e-mail investigation. Although this 
committee and others have often taken up such problems of delay 
with the White House, the pattern unfortunately has continued 
throughout the course of the e-mail scandal.

1. Document Production Practices

            a. Timing
    As has been the past pattern of practice with this White 
House, documents were produced to the committee well after the 
deadline set in the subpoena. This practice appears to be 
consistent with the `` `foot-dragging, f - - k-you attitude' 
towards subpoenas'' embraced by former White House Deputy Chief 
of Staff Harold Ickes.\621\ For example, the committee set a 
March 16, 2000, deadline for production in the original 
subpoena concerning the e-mail matter.\622\ The White House 
produced the first batch of documents to the committee on March 
21, 2000.\623\ Of greater concern though, is the fact that the 
White House has still not certified that it has completed 
production of all responsive documents, some 6 months after the 
original deadline.
---------------------------------------------------------------------------
    \621\ Susan Schmidt & Michael Weisskopf, ``Truth at Any Cost'' 15 
(2000).
    \622\ Committee on Government Reform subpoena, Mar. 9, 2000 (within 
appendix II).
    \623\ Letter from Dimitri J. Nionakis, Associate Counsel to the 
President, the White House, to James C. Wilson, chief counsel, 
Committee on Government Reform (Mar. 21, 2000) (within appendix I).
---------------------------------------------------------------------------
    The White House also has continued the pattern of producing 
documents immediately before or after a scheduled hearing. In 
many cases, the timing made it difficult or even impossible to 
ask all appropriate questions of the witnesses appearing before 
the committee. For example, the original White House production 
in the e-mail matter was sent in the evening, 2 days before the 
committee's first scheduled hearing of March 23, 2000.\624\ 
This forced an expedited review of 3,396 pages of documents in 
less than 36 hours. By placing the committee in this difficult 
position, the White House made the hearing process less 
efficient. The timing of the White House's production therefore 
unnecessarily lengthened the investigation.
---------------------------------------------------------------------------
    \624\ Id.
---------------------------------------------------------------------------
    After the committee had held its second hearing on March 
30, 2000, the White House made the second significant 
production of documents. On April 3, 2000, and April 7, 2000, 
the White House produced another 611 pages.\625\ Although the 
committee had made it clear that the White House should produce 
documents on a rolling basis, the timing of such significant 
productions raises an inference of further delay tactics. By 
sending the materials to the committee immediately after two 
public hearings had already been held, the White House made it 
difficult for the committee to ask questions about the 
documents in a timely manner.
---------------------------------------------------------------------------
    \625\ Letter from Dimitri J. Nionakis, Associate Counsel to the 
President, the White House, to James C. Wilson, chief counsel, 
Committee on Government Reform (Apr. 3, 2000) (within appendix I). See 
also letter from Dimitri J. Nionakis, Associate Counsel to the 
President, the White House, to James C. Wilson, chief counsel, 
Committee on Government Reform (Apr. 7, 2000) (within appendix I).
---------------------------------------------------------------------------
    Another example of suspicious timing in White House 
productions came on April 28, 2000.\626\ This batch included 
the briefing materials for Mark Lindsay's March 1999 
appropriations testimony.\627\ The documents produced indicated 
that Kate Anderson deleted a bullet point that gave Lindsay 
information about the Mail2 problem.\628\ At the time, the 
committee staff had already interviewed Anderson. The committee 
was therefore forced to call in Anderson for a second interview 
after the next set of hearings on May 3 and May 4, 2000. As a 
result, Anderson's statements on the deleted Mail2 bullet point 
could not be used in questioning of Mark Lindsay and Michael 
Lyle at the hearings.
---------------------------------------------------------------------------
    \626\ Letter from Dimitri J. Nionakis, Associate Counsel to the 
President, the White House, to James C. Wilson, chief counsel, 
Committee on Government Reform (Apr. 28, 2000) (within appendix I).
    \627\ White House document production E 4392-4396 (exhibit 134). 
For a detailed description of the events surrounding this document, see 
section III. E.2.b, above.
    \628\ White House document production E 4392-4396 (exhibit 134).
---------------------------------------------------------------------------
    The White House also produced significant documents related 
to Dorothy Cleal on June 23, 2000, more than a month after her 
interview with committee staff and nearly 3 months after the 
deadline on the subpoena that required their production.\629\ 
Thus, these documents were not available for use in questioning 
Dorothy Cleal during her interview with committee staff. 
Moreover, these documents, which are related to the Mail2 and 
D-user problems, were buried in the middle of a production 
apparently related only to OVP problems.
---------------------------------------------------------------------------
    \629\ Id. at E 6410-6411 (exhibit 203). These documents include a 
handwritten note from Dorothy Cleal to Kate Anderson asking for ``any 
feedback you may have before I forward to Mike Lyle for his review/
signature.'' Id. The attached memorandum includes a bullet point 
reading, ``Backup tapes containing previous e-mail problems (MAIL2 
Server problem detected in November 1998 and the letter ``D'' problem) 
have been set-aside pending a Office [sic] of the General Counsel (OGC) 
decision on whether or not reconstruction will be necessary.'' Id.
---------------------------------------------------------------------------
    Because of these dilatory tactics, the White House has 
unnecessarily prolonged this investigation. But for the White 
House impeding its efforts with such production practices, the 
committee could have completed its work much sooner.
            b. The White House Made Unreasonably Narrow Interpretations 
                    of Subpoena Language
    Another tactic employed by the White House that impeded the 
investigation was the disingenuously narrow interpretation 
given to committee subpoenas. One example of this tactic 
occurred during the course of the investigation of the Mail2 
problem, during which the committee learned of an additional 
problem with servers in the Office of the Vice President (OVP). 
In interviews and document review, it became apparent to 
committee investigators that significant documents relating to 
problems with OVP e-mail had not been produced. An interview of 
Dorothy Cleal on May 15, 2000, revealed the existence of a 
memorandum that was sent to the Vice President describing 
problems with OVP e-mail.\630\ These documents had never been 
produced to the committee. As a result, the committee sent a 
letter to the White House on May 16, 2000, requesting that the 
White House Counsel's Office determine if all responsive 
records relating to the OVP's e-mail problem had been produced 
to the committee.\631\
---------------------------------------------------------------------------
    \630\ Interview with Dorothy Cleal, former IS&T Director, Office of 
Administration, in Washington, DC (May 15, 2000).
    \631\ Letter from James C. Wilson, chief counsel, Committee on 
Government Reform, to Beth Nolan, Counsel to the President, the White 
House (May 16, 2000) (within appendix I).
---------------------------------------------------------------------------
    In response, on May 18, 2000, Senior Associate Counsel to 
the President Steven Reich sent a letter to the committee 
stating that ``because the OVP issue is distinct from the Mail2 
and Letter D problems, I cannot say that our directive to White 
House staff, which tracked the language of your subpoena, 
required the production of the broad category of OVP-related 
documents you have asked about.'' \632\ The committee's 
original March 9, 2000, subpoena, however, had called for ``all 
records relating to the discovery, diagnosis, planned, 
implemented, or partially implemented solutions to problems 
associated with the Automatic Records Management System (ARMS) 
process and the failure to collect e-mail messages (also known 
as ``Project X'' or ``Mail2 reconstruction project'') from 
Executive Office of the President (EOP) mail servers[.]'' \633\ 
Since the subpoena contemplated EOP mail servers, and the OVP 
is a part of the EOP, all problems with the OVP server should 
have been included in directives to staff from the White House 
Counsel's Office pursuant to the original subpoena.
---------------------------------------------------------------------------
    \632\ Letter from Steven F. Reich, Senior Associate Counsel to the 
President, the White House, to James C. Wilson, chief counsel, 
Committee on Government Reform (May 18, 2000) (within appendix I).
    \633\ Committee on Government Reform subpoena, Mar. 9, 2000 
(appendix I).
---------------------------------------------------------------------------
    The failure to send out a directive that would capture all 
responsive OVP documents is even more troubling in light of the 
committee's requests for a full explanation of the OVP e-mail 
problem in earlier correspondence and in public hearings. For 
example, in a March 19, 2000, letter to White House Counsel 
Beth Nolan, Chairman Burton wrote:

        You state in your letter that ``e-mails on the server 
        of the Office of the Vice President (OVP) have not been 
        fully managed by ARMS.'' I am interested in a full 
        explanation of this problem and I would also like to 
        know when the Department of Justice, Congress and the 
        Offices of Independent Counsel were notified of the 
        problem.\634\
---------------------------------------------------------------------------
    \634\ Letter from the Honorable Dan Burton, chairman, Committee on 
Government Reform, to Beth Nolan, Counsel to the President, the White 
House (May 16, 2000) (within appendix I).

    In addition, the OVP problem was discussed several times 
during Beth Nolan's appearances before the committee. In fact, 
Congressman Steven LaTourette specifically asked Ms. Nolan to 
determine how many e-mails from the OVP had been turned over to 
investigators.\635\
---------------------------------------------------------------------------
    \635\ ``Missing White House E-mails, Mismanagement of Subpoenaed 
Records,'' hearings before the Committee on Government Reform, 106th 
Cong. 128-129 (Mar. 30, 2000) (questions from Congressman Steven 
LaTourette).
---------------------------------------------------------------------------
    Because of the committee's persistence regarding responsive 
OVP documents, the White House eventually made a startling 
admission about the OVP server. On June 7, 2000, Steven Reich 
sent a letter accompanying a large production of documents 
related to the OVP e-mail problems. He wrote, ``your May 16, 
2000, letter regarding non-records managed e-mail has led us to 
discover that a technical configuration error apparently 
prevented e-mail on the OVP server from being backed-up from 
the end of March 1998 through early April 1999.'' \636\ In 
other words, if the committee had not followed-up on the OVP 
problems specifically described by Dorothy Cleal, the White 
House most likely would never have disclosed the existence of 
another serious flaw in its records management process. The 
White House Counsel's Office likely would have relied on an 
overly narrow reading of the committee's subpoena to avoid 
disclosing this critical fact. The committee finds such 
impediments to its investigation unacceptable.
---------------------------------------------------------------------------
    \636\ Letter from Steven F. Reich, Senior Associate Counsel to the 
President, the White House, to James C. Wilson, chief counsel, 
Committee on Government Reform 4 (June 7, 2000) (within appendix I).
---------------------------------------------------------------------------

2. Specious Claims That Documents Were ``Subject to Privilege''

    Another delaying tactic employed by the White House during 
this investigation was the assertion of various privileges over 
certain documents. In an April 28, 2000, document production, 
the White House claimed in a letter written by Associate 
Counsel to the President Dimitri Nionakis that several 
documents were ``subject to privilege.'' \637\ The White House 
Counsel's Office did not make clear, however, what specific 
privilege the White House was asserting. The accompanying 
privilege log was incomplete and vague. The log was marked as a 
draft, was cut off midway through the description of the 
seventh document, and listed the basis for privilege on six of 
the seven documents as Executive privilege, attorney-client 
privilege, and attorney-work product.\638\
---------------------------------------------------------------------------
    \637\ Letter from Dimitri J. Nionakis, Associate Counsel to the 
President, the White House, to James C. Wilson, chief counsel, 
Committee on Government Reform 1 (Apr. 28, 2000) (within appendix I).
    \638\ White House privilege log (exhibit 156).
---------------------------------------------------------------------------
    In response to these vague claims, Chairman Burton 
responded with a letter sent to Nionakis. As the May 1, 2000, 
letter states:

        I note with a great deal of skepticism that you have 
        withheld documents, but have not claimed a specific 
        privilege. As in previous years, when the White House 
        Counsel's Office has attempted to stall by claiming 
        invalid privileges, you have identified documents that 
        are ``subject to privilege.'' This meaningless legal 
        mumbo-jumbo is obviously a transparent ploy to provoke 
        wasteful and time-consuming squabbles over 
        documents.\639\
---------------------------------------------------------------------------
    \639\ Letter from the Honorable Dan Burton, chairman, Committee on 
Government Reform, to Dimitri Nionakis, Associate Counsel to the 
President, the White House 1 (May 1, 2000) (within appendix I).

    The very next day, the White House reacted to the 
committee's May 1, 2000, letter by informing the committee that 
it would cease its assertion of privilege and would produce the 
documents.\640\ It is the view of the committee that the White 
House so quickly abandoned its privilege claims because the 
claims were without merit and could only have been intended to 
drag out the investigation.
---------------------------------------------------------------------------
    \640\ Letter from Beth Nolan, Counsel to the President, the White 
House, the Honorable Dan Burton, chairman, Committee on Government 
Reform 2 (May 2, 2000) (within appendix I).
---------------------------------------------------------------------------

3. The White House Asserted That the E-mails Used in Its Test Search 
        Were Unrelated to the Committee's Investigation

    In addition to the specious privilege claims, the White 
House Counsel's Office also asserted the claim that the e-mails 
which were gathered by the Office of Administration to conduct 
the test search were unrelated to the Mail2 error and therefore 
were not relevant to the committee's inquiry.\641\ Using this 
argument, the White House initially failed to produce the 
Lewinsky e-mails to the committee. However, as discussed above 
in detail in section III.C, the Lewinsky-related documents were 
used by the White House Counsel's Office for a comparison test 
to determine if all responsive e-mails had been produced to 
document requestors. The relevance of such documents to the e-
mail investigation should have been obvious to the White House 
Counsel's Office. Nevertheless, the White House again used 
dubious reasoning in its attempt to place a roadblock in the 
committee's investigation.
---------------------------------------------------------------------------
    \641\ See letter from Dimitri J. Nionakis, Associate Counsel to the 
President, the White House, to James C. Wilson, chief counsel, 
Committee on Government Reform 1 (Apr. 28, 2000) (within appendix I).
---------------------------------------------------------------------------
    The Chairman responded to the White House's withholding of 
documents by stating in a May 1, 2000, letter:

        Although it is absolutely true that we are not 
        investigating the subject matter of these e-mails, they 
        are of great significance to our investigation, and 
        they are certainly covered by the Committee subpoena. 
        The e-mails are important because numerous witnesses 
        have told us that after the e-mail problem was 
        discovered, a test was conducted. The results of this 
        test were interpreted by the White House Counsel's 
        Office to stand for the proposition that the White 
        House Counsel did not need to do anything further, 
        where the Mail2 problem was concerned, to comply with 
        congressional document requests. Obviously, whether the 
        test was thorough enough for the White House to have 
        reached the conclusion that it did in fact reach is of 
        paramount importance to the investigation.\642\
---------------------------------------------------------------------------
    \642\ Letter from James C. Wilson, chief counsel, Committee on 
Government Reform, to Dimitri Nionakis, Associate Counsel to the 
President, the White House 1-2 (May 1, 2000) (within appendix I).

    After receiving this letter, the White House quickly backed 
down from its refusal to produce the Lewinsky e-mails used in 
the comparison test. As with the vague claims of privilege, the 
committee believes the withholding of the Lewinsky e-mails was 
without merit and could only have been intended to impede the 
investigation.
    Notwithstanding efforts to keep the ``test'' e-mails from 
Congress, it now appears that even the testimony that the two 
batches of e-mail are identical may be subject to question. As 
explained above, one would expect that the two batches would 
have been identical because they both came from the same 
source. Even so, Michelle Peterson submitted an affidavit to 
Federal court on September 28, 2000, explaining that ``during 
the course of my testimony to the Grand Jury, it appeared from 
the documents shown to me that I may have been mistaken with 
respect to one or possibly two e-mails.'' \643\ It is important 
to note that the White House, and its lawyers at the Department 
of Justice, neglected to notify this committee of Peterson's 
recently-filed affidavit.
---------------------------------------------------------------------------
    \643\ Third declaration of Michelle Peterson at para.6, Alexander 
v. FBI (D.D.C. Sept. 27, 2000) (CA 96-2123).
---------------------------------------------------------------------------

4. White House Witnesses Refuse to Cooperate

            a. Associate White House Counsel Dimitri Nionakis
    On May 2, 2000, the committee informed the White House that 
Associate White House Counsel Dimitri Nionakis would be 
subpoenaed to testify before the committee on May 4, 2000.\644\ 
White House Counsel Beth Nolan responded to the letter by 
facsimile, stating, ``[i]f the Committee has questions about 
how this office has responded to various Committee subpoenas, 
those questions should be addressed to me and not to members of 
the Counsel Office's staff.'' \645\ Nolan sent a similar, more 
detailed letter by facsimile the next day.\646\ The committee 
determined, however, that since the specious claims of 
privilege and the withholding of the Lewinsky e-mails had been 
represented to the committee by Nionakis, his testimony before 
the committee would be critical to determining the White House 
rationale for those decisions. The committee therefore 
attempted to serve Nionakis with a subpoena.
---------------------------------------------------------------------------
    \644\ See letter from James C. Wilson, chief counsel, Committee on 
Government Reform, to Beth Nolan, Counsel to the President, the White 
House (May 2, 2000) (within appendix I).
    \645\ Letter from Beth Nolan, Counsel to the President, the White 
House, to James C. Wilson, chief counsel, Committee on Government 
Reform 1 (May 2, 2000) (within appendix I).
    \646\ See letter from Beth Nolan, Counsel to the President, the 
White House, to the Honorable Dan Burton, chairman, Committee on 
Government Reform (May 3, 2000) (within appendix I).
---------------------------------------------------------------------------
    Committee staff left a voice-mail for Nionakis on the 
evening of May 2, 2000, to let him know he would be subpoenaed 
to testify.\647\ The following morning, staff called the White 
House Counsel's Office at 9:15 a.m., but could not reach 
Nionakis either through the general line or his direct number, 
and therefore left him another voice-mail.\648\ A few minutes 
later, committee staff called the U.S. Marshals Service to 
arrange service with the White House.\649\ The Marshals Service 
began their attempt to reach Nionakis at 12 noon.\650\ The 
Marshals Service was also unsuccessful in reaching Nionakis. 
They left messages on voice-mail, with his secretary, and on 
his pager.\651\ Committee staff also continued to follow up 
with several calls throughout the day.\652\ The committee made 
its final attempt to reach Mr. Nionakis by phone at 8:25 p.m., 
on May 3, 2000. Staff in the White House Counsel's Office said 
that they did not know where Nionakis was and had not seen him 
all day.\653\ The committee therefore had no alternative but to 
attempt to serve Nionakis at his home. Even this effort proved 
futile, as Nionakis appeared to be avoiding even his own home.
---------------------------------------------------------------------------
    \647\ See Memorandum from Maria Pia Tamburri to Jim Wilson and 
David Kass (May 3, 2000) (on file with the committee).
    \648\ See id.
    \649\ See id.
    \650\ See id.
    \651\ See id.
    \652\ See id.
    \653\ See id.
---------------------------------------------------------------------------
    On the evening of May 3, 2000, the Chief Counsel to the 
committee called White House Counsel Beth Nolan to discuss the 
service of Nionakis. Nolan stated her belief that White House 
line attorneys should not be subpoenaed to testify before 
Congress. But when Nolan was asked if Nionakis was refusing to 
accept service, Nolan responded that she ``can't speak to what 
he would do'' if presented with a subpoena.\654\ Asked if she 
instructed him not to accept service, Nolan said ``I won't 
answer that.'' \655\ Asked if Nionakis was at work that day, 
Nolan also said ``I won't answer that.'' \656\
---------------------------------------------------------------------------
    \654\ Notes from telephone conversation with Beth Nolan, Counsel to 
the President, the White House (May 3, 2000).
    \655\ Id.
    \656\ Id. The White House finally came to an agreement with the 
committee on the morning of the May 4, 2000, hearing. Nionakis was made 
available to testify on the condition that Beth Nolan appear with him.
---------------------------------------------------------------------------
    The committee understands that, whenever possible, the 
Counsel to the President should be called upon to answer 
questions about the White House Counsel's Office. However, when 
the Associate Counsel to the President is asserting specious 
claims and withholding documents, the committee believes it is 
appropriate to subpoena the very person who signs their name to 
the letter that informs the committee of such decisions. But 
even if the White House disagrees with this analysis, it does 
not excuse the attempts by Dimitri Nionakis to avoid service of 
process, nor the refusal of Nolan to answer simple questions 
about the ability of her staff to be served. The decision by a 
White House lawyer to hide from the U.S. Marshals Service 
provides a fair insight into how this White House Counsel's 
Office discharges its responsibilities to the American people. 
The committee believes that this episode was yet another 
attempt by the White House to impede the committee's 
investigation, as well as the exercise of its oversight 
jurisdiction.
            b. Cheryl Mills' Refusal to Cooperate With the Committee
    For the reasons more fully discussed above,\657\ Cheryl 
Mills has been a central figure in the investigation into the 
White House's e-mail problems and subsequent failure to produce 
subpoenaed documents.\658\ The following points, however, 
should be kept in mind.
---------------------------------------------------------------------------
    \657\ See section III.C, above.
    \658\ Mills' record regarding document production and cooperating 
with pending congressional investigations is far from illustrious. For 
example, on Oct. 30, 1998, the committee found that Mills lied to the 
committee and obstructed its investigation by withholding relevant 
documents. See ``Investigation of the Conversion of the $1.7 Million 
Centralized White House Computer System, Known as the White House 
Database, and Related Matters,'' House Committee on Government Reform 
and Oversight, H. Rept. No. 105-828, at 3, 49-57 (1998). Those 
documents showed the President's and the First Lady's involvement in 
the misuse of the White House's database, also known as (WhoDB), for 
political purposes. Id. The documents also showed that White House 
staff were used to create political databases. Id. The committee 
referred Mills to the Justice Department for obstruction of justice and 
perjury. About a year after the committee submitted its referral and 
considerable evidence supporting its referral, the Justice Department 
declined to prosecute Mills. Also, regarding the Lewinsky matter, a 
recent book authored by the Washington Post reporters who followed the 
story, recounts that Mills argued that President Clinton should invoke 
executive privilege regarding sessions during which he coached Betty 
Currie regarding her upcoming testimony. See Susan Schmidt & Michael 
Weisskopf, ``Truth at Any Cost'' 71-72 (2000). Finally, in the context 
of the Filegate civil suit, Alexander v. FBI (D.D.C. July 7, 2000) (CA 
No. 96-2123), Sonya Stewart, a former civil servant at the Commerce 
Department, testified as to having knowledge that Mills, as Deputy 
Counsel to the President, advised Commerce officials to withhold 
certain documents responsive to information requests. See declaration 
of Sonya Stewart at para.7, Alexander v. FBI (D.D.C. July 7, 2000) (CA 
No. 96-2123) (exhibit 191). Stewart specified that ``[d]uring the time 
period at issue, many of the same documents were being sought by 
several entities, including . . . congressional committees, grand 
juries, and others.'' Id. She also stated that ``these interactions 
with Ms. Mills, as well as other practices, delayed and corrupted the 
Commerce Department's response to . . . [particular information 
requests].'' Id. See also letter from the Honorable Dan Burton, 
chairman, Committee on Government Reform, to Janet Reno, Attorney 
General of the United States (June 28, 2000) (within appendix I) 
(noting Mills' materality in this e-mail investigation).

  Charles Ruff, former Counsel to the President, 
explained the Mail2 problem to Mills in 1998 after he first 
---------------------------------------------------------------------------
learned about it.

  Thereafter, Mills assisted Ruff in determining 
whether the problem had affected the White House's subpoena 
compliance capability.

  Ultimately, Mills' report to Ruff induced him to 
take no further action regarding the e-mail problem.

  When Ruff originally explained the problem to Mills, 
she knew that Ruff would rely on her assistance as a basis for 
concluding whether the problem affected the White House's 
subpoena compliance capability.

  When Mills testified to the committee, she was 
chronically unable to recall critical details associated with 
how that conclusion was obtained. For example, she could not 
recall who devised the test search, what were the search's 
parameters and what proposition the search was intended to 
support.

  Accordingly, by incompetence or design, the search 
gave the White House false and unwarranted assurances that the 
Mail2 problem did not affect subpoena compliance. Mills' 
purported failure to understand fully the actual scope of the 
problem prevented a number of investigative bodies, including 
Congress, DOJ and the independent counsels, from receiving 
subpoenaed e-mails. The totality of evidence uncovered to date, 
however, makes it unlikely that incompetence was responsible 
for Mills' representations to White House Counsel Ruff.

    Documentary evidence also indicates that Mills was a 
central figure in the OVP e-mail problem. In 1999, Dorothy 
Cleal, former Director for IS&T, sent an e-mail to Mark 
Lindsay, former Director of OA, in which she stated that 
``[t]he OVP memorandum regarding the Vice President's computer 
problems has been cleared with Cheryl Mills' office. It now 
needs to go to the OVP General Counsel. Mike Lyle is 
successfully working this issue.'' \659\ Mills was also 
included in a distribution list in e-mail circulated among 
senior OVP and White House Office staff.\660\ Those e-mails 
discussed records management of the OVP's e-mail and ultimately 
culminated in a decision not to have the OVP interact with the 
White House's ARMS system. Interacting with ARMS would have 
enabled the OVP to text search its e-mail when responding to 
outstanding subpoenas.
---------------------------------------------------------------------------
    \659\ See White House document production E 6388-6389 (exhibit 
182).
    \660\ See id. at E 5311-5313 (exhibit 176); id. at E 8129 (exhibit 
177); id. at E 8128 (exhibit 178); id. at E 5302 (exhibit 179); id. at 
E 5303 (exhibit 180); id. at E 5306 (exhibit 181); and id. at E 5306 
(exhibit 181). It is noteworthy that the White House produced these 
documents only after Mills' May 4, 2000, appearance before the 
committee.
---------------------------------------------------------------------------
    Despite her central role in the Mail2 investigation, Mills 
refused to cooperate with the committee. After ignoring three 
phone calls and two letters from the committee for 10 days, 
Mills declined to be interviewed.\661\ Consequently, the 
Chairman notified Mills by letter that she would receive a 
subpoena to appear at a hearing on May 4, 2000.\662\ The day 
after the committee notified Mills of her scheduled appearance, 
she advised the committee that she was unable to attend because 
of ``long-standing commitments.'' \663\ Accordingly, the 
committee subpoenaed Mills to appear. Only after the committee 
issued the subpoena did Mills offer alternative dates for her 
attendance.\664\ By this point, the hearing was scheduled and 
Mills' belated offer was rejected. After some initial 
difficulties,\665\ Mills accepted service of the subpoena from 
the U.S. Marshals Service \666\ and on May 4, 2000, she 
testified before the committee about her involvement in the 
mismanagement of subpoenaed e-mails. As discussed above, she 
was less than forthcoming in her testimony.
---------------------------------------------------------------------------
    \661\ See letter from David A. Kass, deputy counsel and 
parliamentarian, Committee on Government Reform, to Cheryl Mills, 
former Deputy Counsel to the President, the White House (Apr. 18, 2000) 
(within appendix I); letter from the Honorable Dan Burton, chairman, 
Committee on Government Reform, to Cheryl Mills, former Deputy Counsel 
to the President, the White House (Apr. 24, 2000) within appendix I); 
letter from Cheryl Mills, former Deputy Counsel to the President, the 
White House, to David A. Kass, deputy counsel and parliamentarian, 
Committee on Government Reform (Apr. 25, 2000) (within appendix I).
    \662\ Letter from the Honorable Dan Burton, chairman, Committee on 
Government Reform, to Cheryl Mills, former Deputy Counsel to the 
President, the White House (Apr. 25, 2000) (within appendix I).
    \663\ Letter from Cheryl Mills, former Deputy Counsel to the 
President, the White House, to David A. Kass, deputy counsel and 
parliamentarian, Committee on Government Reform (Apr. 26, 2000) (within 
appendix I). See also letter from the Honorable Dan Burton, chairman, 
Committee on Government Reform, to Cheryl Mills, former Deputy Counsel 
to the President, the White House (Apr. 26, 2000) (within appendix I) 
(replying).
    \664\ Letter from Cheryl Mills, former Deputy Counsel to the 
President, the White House, to the Honorable Dan Burton, chairman, 
Committee on Government Reform (May 1, 2000) (within appendix I).
    \665\ See letter from the Honorable Dan Burton, chairman, Committee 
on Government Reform, to Cheryl Mills, former Deputy Counsel to the 
President, the White House (Apr. 27, 2000) (within appendix I).
    \666\ Letter from the Honorable Dan Burton, chairman, Committee on 
Government Reform, to Cheryl Mills, former Deputy Counsel to the 
President, the White House (May 1, 2000) (within appendix I).
---------------------------------------------------------------------------
    In conclusion, several attempts were made to impede this 
committee's investigation. As discussed above, the White House 
Counsel's Office engaged in egregious document production 
practices and attempted to withhold the production of various 
salient documents by baselessly asserting that they were either 
``subject to privilege'' or irrelevant to the committee's 
investigation. Additionally, an Associate White House Counsel 
attempted to dodge service of a subpoena and a former Deputy 
White House Counsel refused to be interviewed by the committee, 
which required the committee to subpoena her attendance at a 
public hearing. Such conduct bespeaks the relationship this 
White House has chosen to maintain with Congress and reflects 
its chronic failure or refusal to appreciate the legitimate 
exercise of this committee's oversight jurisdiction.

C. the white house's gamesmanship with the production of the missing e-
                                 mails

1. The White House's Failure to Reconstruct the Missing E-mails in a 
        Timely Manner and to Update the Committee Properly

    By resolving the D-user problem in April 1999, the White 
House was finally able to ``stop the bleeding,'' which enabled 
ARMS to capture Mail2 e-mail prospectively. However, the 
committee cannot complete its oversight responsibilities 
regarding its outstanding investigations until the White House 
produces all information previously required by its subpoenas. 
Therefore, the remaining phase required to address the problem 
involves reconstructing the missing e-mail from the White 
House's backup tapes as well as searching and producing them in 
response to outstanding congressional subpoenas.
    On March 30, 2000, White House Counsel Beth Nolan gave the 
committee a preliminary estimate that ``the requisite equipment 
and other resources for the [reconstruction] project will be in 
place, tested, and ready to go in approximately 70 days.'' 
\667\ She also noted that ``[the White House] anticipate[s] 
conducting the restoration in batches so that [it] can have a 
rolling production. The contractor estimates that this part of 
the project will be completed in about 170 days from the 
beginning of the project. In other words, . . . if these 
initial estimates hold up, we could have the back-up tapes 
searched within 6 months.'' \668\ Nolan promised that, as she 
learned more information, she would keep the committee 
informed.\669\ As it turned out, the White House failed to live 
up to either of its assurances. As is clear from the discussion 
below, the White House's assurances to the committee that e-
mail would be produced in a timely fashion and that it would 
keep the committee informed of key developments was simply a 
component of the White House's attempt to respond publicly to 
the embarrassment of having failed to search for all relevant 
e-mails.
---------------------------------------------------------------------------
    \667\ ``Missing White House E-mails, Mismanagement of Subpoenaed 
Records,'' hearings before the Committee on Government Reform, 106th 
Cong. 25-26 (Mar. 30, 2000) (testimony of Counsel to the President Beth 
Nolan).
    \668\ Id.
    \669\ See, e.g., letter from Beth Nolan, Counsel to the President, 
the White House, to the Honorable Dan Burton, chairman, Committee on 
Government Reform (Mar. 17, 2000) (within appendix I). See also letter 
from Counsel to the President Beth Nolan to the Honorable Dan Burton, 
chairman, Committee on Government Reform (Aug. 7, 2000) (within 
appendix I) (``We have aimed to ensure that the Committee is kept 
abreast of key developments.'').
---------------------------------------------------------------------------
    As the committee's investigation into the White House's e-
mail problems was proceeding earlier this year, the White House 
was also defending a civil law suit in Alexander v. FBI.\670\ 
In that case, the White House was required to produce e-mails 
responsive to discovery requests. By April 27, 2000, little 
progress was being made in the reconstruction of Alexander-
related e-mails. Therefore, the court explicitly cautioned the 
EOP, a defendant in that case, that it would not accept a 
proposal from the White House that the 170-day timeline run 
from April 27th.\671\ In other words, the court wanted a timely 
production of the subpoenaed e-mails. As late as May 4, 2000, 
the EOP indicated to the committee:
---------------------------------------------------------------------------
    \670\ Civil Action No. 96-2123 (D.D.C.). In that case, Reagan and 
Bush White House employees sued, among others, the EOP for the wrongful 
accessing of their FBI files by various Clinton administration 
officials. Like Congress, the Justice Department and the Office of the 
Independent Counsel, the plaintiffs in Alexander had served subpoenas 
on the White House which, like those of Congress and various law 
enforcement bodies, called for the production of e-mails which were 
discovered to have been affected by the White House's e-mail problems.
    \671\ Transcript of Motions Hearing at 33, Alexander v. FBI (D.D.C. 
Apr. 27, 2000) (CA 96-2123) (``[I]n connection with the [EOP's] 
response [to plaintiffs' motion regarding the search of Mail2 e-mail], 
I will say to [the EOP] up front that I will not accept a response that 
it will take 170 days. So, I'll tell you up front you can start working 
on what other way there is to produce it in a shorter period.'').

        [T]he reconstruction project is scheduled to be 
        completed by Thanksgiving. That does not mean, however, 
        that the reconstructed e-mails will not be produced 
        until Thanksgiving. Document production will begin long 
        before then. All that it means is that the final stages 
        of the e-mail project which involve putting the 
        reconstructed e-mails into ARMS for archival purposes 
        will be completed then. The actual reconstruction of 
        the e-mails, the placing of those e-mails into a 
        searchable database and the production of e-mails to 
        our committee will begin well before that date and well 
        before the election.\672\
---------------------------------------------------------------------------
    \672\ ``Missing White House E-mails, Mismanagement of Subpoenaed 
Records,'' hearings before the Committee on Government Reform, 106th 
Cong. 99 (May 4, 2000) (testimony of Mark Lindsay, Assistant to the 
President for Management and Administration, the White House) 
(concession obtained by Ranking Minority Member Waxman).

    Apparently, at some point during May 2000, the White 
House's production timetable changed dramatically. On June 6, 
2000, the EOP filed with the Alexander court a 41-page 
pleading, which was intended to notify the court that not only 
was Nolan's original 170-day estimate no longer accurate but 
also that the White House could no longer reasonably estimate 
when the e-mail would be reconstructed at all.\673\ The only 
estimate that the EOP could then provide was that the White 
House hoped to have completed testing of the copying system and 
be ready to begin copying by mid-to-late June 2000.\674\ Not 
until almost a month after the filing, when it became clear 
that the White House could not adhere to even this deadline, 
did the White House Counsel's Office send the committee a copy 
of the original June 6, 2000, pleading.\675\ This was the first 
and only notice that the committee received that Nolan's 
preliminary estimate was inoperative.
---------------------------------------------------------------------------
    \673\ EOP's response to plaintiffs' supplemental brief regarding 
non-records managed e-mail and other computer documents, at 15, 
Alexander v. FBI (D.D.C. June 6, 2000) (CA No. 96-2123) (citing 
declaration of Gregory A. Ekberg, project manager with Vistronix, Inc., 
at para. 12 (June 2, 2000)).
    \674\ Id.
    \675\ Letter from Edward R. McNicholas, Associate Counsel to the 
President, the White House, to James C. Wilson, chief counsel, 
Committee on Government Reform, and Ken Ballen, minority chief 
investigative counsel, Committee on Government Reform (June 29, 2000) 
(within appendix I) (pleading not attached).
---------------------------------------------------------------------------
    The failure of EOP's pleading, drafted and filed by the 
Justice Department, to notify the Alexander court that Nolan's 
preliminary estimate was no longer operative was a matter of 
considerable concern to the court during an evidentiary hearing 
on July 17, 2000, as the following exchange illustrates:

        The Court. And when [Ms. Nolan's] estimate changed, she 
        never advised either Congress or this Court.

        The Justice Dept. Well, we advised the Court through 
        Mr. Ekberg's declaration, Your Honor.

        The Court. That all bets were off and you couldn't give 
        any estimate.

        The Justice Dept. Well, we----

        The Court. That's what he said.

        The Justice Dept. At that point--at that point, yes, 
        because we were----

        The Court. And Mr. Misich wouldn't estimate anything in 
        his affidavit.

        The Justice Dept. At that point we had the RAIDirector. 
        We were still looking at IM drive. I believe, although 
        I'd have to check the record, people were looking into 
        finding a substitute for IM drive----

        The Court. So as of June 2nd, I should have understood 
        that all bets were off, 170 days was out the window, 
        and there's no time frame ever to be figured out till I 
        had a hearing and started figuring it out?

        The Justice Dept. Well, Your Honor, we tried to 
        communicate through Mr. Ekberg's declaration that at 
        that moment . . . nobody could tell this Court, in all 
        good faith, when the e-mails were going to be ready in 
        a searchable database[.]

        The Court. But you didn't say anything about the 170 
        days was out the window and you knew it couldn't be 
        met. That was left out.

        The Justice Dept. Your Honor, it was not our intention 
        to omit that. We stated--we thought very----

        The Court. You did omit it.

        The Justice Dept. We thought we stated very clearly in 
        Mr. Ekberg's declaration that it was not possible at 
        that time to estimate the completion of the copying 
        process.

        The Court. But it was possible at that time to tell me 
        that all of your prior estimates were based on faulty 
        information; that LINUX wouldn't work. You didn't tell 
        me that, did you, on June 2nd.

        The Justice Dept. Your Honor, we did not attempt, in 
        the time available to us, to go into excruciating 
        levels of technical detail.

        The Court. I'm sure you didn't.

        The Justice Dept. But it was not a conscious omission, 
        Your Honor----

        The Court. How can you say that? . . . You decided to 
        leave it out of what you told me.

        The Justice Dept. We decided, Your Honor, to describe 
        the process that we were undergoing in general terms 
        and to give the Court our best estimate of what we 
        could do in order to make searchable e-mails available.

        The Court. And not to admit that your prior estimate 
        had turned out to be totally invalid because all of the 
        information that it was based on was invalid. But you 
        weren't going to admit that until it was drug out of 
        you at this hearing?

        The Justice Dept. Your Honor, we thought we had 
        admitted that in Mr. Ekberg's declaration. If we were--
        if we were inarticulate in describing the situation in 
        Mr. Ekberg's declaration, we apologize to the 
        Court.\676\
---------------------------------------------------------------------------
    \676\ See Transcript of Evidentiary Hearing, at 126-128, Alexander 
v. FBI (D.D.C. July 17, 2000) (CA No. 96-2123).

    In finding the EOP's explanation for not having copied a 
single tape while dealing with its technical difficulties 
``preposterous,'' the court ordered emergency evidentiary 
hearings to determine the most expeditious way to restore and 
search the Mail2 e-mail.\677\ At those hearings, the committee 
was surprised to learn the following:
---------------------------------------------------------------------------
    \677\ Memorandum decision, Alexander v. FBI, at 19 (D.D.C. July 10, 
2000) (CA No. 96-2123) (describing explanation ``preposterous'' and 
stating, ``The EOP . . . [has not] provided the court with any 
explanation of why it did not [at least begin copying the backup 
tapes]. Instead, after twenty weeks, the EOP has not made one concrete 
step towards producing any of the [Mail2 e-mail], and cannot give the 
court any estimate of when it might do so.''); order, Alexander v. FBI 
(D.D.C. July 10, 2000) (CA No. 96-2123).

  Gregory Ekberg, the project manager with Vistronix, 
Inc., which was hired to independently validate and verify the 
e-mail reconstruction project, was never told of the court's 
April 27, 2000, ruling that the court would not accept a 
proposal from the White House providing that Nolan's 170-day 
timetable run from April 27, 2000.\678\
---------------------------------------------------------------------------
    \678\ Transcript of Evidentiary Hearing at 91-92, Alexander v. FBI, 
(D.D.C. July 14, 2000) (CA No. 96-2123) (under examination by Judge 
Lamberth).

  In fact, when Ekberg was put on the project on May 
24, 2000, he was given a goal to complete just the copying 
process alone by the end of the year.\679\ This generous 
deadline was in direct conflict with the court's order, as 
described above.
---------------------------------------------------------------------------
    \679\ Id. at 91-93.

  Michael R. Sullivan, Deputy Associate Director of 
General Services Division for the Office of Administration, 
testified the Office of Administration knew that the contractor 
that it hired to reconstruct the e-mails was incapable of 
completing the project until after the November 2000 
elections.\680\
---------------------------------------------------------------------------
    \680\ Id. at 77-79 (July 17, 2000).

    On July 26, 2000, and August 17, 2000, the committee 
specifically brought what it learned at those Alexander 
hearings to the attention of the White House Counsel's 
Office.\681\ Unfortunately, the White House failed to refute or 
otherwise clarify the foregoing troubling testimony.\682\ From 
its failure to do so, the committee can only infer that the 
testimony is true and accurate and that there is, in fact, no 
legitimate explanation for the additional delay.
---------------------------------------------------------------------------
    \681\ Letter from the Honorable Dan Burton, chairman, Committee on 
Government Reform, to Beth Nolan, Counsel to the President, the White 
House (July 26, 2000) (within appendix I); letter from the Honorable 
Dan Burton, chairman, Committee on Government Reform, to Beth Nolan, 
Counsel to the President, the White House (Aug. 17, 2000) (within 
appendix I).
    \682\ Letter from Beth Nolan, Counsel to the President, the White 
House, to the Honorable Dan Burton, chairman, Committee on Government 
Reform (Aug. 7, 2000) (within appendix I).
---------------------------------------------------------------------------
    On the afternoon of Friday, September 22, 2000,\683\ the 
White House produced to the committee a batch of e-mails that 
had apparently been restored from White House backup tapes. The 
e-mails were produced to the committee late on a Friday, 
despite the fact that the White House had the e-mail messages 
since Monday September 17. The timing of this production 
strongly suggests that the White House was trying to minimize 
the public impact of the release of the e-mails. As discussed 
throughout the report, that batch contained e-mails highly 
relevant to the committee's campaign finance investigation. On 
September 25, 2000, the committee asked White House Counsel 
Beth Nolan to explain the context of the September 22nd 
production.\684\ She replied, ``the e-mail that was produced to 
the committee was reconstructed by the Department of Justice 
Campaign Financing Task Force and the Office of Independent 
Counsel Robert Ray.'' \685\ She continued, ``[p]ursuant to [an] 
authorized agreement, the review [of e-mail] is conducted 
electronically on a computer screen, with a team of FBI Agents 
and lawyers from the DOJ and OIC involved and EOP lawyers 
present.'' \686\ Nolan's response raises the following 
questions. What are the terms of that ``agreement?'' What 
precisely is the nature of the EOP's ``involvement'' in the 
review of those e-mails? And, what is being contemplated as the 
EOP's involvement in the future with respect to reviewing the 
restored e-mail? Certainly, the EOP, as a civil defendant in 
Alexander, is entitled to review documents before producing 
them to the plaintiffs in that case pursuant to their discovery 
requests. But, the EOP is also purportedly the subject of a 
Justice Department criminal investigation in the e-mail matter. 
To the extent that the FBI has already taken possession of the 
backup tapes, it is highly troubling that the Justice 
Department would allow the subject of a criminal investigation 
to participate in any way in reviewing evidence for 
responsiveness. This underscores the peculiar but clear 
conflict of interest inherent in the Justice Department's 
simultaneous criminal investigation of the e-mail matter and 
representation of the EOP in the Alexander civil litigation. It 
also highlights the need for the appointment of a special 
counsel to investigate the e-mail matter.\687\
---------------------------------------------------------------------------
    \683\ In addition to the White House's document production 
practices discussed above in section IV.B.1, the White House regularly 
produced documents to the committee and the Associated Press on Fridays 
at the close of business. This appears to have been done to minimize 
media coverage.
    \684\ See letter from the Honorable Dan Burton, chairman, Committee 
on Government Reform, to Beth Nolan, Counsel to the President, the 
White House 1-2 (Sept. 25, 2000) (within appendix I).
    \685\ Letter from Beth Nolan, Counsel to the President, the White 
House, to the Honorable Dan Burton, chairman, Committee on Government 
Reform (Sept. 26, 2000) (within appendix I).
    \686\ Id. at 2.
    \687\ See section V.A, below (discussing Attorney General's refusal 
to appoint a special counsel).
---------------------------------------------------------------------------
    The committee is also concerned that, as of the submission 
of this report, the White House has no plans to produce the 
missing e-mail responsive to congressional subpoenas to 
Congress after the new administration moves into the White 
House. On September 14, 2000, committee staff met with 
Associate White House Counsel Lisa Klem and OA General Counsel 
Michael Bartosz. At that meeting, they were asked whether the 
administration had any plans in place for production of the 
missing e-mail after it leaves the White House. Klem's response 
was less than helpful. She merely stated that the White House 
was ``committed to satisfying its obligations under [the 
Committee's] subpoena[s]'' and that if it became clear that 
there would be a problem ``as we bump up against January 20th, 
we'll address it then.'' \688\ When asked whether she could be 
realistically optimistic that all the missing e-mails would be 
produced before the transition to a new administration, Klem 
simply said that she did not have an answer as to what 
arrangements were being made.\689\ In response to the 
committee's concern about the absence of a transition plan, 
Beth Nolan simply responded that a meeting with National 
Archiving and Records Administration (NARA) had been scheduled 
and that she would provide the committee with a status 
update.\690\
---------------------------------------------------------------------------
    \688\ Notes of meeting with Lisa Klem, Associate Counsel to the 
President, the White House, and Michael Bartosz, general counsel to the 
Office of Administration, in Washington, DC (Sept. 14, 2000).
    \689\ Id.
    \690\ Letter from Beth Nolan, Counsel to the President, the White 
House, to the Honorable Dan Burton, chairman, Committee on Government 
Reform 5 (Sept. 26, 2000) (within appendix I).
---------------------------------------------------------------------------
    By its own admission, the White House will not be able to 
produce all e-mail to the committee responsive to its subpoenas 
until well after the November 2000 elections and likely into 
2001. The White House's failure to reconstruct the Mail2 e-
mails or be candid about the process reflects its behavior 
throughout the e-mail investigation. The foregoing illustrates 
the relationship this White House has chosen to maintain with 
Congress and its chronic failure to recognize the legitimate 
exercise of Congress' oversight jurisdiction.

2. The Burgeoning Cost of Reconstruction and the White House's Failure 
        to Update the Committee

    Unsurprisingly, the White House has been just as evasive 
about the cost of reconstructing the unrecorded e-mails as it 
has been with the reconstruction timetable. On October 13, 
1998, about 10 months after recognizing an anomaly in how ARMS 
interacted with the e-mail system and about 4 months after the 
contractors initially found the problem, Tony Barry estimated 
the cost of recovering the e-mail and placed into ARMS at 
$250,000.\691\ On December 1998, almost a year after Barry 
first recognized the anomaly and 7 months after the 
contractors' discovery, the Office of Administration estimated 
the cost of addressing the problem at about $600,000.\692\ 
However, by late December, the cost, including the cost of 
reconstruction, increased to $1 million.\693\
---------------------------------------------------------------------------
    \691\ White House document production E 4076-4077 (exhibit 115).
    \692\ This estimate was based on a ``rough order of magnitude'' 
(ROM) prepared by Northrop Grumman. This ROM calculated the cost of 
preparing a feasibility study determining how the Mail2 problem should 
be remedied. See, e.g., Northrop Grumman document production NGL 00268 
(exhibit 72) (describing the ROM for Mail2 reconstruction is $602,492); 
White House document production E 4050 (exhibit 122) (same).
    \693\ See, e.g., id. at E3357 (exhibit 32) (matrix describing 
increase in cost estimate for Mail2 reconstruction from $650,000 for 
fiscal year 1999 to $1 million for fiscal year 2000); id. at E 3333 
(exhibit 147) (same). See also interview of Joseph Kouba, Budget 
Analyst, Financial Management Division, Office of Administration, in 
Washington, DC (May 12, 2000) (stating that he drafted exhibit 147, 
work-up of Armstrong Resolution Account, and indicating that he used 
exhibit 32 as basis for that work-up).
---------------------------------------------------------------------------
    In the interim between December 1998 and when the White 
House first disclosed the problem to this committee, the White 
House made no effort to obtain appropriations for the 
reconstruction of unrecorded e-mail.\694\ On March 17, 2000, 
when the White House finally informed Congress of the problems, 
the White House preliminarily estimated the cost for 
reconstruction at $1.8 to $3 million.\695\ After the White 
House awarded the contract for the reconstruction project to 
ECS Technology, Inc., the estimate was revised to $8-$10 
million.\696\
---------------------------------------------------------------------------
    \694\ See section III.E, above.
    \695\ Letter from Beth Nolan, Counsel to President, the White 
House, to the Honorable Dan Burton, chairman, Committee on Government 
Reform (Mar. 17, 2000) (within appendix I).
    \696\ ``Missing White House E-mails, Mismanagement of Subpoenaed 
Records,'' hearings before the Committee on Government Reform, 106th 
Cong. 169 (May 3, 2000).
---------------------------------------------------------------------------
    However, on May 2, 2000, Congressman Kolbe, Chairman of the 
Subcommittee on Treasury, Postal Service and General 
Government, forwarded to the committee a copy of a letter he 
sent to Mark Lindsay on April 27, 2000.\697\ Congressman 
Kolbe's Subcommittee appropriates funds for OA. As discussed 
above in section III.E, in that letter, Congressman Kolbe 
expressed extreme concern about the revised estimate and 
rejected Lindsay's request for authorization to fund the 
reconstruction project with funds from the Armstrong Resolution 
Account.\698\ Nonetheless, Congressman Kolbe authorized the 
release of $4.8 million in unobligated funds originally 
appropriated for the Y2K conversion effort.\699\ But, on May 
25, 2000, Congressman Kolbe wrote another letter to Lindsay in 
which he expressed extreme concern about the escalating cost of 
the reconstruction project.\700\ In particular, he noted that, 
based on informal conversations Lindsay had with his staff, the 
cost of reconstruction might require an additional $5 to $30 
million.\701\ Why the White House has failed to inform this 
committee of this key development when it apparently felt that 
the development was ripe enough to bring it to Congressman 
Kolbe's attention, is a matter of considerable interest to the 
committee.
---------------------------------------------------------------------------
    \697\ Letter from the Honorable Jim Kolbe, chairman, Subcommittee 
on Treasury, Postal Service, and General Government to the Honorable 
Dan Burton, chairman, Committee on Government Reform (May 2, 2000) 
(within appendix I) (letter to Lindsay attached).
    \698\ Letter from the Honorable Jim Kolbe, chairman, Subcommittee 
on Treasury, Postal Service, and General Government to Mark Lindsay, 
Assistant to the President for Management and Administration, the White 
House (Apr. 27, 2000) (exhibit 145).
    \699\ Id.
    \700\ Letter from the Honorable Jim Kolbe, chairman, Subcommittee 
on Treasury, Postal Service, and General Government to the Honorable 
Dan Burton, chairman, Committee on Government Reform (May 25, 2000) 
(exhibit 171).
    \701\ Id.
---------------------------------------------------------------------------
    Not until the committee raised its concern regarding the 
burgeoning cost of the reconstruction project did the White 
House divulge to the committee the possibility that it might 
cost an additional $5 to $30 million.\702\ Ultimately, the 
White House explained that the high end of that range was cited 
in anticipation of potential forensic requirements from law 
enforcement agencies which would have required the hiring of an 
outside contractor.\703\ The White House also stated that an 
agreement had been reached with law enforcement agencies 
regarding the reconstruction process that ``is expected to 
require funding within the existing appropriation level.'' 
\704\
---------------------------------------------------------------------------
    \702\ See notes of meeting with Lisa Klem, Associate Counsel to the 
President, the White House, and Michael Bartosz, Special Counsel to the 
Office of Administration, in Washington, DC (Sept. 14, 2000).
    \703\ Letter from Michael Bartosz, general counsel, the Office of 
Administration, to James C. Wilson, chief counsel, Committee on 
Government Reform (Sept. 29, 2000).
    \704\ Id.
---------------------------------------------------------------------------
    On September 29, 2000, the White House informed the 
committee that it obtained approval from House and Senate 
appropriators for $13.2 million in total funding for the 
reconstruction project.\705\ These funds include $8.4 million 
in supplemental funding appropriated in June 2000 and $4.8 
million in existing funding which remained in an account 
originally earmarked for the White House's Y2K plan.\706\ In 
the context of the reconstruction project's burgeoning costs, 
the committee asked the General Accounting Office (GAO) to 
consider the extent to which the White House's mismanagement of 
its e-mail problems caused the exponential increase in the cost 
of reconstructing the unrecorded e-mails.\707\
---------------------------------------------------------------------------
    \705\ Id.
    \706\ Id.
    \707\ See letter from the Honorable Dan Burton, chairman, Committee 
on Government Reform, to the Honorable David Walker, Comptroller 
General, General Accounting Office (May 25, 2000) (within appendix I) 
(request letter); letter from the Jack L. Brock, Director, Government-
wide and Defense Information Systems Issues, General Accounting Office, 
to the Honorable Dan Burton, chairman, Committee on Government Reform 
(July 17, 2000) (within appendix I) (acceptance letter).
---------------------------------------------------------------------------

  V. Concerns Regarding the Joint E-mail Investigation Undertaken by 
      Department of Justice and the Office of Independent Counsel

    Over the last 7 months, the committee has been deeply 
concerned about the Justice Department's failure to pursue 
vigorously allegations of obstruction that are central to the 
White House e-mail matter. The clear indication that the White 
House had failed to comply with several committee subpoenas and 
threatened career employees into silence led the committee to 
conduct a thorough investigation. Judge Royce C. Lamberth, the 
Federal judge hearing the Alexander v. FBI suit has also 
aggressively questioned witnesses about the White House's 
failure to review hundreds of thousands of e-mails and produce 
evidence in that case.
    By contrast, the Justice Department has been strangely 
passive. Its investigation into the campaign fundraising 
scandals stemming from the 1996 elections was also potentially 
obstructed by the White House's failure to comply with 
subpoenas. However, despite announcing that it would commence 
an investigation once it was clear that the Committee on 
Government Reform was doing so, the Justice Department has 
interviewed few witnesses and shown little demonstrable 
progress. So deep are the Justice Department's conflicts in 
this matter that Chairman Burton asked the Attorney General to 
appoint a special counsel. This request went unheeded.
    The White House e-mail problem became nationally prominent 
when it was reported on the front page of the Washington Times 
on February 15, 2000.\708\ On March 7, 2000, during interviews 
with Northrop Grumman employees, the committee learned that the 
Department of Justice had made no effort to contact the 
individuals who managed the White House e-mails.\709\ On March 
8, 2000, Chairman Burton wrote to Attorney General Reno. In 
this letter, he indicated that the Department of Justice had 
neither made any effort to contact individuals who manage White 
House e-mails, nor had it pushed the White House for a review 
of pertinent information, despite the fact that the missing e-
mail matter had been reported in the press.\710\ Chairman 
Burton also informed Attorney General Reno that, because of the 
e-mail problem, a potentially large category of documents 
relevant to the Department of Justice's own campaign finance 
investigation had not been reviewed.\711\ Since the Department 
of Justice's failure to obtain documents created the appearance 
that the Department had no intention of pursuing a vigorous 
investigation of the White House, Chairman Burton requested 
that Attorney General Reno inform this committee of the steps 
she was going to take to address the White House's failure to 
provide the Justice Department with critical information.\712\
---------------------------------------------------------------------------
    \708\ Jerry Seper, ``White House Accused of Cover-up,'' the 
Washington Times, Feb. 15, 2000, at A1. The missing White House e-mail 
problem was discussed previously in two articles by Paul Rodriguez in 
Insight on the News magazine. See Paul M. Rodriguez, ``Looking for 
Information in All the Wrong Places,'' Insight on the News, Dec. 28, 
1998, at 8; Paul M. Rodriguez, ``Honey Pot of Info Causes a Swarm,'' 
Insight on the News, Jan. 11-18, 1999 at 6.
    \709\ Letter from the Honorable Dan Burton, chairman, Committee on 
Government Reform, to the Honorable Janet Reno, Attorney General (Mar. 
8, 2000) (within appendix I).
    \710\ Id.
    \711\ Id.
    \712\ Id.
---------------------------------------------------------------------------
    On March 21, 2000, having received no response to the 
previous letter, Chairman Burton again wrote to Attorney 
General Reno about the e-mail problem. In this letter, the 
Chairman called the Department of Justice's attention to the 
fact it was working on both sides of the same case. Lawyers in 
the Justice Department's Civil Division were defending the 
White House in the Alexander v. FBI civil lawsuit. Their 
actions helped conceal the fact that the White House had failed 
to review a large quantity of potential evidence needed by 
prosecutors in the Justice Department's own Campaign Financing 
Task Force.
    As Chairman Burton stated:

        Currently, the Justice Department is representing the 
        Executive Office of the President (``EOP'') in civil 
        suits brought in the ``Filegate'' \713\ case. In recent 
        pleadings, plaintiffs have alleged suppression of 
        evidence and threatening of witnesses concerning 
        mismanaged White House e-mail records that may touch on 
        Filegate matters affecting their case. Rather than 
        responding to the Plaintiffs' allegations with concern, 
        or even withdrawing from the case, the Justice 
        Department lawyers have responded like seasoned defense 
        counsel: they disparaged the plaintiffs' claims; they 
        said that this was old news; and they claimed that it 
        would be impossible to produce the e-mails.\714\
---------------------------------------------------------------------------
    \713\ Alexander v. FBI is commonly referred to as ``Filegate.''
    \714\ Letter from the Honorable Dan Burton, chairman, Committee on 
Government Reform, to the Honorable Janet Reno, Attorney General 1 
(Mar. 21, 2000) (within appendix I).

Chairman Burton believed that this representation created a 
---------------------------------------------------------------------------
clear conflict of interest:

        The Justice Department is supposed to be conducting a 
        thorough criminal investigation of allegations of 
        illegal fundraising in the 1996 elections, including 
        allegations about White House involvement in the 
        scandal. Just last week, you stated that ``the 
        investigation continues, and we will continue to pursue 
        every lead.'' Yet, the Justice Department's filing in 
        the Filegate case makes it clear that you are not 
        making any effort to follow this lead. In fact, the 
        Justice Department is disparaging these claims, and is 
        assisting the White House in its efforts to keep these 
        records from being produced to the Justice Department 
        or any other investigative body.\715\
---------------------------------------------------------------------------
    \715\ Id. at 2.

For example, in a memorandum filed in the Alexander case on 
March 6, 2000, the Department of Justice, serving as counsel 
for the White House, characterized the plaintiff's allegations 
as ``offensive.'' \716\ Then it stated that the ``technical 
failure [to produce the e-mails] is a long standing matter of 
public record that has been confirmed by the White House 
itself.'' \717\ The principal reason this statement is 
problematic is that the White House failed to confirm the 
existence of the problem to Congress, the Justice Department 
Campaign Financing Task Force, independent counsels. Such 
examples of conflict of interest led Chairman Burton to 
conclude his March 21, 2000, letter by stating that it was 
``inconceivable that the Justice Department can on the one hand 
help the White House avoid production of the missing e-mails, 
and on the other hand, aggressively pursue the e-mails in the 
campaign fundraising investigation.'' \718\ Indeed, it 
currently appears that Attorney General Reno has more of her 
staff defending the White House than investigating the White 
House. There is not even an effort to effect an appearance of 
impartiality.
---------------------------------------------------------------------------
    \716\ See Executive Office of the President's Memorandum in 
Opposition to Plaintiff's Requests to Restrict Disclosure of the First 
and Second Supplements to Plaintiff's Motion for Evidentiary Hearing, 
and in Support of Cross-motion for Expedited Consideration Transcript 
of Motions Hearing at 1, Alexander v. FBI (D.D.C. Mar. 6, 2000) (CA 96-
2123).
    \717\ Id. at 6.
    \718\ Letter from the Honorable Dan Burton, chairman, Committee on 
Government Reform, to the Honorable Janet Reno, Attorney General 1 
(Mar. 21, 2000) (within appendix I).
---------------------------------------------------------------------------
    On March 23, 2000, the committee held its first hearing on 
the White House e-mail problem. That very same day, despite the 
committee's concern about Department of Justice's dual role, 
the Department announced in an Alexander court filing that it 
too had commenced a criminal investigation of the White House 
e-mail problem.\719\ As a result, the committee was left with 
no choice but to call for Attorney General Reno to appointment 
a special counsel. The Chairman did so on March 27, 2000.\720\ 
Chairman Burton indicated to Attorney General Reno that:
---------------------------------------------------------------------------
    \719\ The Department of Justice's e-mail investigation would be 
conducted by its Campaign Financing Task Force.
    \720\ Letter from the Honorable Dan Burton, chairman, Committee on 
Government Reform, to the Honorable Janet Reno, Attorney General 2 
(Mar. 27, 2000) (within appendix I).

        The issue is relatively simple: either White House 
        lawyers made a good faith attempt to do what they were 
        required to do by law, or they did not. It is my belief 
        that your Justice Department cannot be relied upon to 
        get to the bottom of this matter because of the 
        conflict within the Justice Department and because of 
        your own demonstrated lack of enthusiasm when it comes 
        to investigating the White House, the President, the 
        Vice President, and your political party.\721\
---------------------------------------------------------------------------
    \721\ Id. at 7. The committee believes it is important that the 
Department of Justice remove itself entirely from this investigation 
and appoint an outside counsel. ``The individual chosen should be 
completely independent, should have no current ties to the Justice 
Department, and should be seen by the American people as fair and 
impartial.'' Letter from the Honorable Dan Burton, chairman, Committee 
on Government Reform, to the Honorable Janet Reno, Attorney General 2 
(Mar. 27, 2000) (within appendix I).

    Three days later, on March 30, 2000, Chairman Burton again 
stressed the serious need for the appointment of a special 
counsel to Attorney General Reno. ``The Justice Department 
cannot investigate these allegations against itself. To attempt 
to do so would cripple the investigation, and continue to erode 
the little remaining trust that the Congress and the public 
have in you and the Department of Justice.'' \722\
---------------------------------------------------------------------------
    \722\ Letter from the Honorable Dan Burton, chairman, Committee on 
Government Reform, to the Honorable Janet Reno, Attorney General 5 
(Mar. 30, 2000) (within appendix I).
---------------------------------------------------------------------------
    Even though news reports indicated it was unlikely that 
Attorney General Reno would appoint a special counsel,\723\ on 
March 28, 2000, Justice Department Spokesman Myron Marlin 
stated that the Department was ``considering'' whether or not 
``yet another outside investigator [was] truly necessary.'' 
\724\ The tone of Marlin's comment made it quite clear that the 
Justice Department had made up its mind even as Department 
lawyers continued to maintain that the request was still under 
consideration.
---------------------------------------------------------------------------
    \723\ Joe Matthews, ``Burton Seeks Special Counsel in E-mail 
Probe,'' the Wall Street Journal, Mar. 28, 2000, at A6.
    \724\ Philip Shenon, ``Republican Lawmaker Seeks Special Counsel in 
E-mail Feud,'' the New York Times, Mar. 28, 2000, at A18 (emphasis 
added).
---------------------------------------------------------------------------
    At the same time, the White House had no qualms about 
making known to both the American public and the Department of 
Justice its dismissive views regarding the committee's request 
for a special counsel. Joe Lockhart, White House Press 
Secretary, stated the following:

        I think the Justice Department will have to make that 
        decision. I will only remind people that, you know, Dan 
        Burton asking for an outside counsel or a special 
        counsel is like the sun coming up in the morning. It 
        happens, you know, once a week or once a month and you 
        all will have to remember, all of the pressing issues 
        that he called for outside counsels on and what came of 
        them.\725\
---------------------------------------------------------------------------
    \725\ Joseph Lockhart, Assistant to the President and Press 
Secretary, White House press conference, Washington, DC (Mar. 28, 
2000). This is not the first time Lockhart has made inaccurate comments 
to the press that were intended to harm the reputation of Chairman 
Burton and the integrity of this committee's investigations. For 
example, as the committee began the investigation of President 
Clinton's grant of clemency to FALN members, Lockhart, at a Sept. 16, 
1999, White House press briefing, stated:

      We're now hearing and getting subpoenas from a committee 
      chairman who--I don't really know what legislative 
      accomplishments he's had in his tenure as chairman. But I 
      can tell you that we've gotten something like 700 subpoenas 
      from him[.] This is about trying to pursue a political 
---------------------------------------------------------------------------
      agenda, and it's about politics here.

    The committee immediately responded to Lockhart's inaccurate 
statement. ``[The Committee] has issued a total of 26 subpoenas to the 
White House and White House officials since Congressman Burton became 
Chairman in January 1997.'' Letter from Kevin Binger, staff director, 
Committee on Government Reform, to Joseph Lockhart, Assistant to the 
President and Press Secretary (Sept. 17, 1999) (the current total of 
document subpoenas issued to the White House is 31) (exhibit 169).

White House spokesman Jim Kennedy reiterated Lockhart's 
flippant and diversionary attitude toward this committee's 
desire for legitimate, untainted investigations: ``wind has to 
blow, rain has to fall, and Dan Burton has to call for special 
counsels.'' \726\ Notwithstanding this overblown rhetoric, 
Chairman Burton has asked for the appointment of an independent 
or special counsel only twice: the campaign finance 
investigation and the White House e-mail investigation.
---------------------------------------------------------------------------
    \726\ Philip Shenon, ``Republican Lawmaker Seeks Special Counsel in 
E-mail Feud,'' the New York Times, Mar. 28, 2000, at A18.
---------------------------------------------------------------------------
     a. the attorney general's refusal to appoint a special counsel
    On April 12, 2000, the Department of Justice replied to the 
committee's March 8, March 21, March 27, and March 30, 2000, 
letters. Regarding the committee's concern about a conflict of 
interest in the e-mail matter, Assistant Attorney General 
Robert Raben provided the following explanation:

        The Department often represents the interests of a 
        governmental entity in civil litigation where an issue 
        presented in that civil case touches upon a pending 
        criminal investigation. If an aspect of an ongoing 
        civil case threatens to duplicate or interfere with the 
        conduct of an ongoing criminal investigation, the 
        Department often seeks to stay that part of the civil 
        case that might duplicate or interfere with the 
        progress of the criminal investigation. That is 
        precisely the relief the Department sought in the 
        Alexander case, in which the Department asserted that 
        the lawyers in the Civil Division, who had been looking 
        into the email [sic] issue, should not proceed with 
        that investigation because it could duplicate or 
        compromise the investigation by the Task Force and the 
        Office of Independent Counsel.\727\
---------------------------------------------------------------------------
    \727\ Letter from Robert Raben, Assistant Attorney General, to the 
Honorable Dan Burton, chairman, Committee on Government Reform 1-2 
(Apr. 12, 2000) (within appendix I).

    Raben's explanation failed to relieve the committee of its 
concern that the Department of Justice would be operating under 
a conflict of interest when investigating the e-mail matter. 
First, the Department of Justice's Civil Division 
representation of the White House in the Alexander case does 
not simply ``touch upon'' the Campaign Financing Task Force's 
criminal investigation into the e-mail problem. Instead, the 
Department of Justice is defending its client's actions in one 
case, while conducting a criminal investigation into the exact 
same conduct in the other. As the committee pointed out in its 
March 27, 2000, letter, even Robert J. Conrad, Jr., the Chief 
of the Department of Justice Campaign Financing Task Force 
noted the conflict of interest. Conrad, in a March 22, 2000, 
declaration to the U.S. District Court for the District of 
Columbia stated that ``continued inquiry into this matter by 
the Civil Division . . . would interfere with and potentially 
compromise the Task Force's own investigation of the pending 
allegations.'' \728\ It is unfortunate that Attorney General 
Reno did not heed Conrad's warning. Second, the Department of 
Justice's explanation for why it can investigate and defend the 
same conduct is premised upon receiving a stay in the Alexander 
case. The Department of Justice has received no such stay. 
Instead, both cases are moving forward and the conflict of 
interest remains.
---------------------------------------------------------------------------
    \728\ Declaration of Robert J. Conrad, Chief, Campaign Financing 
Task Force, Department of Justice, at para. 7, Alexander v. FBI (D.D.C. 
Mar 22, 2000, amend. Mar. 23, 2000) (CA 96-2123) (exhibit 184). 
Chairman Burton called Attorney General Reno's attention to Conrad's 
position in a Mar. 27, 2000, letter. Letter from the Honorable Dan 
Burton, chairman, Committee on Government Reform, to the Honorable 
Janet Reno, Attorney General 1 (Mar. 27, 2000) (within appendix I).
---------------------------------------------------------------------------
    In response to the committee's request for a Special 
Counsel, on April 12, 2000, Assistant Attorney General Robert 
Raben indicated that ``the Office of Independent Counsel 
already [was] investigating the e-mail issue in coordination 
with the Task Force.'' \729\ Raben indicated, however, that the 
Department of Justice was ``carefully reviewing whether a 
second outside counsel should be appointed to investigate this 
matter.'' \730\ At a May 3, 2000, hearing, Raben was questioned 
by committee staff:
---------------------------------------------------------------------------
    \729\ Letter from Robert Raben, Assistant Attorney General, to the 
Honorable Dan Burton, chairman, Committee on Government Reform 2 (Apr. 
12, 2000) (within appendix I).
    \730\ Id.

        Counsel. On March 27, which is now, I guess, 5 weeks 
        ago, the Chairman of the Committee made a request to 
        the Department of Justice to appoint a special counsel 
        to investigate the e-mail matter. As of this date, 
        there has been no response to the request, and now that 
        you're here, perhaps you can provide us an official 
---------------------------------------------------------------------------
        response if there is one.

        Mr. Raben. Yes. The official response is that we 
        continue to work on it, that it's a serious request, 
        and that it's being taken seriously.\731\
---------------------------------------------------------------------------
    \731\ ``Missing White House E-mails: Mismanagement of Subpoenaed 
Records,'' hearings before the Committee on Government Reform, 106th 
Cong. 194 (May 3, 2000) (statement of Robert Raben, Assistant Attorney 
General, Department of Justice).

On May 6, 2000, the committee learned that Raben's testimony 
was not accurate. During a committee hearing on that date, 
committee staff questioned Lee Radek, Chief of the Department 
of Justice Public Integrity Section, about pending special 
counsel decisions. Radek is in charge of handling matters that 
relate to the appointments of special counsels under the 
Department of Justice regulations, and the following exchange 
---------------------------------------------------------------------------
occurred:

        Counsel. Are there any pending decisions that pertain 
        to appointing a special counsel in any campaign finance 
        matter?

        Mr. Radek. There are none.\732\
---------------------------------------------------------------------------
    \732\ ``The Justice Department's Implementation of the Independent 
Counsel Act,'' hearings before the Committee on Government Reform, 
106th Congress 83-84 (June 6, 2000) (testimony of Lee Radek, Chief 
Public Integrity Section, Department of Justice).

Especially after Attorney General Reno's rejection of an 
independent counsel in the campaign fundraising matter, Mr. 
Radek's testimony came as no surprise, but as a great 
disappointment, to this committee.
b. tony barry's false statements to the alexander court underscore the 
               justice department's conflict of interest
    The Justice Department's investigation is flawed on many 
fronts. Perhaps the most troubling flaw in the Department's 
handling of the e-mail matter is evidenced by its actions--and 
subsequent lack of action--regarding the false statements 
submitted in Federal court by Tony Barry. The involvement of 
White House and Justice Department lawyers in Barry's June 11, 
1998, deposition and July 9, 1999, affidavit should be a focal 
point of the Department's criminal investigation. However, even 
though it is the subject of a criminal referral from Congress, 
the Justice Department apparently is no longer interested in 
investigating Barry's false affidavit and the counsel he 
received before signing the affidavit.\733\ The committee 
believes that the recent decisions in the criminal 
investigation have let government lawyers off the hook. This 
underscores the conflict of interest inherent in the Justice 
Department's e-mail probe.
---------------------------------------------------------------------------
    \733\ Letter from the Honorable Dan Burton, chairman, Committee on 
Government Reform, to the Honorable Janet Reno, Department of Justice 
(Mar. 30, 2000) (within appendix I).
---------------------------------------------------------------------------
    Not only has the Justice Department failed to investigate 
fully the role of its own lawyers in the deposition and 
affidavits of Daniel Barry, it has also failed to cooperate 
with this committee's investigation. On April 3, 2000, the 
committee requested interviews with James Gilligan, Elizabeth 
Shapiro, Julia Fayngold-Covey, Allison Giles, and Ann 
Weisman.\734\ Rather than making these Civil Division lawyers 
available for interviews with committee staff, Assistant 
Attorney General Robert Raben selectively asserted the 
``longstanding Department policy that line attorneys and agents 
not be required to answer questions from Congress about the 
conduct of Department litigation and investigations.'' \735\ 
The Department had selectively invoked the ``line attorney 
policy'' on several earlier occasions to avoid disclosing to 
the committee information embarrassing to the Justice 
Department. However, when the Justice Department sought to 
disclose information that was favorable to the Department, it 
gladly made line attorneys available. For example, the 
Department provided line attorneys for congressional 
questioning in the Rocky Flats investigation, the Waco 
investigation, and even in one case, provided a line attorney 
in the campaign fundraising investigation to the Senate.\736\ 
The selectivity of the Department's invocation of the ``line 
attorney policy'' suggests that it is eager to keep the 
committee from fully understanding the role of its attorneys in 
providing false statements in the Alexander case.
---------------------------------------------------------------------------
    \734\ Letter from the Honorable Dan Burton, chairman, Committee on 
Government Reform, to the Honorable Janet Reno, Attorney General, 
Department of Justice (Apr. 3, 2000) (within appendix I).
    \735\ Letter from Robert Raben, Assistant Attorney General, 
Department of Justice, to the Honorable Dan Burton, chairman, Committee 
on Government Reform (Apr. 12, 2999) (within appendix I).
    \736\ The Justice Department provided Marie Hagen to this committee 
for questioning regarding the Waco case. It provided Stephen Mansfield 
to the Senate Judiciary Committee for questioning regarding the 
Department's investigation of the Hsi Lai Temple fundraiser.
---------------------------------------------------------------------------
1. Tony Barry Made False Statements in His June 11, 1998, Deposition
    The July 9, 1999, Barry affidavit (that is the subject of 
the committee's criminal referral) is not the only submission 
to Judge Royce Lamberth's court that White House and Justice 
Department lawyers have had a hand in. Government lawyers also 
assisted Barry with two earlier declarations for the court in 
the Alexander v. FBI litigation, as well as with a deposition 
on June 11, 1998.\737\ Former Special Associate Counsel Sally 
Paxton worked with Barry on the deposition on behalf of the 
White House. Justice Department lawyer James Gilligan 
participated in the actual proceeding on behalf of the 
government. Barry later faxed edits to his deposition 
transcript to Julia Fayngold-Covey at the Justice 
Department.\738\ During the deposition, Barry was asked several 
questions about e-mails and ARMS. Key sections of Barry's 
responses in the deposition transcript read as follows:
---------------------------------------------------------------------------
    \737\ Deposition of Daniel A. Barry, Alexander v. FBI (D.D.C. June 
11, 1998) (CA 96-2123).
    \738\ See White House document production E 4019 (exhibit 114).

        Q. The e-mail messages from July 14, '94, onward, are 
        they on hard drives now, are they on tapes, are they on 
---------------------------------------------------------------------------
        both, where are they on?

        A. They currently reside in the ARMS, Automated Records 
        Management System data warehouse.\739\
---------------------------------------------------------------------------
    \739\ Deposition of Daniel A. Barry at 145, Alexander v. FBI 
(D.D.C. June 11, 1998) (CA 96-2123).






           *       *       *       *       *       *       *
        Q. If someone did send or receive E-mail on their 
        official account from home, would it be backed up and 
        archived just as if it were sent from within their 
---------------------------------------------------------------------------
        office?

        A. Yes.\740\
---------------------------------------------------------------------------
    \740\ Id. at 274.




---------------------------------------------------------------------------
    By Mr. Gilligan:

        Q. Mr. Favish was speaking to you earlier, Mr. Barry, 
        about a situation he posited where somebody working in 
        the White House would send an e-mail from their desk 
        top PC to somebody in Idaho; do you recall that?

        A. Yes.

        Q. An e-mail of that kind, would that be stored in the 
        Automated Records Management System?

        A. Yes it would.

        Q. How about the reverse, if an e-mail came in [from] 
        Idaho to somebody's desk top PC in the White House, 
        would that also be found stored in the Automated 
        Records Management System?

        A. If it was directed to their E-mail ID at the EOP, 
        yes, it would be.\741\
---------------------------------------------------------------------------
    \741\ Id. at 282-283.

As discussed in earlier sections of this report, Tony Barry 
became fully aware of the failure of the ARMS system 
immediately after this deposition.\742\ While he may not have 
known that his statements were false when he was deposed, he 
certainly did know soon thereafter. Barry was given the 
opportunity to review the transcript in July 1998.\743\ At 
least two e-mails from Barry indicate that he reviewed the 
transcripts in the same week that he was working on the Mail2 
problem.\744\ In fact, in his July 10, 1998, e-mail Barry 
wrote:
---------------------------------------------------------------------------
    \742\ Interview of Daniel A. Barry, Computer Specialist, Office of 
Administration, in Washington, DC (Mar. 9, 2000). As discussed above in 
section II.A.1, Barry may have understood the problem as early as 
January 1998, well before his deposition. However, it is clear that he 
fully understood the problem immediately after his deposition in early 
July 1998, when he returned from vacation. Id.
    \743\ White House document production E 4021 (exhibit 88).
    \744\ Id. See also id. at E 4019 (exhibit 114).

        I spent about 10 hours this week reading and marking up 
        my [deposition] \745\ in the Alexander case. I faxed 
        the pages that needed changing to Julia Feingold [sic] 
        at DOJ and she is to submit the changes for inclusion 
        into the final. I spend [sic] a considerable amount of 
        time this week working on the Mail2 problem.\746\
---------------------------------------------------------------------------
    \745\ Although Barry's e-mail actually used the word 
``declaration'' rather than ``deposition,'' his testimony and other 
evidence make it clear that he meant to write ``deposition.'' First, 
there was no declaration given by Barry in the summer of 1998. Second, 
Barry testified in Federal court that he was referring to his 
deposition: ``I frequently get confused between declaration and 
deposition.'' See Transcript of Evidentiary Hearing at 73-74, Alexander 
v. FBI (D.D.C. Aug. 17, 2000) (CA 96-2123).
    \746\ White House document production E 4019 (exhibit 114).

Barry knew that incoming e-mail to White House Office users was 
not being transferred to ARMS at the time he reviewed his 
deposition transcript. He had the opportunity to correct the 
record, but he did not. As a result, a deposition containing 
clearly false testimony became part of the record in the 
Alexander case.
    It is further troubling to the committee that Sally Paxton 
did not take the appropriate steps to ensure that the above 
deposition statements were corrected. In fact, she stated in an 
interview with the committee that she did not know for certain 
if she herself reviewed the deposition transcript.\747\ She 
also stated that, in general, she told Barry not to change the 
substance of depositions because it could open him up to being 
re-deposed.\748\ Asked if she instructed people not to change 
the substance of a deposition even if they saw a substantive 
error, Paxton responded: ``If anybody has an issue with 
anything [in a deposition], I expect them to raise it. But I 
don't think I ever gave such an instruction.'' \749\ The 
committee believes Paxton's cavalier attitude toward the 
deposition process is at least partially responsible for 
falsities becoming part of the record in the Alexander case. As 
Barry's attorney, Paxton had an affirmative obligation, 
independent of Barry, to ensure that the transcript was 
corrected to reflect the full truth.\750\
---------------------------------------------------------------------------
    \747\ Interview of Sally Paxton, former Special Associate Counsel 
to the President, the White House, in Washington, DC (June 22, 2000).
    \748\ Id.
    \749\ Id.
    \750\ In Alexander, the Justice Department and its client, the 
Executive of the President (EOP), offered Barry as an expert witness to 
testify as to how ARMS was used to records manage e-mail. By mid-1998, 
the Justice Department and Special Associate White House Counsel Sally 
Paxton likely learned that the White House's burgeoning e-mail problems 
might have materially affected elements of Barry's deposition testimony 
such that it was no longer accurate, complete or true. Accordingly, the 
Justice Department, and possibly Paxton, had an affirmative duty to 
disclose the new information. In particular, Federal Rule of Civil 
Procedure 26(e)(1) provides that ``[a] party who . . . responded to a 
[discovery] request . . . is under a duty to supplement or correct the 
disclosure or response to include information thereafter acquired . . . 
in the following circumstances: . . . With respect to [expert witness] 
testimony . . . the duty extends . . . to information provided through 
a deposition of the expert.'' Similar obligations might extend to a 
larger set of government attorneys under the local rules of court and/
or the ethical rules of professional responsibility.
---------------------------------------------------------------------------

2. Tony Barry Made False Statements in His July 9, 1999, Affidavit

    White House and Justice Department lawyers were also 
involved in the drafting and preparation of Barry's July 9, 
1999, affidavit in the Alexander case.\751\ The affidavit was 
prepared to provide the court with an explanation of how the 
White House would conduct the plaintiff's request to search for 
e-mail relating to the case. Former Associate Counsel Michelle 
``Shelly'' Peterson handled this matter for the White 
House.\752\ It appears that Civil Division attorneys Allison 
Giles, Jason Baron, and James Gilligan were responsible for the 
affidavit on behalf of the Justice Department.\753\ In fact, 
Giles and Barry faxed various iterations of the affidavit back 
and forth in the week prior to its submission.\754\
---------------------------------------------------------------------------
    \751\ Responding to a question on who was responsible for the 
affidavit, Michelle ``Shelly'' Peterson testified: ``It was the joint 
responsibility on part of the Justice Department lawyers and me with 
the understanding that since Tony was signing it, Tony would tell us if 
there was anything in it that was inaccurate.'' Transcript of 
Evidentiary Hearing at 222, Alexander v. FBI (D.D.C. Aug. 28, 2000) (CA 
96-2123).
    \752\ Id.
    \753\ A fax cover sheet from Giles to Barry on July 8, 1999, reads: 
``Tony, this should reflect your changes, as well as the changes 
proposed by Jason [Baron] that I mentioned. I changed the font to match 
the font I'm using in the brief. I'll see you tomorrow morning at 8:00. 
Thanks, Allie.'' Id. at 159 (Aug. 17, 2000). According to Jim Wright, 
Gilligan may have told Barry that he did not have to write ``to the 
best of my knowledge'' at the bottom of the affidavit because they 
would defend him if there were any problems. Interview of Jim Wright, 
Branch Chief for the Data Center and COTR, OA, in Washington, DC (June 
8, 2000).
    \754\ Id.
---------------------------------------------------------------------------
    Paragraph four of the July 9, 1999, affidavit that was 
submitted to the court reads:

        Since July 14, 1994, e-mail within the EOP system 
        administered by the Office of Administration has been 
        archived in the EOP Automated Records Management System 
        (ARMS). With this current system, this e-mail is 
        susceptible to being word-searched for a single 
        character string (e.g. ``FBI'' or ``FBI files'') or a 
        multiple character string (``and'' and ``or'' searches) 
        found on any one line of text.\755\
---------------------------------------------------------------------------
    \755\ Affidavit of Daniel A. Barry, Computer Specialist, Office of 
Administration, at 1-2, Alexander v. FBI (D.D.C. July 9, 1999) (CA 96-
2123) (exhibit 192).

Based on this language, this committee sent a criminal referral 
to Attorney General Reno on March 30, 2000.\756\ As stated in 
the referral letter, Barry's statement was false and he knew it 
was false. Barry knew it was false because, ``[a]t the 
Committee's hearing on March 23, 2000, Barry testified he was 
informed of the problem in July 1998, and that after that 
point, he attended technical meetings in the summer of 1998 and 
discussed in great detail the nature and scope of the 
problem.'' \757\ Furthermore, as the many e-mail messages he 
sent to others indicate, he was the person who worked the 
hardest to convince superiors that something had to be done to 
archive e-mail and re-do all necessary searches. Indeed, the 
committee recognizes that before his deposition testimony and 
affidavit submission, Barry repeatedly sought direction from 
superiors in order to ensure that the White House would 
reconstruct the unarchived e-mail.
---------------------------------------------------------------------------
    \756\ See letter from the Honorable Dan Burton, chairman, Committee 
on Government Reform, to the Honorable Janet Reno, Attorney General, 
Department of Justice (Mar. 30, 2000) (within appendix I).
    \757\ Id. at 3-4.
---------------------------------------------------------------------------
    Early on in the investigation, the White House attempted to 
defend paragraph four of the July 9, 1999, affidavit by parsing 
the words of the statement. Testifying before the committee on 
March 30, 1999, White House Counsel Beth Nolan stated that the 
language was accurate because ``e-mail was archived. It turned 
out that some e-mail was not captured, but e-mail was 
archived.'' \758\ Nolan went on to say, ``This was not an 
affidavit saying--from Tony Barry saying we have produced all 
the e-mail or all e-mail is captured. It was describing the 
system for a potential e-mail search.'' \759\ This line of 
defense was later echoed by Barry himself, in an exchange with 
Judge Lamberth regarding similar language in paragraph 11 of 
his earlier March 4, 1998, affidavit on the same subject:
---------------------------------------------------------------------------
    \758\ ``Missing White House E-mails: Mismanagement of Subpoenaed 
Records,'' hearings before the Committee on Government Reform, 106th 
Cong. 36 (Mar. 30, 2000) (testimony of Beth Nolan, Counsel to the 
President, the White House).
    \759\ Id. at 37.

        The Witness. It seems to me, Your Honor, that everybody 
        thinks that I said--or that was said in that paragraph 
        was that all e-mail was in ARMS, and I never--it was 
---------------------------------------------------------------------------
        never meant to be that, as far as I was concerned.

        The Court. You just said e-mail within EOP has been 
        archived weekly. Would that not imply to the ordinary 
        reader that that meant all the e-mail? Why wouldn't 
        that imply that to me as I read that? Why would I think 
        it only meant some e-mail? \760\
---------------------------------------------------------------------------
    \760\ Transcript of Evidentiary Hearing at 161, Alexander v. FBI 
(D.D.C. Aug. 3, 2000) (CA 96-2123).

Although Barry explained to Judge Lamberth that he believed he 
was writing the affidavit in the context of being the expert on 
the All-in-One system, it was apparent that the Judge would not 
accept the White House's alternative explanation for the 
affidavit.\761\ As discussed below, Judge Lamberth eventually 
heard Mark Lindsay concede that the July 9, 1999, affidavit was 
false.
---------------------------------------------------------------------------
    \761\ Id. at 161-62. See also affidavit of Daniel A. ``Tony'' Barry 
at para. 11, Alexander v. FBI (D.D.C. Mar. 4, 1998) (CA 96-2123) 
(exhibit 188).
---------------------------------------------------------------------------
    By counseling Barry through the process of preparing and 
submitting the false affidavit to the court, Justice Department 
and White House lawyers were complicit in the fraud perpetrated 
upon Judge Royce Lamberth's court. Nevertheless, Shelly 
Peterson testified in court and stated to this committee that 
the lawyers believed the affidavit to be true. As she testified 
on August 28, 2000, ``I don't believe--I know for certain that 
at the time no one at the Justice Department believed there was 
anything inaccurate in this declaration or that I knew there 
was anything inaccurate in his declaration.'' \762\ Peterson 
also stated to this committee, ``[t]here's nothing in [the 
declaration] that I thought was inaccurate--nothing gave me 
pause.'' \763\
---------------------------------------------------------------------------
    \762\ Transcript of Evidentiary Hearing at 231, Alexander v. FBI 
(D.D.C. Aug. 28, 2000) (CA 96-2123).
    \763\ Interview of Michelle Peterson, former Associate Counsel, the 
White House, in Washington, DC (June 8, 2000).
---------------------------------------------------------------------------
    The committee finds these statements troubling. White House 
and Justice Department lawyers worked in close consultation 
with Tony Barry who had known for over a year that there was a 
problem with the ARMS system. They had helped him with two 
previous declarations, as well as the June 11, 1998, 
deposition. The failure of the government lawyers to make the 
court aware of the false statements in the July 9, 1999, 
affidavit was, in the view of the committee, a dereliction of 
duty. As with Paxton and Fayngold-Covey in the review of the 
deposition, Peterson, Giles, and the other Justice Department 
lawyers had an affirmative obligation to present the truth in 
an affidavit submitted in Federal court.

3. The Justice Department Has Declined to Make Barry a Target in the E-
        mail Investigation

    Despite the clearly false statement in the July 9, 1999, 
affidavit, the clearly false statements in the June 11, 1998 
deposition, and the assistance and counsel provided to Barry by 
the various government lawyers discussed above, the Justice 
Department recently sent Barry a letter assuring him that he 
was not a target in the e-mail investigation.\764\
---------------------------------------------------------------------------
    \764\ Id. Letter from Alan Gershel, Deputy Assistant Attorney 
General, Department of Justice, to Steve Ryan, Counsel to Daniel A. 
``Tony'' Barry (Aug. 1, 2000) (exhibit 185). The letter states, in 
pertinent part, that ``Daniel Barrie [sic] . . . is not currently a 
target of [the e-mail] investigation.''
---------------------------------------------------------------------------
    It is a matter of some concern that the adviser to the 
Attorney General in charge of this investigation was not even 
able to spell Barry's name correctly.\765\ Far from a simple 
typographical error, Deputy Assistant Attorney General Alan 
Gershel repeatedly referred to Mr. ``Barrie.'' \766\ It is 
difficult to believe that Gershel had reviewed the relevant 
documents relating to Barry, or understood his significance in 
the e-mail investigation if he could not even spell his name. 
It should be noted that Gershel, the primary political 
supervisor of the Campaign Financing Task Force, took a break 
from his duties to act as lead counsel in the prosecution of 
former independent counsel spokesman Charles Bakaly.\767\ As 
the committee noted in a September 7, 2000, letter to Attorney 
General Reno:
---------------------------------------------------------------------------
    \765\ Id.
    \766\ See id. Not only was Gershel unfamiliar with a possible 
target in the e-mail investigation, he also demonstrated a disturbing 
lack of knowledge about a felon convicted by the very Campaign 
Financing Task Force that he is purportedly supervising. Gershel 
demonstrated in testimony before the committee that he was unfamiliar 
with Howard Glicken, who was Vice President Al Gore's top supporter in 
Florida, a frequent visitor to the White House, and who was convicted 
of soliciting foreign contributions to the Democratic National 
Committee. ``Contacts Between Northrop Grumman Corporation and the 
White House Regarding Missing White House E-mails,'' hearings before 
the Committee on Government Reform, 106th Cong. 98-99 (Sept. 26, 2000).
    \767\ See Larry Margasak, ``Trial Ends for Ex-Starr Press Aide,'' 
Associated Press (July 19, 2000) (describing Gershel's involvement in 
Bakaly's prosecution).

        After Mr. Barry was officially determined not to be a 
        target of the [White House e-mail] investigation, Mark 
        Lindsay testified to Judge Lamberth that paragraph four 
        of the July 9, 1999, affidavit Mr. Barry submitted to 
        the court in the Alexander v. FBI case was not true. As 
        you know, the Committee submitted to you a criminal 
        referral on Mr. Barry based on paragraph four of his 
        July 9, 1999, affidavit. The admission by a high-
        ranking official in the White House that Mr. Barry's 
        affidavit is not true should be of great concern to 
        you. Apparently the ``no target'' letter sent by your 
        Justice Department gave the White House comfort finally 
        to admit what was obvious to me, Judge Lamberth and 
        others. To wit, a White House employee, aided and 
        counseled by the Justice Department lawyers, submitted 
        a false affidavit to a Federal court that concealed the 
        failure of the White House to search for all e-mails 
        responsive to subpoenas.\768\
---------------------------------------------------------------------------
    \768\ Letter from the Honorable Dan Burton, chairman, Committee on 
Government Reform, to the Honorable Janet Reno, Attorney General, 
Department of Justice 2 (Sept. 7, 2000) (within appendix I).

    On August 23, 2000, Lindsay made a significant admission 
regarding the affidavit under direct questioning by Judge 
---------------------------------------------------------------------------
Lamberth:

        Q. Okay. Now, paragraph 4 . . . Given what you learned 
        in June 1998 that e-mail was not being archived coming 
        from the outside into the ARMS system, this statement 
        is incorrect?

        A. I think it's incomplete, yes.

        Q. And, in fact, if you had written the affidavit, you 
        would have advised this Court that e-mail was not being 
        archived coming in from outside of EOP?

        A. I don't know what I would have done. I know knowing 
        what I know right now I probably would have put it in 
        there, yes.

        Q. I turn your attention to----

        The Court. Well, you also know that that statement 
        that's in there right now is not true?

        The Witness: Yes.\769\
---------------------------------------------------------------------------
    \769\ Transcript of Motions Hearing at 167-68, Alexander v. FBI 
(D.D.C. Aug. 23, 2000) (CA 96-2123).

The committee appears to be correct in its concerns that the 
Department of Justice has a significant conflict of interest in 
the e-mail investigation. The Criminal Division is responsible 
for investigating the Civil Division for its role in preparing 
and submitting the June 11, 1998, deposition and the July 9, 
1999, Barry affidavit--an affidavit that the White House now 
admits is false. By letting Tony Barry off the hook, presumably 
Justice Department lawyers are off the hook as well. As 
Chairman Burton wrote to Attorney General Reno ``Justice 
Department lawyers are giving other Justice Department 
lawyers--who should bear some culpability for the affidavit 
they helped draft--a clean bill of health. This takes the 
conflict of interest inherent in the Department's investigation 
of the e-mail scandal to a new, unprecedented level.'' \770\ 
The need to avoid such a whitewash is precisely the reason that 
Chairman Burton requested Attorney General Reno to appoint a 
Special Counsel in the first place.
---------------------------------------------------------------------------
    \770\ Letter from the Honorable Dan Burton, chairman, Committee on 
Government Reform, to the Honorable Janet Reno, Attorney General, 
Department of Justice 2 (Sept. 7, 2000) (within appendix I).
---------------------------------------------------------------------------

c. the department of justice's failure to interview material witnesses 
                          in a timely fashion

    Another example of Department of Justice's substandard 
investigation was its failure to take the most fundamental step 
of interviewing key, material witnesses. In a June 28, 2000, 
letter, Chairman Burton called Attorney General Reno's 
attention to the fact that, since she was a prosecutor, she 
should be ``well aware of the importance of moving swiftly to 
obtain testimony and documents.'' \771\ The Chairman continued, 
``[i]f you don't ask questions, and if you don't subpoena 
documents, you don't get answers to questions.'' \772\ 
Throughout the summer, the committee's concerns that witnesses 
were not being interviewed remained. As a result, the committee 
contacted the witnesses directly to see if the Department of 
Justice or the Office of Independent Counsel had interviewed 
them. It came as a great disappointment that as of late August, 
the following witnesses still had not been interviewed by the 
Department of Justice:
---------------------------------------------------------------------------
    \771\ Letter from the Honorable Dan Burton, chairman, Committee on 
Government Reform, to the Honorable Janet Reno, Attorney General, 
Department of Justice 2 (June 28, 2000) (within appendix I).
    \772\ Id. at 5.

---------------------------------------------------------------------------
 Mark Lindsay;

 Michelle Peterson;

 John Podesta;

 Dorothy Cleal;

 Adam Greenstone;

 Joe Kouba;

 Joe Vasta;

 Jim DeWire;

 Christina VanFossan;

 Joseph Lucente;

 Katherine Anderson;

 Cary Havert;

 Howard ``Chip'' Sparks; and

 Michael Lyle.\773\
---------------------------------------------------------------------------
    \773\ Specifically, the following witnesses had not been 
interviewed by the dates noted in parentheses: Mark Lindsay (Aug. 23, 
2000), Michelle Peterson (Aug. 28, 2000), John Podesta (Sept. 5, 2000), 
Dorothy Cleal (Sept. 1, 2000), Adam Greenstone (Aug. 31, 2000), Joe 
Kouba (Aug. 31, 2000), Joe Vasta (Aug. 30, 2000), Jim DeWire (Aug. 30, 
2000), Christina VanFossan (Aug. 30, 2000), Joseph Lucente (Aug. 30, 
2000), Katherine Anderson (Aug. 29, 2000), Cary Havert (Sept. 6, 2000), 
Howard ``Chip'' Sparks (Aug. 30, 2000), Tung Q. ``Eric'' Duong (Sept. 
7, 2000), and Michael Lyle (Aug. 29, 2000). On Aug. 30, 2000, Laura 
Callahan's counsel, Ralph Lotkin, refused to answer the committee's 
inquiries as to whether or not the Department of Justice or Office of 
Independent Counsel had interviewed Callahan. On Sept. 6, 2000, Sally 
Paxton's counsel, Steve McNabb, also refused to answer the committee's 
inquiries. Nell Doering and Karl Heissner, both represented by John 
Zwerling, were interviewed by the Department of Justice. On Aug. 29, 
2000, however, Mr. Zwerling refused to answer the committee's inquiry 
as to whether or not the Office of Independent Counsel had interviewed 
either of his clients.

More than 5 months after Attorney General Reno launched the 
Department's criminal investigation and the committee called 
for the appointment of a special counsel, major witnesses have 
not been interviewed. As was pointed out previously to Attorney 
General Reno in another investigation: ``[i]f you fail to 
gather evidence, then you will never be able to get to the 
bottom of matters or project confidence that you have been 
thorough and fair.'' \774\
---------------------------------------------------------------------------
    \774\ Letter from the Honorable Dan Burton, chairman, Committee on 
Government Reform, to the Honorable Janet Reno, Attorney General, 
Department of Justice 2 (Dec. 16, 1999) (exhibit 183).
---------------------------------------------------------------------------
    Additionally, the committee remains concerned about 
potential failures it does not and may never know about. 
Because of the secrecy involved with Department of Justice's 
investigations, it is difficult for this committee, in its 
oversight capacity, to assess the effectiveness and adequacy of 
the Department's investigations. Normally, the committee would 
defer to the strategies of Department of Justice career lawyers 
in investigations. Unfortunately, with its track record under 
Attorney General Reno's command, the committee cannot place 
such confidence in the Department of Justice where 
investigations of corruption and illegalities in the Clinton-
Gore administration are concerned. For example, the committee 
suspected that the Department of Justice was provided extremely 
important documents regarding the Vice President's e-mail 
problems not because of its own independent investigation, but 
because this committee subpoenaed them and the White House 
provided identical copies to the Justice Department.\775\
---------------------------------------------------------------------------
    \775\ Letter from the Honorable Dan Burton, chairman, Committee on 
Government Reform, to the Honorable Janet Reno, Attorney General, 
Department of Justice 3 (June 28, 2000) (within appendix I).
---------------------------------------------------------------------------
    The committee's concern about Janet Reno's Justice 
Department conducting an investigation into the White House e-
mail problem must be seen against the backdrop of the 
Department's many failures to pursue a vigorous investigation 
into the foreign money fundraising scandal that grew out of the 
1996 elections. For instance, even though the Reno Justice 
Department interviewed President Clinton twice, on November 11, 
1997, and November 9, 1998, about campaign fundraising 
illegalities, not once did the Department ask the President a 
single question about James Riady, John Huang, Charlie Trie, or 
Mark Middleton, all key figures in the scandal. But for this 
committee's persistent efforts, the American people would never 
know that the Department of Justice neglected to ask President 
Clinton the most fundamental questions about the infusion of 
foreign money into the our political system.
    Because of the committee's diligence, the Department of 
Justice again interviewed President Clinton on April 21, 2000. 
The committee is deeply troubled that it took 3 years for the 
Department of Justice to do its job. This failure repeated 
itself again when the Department neglected to question Vice 
President Gore in any of his four interviews--November 11, 
1997, June 10, 1998, August 8, 1998, and November 11, 1998--
about the Hsi Lai Temple, Maria Hsia, John Huang, or James 
Riady. As with President Clinton's interview, but for this 
committee's steadfast persistence to acquire and finally review 
Vice President Gore's FBI interviews in December 1999, the 
American people would never know that the Department of Justice 
failed to ask fundamental investigative questions. Because of 
the committee's diligence, the Department of Justice again 
interviewed Vice President Gore on April 18, 2000. As a result 
of this Department of Justice failure to conduct a proper 
investigation, Chairman Burton made his displeasure with 
Attorney General Reno's known in a December 16, 1999, letter:

        I have expressed the concern on numerous occasions that 
        you and your Department were not able to conduct a 
        thorough and impartial investigation of the President 
        and your own political party. I have also suggested 
        that the inherent conflict in your position creates a 
        perception that justice is not being administered in an 
        impartial fashion. You have appeared before my 
        Committee and told me that, in the campaign finance 
        investigation: ``[W]e are going to follow every lead, 
        wherever it goes[.]'' What am I to think, then, of an 
        investigation that has failed to ask key witnesses any 
        questions about the most important subjects in what has 
        allegedly been one of the largest investigations even 
        undertaken by the Department of Justice? Indeed, you 
        have accepted plea bargains and concluded prosecutions 
        without the slightest concern that potentially 
        important witnesses have not been approached. Two years 
        ago I said that I thought you would have a hard time 
        being vigorous in a case that involves your superior 
        and your political party. Your interviews of the 
        President and the Vice President simply prove that my 
        fears were real.\776\
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    \776\ Letter from the Honorable Dan Burton, chairman, Committee on 
Government Reform, to the Honorable Janet Reno, Attorney General, 
Department of Justice 1-2 (Dec. 16, 1999) (exhibit 183).

It troubles the committee that this observation applies equally 
as well to the Department of Justice's e-mail investigation.
    Because of the Reno Justice Department's failures, the 
committee must reject Assistant Attorney General Robert Raben's 
recommendation to this committee that: ``[C]ongressional 
inquiries into ongoing investigations create the added danger 
of undermining the credibility of law enforcement by injecting 
or appearing to inject political considerations into the 
criminal justice process.'' \777\ While this might normally be 
true, the committee believes that the exact opposite has 
happened where the Reno Justice Department is concerned: 
without congressional oversight, current leadership at the 
Department of Justice would continue to inject political 
considerations into the criminal justice system at an even more 
alarming rate.\778\ Attorney General Reno, through incompetent 
or politically motivated decisions, has undermined the 
credibility of law enforcement in this country. As a result, 
the committee has no choice but to continue to request that the 
e-mail investigation be put in the hands of an independent 
investigator. The committee continues to maintain its position, 
which was stated in the March 27, 2000, letter to Attorney 
General Reno, that this situation:
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    \777\ ``Missing White House E-mails: Mismanagement of Subpoenaed 
Records,'' hearings before the Committee on Government Reform, 106th 
Congress 182-183 (May 3, 2000) (statement of Robert Raben, Assistant 
Attorney General, Department of Justice).
    \778\ See letter from the Honorable Dan Burton, chairman, Committee 
on Government Reform, to the Honorable Janet Reno, Attorney General, 
Department of Justice 2-6 (Mar. 27, 2000) (within appendix I) for 
numerous examples of where Attorney General Reno creates the perception 
that she is unable to do her job and predisposed to provide unfair 
advantages to political colleagues in matters involving the campaign 
finance scandal.

        [C]alls for a real investigation, not platitudes. You 
        were in charge when the Justice Department's Civil 
        Division began to help the White House craft its 
        efforts to hide these e-mails. You were in charge when 
        your lawyers went to bat for the White House instead of 
        against it. The e-mail investigation is, in part, of 
        you, and it would be absurd for you to cling to the 
        fiction that you can investigate yourself.\779\
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    \779\ Letter from the Honorable Dan Burton, chairman, Committee on 
Government Reform, to the Honorable Janet Reno, Attorney General 4 
(Mar. 27, 2000) (within appendix I).

    Overall, this committee must conclude that the Department 
of Justice's failure to move swiftly on the e-mail matter, and 
the failure to follow significant factual developments, can 
only be seen as an extension of the failures in the campaign 
finance investigation.\780\
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    \780\ Letter from the Honorable Dan Burton, chairman, Committee on 
Government Reform, to the Honorable Janet Reno, Attorney General 5 
(June 28, 2000) (within appendix I).
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d. the department of justice's failure to devote adequate resources to 
                        the e-mail investigation

    It appears that for at least part of its e-mail 
investigation, the Justice Department had only one part-time 
lawyer assigned to its e-mail investigation. If true, this 
would indicate an abject failure to provide adequate resources 
to conduct a credible investigation. Treating these serious, 
largely substantiated allegations of threats and obstruction 
with such utter disregard would only increase the perception 
that the Justice Department's investigation is merely a 
facade--a perception already bolstered by the fact that the 
Justice Department publicly announced its investigation on the 
same day this committee held its first hearing on the matter. 
Thus, the committee sought to ascertain whether, in fact, after 
the fanfare of its initial press release, the Justice 
Department had assigned an insufficient number of personnel to 
handle the case.
    At a hearing on September 26, 2000, the committee put this 
question to Deputy Assistant Attorney General Alan Gershel. The 
question was no surprise, as the committee had provided written 
questions to Gershel before the hearing to assist him in 
preparing his answers. Nevertheless, Gershel refused to answer 
any questions about staffing levels. Gershel testified as 
follows:

        Mr. Burton. So let me ask you one more time. How many 
        attorneys have worked on the Justice Department's 
        campaign task force e-mail matter since its inception, 
        do you know?

        Mr. Gershel. Mr. Chairman, it's been the practice of 
        the Department not to comment specifically on numbers 
        of people assigned or involved with investigations. I 
        can assure you, though, that there have been sufficient 
        resources devoted to this investigation.\781\
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    \781\ ``Contacts Between Northrop Grumman Corporation and the White 
House Regarding Missing White House E-mails,'' hearings before the 
Committee on Government Reform, 106th Cong. 40 (Sept. 26, 2000).

However, when specifically asked to cite authority for refusing 
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to answer the committee's question, Gershel failed to do so:

        Mr. Horn. I'm curious. Why can't the Department of 
        Justice tell us about the staffing levels for the e-
        mail investigation? Under what authority do you have 
        not to tell us about the staffing level?

        Mr. Gershel. Congressman, if you're asking me to give 
        you legal authority for that, for my decision not to 
        comment on that, I cannot give you that.

        Mr. Horn. Well, whose authority is it?

        Mr. Gershel. It has been my understanding that it has 
        been the practice of the Department of Justice, not 
        just with this administration but previous 
        administrations, to not comment upon specific staffing 
        levels. There are a number of reasons for that, 
        including, for example, it may suggest an importance or 
        lack of importance with respect to the investigation 
        based simply on how many people are assigned to 
        it.\782\
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    \782\ Id. at 54.

Of course, that is precisely the point. Through this question, 
the committee attempted to ascertain whether the Justice 
Department undermined its own e-mail investigation. This 
question goes to the heart of the Department's conflict and is 
a matter squarely within Congress' obligation under the 
Constitution to conduct executive branch oversight.
    Gershel's deliberate refusal to answer such a clearly 
proper question suggests that it is likely true that the 
Department had assigned only one part-time attorney to the 
investigation. Rather than risk the political embarrassment of 
admitting that its investigation was a charade, the Justice 
Department simply rejected the committee's legitimate request 
for information.
    [The exhibits referred to follow:]
    
  
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