[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\
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
\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\
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
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).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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:
---------------------------------------------------------------------------
\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\
---------------------------------------------------------------------------
\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\
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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:]