[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 2 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
67-962                     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
                                                 Union Calendar No. 593
106th Congress                                           Rept. 106-1023
                        HOUSE OF REPRESENTATIVES
 2d Session                                                 Vol. 2 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.


                                     



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

                          I. Executive Summary

    This committee has a long history of making unsubstantiated 
allegations. Many of these allegations are summarized in a 
report recently released by the ranking minority member, 
Representative Henry A. Waxman.\1\ The majority has alleged 
that Deputy White House Counsel Vince Foster was murdered as 
part of a coverup of the Whitewater land deal, that the White 
House intentionally maintained an ``enemies list'' of sensitive 
FBI files, that the IRS targeted the President's enemies for 
tax audits, that the White House may have been involved in 
``selling or giving information to the Chinese in exchange for 
political contributions,'' and that the White House ``altered'' 
videotapes of White House coffees to conceal wrongdoing, among 
numerous other unfounded allegations.
---------------------------------------------------------------------------
    \1\ Minority Staff Report of the House Committee on Government 
Reform, ``Unsubstantiated Allegations of Wrongdoing Involving the 
Clinton Administration'' (October 2000) (attached as exhibit 1).
---------------------------------------------------------------------------
    One theme in the majority's allegations is that the 
wrongdoing by the Clinton administration exceeds the wrongdoing 
exposed in the Watergate scandal. As early as 1997, 
Representative Burton described his campaign fundraising 
investigation as follows: ``I think this thing could end up 
being much bigger than Watergate ever was.''\2\
---------------------------------------------------------------------------
    \2\ ``The NewsHour with Jim Lehrer,'' PBS (Feb. 25, 1997).
---------------------------------------------------------------------------
    The majority's report on e-mails again asserts that the 
majority has uncovered a scandal bigger than Watergate:

        The implications of these revelations are profound. 
        When the Nixon White House was forced to admit that 
        there was an eighteen-and-a-half 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 [sic] almost every investigation of the 
        Administration, from campaign finance to Monica 
        Lewinsky.\3\
---------------------------------------------------------------------------
    \3\ House Committee on Government Reform, ``The Failure to Produce 
White House E-Mails: Threats, Obstruction and Unanswered Questions,'' 
106th Cong., viii (2000) (emphasis added) (hereinafter ``majority 
report'').

    As these views will demonstrate, the committee's e-mail 
investigation has followed the same pattern as its previous 
``scandal'' investigations. Many sensational allegations have 
been made, but none have been proven.

                             a. background

    In July 1994, the White House created a central electronic 
database, called the Automated Records Management System 
(ARMS), to archive official Presidential and Federal records, 
including e-mails. ARMS was created to comply with the court 
decision Armstrong v. Executive Office of the President,\4\ 
which interpreted the Federal Records Act as requiring the 
preservation of e-mail messages by parts of the Executive 
Office of the President.\5\ In June 1998, contractors working 
for Northrop Grumman discovered a technical problem affecting a 
White House e-mail server (named ``Mail2'') which prevented 
incoming e-mail to accounts on that server from being archived 
in ARMS. The problem, which dated back to August 1996, was 
fixed prospectively in November 1998.
---------------------------------------------------------------------------
    \4\ 1 F.3d 1274 (D.C. Cir. 1993).
    \5\ Testimony of Beth Nolan, House Committee on Government Reform, 
hearing on ``Missing White House E-Mails: Mismanagement of Subpoenaed 
Records (continued),'' 85 (Mar. 30, 2000) (stenographic record) 
(stating that ``ARMS was set up in order for the executive office of 
the President to comply with the Federal Records Act'') (hereinafter 
``March 30 hearing''). The Executive Office of the President (EOP) 
consists of a group of 11 Federal agencies immediately serving the 
President. These agencies include the White House Office, where many of 
the President's closest advisors are located; the Office of Management 
and Budget; the National Security Council; and the Office of 
Administration. The White House Office is legally exempt from the 
Federal Records Act, but was nonetheless included in ARMS.
---------------------------------------------------------------------------
    The number of e-mails affected by the Mail2 problem is 
relatively small compared to the total number of e-mails 
properly recorded in ARMS. The Mail2 problem affected only 
incoming e-mail sent to 526 accounts on the Mail2 server; the 
problem did not affect any e-mails sent from those 526 
accounts. Furthermore, any incoming e-mails that were replied 
to or forwarded by the recipient (or that were copied to a 
nonaffected user) were archived in ARMS.\6\
---------------------------------------------------------------------------
    \6\ Statement of Counsel to the President Beth Nolan (Mar. 23, 
2000); testimony of Daniel A. ``Tony'' Barry, House Committee on 
Government Reform, hearing on ``Missing White House E-Mails: 
Mismanagement of Subpoenaed Records,'' 78-79 (Mar. 23, 2000) 
(stenographic record) (hereinafter ``Mar. 23 hearing'').
---------------------------------------------------------------------------
    The Mail2 problem may have had some limited impact on White 
House document production. Because the White House conducted 
searches of ARMS to respond to information requests, some of 
the narrow subset of e-mails affected by the Mail2 problem may 
not have been supplied to independent counsels and 
congressional committees investigating the White House. Some of 
the e-mails affected by the Mail2 problem, however, were likely 
to have been captured by other search means and given to the 
investigators.\7\
---------------------------------------------------------------------------
    \7\ When the White House counsel's office responds to subpoenas, in 
addition to searching ARMS it ``instructs individuals within the 
relevant EOP offices to search for responsive materials. This directive 
explicitly states that each individual should search computer records 
as well as hard copies.'' Statement of Counsel to the President Beth 
Nolan (Mar. 23, 2000) (attached as exhibit 2). Thus, any responsive e-
mails that were saved by the sender or recipient should have been 
produced, regardless of whether or not they were recorded in ARMS. In 
addition, e-mails that were not retrieved by the White House may have 
been provided to investigators by other sources that sent e-mails to 
the White House. These potential sources include Federal agencies and 
the Democratic National Committee.
---------------------------------------------------------------------------
    In the course of responding to committee inquiries 
regarding the Mail2 problem, the White House also discovered 
information about other e-mail problems, including a problem 
that prevented incoming e-mail sent between approximately 
November 1998 and April 1999 to users whose account names began 
with the letter ``d'' from being archived; a problem that 
caused a small, random assortment of e-mails from June 1997 to 
August 1999 not to be archived on the National Security 
Council's classified computer system; and a problem that 
prevented e-mails on the server of the Office of the Vice 
President (OVP) from being fully managed by ARMS.
    The White House is in the process of reconstructing the e-
mails that were not initially searched due to these computer 
glitches. As of September 29, 2000, the White House had 
committed or spent approximately $6.9 million on this project, 
and had expended 39,157 hours of work (34,822 hours by contract 
employees, 3,795 hours by employees of the Executive Office of 
the President, and 540 hours by security personnel). Overall, 
the cost of the project has been estimated at $11.7 million.\8\
---------------------------------------------------------------------------
    \8\ Letter from Michael K. Bartosz, general counsel to the Office 
of Administration, to James C. Wilson, chief counsel (Sept. 29, 2000) 
(attached as exhibit 3).
---------------------------------------------------------------------------

                             b. allegations

    The e-mail problems in the White House are highly 
technical. They do not involve any conscious effort to withhold 
subpoenaed materials from the committee. Nevertheless, during 
the course of the committee's investigation, they have spawned 
a series of inflammatory accusations. The principal allegations 
and the actual facts uncovered during the investigation are 
described below:

  LAllegation: The missing White House e-mails contain 
``information relating to Filegate, concerning the Monica 
Lewinsky scandal, the sale of Clinton Commerce Department trade 
mission seats in exchange for campaign contributions, and Vice 
President Al Gore's involvement in campaign fundraising 
controversies.'' \9\ If the contents of these e-mails become 
known, ``there would be different outcomes to these scandals, 
as the e-mails were incriminating and could cause people to go 
to jail.'' \10\
---------------------------------------------------------------------------
    \9\ Declaration of Betty Lambuth, Alexander v. FBI, No. 96-2123 
(Feb. 24, 2000). See also third declaration of Sheryl Hall, Alexander 
v. FBI, No. 96-2123 (Feb. 19, 2000).
    \10\ Third declaration of Sheryl Hall, Alexander v. FBI, No. 96-
2123 (Feb. 19, 2000).

    The Facts: The only witness to view the contents of any of 
the ``missing'' e-mails was a Northrop Grumman employee, Robert 
Haas, who had the responsibility of searching for missing e-
mails relating to Monica Lewinsky. Mr. Haas found a few 
Lewinsky-related e-mails that turned out to have been 
previously provided to Independent Counsel Kenneth Starr.\11\ 
He testified under oath: ``I never . . . intimated in any way, 
shape, or form that I knew any content of any e-mails other 
than the two Monica Lewinsky documents'' and ``[a]t no time did 
I look at any other documents in any other mail files.'' \12\
---------------------------------------------------------------------------
    \11\ A member of the Office of White House Counsel, Michelle 
Peterson, compared the e-mails retrieved by Mr. Haas with previously 
produced e-mails and determined that they were duplicative. Interview 
of Michelle Peterson by majority and minority staff, House Committee on 
Government Reform (June 8, 2000). Ms. Peterson recently filed a 
declaration indicating that she may have overlooked two nonsubstantive 
differences between the Haas e-mails and previously produced e-mails. 
Ms. Peterson stated that the Office of Independent Counsel Robert Ray 
showed her an e-mail allegedly retrieved by Mr. Haas which was 
substantively identical to an e-mail that had previously been produced 
``but had a different time and a different spelling of the e-mail 
addressee.'' Third declaration of Michelle Peterson at para. 7, 
Alexander v. FBI, No. 96-2123 (Sept. 27, 2000). Ms. Peterson also was 
shown an e-mail allegedly retrieved by Mr. Haas which was identical to 
an already-produced e-mail but which contained a ``cc'' list that the 
earlier e-mail lacked. Id. at para. 8. Ms. Peterson reaffirmed that she 
believed at the time that all of the e-mails retrieved by Mr. Haas had 
been produced, but allowed that she may have overlooked the two 
technical differences discussed above (although she could not confirm 
this fact herself, as she did not have access to any of the sets of e-
mails produced or retrieved by the White House). Id. at para. 9.
    \12\ Testimony of Robert Haas, March 23 hearing at 89, 61.

  LAllegation: Recently retrieved e-mails produced by 
the White House ``are highly relevant to the committee's 
investigation of campaign finance matters;'' the information in 
these e-mails is ``important for evaluating whether the Vice 
President committed perjury'' and ``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.'' \13\
---------------------------------------------------------------------------
    \13\ Majority report at viii-x.

    The Facts: So far, between 180,000 and 200,000 e-mails have 
been reconstructed and reviewed, and any responsive e-mails 
have been produced to the Office of Independent Counsel Robert 
Ray or the Justice Department's campaign finance task force. 
Only 56 of the e-mails produced to the Independent Counsel or 
the task force were responsive to this committee's subpoenas, 
and several of those had already been produced in similar form 
(e.g., with a different recipient or sender). None of these 56 
e-mails provided significant new evidence.
    The majority cites as significant new information one e-
mail between two Vice Presidential staffers that refers to ``FR 
coffees'' at the White House, which the majority asserts is 
evidence that the coffees were used for fundraising 
purposes.\14\ It is not clear whether the term ``FR'' refers to 
``fundraising'' or ``finance-related.'' Even if the term ``FR'' 
is construed to refer to fundraising, however, the e-mail does 
not add new evidence. Other internal communications in the Vice 
President's office have described these coffees as 
``fundraising'' events.\15\ Even the Vice President has 
repeatedly said that attendees at White House coffees would 
likely be solicited for contributions later on.\16\
---------------------------------------------------------------------------
    \14\ E-mail from Karen Skelton to Ellen L. Ochs (Apr. 23, 1996) (E 
8862) (discussed in majority report at x).
    \15\ See, e.g., Senate Committee on Governmental Affairs, 
``Investigation of Illegal or Improper Activities in Connection with 
1996 Federal Election Campaigns,'' 105th Cong., 2d sess., vol. 1, 196 
(March 1998) (stating that ``[a] number of White House and DNC 
documents underline the importance of the coffees as fundraising 
events'' and citing to documents).
    \16\ The Vice President told investigators that the coffees 
``allowed the President to spend time with influential people who 
wanted to talk about policy, who would at some later time possibly be 
asked to financially support the DNC.'' He further stated that ``[i]t 
was contemplated at the time when they were set up that some or many of 
those who participated in those sessions would later on be likely to 
contribute.'' Interview of Vice President Gore with Robert J. Conrad, 
Jr., Head of the Department of Justice Campaign Financing Task Force 
(Apr. 18, 2000).
---------------------------------------------------------------------------
    Another e-mail relied upon by the majority is an e-mail 
from a scheduler that refers to a fundraising event in Los 
Angeles and lists an event at the Hsi Lai Buddhist Temple.\17\ 
This e-mail is a draft schedule and it is incomplete and 
inaccurate in several places.\18\ It adds little to what is 
already known about the Hsi Lai Temple event. Internal 
communications in which the Vice President's staff apparently 
used the term ``fundraiser'' to describe the Hsi Lai Temple 
event were produced and investigated long ago.\19\ Three years 
ago, the Senate Governmental Affairs Committee talked with the 
Vice President's scheduling staff about such internal 
communications and thoroughly explored whether staff viewed the 
event as a fundraiser and how the Vice President was briefed 
about the event.\20\ The newly reconstructed e-mails contain no 
e-mail either to or from the Vice President regarding the 
Temple event.
---------------------------------------------------------------------------
    \17\ E-mail from Jackie A. Dycke to R. Martinez (Apr. 9, 1996) (E 
8747-54) (discussed in majority report at x).
    \18\ For example, the document indicates that the Vice President 
will attend a DNC reception at the Hsi Lai Temple both in Los Angeles 
and San Jose. Id.
    \19\ E.g., document labeled ``Current Schedule for April 29'' (EOP 
056497) (referring to a ``DNC luncheon in LA/Hacienda Heights'') 
(attached as exhibit 4); e-mail from Jackie A. Dycke to R. Martinez 
(Apr. 10, 1996) (EOP 053292) (noting that ``the VP is going to San Jose 
and LA for DNC fundraising events on April 29'') (attached as exhibit 
5).
    \20\ Senate Committee on Governmental Affairs, ``Investigation of 
Illegal or Improper Activities in Connection with 1996 Federal Election 
Campaigns,'' 105th Cong., 2d sess., vol. 2, 1793-94, vol. 4, 4818-31 
(March 1998). The Vice President's staff testified that they were 
sloppy in their use of the term ``fundraiser.'' Id. at 4822-26.

  LAllegation: ``As a result of the White House cover-
up, information was kept from this committee.'' \21\ There was 
``in effect, a purposeful effort to keep documents from 
Congress, the Department of Justice, and various Independent 
Counsels.'' \22\
---------------------------------------------------------------------------
    \21\ Statement of Representative Dan Burton, House Committee on 
Government Reform, hearing on ``Contacts Between Northrop Grumman 
Corporation and the White House Regarding Missing White House E-
Mails,'' 8 (Sept. 26, 2000) (hereinafter ``Sept. 26 hearing'').
    \22\ Letter from Representative Dan Burton to Counsel to the 
President Beth Nolan (Mar. 8, 2000).

    The Facts: The evidence shows that at the time the Mail2 
problem was first discovered, the Office of Administration (OA) 
employees responsible for managing the e-mail system did not 
want any public discussion of the problem until the scope of 
the problem was identified and senior White House officials 
could be informed. This was an appropriate response given that 
the problem was discovered around June 1998, when the White 
House was the subject of intense media scrutiny generated by 
Independent Counsel Ken Starr's investigation of the Monica 
Lewinsky affair.
    There is no evidence, however, that the White House 
deliberately kept any e-mails from Federal or congressional 
investigators. In fact, in 1997 the White House provided 
approximately 7,700 pages of e-mails to this committee on 
campaign finance matters alone,\23\ many of which the majority 
has cited in its investigation.\24\
---------------------------------------------------------------------------
    \23\ Statement of Counsel to the President Beth Nolan (Mar. 23, 
2000).
    \24\ For example, the White House produced an e-mail to this 
committee from the National Security Council describing Democratic 
fundraiser Johnny Chung as a ``hustler'' and expressing concern over 
Mr. Chung's efforts to bring Chinese businessmen into the White House. 
That e-mail was referred to repeatedly during the committee's two 
hearings on Mr. Chung, and received extensive coverage in the press. 
See, e.g, ``An Investigative Report: What Clinton Knew--How a Push for 
New Fund-Raising Led to Foreign Access, Bad Money and Questionable 
Ties,'' Los Angeles Times (Dec. 21, 1997); ``Democratic Donor Chung 
Invokes 5th Amendment; House Members Informally Interview 
Businessman,'' Washington Post (Nov. 15, 1997); ``Donors Allege 
Laundered Contributions to Clinton-Gore Campaign,'' Associated Press 
(Nov. 11, 1997).
---------------------------------------------------------------------------
    The OA employees who were first informed of the e-mail 
problem promptly brought the problem to the attention of the 
White House Deputy Chief of Staff and the Office of White House 
Counsel.\25\ The counsel's office then directed that a ``test'' 
be performed to determine whether the e-mail problem had 
affected the production of documents to Independent Counsel 
Starr.\26\ This test turned up no new documents, leading the 
counsel's office to believe that the e-mail problem did not 
affect document production.\27\ Although it now appears that 
this belief was mistaken, there is no evidence that White House 
counsel acted in bad faith.
---------------------------------------------------------------------------
    \25\ Testimony of Mark Lindsay, March 23 hearing at 246.
    \26\ Statement of Counsel to the President Beth Nolan (Mar. 23, 
2000); testimony of Robert Haas, March 23 hearing at 60, 80-81; 
testimony of Mark Lindsay, March 23 hearing at 247.
    \27\ Statement of Counsel to the President Beth Nolan (Mar. 23, 
2000).
---------------------------------------------------------------------------
    After White House counsel became aware of the significance 
of the e-mails problems in 2000, the White House began the 
process of restoring backup tapes of the affected e-mails.\28\ 
On September 14, 2000, White House counsel informed committee 
staff that the reconstruction effort had reached the stage 
where the White House could search and produce batches of e-
mails on an expedited basis and offered to conduct searches 
specified by the committee.\29\ The White House repeated the 
offer on October 4.\30\ To date, the majority has failed to 
take the White House up on its offer.
---------------------------------------------------------------------------
    \28\ Id.; testimony of Counsel to the President Beth Nolan, March 
30 hearing at 25-26. According to Ms. Nolan, steps in the 
reconstruction process included selecting and contracting with a 
private entity with the appropriate technical expertise and resources, 
putting in place and testing the requisite equipment, and engaging a 
separate private contractor for independent validation and 
verification. Testimony of Counsel to the President Beth Nolan, March 
30 hearing at 25-26.
    \29\ See letter from Counsel to the President Beth Nolan to 
Representative Dan Burton (Sept. 26, 2000) (attached as exhibit 6). 
According to the White House, with about 3 weeks of computer staff 
time, it would be able to conduct targeted searches using 100 backup 
tapes, 70 e-mail accounts, and 70 search terms. Id.
    \30\ Letter from Associate Counsel to the President Lisa Klem to 
Chief Counsel James C. Wilson (Oct. 4, 2000) (attached as exhibit 7).

  LAllegation: ``[E]vidence suggests that contracted 
staffers were personally threatened with repercussions and even 
jail should they mention the very existence of the server 
problem to anyone, even their bosses. This occurred while these 
e-mails were under subpoenae. This is inexcusable. This is 
criminal. If this is not obstruction of justice, I don't know 
what is.'' \31\
---------------------------------------------------------------------------
    \31\ Statement of Representative Helen Chenoweth-Hage, March 23 
hearing.

    The Facts: The evidence regarding alleged jail threats is 
inconclusive and contradictory. In total, eight individuals 
were present at meetings when the alleged threats were made. Of 
these eight individuals, two deny making any jail threats; \32\ 
three have no recollection of any jail threats; \33\ one 
recalls a jail threat being made in response to a ``flippant'' 
question; \34\ and one recalls the word ``jail'' being 
mentioned but cannot remember who said it.\35\ Moreover, the 
individuals who allegedly made the jail threats, Mark Lindsay 
and Laura Callahan, were not even White House employees; both 
worked in the Office of Administration, which provides support 
services to the White House, and Mrs. Callahan is a career 
civil servant.\36\ There is no evidence that White House 
officials had any knowledge of--or participated in--any 
threats.
---------------------------------------------------------------------------
    \32\ Testimony of Laura Callahan, March 23 hearing at 216, 226-27; 
testimony of Mark Lindsay, March 23 hearing at 199.
    \33\ Testimony of Yiman Salim, March 23 hearing at 21; testimony of 
John Spriggs, March 23 hearing at 47; statement of Paulette Cichon 
(Mar. 29, 2000) (attached as exhibit 8).
    \34\ Testimony of Robert Haas, March 23 hearing at 32.
    \35\ Testimony of Sandra Golas, March 23 hearing at 45.
    \36\ Testimony of Laura Callahan, March 23 hearing at 206.

  LAllegation: Earl Silbert, a ``high-priced Washington 
fixer,'' was hired by Northrop Grumman and told ``about 
possible law breaking and threats to his client's employees.'' 
\37\ Evidence of contacts between Mr. Silbert and the White 
House ``may dramatically undermine White House claims of a 
`disconnect' that prevented them from understanding the e-mail 
problem.'' \38\
---------------------------------------------------------------------------
    \37\ Statement of Representative Dan Burton (Sept. 26, 2000).
    \38\ Memorandum from Representative Dan Burton to members of the 
Government Reform Committee (Sept. 21, 2000).

    The Facts: This allegation is wholly speculative. Mr. 
Silbert's two brief phone calls with White House counsel may 
have involved nothing more than contractual disputes then being 
discussed by Northrop Grumman and the White House.\39\ There is 
no evidence that Mr. Silbert was aware of or communicated 
information about threats or subpoena compliance. These issues 
were peripheral, if not irrelevant, to the contractual matter 
at stake.
---------------------------------------------------------------------------
    \39\ There was a difference of opinion between Northrop Grumman and 
the White House over whether work on the e-mail problem was within the 
scope of the company's contract. Testimony of Mark Lindsay, March 23 
hearing at 261-63. See also letter from Joseph F. Lucente, director, 
contracts and subcontracts, Northrop Grumman, to Dale Helms, Executive 
Office of the President (Sept. 14, 1998) (NGL 00503) (stating that 
``the level of effort required to remedy the [e-mail] dysfunction will 
substantially exceed the scope of work contemplated under the 
referenced contract'') (attached as exhibit 9).

  LAllegation: 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.'' \40\ A counsel to the Vice President ``personally 
decided that the Vice President would not store his records in 
a way that would permit compliance with document requests'' and 
there ``can be little doubt that the Vice President's advisors 
knew that their actions would permit his office to operate in a 
manner that would make it less susceptible to oversight.'' \41\
---------------------------------------------------------------------------
    \40\ Majority report at viii.
    \41\ Id. at xviii.

    The Facts: In 1994, the Office of the Vice President opted 
not to archive its e-mails electronically via ARMS. There is no 
evidence whatsoever that this decision was seen, or could have 
been seen, as affecting subpoena compliance. At the time, ARMS 
was intended to be strictly a way of archiving electronic 
records for posterity, not a tool for subpoena compliance. The 
Office of the Vice President, which was under no legal or 
ethical obligation to archive its e-mail electronically, opted 
not to use ARMS because of apparent technical concerns about 
connecting the OVP computer system to ARMS.\42\ Instead of 
using ARMS, the office preserved its records by instructing 
personnel to print out and save work-related e-mails, and by 
regularly backing up the system and saving the backup 
tapes.\43\
---------------------------------------------------------------------------
    \42\ Interview of Michael Gill by majority and minority staff, 
House Committee on Government Reform (July 24, 2000). According to Mr. 
Gill, who handled information technology matters in the OVP, in order 
for the OVP to connect to ARMS, it would have had to take a giant 
technological step backwards by converting its windows-based e-mail 
system to a character-based system which Mr. Gill considered to be less 
user-friendly. Id.
    \43\ Interview of Michael Gill by majority and minority staff, 
House Committee on Government Reform (July 24, 2000); interview of Hon. 
Todd Campbell by majority and minority staff, House Committee on 
Government Reform (Aug. 18, 2000).

  LAllegation: ``[A] White House employee, aided and 
counseled by 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.'' \44\ The affidavit contains an assertion about 
ARMS that is ``utterly false.'' \45\
---------------------------------------------------------------------------
    \44\ Letter from Representative Dan Burton to Attorney General 
Janet Reno (Sept. 7, 2000).
    \45\ Letter from Representative Dan Burton to Attorney General 
Janet Reno (Mar. 30, 2000).

    The Facts: The affidavit was filed in 1999 by a career 
civil servant, Daniel A. ``Tony'' Barry, as part of the 
government's efforts to convince a judge hearing a civil 
lawsuit that ARMS searches were not necessary for discovery 
purposes. In the course of describing the cost and difficulty 
of conducting e-mail searches, the affidavit states: ``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).'' \46\ Read in context, the 
affidavit was simply and accurately attempting to describe the 
basic function of ARMS--namely, that it archives e-mail and 
that it has been in effect since July 14, 1994.
---------------------------------------------------------------------------
    \46\ Declaration of Daniel A. Barry, Alexander v. FBI, No. 96-2123 
(July 9, 1999), para. 4.

  Allegation: An e-mail written by a mid-level OA 
employee ``concludes by saying, `Let sleeping dogs lie.' I 
think translated that means let's keep a lid on this, and don't 
let Congress and the independent counsels know about it.'' \47\ 
This e-mail ``would be considered evidence of obstruction of 
justice.'' \48\
---------------------------------------------------------------------------
    \47\ Statement of Representative Dan Burton, House Committee on 
Government Reform, hearing on ``Missing White House E-Mails: 
Mismanagement of Subpoenaed Records--Day Three,'' 13 (May 3, 2000) 
(stenographic record) (hereinafter ``May 3 hearing'').
    \48\ Statement of Representative Bob Barr, May 3 hearing at 35.

    The Facts: The employee who wrote the e-mail in question is 
Karl Heissner, a 25-year career civil servant. He testified 
that his e-mail memo addressed two separate and unrelated 
issues.\49\ One part of the e-mail is entitled ``Mail2 
Reconstruction,'' and it provides a summary of the Mail2 
problem, its discovery, and subsequent efforts to fix it. The 
other part of the e-mail, entitled, ``Information Requests,'' 
discusses the number of information requests received by the 
White House. Mr. Heissner testified that his reference to 
letting ``sleeping dogs lie'' referred to the declining number 
of information requests received by the White House, and that 
it had nothing to do with the Mail2 problem.\50\
---------------------------------------------------------------------------
    \49\ Testimony of Karl Heissner, May 3 hearing at 49-50.
    \50\ Id. at 50-51.

 Allegation: ``The White House has in its possession 
a previously undisclosed computer disk with e-mails by former 
intern Monica Lewinsky'' that were sought ``by a Federal grand 
jury and three congressional committees, but never turned 
over.'' \51\
---------------------------------------------------------------------------
    \51\ ``White House Has Disk With Lewinsky E-Mail,'' Washington 
Times (Mar. 29, 2000).

    The Facts: The computer disk was a copy of a file belonging 
to a computer contractor. It did not contain any previously 
undisclosed e-mail. The Lewinsky-related e-mail on the disk had 
been examined and determined to be duplicative of material that 
had already been produced.\52\
---------------------------------------------------------------------------
    \52\ Testimony of Beth Nolan, March 30 hearing at 26; see also 
supra note 11.

 Allegation: The Justice Department ``took no steps 
to determine whether reports about the e-mail problem were 
true.'' \53\ ``The only answer is to appoint a Special Counsel 
to do the job.'' \54\
---------------------------------------------------------------------------
    \53\ Letter from Representative Dan Burton to Judge Royce C. 
Lamberth (Mar. 29, 2000).
    \54\ Statement of Representative Dan Burton, March 30 hearing at 
14.

    The Facts: The e-mail matter is already being investigated 
by Independent Counsel Robert Ray, who is working in 
coordination with the Justice Department.\55\ The independent 
counsel's investigation is focused on examining e-mail glitches 
as they relate to the production of documents to his office, 
which means that all of the issues explored by the committee--
including allegations of threats and a cover-up--are relevant 
to his inquiry. There is no evidence that the Department has 
hindered Mr. Ray's investigation. Nor is there any evidence 
that the Department's investigation is less complete than that 
of Mr. Ray or that the Department has failed to consult with 
Mr. Ray before making any investigative decisions.
---------------------------------------------------------------------------
    \55\ Testimony of Alan Gershel, Sept. 26 hearing at 35, 48.
---------------------------------------------------------------------------

                  c. the majority's version of events

    The majority has woven a tale of massive coverup and 
subterfuge conducted to prevent investigators from learning 
about White House e-mail glitches. Under the majority's theory, 
numerous individuals, from computer specialists, to 
administrators, to White House lawyers, to individuals outside 
the White House, have either been dishonest with the committee 
about the e-mails matter or have purposely attempted to impede 
the work of investigators.
    The individuals implicated by the majority include:

 Charles F.C. Ruff, currently a member of the law 
firm Covington & Burling. Mr. Ruff's public service spans three 
decades. He has served as Counsel to the President; Corporation 
Counsel, District of Columbia; U.S. Attorney, District of 
Columbia; Special Prosecutor, Watergate Special Prosecution 
Force; Principal Associate Deputy Attorney General; Acting 
Deputy Attorney General; and Deputy Inspector General, 
Department of Health, Education and Welfare;

 Beth Nolan, currently Counsel to the President. Ms. 
Nolan previously served as Deputy Assistant Attorney General in 
the Office of Legal Counsel at the Department of Justice, and 
as an Attorney-Advisor in the Office of Legal Counsel. She also 
was a law professor at George Washington University from 1985-
1997, where she taught courses in constitutional law, legal 
ethics, government ethics, and government lawyering;

 Todd Campbell, a Federal judge in Tennessee since 
1996. Judge Campbell's public service includes 2 years as legal 
counsel for Vice President Gore;

 Earl J. Silbert, currently a member of the law firm 
Piper Marbury Rudnick & Wolfe. Mr. Silbert has a long history 
of public service, including work as Assistant U.S. Attorney at 
the Department of Justice, and Principal Assistant U.S. 
Attorney and then U.S. Attorney for the District of Columbia;

 Mark Lindsay, currently Assistant to the President 
for Management and Administration. Mark Lindsay's public 
service includes serving as Deputy Assistant to the President 
for Management and Administration, Director of the Office of 
Administration, General Counsel for the Office of 
Administration, and senior counsel to Representative Louis 
Stokes;

 Cheryl Mills, currently senior vice president for 
corporate policy and public programming at Oxygen Media. Ms. 
Mills's public service includes nearly 7 years in the Office of 
White House Counsel, first as Associate Counsel and later as 
Deputy Counsel;

 Laura Callahan, currently special assistant for 
information technology at the Department of Labor. Mrs. 
Callahan is a career Federal civil servant whose service dates 
back to 1984, and she is also a registered Republican;

 Karl Heissner, currently a computer specialist at 
the Office of Administration. Mr. Heissner is a career Federal 
civil servant who served as a computer specialist during the 
Ford, Carter, Reagan, Bush, and Clinton administrations; and

 Daniel A. ``Tony'' Barry, currently Deputy Data 
Center Manager/Electronic Records Manager at the Office of 
Administration. Mr. Barry has worked as a computer specialist 
in the Office of Administration in both the Bush and Clinton 
administrations.

    As support for their allegations involving these 
individuals, the majority relies heavily on speculation, 
presents evidence selectively, cites authority which does not 
support the proposition stated, disregards sworn testimony of 
White House officials and career civil servants, and interprets 
gaps in the evidence as opposed to objectively analyzing the 
evidence before the committee. The majority's theories are 
based on the premise that all of the individuals implicated 
cast their integrity aside to conceal a subset of e-mails whose 
content was entirely unknown to them. This premise is wholly 
implausible and amounts to a smear on the reputations of many 
distinguished individuals.
    In sum, the majority's comparison of the e-mails matter to 
Watergate is ludicrous. The committee has received no 
information that any White House official or Office of 
Administration employee intentionally created the e-mail 
problems, made any attempt to impede investigation of the 
problems, or had any knowledge of the content of e-mails that 
may not have been captured.

                             II. Background

    The committee has devoted considerable resources to 
investigating the e-mail matter. The committee has held 5 days 
of hearings on this topic--on March 23, March 30, May 3, May 4, 
and September 26--at which it received testimony from 17 people 
(3 of whom each testified twice).\56\ Committee staff also 
privately interviewed 36 people in connection with the e-mail 
investigation, and the committee has requested and received 
10,676 pages of documents.
---------------------------------------------------------------------------
    \56\ Those three people are Mark Lindsay, Beth Nolan, and Robert 
Raben.
---------------------------------------------------------------------------
    The following discussion summarizes what the committee 
learned about the origin and nature of the White House e-mail 
problems during the investigation.

               a. the automated records management system

    Beginning in 1950, Congress has passed several statutes 
regulating the process by which Federal agencies and the White 
House create, manage, and maintain official records. These 
recordkeeping laws distinguish between Federal and Presidential 
records.
    The Federal Records Act \57\ (FRA) covers:
---------------------------------------------------------------------------
    \57\ This report follows the convention of collectively referring 
to the statutory regime governing Federal records as the ``Federal 
Records Act.''
---------------------------------------------------------------------------
        documentary materials, regardless of physical form or 
        characteristics, made or received by an agency of the 
        United States Government under Federal law or in 
        connection with the transaction of public business and 
        preserved or appropriate for preservation by that 
        agency or its legitimate successor as evidence of the 
        organization, functions, policies, decisions, 
        procedures, operations, or other activities of the 
        Government or because of the informational value of 
        data in them.\58\
---------------------------------------------------------------------------
    \58\ 44 U.S.C. Sec. 3301.
---------------------------------------------------------------------------
Under the FRA, agency heads are required to ``establish and 
maintain an active, continuing program for the economical and 
efficient management of the records of the agency.'' \59\ In 
addition, the Archivist of the United States is required to 
``establish standards for the selective retention of records of 
continuing value, and assist Federal agencies in applying the 
standards to records in their custody.'' \60\
---------------------------------------------------------------------------
    \59\ 44 U.S.C. Sec. 3102.
    \60\ 44 U.S.C. Sec. 2905.
---------------------------------------------------------------------------
    Presidential records are regulated under the Presidential 
Records Act (PRA).\61\ They are defined as:
---------------------------------------------------------------------------
    \61\ Public Law No. 95-591, 92 Stat. 2523 (1978).
---------------------------------------------------------------------------
        documentary materials, or any reasonably segregable 
        portion thereof, created or received by the President, 
        his immediate staff, or a unit or individual of the 
        Executive Office of the President whose function is to 
        advise and assist the President, in the course of 
        conducting activities which relate to or have an effect 
        upon the carrying out of the constitutional, statutory, 
        or other official or ceremonial duties of the 
        President.\62\
---------------------------------------------------------------------------
    \62\ 44 U.S.C. Sec. 2201.
---------------------------------------------------------------------------
    While Federal records are regulated by a ``strict document 
management regime . . . the PRA `accords the President 
virtually complete control over his records during his term of 
office.' '' \63\ The PRA stipulates that, once the President 
leaves office, responsibility for the custody and control over 
that President's official records is assigned to the Archivist 
of the United States,\64\ but even then the President may still 
designate a period of up to 12 years during which access to his 
Presidential records is restricted.\65\
---------------------------------------------------------------------------
    \63\ Armstrong v. Executive Office of the President, 1 F.3d at 
1290-91 (citation omitted).
    \64\ 44 U.S.C. Sec. 2203(f)(1).
    \65\ 44 U.S.C. Sec. 2204(a).
---------------------------------------------------------------------------
    In January 1989, in the waning days of the Reagan 
administration, several researchers and nonprofit organizations 
filed a lawsuit seeking to prevent the destruction of 
electronic data stored on the computer systems of the Executive 
Office of the President (EOP) and the National Security Council 
(NSC). The suit sought a declaration that such data were 
Federal and Presidential records and thus subject to the 
statutory provisions cited above. On August 13, 1993, the D.C. 
Circuit Court of Appeals issued a decision in the case, 
Armstrong v. Executive Office of the President, which affirmed 
that the FRA applies to electronic mail (e-mail) and that 
existing EOP guidelines for managing e-mail--which required 
employees to print and save hard copies of e-mails--were not in 
compliance with FRA requirements.\66\
---------------------------------------------------------------------------
    \66\ The decision explained that ``important information present in 
the e-mail system, such as who sent a document, who received it, and 
when that person received it, will not always appear on the computer 
screen and so will not be preserved on the paper print-out.'' 1 F.3d at 
1284.
---------------------------------------------------------------------------
    Following the Armstrong decision, the White House 
authorized the creation of a database known as the Automated 
Records Management System (ARMS) to manage electronic 
records.\67\ While the Armstrong decision applied only to 
Federal records, the White House opted to use ARMS to manage 
both Federal and Presidential records generated within the EOP. 
All internally generated e-mails--meaning e-mails sent from 
ARMS-managed accounts within the EOP--would be automatically 
copied and sent to ARMS at the time they were sent.\68\ In 
addition, software was written that would regularly scan user 
accounts on the EOP's computer servers for incoming e-mail, 
which would then be copied and archived in ARMS.\69\
---------------------------------------------------------------------------
    \67\ Letter from Counsel to the President Beth Nolan to 
Representative Dan Burton (Mar. 17, 2000) (attached as exhibit 10).
    \68\ Id.
    \69\ Id.
---------------------------------------------------------------------------
    ARMS went into operation in July 1994.\70\ In order to 
comply with Armstrong, the White House also launched a 
reconstruction effort to ensure that e-mails dating from before 
July 1994 back to the beginning of the Clinton administration 
were entered into the new system. That reconstruction effort 
was completed in 1999.\71\
---------------------------------------------------------------------------
    \70\ Id.
    \71\ Id.
---------------------------------------------------------------------------
    Responsibility for the pre-1994 reconstruction effort, and 
for general maintenance of ARMS, lay with the Office of 
Administration (OA), which provides administrative support 
services, including data processing and records maintenance, to 
all units within the EOP. OA is headed by a Presidentially 
appointed director and has approximately 180 staff, the vast 
majority of whom are career civil servants. In order to assist 
OA with its responsibilities, the EOP has contracted with 
private companies. Prior to 1997, the EOP had a contract with 
PRC Inc., a wholly owned subsidiary of Litton PRC, to provide 
information technology (IT) services. Upon the contract's 
expiration in late 1997, a new contract was signed with 
Northrop Grumman, and Northrop Grumman's contract and 
subcontract employees continue to provide onsite assistance to 
OA personnel.
    While ARMS was originally designed to comply with the 
Armstrong decision, the White House later opted to use ARMS's 
word-search capabilities to assist it in responding to 
subpoenas and other information requests. Upon receipt of a 
request for documents, the White House Counsel's office will 
instruct individuals within the relevant EOP offices to search 
for responsive materials, including computer records.\72\ In 
addition, the White House will instruct OA personnel to do a 
computerized search of ARMS.\73\ While it is not clear when the 
White House first used ARMS to respond to information requests, 
a letter sent by then-Counsel to the President Charles F.C. 
Ruff to Representative Burton in September 1997 indicates that 
the White House informed this committee in the spring of 1997 
that White House e-mails were stored in a central archive which 
was capable of being searched (albeit by a costly and time-
consuming procedure).\74\
---------------------------------------------------------------------------
    \72\ Id.
    \73\ Id.
    \74\ Letter from then-Counsel to the President Charles F.C. Ruff to 
Representative Dan Burton (Sept. 11, 1997) (attached as exhibit 11).
---------------------------------------------------------------------------

                          b. the mail2 problem

    Daniel A. ``Tony'' Barry, an OA computer specialist who is 
responsible for the overall system administration of ARMS, was 
performing an ARMS search in January 1998 for documents 
relating to Monica Lewinsky when he found what appeared to be a 
gap in the e-mail correspondence between Ms. Lewinsky and 
Ashley Raines. As Mr. Barry explained to the Committee, ``I 
discovered what looked like conversational e-mail between two 
people and I only saw one side of the conversation.'' \75\ Mr. 
Barry enlisted the help of a Northrop Grumman contract employee 
named John Spriggs but the two men were unable to figure out 
the cause of the problem. Mr. Barry then filed a report with 
his superior, Jim Wright, describing the incident. In this 
report, Mr. Barry noted that he could not determine if the 
incident reflected a systemic problem or a one-time 
problem.\76\ This was apparently not the first time that 
problems with ARMS had been discovered; testimony from several 
government employees indicated that e-mail-related problems 
were not uncommon.\77\
---------------------------------------------------------------------------
    \75\ Testimony of Daniel A. Barry, March 23 hearing at 103.
    \76\ Undated, type-written notes (E 2496). While this document 
contains no indication on its face as to its author or recipient, OA 
Counsel John H. Young identified it as Mr. Barry's anomaly report for 
the committee. Testimony of John H. Young, March 23 hearing at 190. The 
majority report states that Mr. Barry hand-delivered the report to Mr. 
Wright, contrary to his ``general practice'' of e-mailing weekly 
reports. Majority report at 16. The majority also states that Mr. Barry 
did not refer to the names of the account users in his incident report, 
contrary to his ``general practice.'' Majority report at 16-17. These 
assertions about Mr. Barry's ``general practice'' are not 
substantiated, however. Moreover, their significance is questionable, 
even if they were accurate.
    \77\ Mr. Barry testified that ``there have been problems in the 
past with the [Lotus] Notes [e-mail network]-ARMS interface.'' 
Testimony of Daniel A. Barry, March 23 hearing at 110. OA employee 
Laura Callahan told the committee that ``[w]e've had numerous problems 
with the e-mail system. It was very poorly designed and very poorly 
constructed by a contractor prior to Northrop Grumman. So, as a result, 
anomalies were fairly common.'' Testimony of Laura Callahan, March 23 
hearing at 212-13. Assistant to the President for Management and 
Administration Mark Lindsay testified that ``I had potential problems 
with computer systems and with e-mail issues frequently. We had an 
antiquated system that we are working very diligently to make 
improvements on.'' Testimony of Mark Lindsay, House Committee on 
Government Reform, hearing on ``Missing White House E-Mails: 
Mismanagement of Subpoenaed Records--Day Four,'' 108 (May 4, 2000) 
(stenographic record) (hereinafter ``May 4 hearing'').
---------------------------------------------------------------------------
    It was several more months before OA and Northrop Grumman 
personnel were able to identify the cause of the problem noted 
by Mr. Barry. Around June 1998, two systems administrators at 
the EOP under contract to Northrop Grumman--Yiman Salim and 
Robert Haas--discovered a problem which was preventing some 
incoming e-mails from being properly processed by ARMS.\78\ 
According to Ms. Salim, ``[i]t was a very technical 
typographical-type error committed by a prior contractor before 
Northrop Grumman.'' \79\ Mr. Haas and Ms. Salim immediately 
notified their direct supervisor, Betty Lambuth, about the 
problem, which they continued to investigate.
---------------------------------------------------------------------------
    \78\ There is some disagreement about when exactly this occurred. 
Mr. Haas and Ms. Salim are in general agreement on the date. He 
testified that it was June 12. Testimony of Robert Haas at March 23 
hearing. Ms. Salim testified that it was a ``few days'' prior to June 
15. Testimony of Yiman Salim, March 23 hearing at 20. According to 
Northrop Grumman employee Betty Lambuth, however, the problem was 
discovered in May 1998, while Counsel to the President Beth Nolan 
suggested that it was discovered in May or June. Testimony of Betty 
Lambuth at March 23 hearing; statement of Counsel to the President Beth 
Nolan (Mar. 23, 2000).
    \79\ Testimony of Yiman Salim, March 23 hearing at 19.
---------------------------------------------------------------------------
    In the days that followed, it was determined that the 
problem was specific only to one computer server, created in 
August 1996, and that it affected only e-mails sent from 
outside the EOP. Ms. Salim explained that the problem began:

        when the contractors prior to Northrop Grumman built a 
        new e-mail server called ``Mail2.'' When the 
        contractors [sic] personnel named the Mail2 server, 
        they used an upper-case ``M'' and lower-case letters 
        for the rest of the name. Following its creation, 
        however, the individual name accounts on the Mail2 
        server were assigned the name ``MAIL2'' using all 
        capital letters.

        When the case-sensitive ARMS scanner process ran on the 
        Mail2 server to perform its comparison of the names, 
        the comparison failed, since the names did not appear 
        in the exact same case; therefore, none of those 
        accounts from Mail2 were scanned. . . . [A]s a result, 
        inbound e-mails were not records managed.

        Outbound e-mails were automatically records managed 
        without the need for such scanning. That is why 
        outbound White House e-mails were not affected by this 
        error.\80\
---------------------------------------------------------------------------
    \80\ Id. at 20.

    As Ms. Salim and the others working on the Mail2 problem 
learned, the problem affected a relatively small subset of EOP 
e-mails.\81\ The problem only affected incoming e-mails sent to 
526 individuals with accounts on the Mail2 server, 464 of whom 
worked in the White House.\82\ The total number of affected 
users, 526, represents less than one-third of the number of 
employees in the entire EOP.\83\ Furthermore, e-mails that were 
copied to non-affected employees would have been archived in 
ARMS,\84\ as would e-mails which the recipient responded to 
``with history'' or forwarded.\85\
---------------------------------------------------------------------------
    \81\ Mr. Barry, OA's ARMS expert, testified that the number of 
documents being archived in ARMS did not appear to increase after the 
Mail2 problem was fixed in November 1998, thus suggesting that the 
problem was not as serious he had thought. According to Mr. Barry, 
``[W]hen I went back and looked at the growth numbers between November 
1998 and December 1998, which would be the significant ones in this 
case, I saw nothing other than what I would normally expect in the 
growth between one month and the other, given the trend line that we 
have in place.'' Testimony of Daniel A. Barry, March 23 hearing at 105.
    \82\ Letter from Counsel to the President Beth Nolan to 
Representative Dan Burton (Mar. 17, 2000). Of the remaining Mail2 
accounts, 58 belonged to employees of the Office of Policy 
Development--which is also located in the EOP--and 4 belonged to OA 
employees.
    \83\ Currently, there are approximately 1,650 EOP employees. Since 
this number does not include detailees, and does not account for 
turnover, the proportion of EOP e-mail accounts affected by the Mail2 
problem can be expected to be even lower than one-third. Some of the 
affected accounts apparently dated back to the creation of the Mail2 
server in August 1996; in other cases, as new EOP employees were hired 
they may have been assigned to the Mail2 server and, depending on 
whether or not the name of the server was written in the correct case, 
their incoming e-mails may or may not have been sent to ARMS.
    \84\ Mr. Barry's testimony confirmed this fact:

      Mr. Waxman. What we're talking about were e-mails from 
      outside of the [EOP] system to somebody in the system . . . 
      [If] one of those e-mails were sent to somebody inside, and 
      there was a carbon copy or copy directed to somebody else, 
      then that would have been picked up, as well, in the ARMS 
---------------------------------------------------------------------------
      system, wouldn't it?

      Mr. Barry. That's correct.

March 23 hearing at 78.
---------------------------------------------------------------------------
    \85\ If ``an affected user received an incoming e-mail and 
forwarded it or replied to it with history (sending back the original 
incoming e-mail) then ARMS should have recorded the incoming e-mail.'' 
Statement of Counsel to the President Beth Nolan (Mar. 23, 2000). Mr. 
Barry confirmed that the text of a message would be in ARMS ``[i]f the 
user had done a reply with history.'' Testimony of Daniel A. Barry, 
March 23 hearing at 79.
---------------------------------------------------------------------------
    Furthermore, even if an e-mail was not archived by ARMS at 
all, it nevertheless could have been produced to investigators 
by the White House. Ms. Nolan informed the committee that when 
the White House counsel's office responds to subpoenas, in 
addition to searching ARMS it ``instructs individuals within 
the relevant EOP offices to search for responsive materials. 
This directive explicitly states that each individual should 
search computer records as well as hard copies.'' \86\ Thus, 
any responsive e-mails that were saved by the sender or 
recipient should have been produced, regardless of whether or 
not they were recorded in ARMS.\87\
---------------------------------------------------------------------------
    \86\ Statement of Counsel to the President Beth Nolan (Mar. 23, 
2000). The majority asserts that reliance on manual searches is 
``woefully inadequate'' and states that Mr. Ruff was ``at a complete 
loss'' when asked how he conducted searches of his own e-mail. Majority 
report at 105. In fact, Mr. Ruff explained that ``I rarely used my E-
mail for any substantive business. Indeed, I'm not sure that I ever 
did.'' Transcript of Interview of Charles F.C. Ruff, House Committee on 
Government Reform, 6 (Apr. 6, 2000).
    \87\ In addition, e-mails that were not retrieved by the White 
House may have been provided to investigators by other sources that 
sent e-mails to the White House and that were subpoenaed for documents 
including e-mails. These potential sources include Federal agencies and 
the Democratic National Committee.
---------------------------------------------------------------------------
    At the time of the discovery of the Mail2 problem, there 
was widespread discussion in the press about the ongoing Monica 
Lewinsky investigation being conducted by Independent Counsel 
Kenneth Starr.\88\ Laura Crabtree Callahan, a career civil 
servant in OA, and Mark Lindsay, then OA's General Counsel, 
discussed the Mail2 problem and agreed that this was a 
sensitive issue, given the ``other events going on'' reported 
in ``newspapers and the media.'' \89\ Within days of the 
discovery of the Mail2 problem, a meeting was held in the 
office of Mrs. Callahan. Ms. Lambuth, Mr. Spriggs, Mr. Haas, 
Ms. Salim, and Sandra Golas--all of whom were Northrop Grumman 
contract or subcontract employees--attended.\90\ Although 
accounts of this meeting conflict in some of their particulars, 
the testimony of those present at the meeting is in general 
agreement on two points. The first point is that Mr. Lindsay 
spoke with those present by speaker-phone and instructed them 
to avoid discussing the e-mail problem with anyone else as it 
was a sensitive matter.\91\ The second point is that, after Mr. 
Lindsay had spoken, Mrs. Callahan then reiterated to the 
contractors that they should not talk about the e-mail 
problem.\92\
---------------------------------------------------------------------------
    \88\ See, e.g., ``Starr Hints He May File Impeachment Report,'' New 
York Times (June 3, 1998); ``Political Clock Ticking on Interim Starr 
Report,'' Washington Post (June 6, 1998).
    \89\ Testimony of Laura Callahan, March 23 hearing at 216.
    \90\ Testimony of Yiman Salim, March 23 hearing at 20; testimony of 
Robert Haas, March 23 hearing at 31.
    \91\ According to Mr. Haas (who referred to Mrs. Callahan by her 
maiden name of ``Crabtree''), ``Mr. Lindsay told us that the discovery 
of the Mail2 problem was to be treated as top secret and that only Ms. 
Crabtree, Ada Posey, and Mr. Lindsay, himself, could authorize the 
group to talk to anyone else.'' Testimony of Robert Haas, March 23 
hearing at 31-32. Ms. Golas testified that she remembered Mr. Lindsay 
``talking to us and telling us that it was very important that we 
didn't take the information out of the room, that we shouldn't discuss 
it with anyone.'' Testimony of Sandra Golas, March 23 hearing at 45. 
Mr. Lindsay, however, while he did not contest this point, told the 
committee that he did not recall having addressed the group by speaker-
phone. Testimony of Mark Lindsay, March 23 hearing at 217.
    \92\ Testimony of Yiman Salim, March 23 hearing at 20-21, 46; 
testimony of Robert Haas, March 23 hearing at 32; testimony of John 
Spriggs, March 23 hearing at 47-48.
---------------------------------------------------------------------------
    After this meeting, the contractors continued investigating 
the technical issues at stake. Mr. Haas was charged with 
determining how many e-mails had not been records-managed 
(i.e., had not been archived into ARMS) because of the Mail2 
problem. He spent several weeks examining the mail files of 
Mail2 users and determining how many of the e-mails in each 
file had not been records-managed. Because Mr. Haas was only 
able to examine e-mails that still remained on the server 
(i.e., that had not been deleted by their recipient), he was 
not able to identify how many e-mails had been affected by the 
Mail2 problem since its inception in August 1996. Nor was Mr. 
Haas able to determine whether the non-records-managed e-mails 
he located had been archived into ARMS ``through a secondary 
process.'' \93\ Nonetheless, the results of Mr. Haas's survey 
did provide a rough sense of the magnitude of the problem. As 
recorded in a 75-page document that Northrop Grumman provided 
to the committee, Mr. Haas's survey extended to 501 accounts 
and found that 246,053 e-mails out of a total of 1,353,641 e-
mails (18 percent) had not been sent directly to ARMS.\94\
---------------------------------------------------------------------------
    \93\ Testimony of Robert Haas, March 23 hearing at 83.
    \94\ The document compiled by Mr. Haas (NGL 00291-365) also 
indicates that an additional nine e-mail accounts had been deleted, and 
thus did not contain any e-mails.
---------------------------------------------------------------------------
    Meanwhile, OA quickly notified the White House about the 
Mail2 problem. A two-page memo dated June 19, 1998, was sent 
from Virginia Apuzzo, then the Assistant to the President for 
Management and Administration, to then-Deputy Chief of Staff 
John Podesta outlining the problem. The memo noted that an 
``important function'' of the ARMS system was the 
``identification and retrieval of documents in response to 
information requests.'' \95\ Mark Lindsay then separately 
briefed Mr. Podesta and then-White House Counsel Charles Ruff 
about the Mail2 problem.\96\ Former White House Deputy Counsel 
Cheryl Mills may also have attended the briefing of Mr. 
Ruff.\97\
---------------------------------------------------------------------------
    \95\ Memorandum from Virginia M. Apuzzo to John D. Podesta (June 
19, 1998) (E 3234-36, E 3373-76).
    \96\ See testimony of Mark Lindsay, March 23 hearing at 246. The 
majority questions Mr. Podesta's ``complete failure to follow-up at all 
on how the problem was handled.'' Majority report at 49, note 282. In 
fact, it appears that Mr. Podesta acted responsibly by making sure that 
Mr. Ruff was briefed immediately about the problem. Interview of John 
Podesta by majority and minority staff, House Committee on Government 
Reform (May 30, 2000) (stating that he either instructed Mr. Lindsay to 
brief Mr. Ruff or was told by Mr. Lindsay that Mr. Lindsay was going to 
brief Mr. Ruff); testimony of Mark Lindsay, March 30 hearing at 246 
(stating that ``Mr. Podesta's response was just to ask if I had had any 
conversation with Mr. Ruff'').
    \97\ Mr. Ruff's calendar for June 19, 1998 (E 3445) contains a 4:30 
p.m. entry for ``Lindsay, Mills.'' It is not clear if this entry refers 
to Mr. Lindsay's Mail2 briefing, nor is it clear that Ms. Mills 
actually attended the meeting. Ms. Mills testified that her best 
recollection was that she did not attend the meeting. Testimony of 
Cheryl Mills, May 4 hearing at 32. Mr. Lindsay did not recall Ms. Mills 
being present at the meeting, while Mr. Ruff did not recall whether or 
not she was present. Testimony of Mark Lindsay, May 4 hearing at 29; 
testimony of Charles Ruff, May 4 hearing at 42, 121.
---------------------------------------------------------------------------
    As the Northrop Grumman contractors continued to 
investigate the e-mail problem, tensions arose between them and 
Steven Hawkins, Northrop Grumman's program manager. These 
tensions contributed to Ms. Lambuth's being removed from the 
Northrop Grumman contract around the end of July.
    Several Northrop Grumman contract employees contacted and 
met with company executives and lawyers around early September 
1998. Subsequent to these meetings, Northrop Grumman executives 
determined that fixing the Mail2 problem was outside of the 
scope of their contract with the EOP. Northrop Grumman 
communicated its determination to the EOP in a letter dated 
September 14, 1998, which stated:

        the level of effort required to remedy the dysfunction 
        will substantially exceed the scope of the 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.\98\
---------------------------------------------------------------------------
    \98\ Letter from Joseph F. Lucente to Dale Helms (Sept. 14, 1998) 
(NGL 00503).

    After the Northrop Grumman letter, employees of OA and 
Northrop Grumman discussed how to fix the Mail2 problem and 
reconstruct the ``missing'' e-mails. Mr. Haas's study had 
suggested that there were many non-archived e-mails still on 
the Mail2 server. The problem lay in retrieving e-mails that 
had been deleted from the server without being archived into 
ARMS. The solution to this problem lay in the fact that the EOP 
regularly backs up its servers and generally maintains its 
backup tapes. It soon became apparent, however, that actually 
cataloguing and accessing these backup tapes--which are 
essentially snapshots of what was on the entire computer system 
at a given point in time--would be a difficult and time-
consuming process at best.\99\ There was also the problem of 
entering the recovered e-mails into the ARMS system in such a 
way that they could be accessed and searched in the future.
---------------------------------------------------------------------------
    \99\ Interview of John Spriggs by majority and minority staff, 
House Committee on Government Reform (Mar. 7, 2000).
---------------------------------------------------------------------------
    Northrop Grumman employees prepared a detailed proposal for 
a work order authorizing contract work by Northrop Grumman to 
retrieve the non-archived e-mails from the backup tapes. The 
proposal did not provide a solution to the Mail2 server problem 
but rather a detailed plan for how to come up with a solution 
to the problem. The proposal, which was completed and provided 
to the EOP in October 1998, estimated that the process of 
reconstructing the ``missing'' e-mails would take 6 to 9 
months, at a cost of around $602,000.\100\
---------------------------------------------------------------------------
    \100\ E-mail from Tracey A. Breeding to Joseph A. Vasta (Dec. 2, 
1998) (NGL 00609-11).
---------------------------------------------------------------------------
    The EOP apparently rejected the draft work order for cost 
reasons. A decision was then made to ``stop the bleeding,'' and 
on November 22, 1998, the Mail2 problem was fixed 
prospectively.\101\ From that date forward, the Mail2 error 
ceased to prevent e-mails from being processed by ARMS. The 
problem remained, however, of reconstructing non-archived e-
mails from before November 22, dating back to the origins of 
the Mail2 problem in August 1996. Having ``stopped the 
bleeding,'' OA deferred action on this reconstruction project 
in 1999 as it focused on addressing Y2K concerns.\102\
---------------------------------------------------------------------------
    \101\ Testimony of Yiman Salim, March 23 hearing at 21.
    \102\ Testimony of Mr. Lindsay, March 23 hearing at 202 (``Because 
of that requirement to address the Y2K glitch . . . the reconstruction 
of the e-mail was a matter which had to be placed in the context of 
maintaining the total e-mail situation. What we did after we were able 
to address the Y2K problem, a[t] the end of February 29th of 2000, is 
we were able to then continue the efforts''). See also testimony of OA 
Director Michael Lyle, May 3 hearing at 55-58.
---------------------------------------------------------------------------
    It was only in 2000, with the Y2K concerns over and the end 
of the administration approaching, that the EOP focused again 
on the Mail2 reconstruction project. Ms. Nolan testified that 
she was first informed of the Mail2 problem during a January 
18, 2000, briefing by OA on post-Presidency records management 
issues.\103\ At the briefing, Ms. Nolan was informed that the 
White House had previously made sure that these technical 
problems did not affect the White House's responses to 
information requests.\104\
---------------------------------------------------------------------------
    \103\ Statement of Counsel to the President Beth Nolan (Mar. 23, 
2000). The committee received briefing papers for the meeting which 
suggest that the Mail2 and letter ``d'' issues were discussed in the 
context of records management issues relating to Armstrong (E 3412-17). 
Michael Lyle, OA's Director, who also attended the briefing, confirmed 
that the purpose of the meeting was to prepare for another meeting, 
with the National Archives and Records Administration, regarding the 
Presidential transition. Testimony of Michael Lyle, May 3 hearing at 
59.
    \104\ According to OA Director Michael Lyle, Ms. Nolan inquired at 
the meeting about whether the problems had affected subpoena 
compliance. Testimony of Michael Lyle, May 3 hearing at 103-04. Mr. 
Lyle said that he assured her that ``the question that she was asking 
had been dealt with prior by Mr. Lindsay and Mr. Ruff.'' Id. at 104. 
Mr. Lyle then checked with Mr. Lindsay, who confirmed that he had 
indeed handled the issue with Mr. Ruff. Id.
---------------------------------------------------------------------------

                        C. Other E-Mail Problems

    In April 1999, Northrop Grumman personnel discovered an 
additional ARMS problem. This problem prevented incoming mail 
to persons whose account names began with the letter ``d'' from 
being recorded by ARMS. Approximately 200 accounts within the 
EOP were affected, including 54 accounts in OMB, 42 accounts in 
the White House Office, 32 accounts in OA, and 21 accounts in 
the NSC. The so-called ``letter `d' '' problem had apparently 
been caused accidentally by Northrop Grumman employees in the 
fall of 1998.\105\ This problem was fixed prospectively around 
May or June 1999. Mr. Lindsay testified that he informed the 
Office of White House Counsel about the letter ``d'' 
problem,\106\ but Mr. Ruff had no recollection of being 
informed of the letter ``d'' problem and Ms. Mills testified 
that she did not learn about the problem.\107\
---------------------------------------------------------------------------
    \105\ According to Ms. Nolan, this problem occurred when the Mail2 
problem was fixed in November 1998. Letter from Counsel to the 
President Beth Nolan to Representative Dan Burton (Mar. 17, 2000).
    \106\ Testimony of Mark Lindsay, May 4 hearing at 177. Mr. Lindsay 
could not recall whom he spoke to in the counsel's office. Id. at 178.
    \107\ Testimony of Charles Ruff and Cheryl Mills, May 4 hearing at 
184.
---------------------------------------------------------------------------
    Since the Mail2 problem was publicly revealed in February 
2000, the White House has also discovered and disclosed several 
additional problems relating to the archiving of e-mails. Ms. 
Nolan informed the committee on March 17, 2000, that e-mails on 
the server of the Office of the Vice President (OVP) have not 
been fully managed by ARMS.\108\ As explained by Ms. Nolan--and 
as confirmed by the committee's own investigation--the OVP 
apparently opted not to be connected to ARMS when the latter 
went into effect in 1994. Instead, it appears that the OVP 
maintained its own computer system, serviced by a contractor 
rather than by OA.\109\
---------------------------------------------------------------------------
    \108\ Letter from Counsel to the President Beth Nolan to 
Representative Dan Burton (Mar. 17, 2000).
    \109\ Statement of Counsel to the President Beth Nolan (Mar. 23, 
2000). OA took over responsibility for the OVP's computer system in 
approximately March 1997.
---------------------------------------------------------------------------
    Because the OVP server was not linked to ARMS, incoming and 
outgoing e-mails to or from OVP e-mail accounts created before 
March 1997 were not sent directly to ARMS (although, for the 
reasons explained above with respect to the Mail2 problem, some 
of those e-mails may nonetheless have been sent to ARMS by 
other means). Outgoing e-mail from OVP accounts created after 
March 1997 was apparently records-managed, but incoming e-mail 
to those OVP accounts was not sent to ARMS.\110\ The White 
House informed the committee on June 7, 2000, that all OVP 
accounts in the White House were now records-managed.\111\
---------------------------------------------------------------------------
    \110\ Id.
    \111\ Letter from Senior Associate Counsel to the President Steven 
F. Reich to Chief Counsel James C. Wilson (June 7, 2000). The letter 
noted that OA was developing a way to records-manage OVP accounts on 
the Senate e-mail system. Id.
---------------------------------------------------------------------------
    Although OVP e-mail accounts were not records-managed by 
ARMS, OVP personnel were instructed to print out and save e-
mails, and the OVP system was regularly backed up and the 
backup tapes saved.\112\ However, 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.\113\ The error apparently resulted in 3 days' worth of 
Vice President Gore's e-mail being deleted.\114\
---------------------------------------------------------------------------
    \112\ Interview of Hon. Todd Campbell by majority and minority 
staff, House Committee on Government Reform (Aug. 18, 2000).
    \113\ Letter from Senior Associate Counsel to the President Steven 
F. Reich to Chief Counsel James C. Wilson (June 7, 2000).
    \114\ Memorandum from Dorothy E. Cleal, Associate Director for 
Information Systems and Technology, Office of Administration, to 
Virginia Apuzzo, Assistant to the President for Management and 
Administration (May 13, 2000) (E 5201-03, E 6956-58).
---------------------------------------------------------------------------
    In addition, on July 26, 2000, Ms. Nolan informed the 
committee of a computer software problem that affected the 
National Security Council classified computer system from June 
1997 until August 1999. According to Ms. Nolan, ``[a]s a result 
of this error, a small percentage of e-mails on a random basis 
were not recorded by the NSC's classified Electronic Records 
Management Database (ERMS).'' \115\
---------------------------------------------------------------------------
    \115\ Letter from Counsel to the President Beth Nolan to 
Representative Dan Burton (July 26, 2000). According to a memorandum 
attached to the letter, the software error affected approximately 0.15 
percent of NSC e-mails sent during the relevant timeframe. Memorandum 
from Robert A. Bradtke to Counsel to the President Beth Nolan (July 21, 
2000).
---------------------------------------------------------------------------
    The Office of White House Counsel also informed the 
committee on August 31, 2000, of a recently discovered problem 
which caused a small percentage of e-mail messages processed 
since May 4, 2000, to be improperly archived in ARMS.\116\ The 
problem apparently caused some e-mails to be archived with 
mismatched headers and messages; because there is no way of 
distinguishing yet between properly and improperly archived e-
mails, all e-mails sent between April 15, 2000, and August 30, 
2000, are potentially unreliable.\117\
---------------------------------------------------------------------------
    \116\ Letter from Associate Counsel to the President Lisa J. Klem 
to Representative Dan Burton (Aug. 31, 2000) attaching memorandum from 
Alberto Feraren to Daniel Barry (Aug. 31, 2000) (EOPNG-00-0297).
    \117\ Id.; memorandum from Alberto Feraren to Conrad Ribeiro and 
Robert Helms (Sept. 1, 2000) (EOPNG-00-0299). While the problem only 
affects e-mails processed since May 4, there was a 2-week backlog of e-
mails in the Lotus Notes/ARMS interface queue at the time. Memorandum 
from Alberto Feraren to Conrad Ribeiro and Robert Helms (Sept. 1, 2000) 
(EOPNG-00-0299).
---------------------------------------------------------------------------
    Finally, on September 29, 2000, White House counsel 
informed the committee that it had learned of a new anomaly 
which ``causes problems with at least certain electronic pager 
records.'' \118\ According to White House counsel, the problem 
is still under investigation but ``pager confirmation documents 
bearing the phrase `unable to convert' are the most likely 
documents to be affected.'' \119\
---------------------------------------------------------------------------
    \118\ Letter from Associate Counsel to the President Gregory S. 
Smith to Chief Counsel James C. Wilson (Sept. 29, 2000).
    \119\ Id.
---------------------------------------------------------------------------

              D. Committee Knowledge of the E-Mail Matter

    The record is unclear regarding when the committee was 
first aware of the Mail2 problem. There is evidence that the 
committee received information about the e-mail problem in 1998 
but failed to act on that information. In courtroom testimony 
in an evidentiary hearing concerning the White House e-mail 
problems, Sheryl Hall, a former OA employee, stated under oath 
that she personally informed one of the committee's majority 
staff attorneys investigating the White House database about 
the White House e-mail problem in November 1998--over 15 months 
before the committee's e-mail investigation began.\120\ 
According to a press report, the majority staff attorney in 
question, who is currently working for Independent Counsel 
Robert Ray, admitted that he talked to Ms. Hall ``a couple of 
times'' and that he ``might have met with her once,'' but does 
not recall her telling him about the e-mail problem.\121\
---------------------------------------------------------------------------
    \120\ Transcript of Evidentiary Hearing at 124, 149, 186-88, 
Alexander v. FBI, No. 96-2123 (July 31, 2000). According to a news 
article, Ms. Hall said that she told the staff attorney that the 
computer problem had caused over 100,000 e-mails to be missing. 
``Congress Told of Project X in 1998,'' WorldNetDaily (Aug. 1, 2000) 
(on line at http://www.worldnetdaily.com/bluesky--sperry--news/
20000801--xnspy--congress--t.shtml) (attached as exhibit 12).
    \121\ ``Congress Told of Project X in 1998,'' WorldNetDaily (Aug. 
1, 2000) (on line at http://www.worldnetdaily.com/bluesky--sperry--
news/20000801--xnspy--congress--t.shtml).
---------------------------------------------------------------------------
    The majority could also have learned about the problems 
through the news media in 1998. In December 1998, Insight 
magazine published a short article about contractors in the 
White House investigating ``problems with a server in a West 
Wing computer system'' and discovering a ``blockage caused by 
about 100,000 e-mails.'' \122\ The article referred to efforts 
to investigate the e-mail problem as ``Project X.'' \123\
---------------------------------------------------------------------------
    \122\ ``Computer Glitch Leads to Trove of `Lost' E-Mails at White 
House,'' Insight, 6 (Dec. 28, 1998).
    \123\ Id. The nickname ``Project X'' was apparently coined by Mr. 
Haas as a joking reference to the ``X-Files'' TV show, and was used 
informally to refer to the Mail2 project. Interview of Robert Haas by 
majority and minority staff, House Committee on Government Reform (Mar. 
7, 2000); see interview with Yiman Salim by majority and minority 
staff, House Committee on Government Reform (Mar. 7, 2000).
---------------------------------------------------------------------------
    The majority apparently overlooked these early indications 
of e-mail problems. The committee's investigation did not begin 
until the Washington Times reported on February 15, 2000, that 
Sheryl Hall had accused the White House of ``hid[ing] thousands 
of e-mails containing information on Filegate, Chinagate, 
campaign finance abuses and Monica Lewinsky, all of which were 
under subpoena.'' \124\ Judicial Watch had previously filed a 
lawsuit on Ms. Hall's behalf in which Ms. Hall alleged that 
White House employees and the First Lady retaliated against her 
after she accused the administration of using a White House 
database for political purposes. The day after the Washington 
Times article appeared, Representative Burton issued a letter 
to Ms. Nolan citing ``recent media reports that certain e-mail 
systems were not searched for materials responsive to 
subpoenas,'' thus marking the beginning of the committee's 
investigation.\125\
---------------------------------------------------------------------------
    \124\ ``White House Accused of Cover-Up,'' Washington Times (Feb. 
15, 2000). Ms. Hall repeated her allegations in a declaration that she 
filed on Feb. 19, 2000. Third declaration of Sheryl Hall, Alexander v. 
FBI, No. 96-2123 (Feb. 19, 2000).
    \125\ Letter from Representative Dan Burton to Counsel to the 
President Beth Nolan (Feb. 16, 2000).
---------------------------------------------------------------------------

              III. Allegations Regarding the Mail2 Problem

    The majority has made numerous exaggerated allegations 
about the Mail2 issue, including allegations of a ``cover-up,'' 
``obstruction of justice,'' and a ``criminal conspiracy.'' 
Representative Burton has charged that ``[t]he big deal is how 
the White House reacted to'' the Mail2 problem and ``it looks 
like they chose to cover it up.'' \126\ He even compared the 
missing e-mails to the 18\1/2\-minute gap in President Nixon's 
audiotapes, stating that ``[w]e had a President run out of 
office because of the missing tapes, 18\1/2\ minutes. Here we 
have hundreds of thousands of e-mails, and the White House has 
stonewalled the Justice Department, the Congress, several 
independent counsels.'' \127\ Representative Christopher Shays 
stated, ``the White House obstructed justice, and we're just 
trying to see who did it.'' \128\ Representative Chenoweth-Hage 
has accused the White House of engaging in ``an ongoing 
criminal conspiracy.'' \129\
---------------------------------------------------------------------------
    \126\ Statement of Representative Dan Burton, March 23 hearing at 
4-5.
    \127\ Statement of Representative Dan Burton, May 3 at 15-16. See 
also statement of Representative Dan Burton, Sept. 26 hearing at 24; 
majority report at viii.
    \128\ Statement of Representative Christopher Shays, May 3 hearing 
at 137.
    \129\ Statement of Representative Chenoweth-Hage at March 23 
hearing.
---------------------------------------------------------------------------
    As discussed below, however, the evidence simply does not 
support these allegations.

  A. Allegation That E-Mails Relevant to Investigations Have Not Been 
                                Produced

    There have been numerous allegations that the missing e-
mails contain ``smoking guns'' that would change the outcome of 
Clinton administration scandals. The source of many of these 
allegations appears to be two persons formerly affiliated with 
OA, Sheryl Hall and Betty Lambuth. Ms. Hall, a former OA 
employee, filed a declaration asserting that:

        A contractor for Northrop-Grumman assigned to the 
        Clinton White House who examined this group of 100,000 
        e-mails told me the documents contained information 
        relating to Filegate, concerning the Monica Lewinsky 
        scandal, the sale of Clinton Commerce Department trade 
        mission seats in exchange for campaign contributions, 
        and Vice President Al Gore's involvement in campaign 
        fundraising controversies. . . . I was also told by 
        this contractor that if the contents of the e-mails 
        became known, then there would be different outcomes to 
        these scandals, as the e-mails were incriminating and 
        could cause people to go to jail.\130\
---------------------------------------------------------------------------
    \130\ Third declaration of Sheryl Hall, Alexander v. FBI, No. 96-
2123 (Feb. 19, 2000).

---------------------------------------------------------------------------
Ms. Lambuth has made similar accusations:

        [a] contractor for Northrop-Grumman whom I supervised, 
        and who examined this group of e-mail, told me the e-
        mail contained information relating to Filegate, 
        concerning the Monica Lewinsky scandal, the sale of 
        Clinton Commerce Department trade mission seats in 
        exchange for campaign contributions, and Vice President 
        Al Gore's involvement in campaign fundraising 
        controversies.\131\
---------------------------------------------------------------------------
    \131\ Declaration of Betty Lambuth, Alexander v. FBI, No. 96-2123 
(Feb. 24, 2000). Ms. Lambuth repeated this claim in her testimony 
before the committee. Testimony of Betty Lambuth at March 23 hearing.

    These allegations have been widely reported. According to 
the Washington Times, a ``former White House computer manager 
has said that more than 100,000 White House e-mails containing 
information on Filegate, `Chinagate,' campaign finance abuses 
and Monica Lewinsky were missing, all of which were under 
subpoena by a federal grand jury and three congressional 
committees.'' \132\ Similarly, CNN reported that contractors 
testified that they were told ``not to discuss an ongoing e-
mail server problem that resulted in hundreds of unrecorded 
messages that may have pertained to investigations such as the 
Monica Lewinsky matter.'' \133\
---------------------------------------------------------------------------
    \132\ ``Hillary, White House Officials Cleared by Counsel on FBI 
Files,'' Washington Times (Mar. 17, 2000).
    \133\ ``Former White House Employees Say They Were Told to Keep 
Quiet on E-Mail Glitch,'' CNN.com (Mar. 23, 2000).
---------------------------------------------------------------------------
    Ms. Lambuth and Ms. Hall both claimed that the person who 
told them about incriminating material in the e-mails was 
Robert Haas.\134\ Mr. Haas, however, specifically denied that 
he knew or had said anything about what was in the ``missing'' 
e-mails. Mr. Haas testified that ``I never . . . intimated in 
any way, shape, or form that I knew any content of any e-
mails'' other than two Monica Lewinsky-related e-mails that he 
looked at in an attempt to understand the Mail2 problem, and 
``[a]t no time did I look at any other documents in any other 
mail files.'' \135\
---------------------------------------------------------------------------
    \134\ Testimony of Betty Lambuth, March 23 hearing at 58, 88; 
testimony of Sheryl Hall, Transcript of Evidentiary Hearing at 24-26, 
Alexander v. FBI, No. 96-2123 (July 13, 2000).
    \135\ Testimony of Robert Haas, March 23 hearing at 89, 61.
---------------------------------------------------------------------------
    Moreover, the committee's investigation has revealed that 
it is not presently possible to determine the content of the e-
mails that were not archived or produced because of the Mail2 
problem (or any of the other technical problems discussed 
above). The White House is currently reconstructing, or 
retrieving, those e-mails from backup tapes, and until that 
process is complete, speculation about information in the 
``missing'' e-mails is just that--speculation. Representative 
Burton apparently conceded this point when he remarked at the 
first e-mail hearing that, ``At this point, I don't think 
anyone has any idea what is in these e-mails.'' \136\
---------------------------------------------------------------------------
    \136\ Statement of Representative Dan Burton, March 23 hearing at 
12.
---------------------------------------------------------------------------

B. Allegation That Northrop Grumman Employees Were Threatened with Jail 
                  If They Discussed the Mail2 Problem

    Several members of the committee have alleged that Northrop 
Grumman contractors were threatened with jail if they disclosed 
the Mail2 problem, and that these threats constituted an 
attempt to obstruct justice. Representative Bob Barr said with 
respect to the allegations of threats, ``My concern is . . . 
with regard to obstruction of justice, which includes 
intimidation of witnesses.'' \137\ Representative Chenoweth-
Hage stated:
---------------------------------------------------------------------------
    \137\ Statement of Representative Bob Barr, March 23 hearing at 
123. Representative Barr also referred to ``the obstruction that we 
went into last week with regard to witnesses testifying under oath that 
they were intimidated into not disclosing evidence that they had about 
this particular problem.'' Statement of Representative Bob Barr, March 
30 hearing at 108.

        evidence suggests that contracted staffers were 
        personally threatened with repercussions and even jail 
        should they mention the very existence of the server 
        problem to anyone, even their bosses. This occurred 
        while these emails were under subpoenae. This is 
        inexcusable. This is criminal. If this is not 
        obstruction of justice, I don't know what is.\138\
---------------------------------------------------------------------------
    \138\ Statement of Representative Chenoweth-Hage at March 23 
hearing.

    In fact, witnesses provided conflicting testimony about 
whether or not these alleged threats were made. In total, eight 
individuals were present at meetings when the alleged threats 
were made. Of these eight individuals, two deny making any jail 
threats; \139\ three have no recollection of any jail threats; 
\140\ one recalls a jail threat being made in response to a 
``flippant'' question; \141\ and one recalls the word ``jail'' 
being mentioned but cannot remember who said it.\142\ Moreover, 
the individuals who allegedly made the jail threats were not 
even White House employees; both worked in the Office of 
Administration, which provides support services to the White 
House, and one was a career civil servant. There is no evidence 
that White House officials had any knowledge of--or 
participated in--any threats.
---------------------------------------------------------------------------
    \139\ Testimony of Laura Callahan, March 23 hearing at 216, 226-27; 
testimony of Mark Lindsay, March 23 hearing at 199.
    \140\ Testimony of Yiman Salim, March 23 hearing at 21; testimony 
of John Spriggs, March 23 hearing at 47; statement of Paulette Cichon 
(Mar. 29, 2000).
    \141\ Testimony of Robert Haas, March 23 hearing at 32.
    \142\ Testimony of Sandra Golas, March 23 hearing at 45.
---------------------------------------------------------------------------
    With one exception, discussed below, the allegations of 
jail threats focus on a single remark allegedly made by Laura 
Crabtree Callahan, who served as the Branch Chief for Desktop 
Systems in OA's Information Systems and Technology Division 
(IS&T), in a meeting with six Northrop Grumman contract or 
subcontract employees that was held shortly after the discovery 
of the Mail2 problem. The committee heard testimony from Mrs. 
Callahan, as well as from the Northrop Grumman employees who 
attended the meeting (Betty Lambuth, John Spriggs, Robert Haas, 
Yiman Salim, and Sandra Golas).
    Ms. Salim said of the meeting with Mrs. Callahan, ``I do 
not remember hearing the word `jail,' and I never felt 
threatened.'' \143\ Mr. Spriggs also said that he ``did not 
hear the word `jail,' '' \144\ although he did concede that he 
felt threatened ``in narrow context.'' \145\ Mr. Haas, however, 
testified that he asked Mrs. Callahan ``[i]n a somewhat 
flippant way'' what would happen if he told his wife or then-
Assistant to the President for Management and Administration 
Virginia Apuzzo about the Mail2 problem, to which she 
``responded that there would be a jail cell with my name on 
it.'' \146\ Mr. Haas testified that despite the flippancy of 
his question, he took the response seriously.\147\
---------------------------------------------------------------------------
    \143\ Testimony of Yiman Salim, March 23 hearing at 21.
    \144\ Testimony of John Spriggs, March 23 hearing at 47.
    \145\ Mr. Spriggs engaged in the following exchange with 
Representative Barr:

      Mr. Spriggs. When I was called into that office and Ms. 
      Crabtree and Mr. Lindsay were giving me instructions, I 
      perceived that those instructions were reasonable 
---------------------------------------------------------------------------
      instructions.

      Mr. Barr. OK. That's not what I'm asking you, Mr. Spriggs.

      Mr. Spriggs. Were they threatening--I know, sir. I'm trying 
      to get at your question. Were they threatening to me?

      Mr. Barr. Get at it quickly.

      Mr. Spriggs. Were they threatening to me? Yes, they were 
      threatening to me, in----

      Mr. Barr. That's my only question.

      Mr. Spriggs [continuing]. In narrow context.

March 23 hearing at 100.
 While Mr. Spriggs was not asked to explain these comments, it appears 
that he was referring to the instructions made by Ms. Crabtree and Mr. 
Lindsay that the contractors not discuss the Mail2 issue. That issue is 
considered below.
---------------------------------------------------------------------------
    \146\ Testimony of Robert Haas, March 23 hearing at 32.
    \147\ Id. at 32, 90. Confirmation of this point was provided by Mr. 
Hawkins, who testified that he met with Mr. Haas, Mr. Spriggs, and Ms. 
Golas shortly thereafter and Mr. Haas said that he had been threatened. 
Testimony of Steven Hawkins, March 23 hearing at 55.
---------------------------------------------------------------------------
    Ms. Golas, who also attended the meeting, testified that 
she recalls a mention of jail in the meeting, but doesn't 
recall who said it.\148\ Ms. Golas further testified that when, 
shortly after the meeting, her supervisor Steve Hawkins accused 
her of being insubordinate by not telling him about the Mail2 
problem, she replied, ``If it's a choice of being insubordinate 
or going to jail, I guess I'll have to be insubordinate.'' 
\149\
---------------------------------------------------------------------------
    \148\ Testimony of Sandra Golas, March 23 hearing at 45.
    \149\ Id. at 45. See also testimony of Sandra Golas, March 23 
hearing at 142.
---------------------------------------------------------------------------
    Mrs. Callahan denied Mr. Haas's allegation:

        I do not ever remember, nor would I have ever said 
        anything about a jail cell. And, quite frankly, I think 
        Mr. Haas characterized himself with his flippant 
        comments. I would suggest that he may be either having 
        [a] bad recollection or may have an overactive 
        imagination with regards to the threat being made to 
        him.\150\
---------------------------------------------------------------------------
    \150\ Testimony of Laura Callahan, March 23 hearing at 226--27.

    Other than Mr. Haas's and Ms. Golas's testimony about Mrs. 
Callahan's alleged reference to a jail cell, the only other 
testimony alleging that threats were made comes from Betty 
Lambuth. Ms. Lambuth accused Mrs. Callahan of threatening her 
with jail if she talked about the e-mail problem.\151\ 
Afterwards, according to Ms. Lambuth's testimony, she asked for 
and received a meeting with then-OA General Counsel Mark 
Lindsay and Paulette Cichon, then the Deputy Director for 
Information Management at OA, at which Mr. Lindsay told Ms. 
Lambuth that if she and other Northrop Grumman workers told 
anyone about the Mail2 problem, ``we would all lose our jobs, 
we would be arrested, and we would be put in jail.'' \152\
---------------------------------------------------------------------------
    \151\ Testimony of Betty Lambuth, March 23 hearing at 24.
    \152\ Id. at 25.
---------------------------------------------------------------------------
    Ms. Cichon, however, signed a written statement stating 
that Mr. Lindsay did not threaten Ms. Lambuth or anyone else in 
her presence.\153\ Ms. Cichon confirmed the accuracy of her 
statement in a subsequent interview with committee staff.\154\ 
Mr. Lindsay also denied making any threats.\155\ Furthermore, 
Ms. Lambuth's testimony may be viewed with a degree of 
skepticism, given that the committee also received evidence--
discussed above--directly contradicting her allegation about 
the content of the ``missing'' e-mails.
---------------------------------------------------------------------------
    \153\ Statement of Paulette Cichon (Mar. 29, 2000).
    \154\ Interview of Paulette Cichon by majority and minority staff, 
House Committee on Government Reform (Apr. 14, 2000). The majority 
asserts that ``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.'' Majority 
report at 38. However, the majority fails to substantiate this 
allegation.
    \155\ Testimony of Mark Lindsay, March 23 hearing at 199.
---------------------------------------------------------------------------
    In addition, Ms. Lambuth's testimony about the threats is 
confused and inconsistent. Ms. Lambuth initially testified that 
Mrs. Callahan ``relayed those messages on to my staff, which 
had been relayed to her by Mr. Lindsay.'' \156\ However, asked 
by Mr. Burton ``what went on in that meeting, what went on in 
the conversations between you and Ms. Crabtree and Mr. 
Lindsay,'' Ms. Lambuth replied, ``I had more than one 
conversation that my staff was in, so some of this is going to 
mold in together.'' \157\ Ms. Lambuth then repeated her two 
allegations about Mr. Lindsay and Mrs. Callahan threatening her 
separately, but made no mention of the contractors being 
personally threatened by Mrs. Callahan.\158\ Nor do Ms. 
Lambuth's detailed opening statement or her affidavit mention 
the contractors being threatened.\159\ In fact, in both her 
opening statement and her declaration Ms. Lambuth states, ``I 
conveyed Lindsay's threats to my staff.'' \160\
---------------------------------------------------------------------------
    \156\ Testimony of Betty Lambuth, March 23 hearing at 24.
    \157\ Id. at 50.
    \158\ Id. at 50-51.
    \159\ Statement of Betty Lambuth at March 23 hearing; declaration 
of Betty Lambuth, Alexander v. FBI, No. 96-2123 (Feb. 24, 2000).
    \160\ Id. (emphasis added).
---------------------------------------------------------------------------
    In her courtroom testimony, Ms. Lambuth alleged that Mr. 
Lindsay--not Mrs. Callahan--threatened the contractors with 
jail and loss of job when he addressed the group by speaker-
phone.\161\ None of the others present have corroborated this 
allegation. Ms. Lambuth also testified that Mr. Haas informed 
her that Mrs. Callahan had threatened him with a ``jail cell 
with his name on it''--indicating that she was not present for 
the exchange.\162\
---------------------------------------------------------------------------
    \161\ Transcript of Evidentiary Hearing at 28-29, Alexander v. FBI, 
No. 96-2123 (Aug. 1, 2000).
    \162\ Id. at 34-35.
---------------------------------------------------------------------------
    In sum, then, the evidence is inconclusive. Mr. Haas has a 
clear memory of Mrs. Callahan threatening him with jail in 
response to his ``flippant'' question. Ms. Golas recalls 
someone mentioning the word ``jail'' but does not know who. 
Neither Ms. Salim nor Mr. Spriggs recall the jail threat, 
however, and Mrs. Callahan emphatically denies the allegation. 
Ms. Lambuth recalls being threatened with jail by Mr. Lindsay 
and Mrs. Callahan separately, but apparently could not recall 
whether a threat was made in the meeting described by the other 
contractors. Her statements are also filled with internal 
inconsistencies. Ms. Cichon--who attended the meeting at which 
Mr. Lindsay allegedly threatened Ms. Lambuth--does not believe 
that threats were made in her presence.
    Moreover, no one has alleged that anyone in the White House 
(as distinct from OA) made any threats. There is simply no 
evidence that any White House officials had any knowledge of--
or participated in--any threats.
  c. allegation that northrop grumman employees were told not to tell 
                     others about the mail2 problem
    The evidence clearly indicates that Northrop Grumman 
employees were instructed not to tell others about the Mail2 
problem when it was first discovered. The majority has claimed 
that this is evidence of a White House cover-up. Representative 
Barr stated:

        we do have evidence that you all indicated to persons 
        not to share information, not to disclose information, 
        to withhold information. . . . The fact of the matter 
        is that it does appear that steps were taken to limit 
        very severely information surrounding a very serious 
        glitch in the White House computer system that related 
        specifically [to] the matters well known to be under 
        investigation by at least three different bodies--
        namely, the Office of Independent Counsel, this 
        committee, and the Judiciary Committee.\163\
---------------------------------------------------------------------------
    \163\ Statement of Representative Bob Barr, March 23 hearing at 
277-79.

    However, the evidence suggests that the instructions not to 
discuss the matter were an appropriate attempt to prevent 
disclosure of the e-mail problem pending further investigation 
and did not constitute a ``cover-up.''
1. The OA Instructions Not to Discuss
    The testimony of Mr. Haas, Ms. Golas, Mr. Spriggs, Ms. 
Salim, and Ms. Lambuth is in general agreement that they were 
told by Mr. Lindsay and Mrs. Callahan to treat the Mail2 matter 
as sensitive and not to discuss it. The contractors evidently 
took these instructions seriously; several of them testified 
that they subsequently took steps, such as holding meetings 
outside the office, to keep the e-mail problem 
confidential.\164\ Mr. Lindsay and Mrs. Callahan also agreed 
that they were concerned about the e-mail matter being widely 
discussed. Mrs. Callahan testified that she discussed the e-
mail problem with Mr. Lindsay shortly after its discovery, and 
they agreed that this was a sensitive issue, given the ``other 
events going on'' reported in ``newspapers and the media.'' 
\165\
---------------------------------------------------------------------------
    \164\ According to Ms. Lambuth, ``We did meet privately. We did go 
to the park. We did sometimes go across the street to Starbuck's [sic] 
and speak in generalities.'' Testimony of Betty Lambuth, March 23 
hearing at 26. Mr. Spriggs explained that ``if we're going to talk 
about this stuff and keep it under wraps, then we have to be careful as 
to where we are.'' Testimony of John Spriggs, March 23 hearing at 52. 
According to Mr. Vasta's notes, the contractors were further instructed 
not to take any notes about the Mail2 matter. Document entitled, 
``Summary of Project X Discussions'' (Sept. 9, 1998).
    \165\ Testimony of Laura Callahan, March 23 hearing at 216.
---------------------------------------------------------------------------
    Mrs. Callahan testified that she ``instructed the contract 
employees at the meeting that this was an extremely sensitive 
situation.'' \166\ According to her testimony, she and Mr. 
Lindsay:
---------------------------------------------------------------------------
    \166\ Id. at 253.

        concurred that this was a situation that we needed to 
        be careful of because it was sensitive. And, as such, 
        Mr. Lindsay participated in the team conference call 
        meeting in which all of the members of the team were 
        present and Mr. Lindsay was there via conference call, 
        and re-articulated the standard operating procedure. 
        And in absolutely no way did I ever make any personal 
        threats to any individuals during that time frame.\167\
---------------------------------------------------------------------------
    \167\ Id. at 216.

---------------------------------------------------------------------------
Mrs. Callahan explained:

        what I mean by that, as far as the ``standard 
        procedures,'' and what they were advised at the meeting 
        was the fact that the normal procedures are, if you are 
        receiving any inquiries from folks such as the press, 
        to please refer them to the Office of Public Affairs, 
        and if anyone else had any particular questions or had 
        a need to know, to please refer them to either myself 
        or Mr. Lindsay.\168\
---------------------------------------------------------------------------
    \168\ Id. at 215.

    There was nothing inappropriate about Mrs. Callahan's and 
Mr. Lindsay's instructions not to discuss the matter. At the 
time of the discovery of the Mail2 problem, Independent Counsel 
Starr was conducting a widely publicized investigation into 
matters concerning Ms. Lewinsky. Given the circumstances--a 
potential document production issue arising in the midst of a 
high-profile and widely reported-on investigation--it is not 
difficult to understand why Mr. Lindsay and Mrs. Callahan may 
have wanted to avoid widespread discussions about the matter 
pending further investigation.
    Moreover, several of the contractors explained that they 
did not find these requests for confidentiality to be 
unreasonable or suspicious. Ms. Salim testified that she 
believed that it ``was a reasonable request for them to ask us 
to keep a lid on this until they could manage the situation.'' 
\169\ Mr. Spriggs testified, ``When I was called into that 
office and Ms. Crabtree and Mr. Lindsay were giving me 
instructions, I perceived that those instructions were 
reasonable instructions.'' \170\
---------------------------------------------------------------------------
    \169\ Testimony of Yiman Salim, March 23 hearing at 91.
    \170\ Testimony of John Spriggs, March 23 hearing at 100.
---------------------------------------------------------------------------
    The majority's allegation that Mr. Lindsay and Mrs. 
Callahan's instructions constituted a ``cover-up'' are 
apparently based on the assumption that those instructions were 
supposed to prevent further investigation into or the eventual 
disclosure of the Mail2 problem. Ms. Salim, however, testified 
that she did not understand Mr. Lindsay and Mrs. Callahan's 
instructions to mean that the problem would be kept permanently 
under wraps:

        My understanding was that this issue would remain with 
        this small group only temporarily until the Office of 
        Administration had a chance to manage the 
        situation.\171\
---------------------------------------------------------------------------
    \171\ Testimony of Yiman Salim, March 23 hearing at 21.

    Mr. Spriggs's testimony reaffirmed that far from being 
impeded in their attempts to investigate the Mail2 problem, the 
contractors were encouraged to complete their work. According 
---------------------------------------------------------------------------
to Mr. Spriggs:

        the reality was we needed to figure out what the 
        problem was and how were we going to deal with getting 
        these in the records management system. . . . There was 
        no, from my point of view, any kind of question that we 
        were not going to proceed forward with this and resolve 
        this question. We were trying to get all of the 
        information so that whomever--OA counsel or White House 
        Counsel--would have sufficient information to be able 
        to judge the import of the information that they had. 
        As far as I knew personally--and my colleagues can 
        speak to what they knew--I had no knowledge of anyone 
        trying to stop us from doing any of that or trying to 
        keep any information away from [Kenneth] Starr or 
        anyone else at that point.\172\
---------------------------------------------------------------------------
    \172\ Testimony of John Spriggs, March 23 hearing at 91-92.

    Even Ms. Lambuth believed that the request for 
---------------------------------------------------------------------------
confidentiality was reasonable:

        Mr. Waxman. I'd like to ask whether you think this was 
        an unreasonable request? Anybody think it was an 
        unreasonable request?

        Ms. Lambuth. I think in the beginning that's the way we 
        all felt.\173\
---------------------------------------------------------------------------
    \173\ March 23 hearing at 90-91. When pressed on this point later 
in the hearing, Ms. Lambuth reaffirmed that ``I didn't feel that it was 
unusual, knowing the circumstances of all the subpoenas.'' Testimony of 
Betty Lambuth, March 23 hearing at 175.

    Ms. Lambuth did testify that the delay in fixing the Mail2 
---------------------------------------------------------------------------
problem caused her to change her mind:

        I think in the beginning we all felt that they just 
        wanted to get their act together, basically, how they 
        were going to let the public know about this. But as 
        time went on and we couldn't get any decisions of how 
        they wanted us to handle it, what the next step was 
        going to be, etc., it became very obvious to us, and we 
        had some discussions on this that they did not want 
        this to come forth.\174\
---------------------------------------------------------------------------
    \174\ Testimony of Betty Lambuth, March 23 hearing at 93.

    Mr. Hawkins concurred with Ms. Lambuth, citing his dealings 
with Mr. Lindsay as justifying his own belief ``that they did 
try to cover up the fact that they had a computer glitch.'' 
\175\
---------------------------------------------------------------------------
    \175\ Testimony of Steven Hawkins, March 23 hearing at 93.
---------------------------------------------------------------------------
    Neither Ms. Lambuth nor Mr. Hawkins played a significant 
role in the e-mail project, however. Ms. Lambuth, by her own 
account, ``was only on this [e-mail] project for a short period 
of time.'' \176\ She left the White House in July 1998,\177\ 1 
month after the discovery of the Mail2 problem. Mr. Hawkins 
told committee staffers that he left Northrop Grumman on 
October 9, 1998, and by his own account he played little if any 
role in the e-mail project prior to his departure.\178\ Mr. 
Spriggs, who played a significant role in the e-mail project, 
had a more judicious assessment. Asked if he agreed with Ms. 
Lambuth's conclusion, he testified that ``from my point of 
view, we didn't know enough about what was going on to say that 
the White House had stopped anything.'' \179\
---------------------------------------------------------------------------
    \176\ Testimony of Betty Lambuth, March 23 hearing at 132.
    \177\ Testimony of Betty Lambuth at March 23 hearing.
    \178\ Interview of Steven Hawkins by majority and minority staff, 
House Committee on Government Reform (Mar. 7, 2000).
    \179\ Testimony of John Spriggs, March 23 hearing at 96.
---------------------------------------------------------------------------
    The committee has received documentary evidence which 
further suggests that the contractors did not think that the 
requests were improper. According to notes taken by Northrop 
Grumman employee Joe Vasta about a meeting he had with the 
contractors on August 28, 1998, Mr. Vasta ``questioned the team 
to determine whether they felt they were being asked to do 
anything that was illegal or unethical. They replied in the 
negative.'' \180\ A few days later, Mr. Hawkins also met with 
the contractors, who ``reiterated they believed they were not 
doing anything illegal.'' \181\
---------------------------------------------------------------------------
    \180\ Document entitled, ``Summary of Project X Discussions'' 
(Sept. 9, 1998).
    \181\ Id. According to Mr. Vasta's notes, the contractors were 
``uncomfortable because the project leader giving them direction was a 
non-Northrop Grumman employee'' and were ``concerned that decisions 
could be made concerning the project that were not in the best 
interests of Northrop Grumman.'' Id.
---------------------------------------------------------------------------
2. The OA Instructions Regarding Northrop Grumman Management
    While Mr. Lindsay and Mrs. Callahan's requests for 
confidentiality do not appear to have been, on their face, 
unreasonable, Mr. Haas, Mr. Spriggs, and Ms. Lambuth further 
testified that they were specifically told not to tell their 
supervisor, Steve Hawkins, about the e-mail matter.\182\ 
Although Mr. Lindsay and Mrs. Callahan denied this 
allegation,\183\ Mrs. Callahan stated that she wanted 
information about the Mail2 matter limited to ``[t]hose in the 
room'' at the Mail2 meeting, which would by implication exclude 
the absent Mr. Hawkins.\184\ Certainly, the weight of the 
evidence suggests that the contract employees felt that they 
were not allowed to discuss their work with their supervisor, 
and this put them in a difficult and unfair position.
---------------------------------------------------------------------------
    \182\ Testimony of Robert Haas, March 23 hearing at 32; testimony 
of John Spriggs, March 23 hearing at 48-49; testimony of Betty Lambuth, 
March 23 hearing at 50.
    \183\ Testimony of Mark Lindsay, March 23 hearing at 245; testimony 
of Laura Callahan, March 23 hearing at 254.
    \184\ Testimony of Laura Callahan, March 23 hearing at 254.
---------------------------------------------------------------------------
    The testimony regarding Mr. Hawkins's involvement is 
inconclusive. Mr. Hawkins indicated that he believed there was 
an effort to limit his understanding of the Mail2 problem.\185\ 
On the other hand, Mr. Lindsay testified that it ``didn't 
matter'' to him ``whether or not Hawkins was involved with'' 
the Mail2 investigation; \186\ indeed, Mr. Lindsay said that he 
himself briefed Mr. Hawkins about the Mail2 problem.\187\
---------------------------------------------------------------------------
    \185\ See testimony of Steven Hawkins, March 23 hearing at 93.
    \186\ Testimony of Mark Lindsay, March 23 hearing at 256.
    \187\ Id. at 245.
---------------------------------------------------------------------------
    After the March 23 hearing at which both Mr. Hawkins and 
Mr. Lindsay testified, the committee received information that 
casts their testimony in a different light. The new evidence 
indicates that Northrop Grumman management above Mr. Hawkins's 
level was informed about the e-mail problem.
    James DeWire, currently a program manager with Logicon, a 
wholly owned subsidiary of Northrop Grumman, managed Northrop 
Grumman's EOP contract for approximately the last 7 months of 
1998. Mr. DeWire told committee staff that he received a phone 
call from Mr. Hawkins in early or mid-June 1998, in which Mr. 
Hawkins said that employees had told him that they had been 
given instructions not to tell him what they were working 
on.\188\ Shortly after this phone call--possibly within minutes 
of his hanging up--Mr. DeWire received another phone call, this 
one from then-OA Director Ada Posey.\189\ According to Mr. 
DeWire, Ms. Posey explained that she had a very sensitive task 
which she wanted to be handled in a limited environment, with 
the Northrop Grumman employees reporting directly to a 
government employee without the intervening involvement of 
Northrop Grumman management.\190\
---------------------------------------------------------------------------
    \188\ Interview of James DeWire by majority and minority staff, 
House Committee on Government Reform (June 15, 2000).
    \189\ Id.
    \190\ Id.
---------------------------------------------------------------------------
    Mr. DeWire said that after Ms. Posey assured him that the 
work was both within the scope of the contract and not illegal, 
he agreed to her request.\191\ Mr. DeWire said that he 
immediately informed Mr. Hawkins of the arrangement and 
instructed him not to try to find out the nature of the work 
being done by the contract employees.\192\
---------------------------------------------------------------------------
    \191\ Id.
    \192\ Id.
---------------------------------------------------------------------------
    According to Mr. DeWire, then, within a short period of the 
discovery of the Mail2 problem, he was informed of, and he 
approved of, a scheme whereby the contract employees reported 
directly to EOP personnel as they investigated the Mail2 
problem. Mr. DeWire's statements indicate that the actions of 
OA management toward Northrop Grumman management and contract 
personnel were appropriate and above-board.
  d. allegation that the white house concealed information about the 
      mail2 problem from congress and various independent counsels
    Representative Burton has alleged that the White House 
intentionally failed to notify investigators about the Mail2 
problem, and its potential impact on past and future subpoena 
compliance. Representative Burton stated that there is ``in 
effect, a purposeful effort to keep documents from Congress, 
the Department of Justice, and various Independent Counsels.'' 
\193\ Representative Burton also said that the White House 
``knew about [the e-mail problem] in 1998, and they kept it 
under wraps from the Congress.'' \194\
---------------------------------------------------------------------------
    \193\ Letter from Representative Dan Burton to Counsel to the 
President Beth Nolan (Mar. 8, 2000).
    \194\ Statement of Representative Dan Burton, May 3 hearing at 65.
---------------------------------------------------------------------------
    Representative Burton's allegations are contradicted by the 
testimony of White House and OA lawyers that they did not 
notify Congress or any independent counsels of subpoena 
compliance problems because they did not believe that any such 
problems existed. Former White House Counsel Charles F.C. Ruff, 
former White House Deputy Counsel Cheryl Mills, and former OA 
General Counsel Mark Lindsay all testified that they did not 
cover up, or have any knowledge of others covering up, the e-
mail problem.\195\ Mr. Ruff testified emphatically that 
``[n]ever, not once, did anyone on my staff seek to conceal, 
delay production of or otherwise cover up any document 
production whether it be electronic or paper.'' \196\
---------------------------------------------------------------------------
    \195\ Testimony of Mark Lindsay, Cheryl Mills, and Charles Ruff, 
May 4 hearing at 54-57.
    \196\ Testimony of Charles Ruff, May 4 hearing at 57.
---------------------------------------------------------------------------
    White House counsel explained that their failure to inform 
investigators about the Mail2 problem resulted from their own 
(mistaken) belief that the problem had not affected document 
production. After the Mail2 problem was discovered, Mr. Haas 
was directed to perform a test search for non-records-managed 
e-mails relating to Monica Lewinsky. According to Ms. Nolan, 
the White House Counsel's office compared the results of Mr. 
Haas's search:

        against previously produced documents and determined 
        that they were duplicative. The Counsel's Office 
        believed that all necessary steps to make a complete 
        search had been taken. They did not know that there was 
        any remaining problem--prospective or retrospective.

        Thus, as Mr. Ruff understood the technical problem at 
        the time, he did not think that the error had an effect 
        on previous searches or that it might affect future 
        searches of e-mail records. As a result, Mr. Ruff had 
        no reason to believe there was any need to notify 
        investigative bodies of this error.\197\
---------------------------------------------------------------------------
    \197\ Statement of Counsel to the President Beth Nolan (Mar. 23, 
2000).

    Mr. Ruff confirmed that ``at the point where the word came 
back to me that the Lewinsky e-mails had in fact been collected 
and it turned out they were duplicative of what we had already 
found, I believed that the problem did not, in fact, 
retrospectively affect our compliance.'' \198\
---------------------------------------------------------------------------
    \198\ Testimony of Charles Ruff, May 4 hearing at 50.
---------------------------------------------------------------------------
    Similarly, Mr. Lindsay testified that, after the test 
search was performed, ``the word that I got back was that `Hey, 
these are duplicates. It probably isn't that big of a problem 
because this information has already been produced.' '' \199\ 
Thus, Mr. Lindsay concluded:
---------------------------------------------------------------------------
    \199\ Testimony of Mark Lindsay, March 23 hearing at 248.

        there may not have been a legal problem in terms of 
        whether or not documents were produced or whether or 
        not that was completed, but I still had a problem, and 
        that was I still had a technical staff that reported to 
        me that there was a glitch. Even if that test came back 
        in a positive way, I may not have had a production 
        problem, but I had a technical problem with my e-mail 
        system and my ARMS system and how they worked together. 
        If that--that was the issue that I needed to 
        resolve.\200\
---------------------------------------------------------------------------
    \200\ Id. at 259.

    Mr. Burton has dismissed Mr. Ruff's explanation, saying, 
``The President's counsel never understood the full extent of 
the problem? I seriously doubt that explanation. This issue 
isn't very complicated.'' \201\ But the committee's 
investigation has demonstrated the extremely technical and 
complicated nature of the e-mail problems at the White House. 
It took the Northrop Grumman team of computer experts many 
months to investigate and fix the Mail2 problem. Even a 
technically adept observer could be excused for failing to 
grasp the intricacies of ARMS, and Mr. Ruff, by his own 
admission, ``didn't understand the scope or the details of the 
technology involved.'' \202\ Indeed, as discussed above in part 
II.D, there is evidence that the committee's own staff may have 
been informed of the Mail2 problem in 1998 and failed to 
understand its significance.
---------------------------------------------------------------------------
    \201\ Statement of Representative Dan Burton, March 30 hearing at 
9.
    \202\ Transcript of interview of Charles F.C. Ruff, House Committee 
on Government Reform, 27 (Apr. 6, 2000).
---------------------------------------------------------------------------
    The alternative is to suppose that White House counsel 
embarked on a systematic conspiracy to avoid telling 
investigators about a technical problem affecting document 
production, all in an effort to avoid producing documents whose 
content they did not--could not--have known.\203\ There is no 
evidence to support this far-fetched supposition.
---------------------------------------------------------------------------
    \203\ The majority also alleges that it is ``difficult to 
understand why [White House Counsel Beth] Nolan did not understand that 
the e-mail problems had ongoing subpoena compliance consequences'' when 
she was told of the problems at a Jan. 18, 2000, briefing on records 
management issues, and accuses Ms. Nolan of failing to exercise 
``minimal due diligence.'' Majority report at 51-52. In fact, OA 
Director Michael Lyle, who attended the meeting, testified that Ms. 
Nolan inquired about whether the e-mail problems had affected subpoena 
compliance. Testimony of Michael Lyle, May 3 hearing at 103-04. Mr. 
Lyle told Ms. Nolan that this question ``had been dealt with prior by 
Mr. Lindsay and Mr. Ruff.'' Id. at 104. Mr. Lyle further testified that 
he checked with Mr. Lindsay, who assured him that he had indeed handled 
the matter with Mr. Ruff. Id.
---------------------------------------------------------------------------
e. allegation that earl silbert told the white house about the alleged 
             threats and problems with subpoena compliance
    The majority apparently believes that they have found the 
``smoking gun'' which demonstrates that the White House was 
aware of (1) the alleged threats against Northrop Grumman 
contractors, and (2) the possibility that the Mail2 problem had 
affected information requests from investigative bodies. That 
``smoking gun'' involves contacts in 1998 between White House 
counsel and an attorney representing Northrop Grumman, Earl 
Silbert. Representative Burton has described Mr. Silbert as ``a 
high-priced Washington fixer'' \204\ and charged that 
``Silbert's contacts may dramatically undermine White House 
claims of a `disconnect' that prevented them from understanding 
the e-mail problem.'' \205\ Representative Burton further 
asserted that ``Silbert's two separate contacts with the White 
House cast even more doubt on the White House claim that they 
weren't actively covering up the problem.'' \206\
---------------------------------------------------------------------------
    \204\ Statement of Representative Dan Burton at Sept. 26 hearing.
    \205\ Memorandum from Representative Dan Burton to members of the 
Committee on Government Reform (Sept. 21, 2000).
    \206\ Statement of Representative Dan Burton at Sept. 26 hearing.
---------------------------------------------------------------------------
    Representative Burton's allegations about Mr. Silbert are 
wholly speculative and overlook the most obvious explanation 
for Mr. Silbert's contacts with White House counsel--namely, 
that Mr. Silbert was hired to assist Northrop Grumman in its 
attempt to resolve the question of whether work on the Mail2 
project was within the scope of the company's contract with the 
EOP. Mr. Silbert's billing records indicate that he was hired 
to give ``advice to Logicon re: Executive Office of the 
President Contract'' or simply ``Contract Advice.'' \207\ 
Furthermore, it is clear that Northrop Grumman executives 
believed that work on the e-mail project was outside the scope 
of the EOP contract and that they communicated their belief to 
the EOP.\208\ Given the time and expense involved in fixing the 
problem retrospectively, their concern on this point is 
understandable.
---------------------------------------------------------------------------
    \207\ Billing records of Earl J. Silbert (Nov. 19, 1998, Jan. 27, 
1999, Mar. 31, 1999). Logicon is a wholly owned Northrop Grumman 
subsidiary.
    \208\ See letter from Joseph F. Lucente to Dale Helms (Sept. 14, 
1998) (NGL 00503). Mr. Lindsay testified before the committee about the 
difference of opinion between Northrop Grumman and the White House over 
whether work on the e-mail problem was within the scope of the 
company's contract. Testimony of Mark Lindsay, March 23 hearing at 261-
63.
---------------------------------------------------------------------------
    The committee has obtained no evidence that Mr. Silbert was 
even aware of allegations concerning threats or subpoena 
compliance--issues that were peripheral, if not irrelevant, to 
the contractual matter at stake.\209\ Mr. Silbert's billing 
records contain an entry of 1.25 hours on September 11, 1998, 
for a ``teleconference with Northrop Grumman counsel and a 
company employee.'' Mr. Silbert claimed that the identity of 
the employee was protected by the work product privilege, but 
said that he did not recall the substance of this 
conversation.\210\
---------------------------------------------------------------------------
    \209\ Subsequent to the committee vote on the majority's e-mail 
report, the majority issued a document that purports to address the 
draft minority views that were circulated before the committee vote. 
``Inaccuracies, Misrepresentations, and Omissions in the Democrats' E-
Mail Report Rebuttal,'' House Committee on Government Reform (undated). 
In this ``rebuttal,'' the majority states that the committee has 
learned that Mr. Silbert took notes of his conversations with Northrop 
Grumman counsel and a Northrop Grumman employee. Noting that these 
documents have not been available to the committee, the majority 
asserts:

      Until Mr. Silbert either explains the substance of the 
      meeting or produces the notes, it is simply premature for 
      the Minority to claim that ``[t]here is no evidence'' 
      related to Mr. Silbert's communications concerning threats 
---------------------------------------------------------------------------
      or subpoena compliance.

Id. at 4.
 In essence, the majority is asserting that notes that the majority has 
never seen--and does not know the content of--constitute ``evidence'' 
of White House wrongdoing.
 As additional support for its critique, the majority asserts that Mr. 
Haas ``testified that he recounted the threats to an outside counsel 
described to him as a `gray beard,' '' and that Mr. Silbert's billing 
records suggest that he was the ``grey beard'' to whom Mr. Haas spoke. 
Id. This statement mischaracterizes the evidence before the committee. 
As discussed infra at note 210, even assuming that Mr. Silbert was the 
``grey beard'' in question, the committee simply does not know what Mr. 
Haas told him.
---------------------------------------------------------------------------
    \210\ There is evidence to indicate that the employee in question 
was Mr. Haas. Mr. Haas provided courtroom testimony in a lawsuit 
relating to the White House's handling of confidential FBI files about 
a meeting he attended with Northrop Grumman executives in September 
1998. Mr. Haas said that during the meeting there ``was a phone 
conversation from the Northrop Grumman lawyer's office. He called a 
person he referred to as a Grey Beard. And I recanted [sic] my story to 
him.'' Transcript of Evidentiary Hearing at 56-57, Alexander v. FBI, 
No. 96-2123 (Aug. 14, 2000). Mr. Haas did not further identify the 
``grey beard,'' nor did he provide any information about what he 
relayed to the ``grey beard.''
---------------------------------------------------------------------------
 Representative Burton has alleged that ``Haas told the outside counsel 
about the threats he had encountered, as well as his concerns about the 
legal ramifications of the e-mail problem.'' Letter from Representative 
Dan Burton to Judge Royce Lamberth, note 1 (Sept. 26, 2000). A careful 
reading of Mr. Haas's testimony makes clear, however, that Mr. Haas was 
describing what he said at the meeting with Northrop Grumman counsel 
and that he did not describe or characterize his statements to the 
``grey beard.'' Transcript of Evidentiary Hearing at 56-61, Alexander 
v. FBI, No. 96-2123 (Aug. 14, 2000). Thus, even if Mr. Haas's testimony 
is accurate, and even if Mr. Silbert was the ``grey beard'' in 
question, the committee does not know exactly what Mr. Haas told Mr. 
Silbert.
    Nor is there any evidence that Mr. Silbert communicated 
information about the alleged threats or subpoena compliance 
issues to the White House. A privilege log accompanying his 
billing records indicates that on September 28, 1998, and 
December 30, 1998, Mr. Silbert billed Northrop Grumman for a 
``teleconference with White House counsel.'' \211\ Each of the 
teleconferences lasted 0.25 hours each; since this is 
apparently the smallest increment of time for which Mr. 
Silbert's firm bills its clients, the calls may have been 
considerably less than 15 minutes long. Mr. Silbert informed 
committee staff that he has no recollection of whom he spoke to 
or the subject matter of the brief discussions.\212\
---------------------------------------------------------------------------
    \211\ Mr. Silbert redacted information in the billing records about 
the nature of the work he performed for Northrop Grumman, claiming 
attorney-client and attorney work product privileges.
    \212\ Representative Burton questioned Mr. Silbert's veracity on 
this point, stating that Mr. Silbert:

      told our staff that he didn't remember who he called or 
      what he discussed. We've had an epidemic of memory loss in 
      this town. Significant things, an absolute epidemic. I 
      can't believe it. Must be something in the water. He didn't 
      remember who called him or what he discussed or who he had 
      called at the White House or what he had discussed. Imagine 
      that. He hears a story about possible law breaking and 
      threats to his client's employees and he doesn't even 
---------------------------------------------------------------------------
      remember who he talked to at the White House.

Statement of Representative Dan Burton, Sept. 26 hearing at 13-14.
 Mr. Burton, however, overlooks a more mundane explanation--namely, 
that Mr. Silbert does not recall his contacts because they were (1) 
brief, (2) related to a matter that he worked on 2 years ago for less 
than 5 hours, and (3) solely related to contractual matters and not to 
allegations ``about possible law breaking and threats to his client's 
employees.''
    Testimony provided by Mark Lindsay in the Alexander case 
reinforces the likelihood that Mr. Silbert's contacts with 
White House counsel were limited to contractual matters and did 
not concern threats or subpoena compliance. Mr. Lindsay 
testified that he heard mention of Mr. Silbert's name in the 
context of Northrop Grumman:

        there was a concern about the scope of the contract and 
        I believe that someone in the counsel's office knew 
        this person [Mr. Silbert] and they raised a concern, 
        and he called me to say is this something we should be 
        worried about? I didn't talk to the Northrop Grumman 
        person. This is someone in the White House counsel's 
        office, and I said, no, I don't think so.\213\
---------------------------------------------------------------------------
    \213\ Transcript of Evidentiary Hearing at 139, Alexander v. FBI, 
No. 96-2123 (Aug. 23, 2000). Mr. Lindsay said that he thought the 
person in the counsel's office who contacted him was Lanny Breuer. Id.

Mr. Lindsay testified that ``it was a very, very general 
reference about scope of work,'' and that he was not aware of 
Mr. Silbert raising with the White House counsel's office the 
alleged threats against the Northrop Grumman employees.\214\
---------------------------------------------------------------------------
    \214\ Id. at 140-41.
---------------------------------------------------------------------------
    Furthermore, Mr. Silbert explained that the entry in his 
billing records for 0.25 hours for ``document review'' on 
September 12, 1998, related to a letter that was sent by 
Northrop Grumman's Joseph Lucente to Dale Helms of OA. That 
letter makes clear that Northrop Grumman had determined that 
work on the e-mail dysfunction would ``substantially exceed the 
scope of work contemplated under the'' EOP contract.\215\ The 
letter makes no mention of threats or issues regarding 
compliance with information requests. Nor is there any reason 
to think that those matters would have been relevant to Mr. 
Silbert if, as the evidence indicates, his role was simply to 
mediate or advise with respect to a straight-forward 
contractual discussion.\216\
---------------------------------------------------------------------------
    \215\ Letter from Joseph F. Lucente to Dale Helms (Sept. 14, 1998) 
(NGL 00503).
    \216\ The majority has alleged that ``Lucente told the Committee 
that `[t]he threats were the inspiration for sending the letter,' '' 
citing an interview of Joseph Lucente by majority and minority staff on 
May 1, 2000. ``Inaccuracies, Misrepresentations, and Omissions in the 
Democrats' E-Mail Report Rebuttal,'' House Committee on Government 
Reform, 4 (undated). However, in a subsequent interview, Mr. Lucente 
told committee staffers that the threats were not ``the'' inspiration 
but ``an'' inspiration for the letter, and that the letter makes no 
mention of threats, veiled or otherwise. Interview of Joseph Lucente by 
majority and minority staff, House Committee on Government Reform (Oct. 
17, 2000). More importantly, Mr. Lucente did not say--and there is no 
evidence to suggest--that he talked to Mr. Silbert about the alleged 
threats.
---------------------------------------------------------------------------
    Representative Burton has also suggested that Mr. Silbert 
had reason to be less than forthcoming about the e-mail problem 
in his discussions with the White House. Noting that Mr. 
Silbert has represented Indonesian businessman James Riady (who 
has been accused of orchestrating conduit contributions to 
President Clinton in the 1992 election), Peter Knight (a former 
aide to Vice President Gore investigated for his involvement in 
the Portals matter), and former White House Chief of Staff 
Erskine Bowles, Representative Burton stated that Mr. Silbert's 
clients ``have many reasons to be worried about what will come 
out when all the White House e-mails are reconstructed.'' \217\
---------------------------------------------------------------------------
    \217\ Statement of Representative Dan Burton at Sept. 26 hearing. 
See majority report at 64, note 362.
---------------------------------------------------------------------------
    The insinuation that Mr. Silbert shaded the truth in his 
dealings with the White House is wholly unsubstantiated. Mr. 
Silbert is a well-respected attorney with a distinguished 
career in public service, including 5 years as the U.S. 
Attorney for the District of Columbia. The allegation also 
directly contradicts Representative Burton's assertion that Mr. 
Silbert may have told the White House about the Mail2 problem. 
It is impossible to reconcile Mr. Burton's speculation that Mr. 
Silbert fully briefed White House counsel about the Mail2 
problem with his speculation that Mr. Silbert obscured the 
truth about the Mail2 problem in an effort to protect other 
clients.
    Mr. Burton also launched an entirely gratuitous attack upon 
the integrity of one of Mr. Silbert's law partners, Richard 
Oparil. Mr. Burton wrote to Judge Lamberth on September 26, 
2000, to say that Mr. Oparil, who represents Northrop Grumman 
in the Alexander case, ``intentionally misled the Court in 
stating that there had not been any contacts between Silbert 
and the White House regarding the e-mail matter.'' \218\ Mr. 
Burton cited statements by Mr. Oparil indicating that after 
speaking to Mr. Silbert and after looking through the firm's 
files, ``we don't believe that there were any oral 
communications'' between Mr. Silbert and White House 
counsel.\219\ Mr. Burton wrote that, since ``[t]he firm's 
billing records provide the most obvious source of 
corroboration of telephone calls and are presumably easily 
searched,'' Mr. Oparil must have ``intentionally misled the 
Court.'' \220\
---------------------------------------------------------------------------
    \218\ Letter from Representative Dan Burton to Judge Royce Lamberth 
(Sept. 26, 2000).
    \219\ Transcript of Evidentiary Hearing at 229, Alexander v. FBI, 
No. 96-2123 (Aug. 16, 2000).
    \220\ Letter from Representative Dan Burton to Judge Royce Lamberth 
(Sept. 26, 2000).
---------------------------------------------------------------------------
    As Mr. Oparil explained, however, ``[t]he billing records 
for the Northrop Grumman matter were not part of the client 
file that I reviewed.'' \221\ Furthermore, Mr. Oparil wrote 
Judge Lamberth on September 13--almost 2 weeks before Mr. 
Burton made his allegation--to tell him that he had located the 
two entries on Mr. Silbert's billing records regarding phone 
calls with White House counsel.\222\ In other words, Mr. Burton 
publicly accused Mr. Oparil of covering up a matter that he had 
already voluntarily disclosed.
---------------------------------------------------------------------------
    \221\ Letter from Richard J. Oparil to Judge Royce C. Lamberth 
(Sept. 27, 2000) (attached as exhibit 13).
    \222\ Letter from Richard J. Oparil to Judge Royce C. Lamberth 
(Sept. 13, 2000) (attached as exhibit 14).
---------------------------------------------------------------------------

 F. Allegation That the White House Failed To Disclose a Computer Disk 
            Containing Non-Produced Monica Lewinsky E-Mails

    An article in the Washington Times alleged that the White 
House had in its possession ``a previously undisclosed computer 
disk with e-mails by former intern Monica Lewinsky'' that were 
among e-mail messages sought ``by a federal grand jury and 
three congressional committees, but never turned over.'' \223\
---------------------------------------------------------------------------
    \223\ ``White House Has Disk With Lewinsky E-Mail,'' Washington 
Times (Mar. 29, 2000).
---------------------------------------------------------------------------
    This allegation was shown to be wholly without merit. White 
House Counsel Beth Nolan informed the committee that the 
computer disk containing Monica Lewinsky's e-mails was a copy 
of a file belonging to Mr. Haas and that the Lewinsky-related 
e-mail on the disk had already been produced.\224\ The contents 
of this disk were provided to the committee. The committee has 
obtained no evidence that contradicts Ms. Nolan's explanation.
---------------------------------------------------------------------------
    \224\ Testimony of Beth Nolan, March 30 hearing at 26-27.
---------------------------------------------------------------------------

    G. Allegation That an OA Employee Filed a False and Misleading 
                   Affidavit about the Mail2 Problem

    Mr. Burton also alleged that ``a White House employee, 
aided and counseled by 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.'' \225\ Mr. Burton even made a criminal referral to 
the Attorney General, in which he accused the employee, Daniel 
A. ``Tony'' Barry, of knowingly making false statements under 
oath, adding that ``there is evidence that the Justice 
Department itself may have been involved in preparing and 
presenting false testimony.'' \226\
---------------------------------------------------------------------------
    \225\ Letter from Representative Dan Burton to Attorney General 
Janet Reno (Sept. 7, 2000).
    \226\ Letter from Representative Dan Burton to Attorney General 
Janet Reno (Mar. 30, 2000). Earlier, Representative Burton had accused 
the Justice Department's civil division of ``help[ing] the White House 
craft its efforts to hide these e-mails.'' Letter from Representative 
Dan Burton to Attorney General Janet Reno (Mar. 27, 2000).
---------------------------------------------------------------------------
    The affidavit in question was filed by Mr. Barry, OA's ARMS 
expert, on July 9, 1999, in the Alexander case involving FBI 
files. The affidavit states in relevant part, ``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).'' \227\ According to Mr. 
Burton, this statement is ``utterly false.'' \228\
---------------------------------------------------------------------------
    \227\ Declaration of Daniel A. Barry, Alexander v. FBI, No. 96-2123 
(July 9, 1999), para. 4.
    \228\ Letter from Representative Dan Burton to Attorney General 
Janet Reno (Mar. 30, 2000).
---------------------------------------------------------------------------
    This allegation ignores the context of the Barry affidavit. 
The affidavit was filed as part of the government's efforts to 
convince the judge hearing the lawsuit that ARMS searches were 
not necessary for discovery purposes. Accordingly, the 
affidavit describes in some detail the cost and time involved 
in conducting a search of ARMS. Given this context, it appears 
that Mr. Barry was simply and accurately attempting to explain 
some basic facts about ARMS--namely, that it archives e-mail 
and that it has been in effect since July 14, 1994.\229\
---------------------------------------------------------------------------
    \229\ The majority also states that Mr. Barry should have corrected 
similarly general statements that he made about ARMS during a June 11, 
1998, deposition and criticizes Sally Paxton, a member of the Office of 
White House Counsel who assisted Mr. Barry, for a ``cavalier attitude 
towards the deposition process.'' Majority report at 131-33. The charge 
involving Ms. Paxton is doubly unfair. For one thing, since Ms. Paxton 
was apparently not aware of any ongoing ARMS problems, it is difficult 
to see how she can be blamed for failing to clarify Mr. Barry's 
statements. For another, the majority mischaracterizes Ms. Paxton's 
comments in an interview about the deposition with committee staff on 
June 22, 2000. Ms. Paxton did not say that ``she told Barry not to 
change the substance of depositions because it could open him up to 
being re-deposed.'' Majority report at 133. Rather, Ms. Paxton told 
staff that she did not recall telling Mr. Barry anything, and that she 
was not sure that she had standard instructions for a deponent about 
problems he might have with a deposition transcript. Interview of Sally 
Paxton by majority and minority staff, House Committee on Government 
Reform (June 22, 2000). She further said that making substantive 
changes would open the person up to being re-deposed but that she was 
not sure that she would generally mention this detail to deponents. Id. 
See letter from Steven M. McNabb to Representative Dan Burton (Oct. 18, 
2000) (correcting ``certain false and misleading statements about my 
client, Sally Paxton'' in the majority's report) (attached as exhibit 
15).
---------------------------------------------------------------------------
    The flimsiness of Mr. Burton's allegation is underscored by 
the fact that Mr. Barry received letters from both the Justice 
Department and the Office of Independent Counsel stating that 
he is not a target of their respective e-mail 
investigations.\230\
---------------------------------------------------------------------------
    \230\ Letter from Deputy Assistant Attorney General Alan Gershel, 
to Steve Ryan, Esq. (Aug. 1, 2000) (attached as exhibit 16); letter 
from Independent Counsel Robert W. Ray to Stephen M. Ryan, Esq., and 
Pamela J. Marple, Esq. (Aug. 2, 2000) (attached as exhibit 17).
---------------------------------------------------------------------------
    The majority report also states that ``[b]y 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.'' \231\ This allegation overlooks the 
incontrovertible fact that there is no evidence that any White 
House or Justice Department lawyers involved in preparing and 
submitting the affidavit were aware of any ARMS-related 
problems.
---------------------------------------------------------------------------
    \231\ Majority report at 135.
---------------------------------------------------------------------------

 H. Allegation That an OA Employee Attempted To Hide Information about 
                    the Mail2 Problem from Congress

    Representative Burton has accused Karl Heissner, the branch 
chief for Systems Integration and Development in OA's IS&T 
division, of seeking to keep the Mail2 problem a secret from 
investigators. Mr. Burton cited as evidence an e-mail written 
by Mr. Heissner, which he interpreted as follows: ``he 
concludes by saying, `Let sleeping dogs lie.' I think 
translated that means let's keep a lid on this and don't let 
Congress or the independent counsels know about it.'' \232\ Mr. 
Barr suggested that, if he were a prosecutor, Mr. Heissner's e-
mail ``would be considered evidence of obstruction of 
justice.'' \233\
---------------------------------------------------------------------------
    \232\ Statement of Representative Dan Burton, May 3 hearing at 13.
    \233\ Statement of Representative Bob Barr, May 3 hearing at 35.
---------------------------------------------------------------------------
    Mr. Heissner, a 25-year career civil servant, testified 
that his e-mail memo addressed two separate and unrelated 
issues.\234\ The first part of the e-mail is entitled, 
``Information Requests'' and states, in relevant part:
---------------------------------------------------------------------------
    \234\ Testimony of Karl Heissner, May 3 hearing at 49-50.

        While I'll be glad to write up something related to the 
        ``Information Requests'' channeled to us via White 
        House Counsel in response to various requests from 
        Congress and litigants against the Government, we may 
        not want to call undue attention to the issue by 
        bringing the issue to the attention of Congress because 
        [l]ast year's hours consumed by SID staff amounts to 
        only a little over 500, [t]his year's hours consumed so 
        far amounts to only 65, and [t]he level of requests 
---------------------------------------------------------------------------
        appears to be declining.

        (Let sleeping dogs lie . . .) \235\
---------------------------------------------------------------------------
    \235\ E-mail from Karl H. Heissner to Dorothy E. Cleal (Feb. 5, 
1999) (E 3865-74).

    The second part of the e-mail is entitled ``Mail2 
Reconstruction.'' It provides a summary of the Mail2 problem, 
its discovery, and subsequent efforts to fix it.
    Mr. Heissner testified that his suggestion to let 
``sleeping dogs lie'' was simply expressing a desire not to 
bring up the fact that the number of information requests 
received by the White House was declining.\236\ According to 
Mr. Heissner, since the number of information requests was 
declining, ``we don't need to go to Congress to ask for funding 
to pay for the costs for performing these information 
requests.'' \237\ Mr. Heissner stated that he was not trying to 
prevent Congress from finding out about the Mail2 problem.\238\
---------------------------------------------------------------------------
    \236\ Testimony of Karl Heissner, May 3 hearing at 51.
    \237\ Id. at 34.
    \238\ Id. at 50.
---------------------------------------------------------------------------
    The majority appears to recognize that the allegations 
about Mr. Heissner are without merit because there is no 
mention of Mr. Burton's or Mr. Barr's allegations in the 
majority report. Unfortunately, the majority makes no attempt 
to clear the record or to clear Mr. Heissner's name in the 
majority report.

  I. Allegation That Cheryl Mills Was Responsible for the Failure To 
                       Disclose the Mail2 Problem

    Mr. Burton has made a number of misleading and inaccurate 
allegations about the role of then-Deputy Counsel to the 
President Cheryl Mills in the e-mail matter. For example, Mr. 
Burton alleged that ``Cheryl Mills is a central figure in the 
e-mail investigation,'' \239\ and that Ms. Mills:
---------------------------------------------------------------------------
    \239\ Letter from Representative Dan Burton to Attorney General 
Reno (June 28, 2000). See also majority report at 114 (``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'').

        was in charge of determining the extent of the problem 
        and whether there were any ramifications for document 
        production. As we now know, Ms. Mills--by incompetence 
        or design--may have prevented a number of investigative 
        bodies, including Congress, the Justice Department, and 
        Independent Counsels, from receiving subpoenaed 
        documents. . . . [I]t is clear that Ms. Mills is the 
        central figure in terms of the White House Counsel's 
        Office['s] failure to solve the e-mail problems or its 
        failure to notify interested parties that documents 
        were not being produced.\240\
---------------------------------------------------------------------------
    \240\ Letter from Representative Dan Burton to Attorney General 
Reno (June 28, 2000).

    In fact, Ms. Mills's testimony before the committee 
indicated that her involvement in the e-mail matter was limited 
to a discussion with Mr. Ruff about the problem, after which 
she forwarded a batch of e-mails to White House Associate 
Counsel Michelle Peterson, who determined that they had already 
---------------------------------------------------------------------------
been produced. According to Ms. Mills's testimony:

        Mr. Ruff indicated that there had been a problem with 
        certain e-mails that might not have been captured, that 
        OA 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. . . . The 
        e-mails--the material came from OA over to our office; 
        and I forwarded them to Shelly Peterson, an associate 
        counsel in our office, who reviewed the materials to 
        determine whether or not they were duplicative.\241\
---------------------------------------------------------------------------
    \241\ Testimony of Cheryl Mills, May 4 hearing at 33-34.

    Ms. Mills's testimony contradicts Mr. Burton's assertion 
that she was ``in charge of determining the extent of the 
problem and whether there were any ramifications for document 
production.'' According to her testimony, her role was limited 
to determining whether or not certain e-mails relating to 
Monica Lewinsky had or had not been produced.\242\ There is no 
evidence to suggest that Ms. Mills's testimony on this point 
was inaccurate.
---------------------------------------------------------------------------
    \242\ Id. at 34.
---------------------------------------------------------------------------
    Representative Burton has also implied that Ms. Mills was 
informed about broad e-mail problems affecting the office of 
the Vice President. Representative Burton wrote to the Attorney 
General that a matter of ``some importance'' was a document 
indicating that ``[t]he OVP memorandum regarding the Vice 
President's computer problems has been cleared with Cheryl 
Mills' office.'' \243\ This statement seems to suggest that the 
memorandum in question contained information about deficiencies 
in the records management practices of the Office of the Vice 
President.
---------------------------------------------------------------------------
    \243\ Letter from Representative Dan Burton to Attorney General 
Reno (June 28, 2000).
---------------------------------------------------------------------------
    In fact, however, the memorandum in question discussed a 
technical failure that caused the Vice President to be ``unable 
to send or receive E-mail for approximately seven hours'' on 
April 2, 1999.\244\ According to this memorandum, as a result 
of this technical failure, ``[a]ll documents which had not been 
saved to a disk--in this case three days of E-mail--were 
irretrievably lost.'' \245\ The memorandum does not discuss 
broader issues about records management of the Vice President's 
e-mail. It is therefore difficult to understand how Ms. Mills's 
alleged knowledge of the contents of the memorandum is in any 
way inculpatory.
---------------------------------------------------------------------------
    \244\ Memorandum from Dorothy E. Cleal, Associate Director for 
Information Systems and Technology, Office of Administration, to 
Virginia Apuzzo, Assistant to the President for Management and 
Administration (May 13, 2000) (E 5201-03, E 6956-58).
    \245\ Id.
---------------------------------------------------------------------------
    This is not the first time the committee has targeted 
Cheryl Mills. In September 1998, Representative David McIntosh 
requested that the Department of Justice investigate whether 
Ms. Mills committed perjury and obstructed justice because, in 
essence, she did not agree with him about the relevance of two 
sets of documents to a committee request.\246\ As the 
Department of Justice found, this attempt to transform a simple 
document request into a potential criminal offense lacked any 
merit.\247\ The allegations in this instance appear equally 
unwarranted.
---------------------------------------------------------------------------
    \246\ Letter from Representative David McIntosh to Attorney General 
Janet Reno (Sept. 17, 1998).
    \247\ Letter from Ms. Faith Burton to Representative David McIntosh 
(May 6, 1999) (attached as exhibit 18).
---------------------------------------------------------------------------

J. Allegation That the Justice Department Has Failed To Investigate, or 
     To Appoint a Special Counsel to Investigate, the E-Mail Matter

    Mr. Burton has repeatedly condemned the Justice 
Department's investigation of the e-mail matter. Mr. Burton has 
accused the Department of ``investigative laxity'' \248\ and 
has charged that the Justice Department ``took no steps to 
determine whether reports about the e-mail problem were true,'' 
\249\ further stating that ``I get the impression that the 
Justice Department really isn't all that interested'' in the e-
mails.\250\ Because of these perceived deficiencies, Mr. Burton 
has called for the appointment of a special counsel to 
investigate the e-mail matter.\251\
---------------------------------------------------------------------------
    \248\ Letter from Representative Dan Burton to Attorney General 
Janet Reno (June 28, 2000).
    \249\ Letter from Representative Dan Burton to Judge Royce C. 
Lamberth (Mar. 29, 2000).
    \250\ Statement of Representative Dan Burton, March 23 hearing at 
12.
    \251\ Letter from Representative Dan Burton to Attorney General 
Janet Reno (Mar. 27, 2000); letter from Representative Dan Burton to 
Attorney General Janet Reno (Mar. 30, 2000).
---------------------------------------------------------------------------
    While it would be premature to judge the thoroughness of 
the Department's e-mail investigation, Mr. Burton's request for 
a special counsel makes no sense, as the e-mail matter is 
already the subject of an investigation by Independent Counsel 
Robert Ray. Deputy Assistant Attorney General Alan Gershel 
testified that ``with respect to the White House e-mail matter 
the [Department's] task force and the office of the independent 
counsel are working together in a coordinated investigation.'' 
\252\
---------------------------------------------------------------------------
    \252\ Testimony of Alan Gershel, Sept. 26 hearing at 35.
---------------------------------------------------------------------------
    Mr. Burton has alleged that Independent Counsel Ray's 
investigation ``is limited'' and ``[a] lot of the things that 
we're talking about in the e-mail investigation Mr. Ray does 
not have any jurisdiction over.'' \253\ In fact, Mr. Gershel 
confirmed that the independent counsel's investigation 
necessarily involves the same basic factual matters as the 
committee's e-mail investigation.\254\ While the independent 
counsel may be focused on examining the e-mail matter as it 
relates to the production of documents to his office, all of 
the issues explored by the committee--including allegations of 
threats and a cover-up--are relevant to this inquiry. Mr. 
Burton's allegation is simply without basis.
---------------------------------------------------------------------------
    \253\ Statement of Representative Dan Burton, Sept. 26 hearing at 
69.
    \254\ Testimony of Alan Gershel, Sept. 26 hearing at 105-06. Mr. 
Gershel also affirmed that the Department had not impeded or limited 
the scope of Mr. Ray's e-mail investigation. Id. at 48.
---------------------------------------------------------------------------
    The majority report also makes the assertion that ``[i]t 
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.'' \255\ The majority report offers no 
evidence to support this allegation. Instead, the report states 
the Mr. Gershel's refusal to rebut the charge ``suggests that 
it is likely true.'' \256\ In fact, Mr. Gershel made clear that 
his refusal to discuss staffing levels was based on the 
Department's longstanding policy of not disclosing staffing 
levels for ongoing investigations.\257\
---------------------------------------------------------------------------
    \255\ Majority report at 141.
    \256\ Id. at 143.
    \257\ Testimony of Alan Gershel, Sept. 26 hearing at 34-35.
---------------------------------------------------------------------------
    Finally, the majority report accuses the Justice Department 
of having a conflict of interest because of the role of the 
Department's civil division in defending the White House in the 
Alexander case.\258\ However, Assistant Attorney General Robert 
Raben explained to the committee:
---------------------------------------------------------------------------
    \258\ Majority report at 129.

        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 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.\259\
---------------------------------------------------------------------------
    \259\ Letter from Assistant Attorney General Robert Raben to 
Representative Dan Burton (Apr. 12, 2000) (attached as exhibit 19). The 
majority asserts that ``[t]he Department of Justice has received no 
such stay.'' Majority report at 129. This assertion is misleading, as 
the judge hearing the Alexander case delayed holding hearings on the e-
mail matter for several months until receiving assurances that ``the 
criminal investigation has reached a stage where further inquiry . . . 
can recommence without threatening the integrity of the criminal 
investigation or other law enforcement interests.'' Order of Judge 
Royce Lamberth, Alexander v. FBI, No. 96-2123 (July 20, 2000). The 
judge further noted that he had ``proceeded cautiously'' since the task 
force began its investigation ``to ensure that these proceedings do not 
interfere with the criminal investigation.'' Id. The Alexander 
plaintiffs filed a motion requesting an evidentiary hearing on e-mail 
matters on Feb. 19, 2000; the court did not commence the hearing until 
July 31. Id.
---------------------------------------------------------------------------

                          K. Other Allegations

1. Allegation That the White House Has Delayed Reconstruction of the E-
        mails

    Mr. Burton has stated that ``it is now obvious to me that 
the White House has failed to expedite the production of 
subpoenaed documents to the Committee,'' adding that ``the 
White House has clearly demonstrated its utter disregard for 
both the legislative and judicial branches'' and that delays in 
the reconstruction process ``are not surprising and seem very 
convenient.'' \260\ Mr. Burton has further called for the 
appointment of a special master to supervise production of e-
mails.\261\
---------------------------------------------------------------------------
    \260\ Letter from Representative Dan Burton to Counsel to the 
President Beth Nolan (July 26, 2000).
    \261\ Letter from Representative Dan Burton to Counsel to the 
President Beth Nolan and Attorney General Janet Reno (July 12, 2000).
---------------------------------------------------------------------------
    Ms. Nolan has responded in writing to Mr. Burton's 
allegations in some detail, noting correctly that she warned 
during her testimony before the committee that the schedule for 
the e-mail reconstruction project was subject to possible 
delays.\262\ Ms. Nolan also testified that ``[a]s our review 
progresses to completion, we will likely uncover information 
that alters or amends these preliminary conclusions'' and 
referred to the ``contractor's preliminary estimate,'' adding 
that ``I want to emphasize preliminary because these estimates 
are subject to amendment as the process proceeds and the 
contractor learns new information.'' \263\
---------------------------------------------------------------------------
    \262\ Letter from Counsel to the President Beth Nolan to 
Representative Dan Burton (Aug. 7, 2000) (attached as exhibit 20). Ms. 
Nolan also pointed out that, in addition to testifying twice before the 
committee, she has provided the committee with several updates on the 
reconstruction project and records management issues. Id.
    \263\ Testimony of Beth Nolan, March 30 hearing at 25.
---------------------------------------------------------------------------
    The majority has not yet responded to an offer made by the 
White House on September 14, 2000, to search, reconstruct, and 
produce batches of e-mails on an expedited basis.\264\ The 
White House notified committee staff that with about 3 weeks of 
computer staff time, it would be able to conduct targeted 
searches using 100 backup tapes, 70 e-mail accounts, and 70 
search terms.\265\ The White House repeated the offer on 
October 4.\266\ To date, however, the majority has failed to 
take the White House up on its offer. This might suggest that 
the majority is more interested in speculating about the 
``missing'' e-mails--and accusing the White House of delay--
than in actually reviewing the e-mails.
---------------------------------------------------------------------------
    \264\ See letter from Counsel to the President Beth Nolan to 
Representative Dan Burton (Sept. 26, 2000).
    \265\ Id. The White House further noted that with about 2 weeks of 
computer staff time, it would be able to conduct targeted searches 
using 50 backup tapes, 35 e-mail accounts, and 35 search terms. Id.
    \266\ Letter from Associate Counsel to the President Lisa Klem to 
Chief Counsel James C. Wilson (Oct. 4, 2000).
---------------------------------------------------------------------------

2. Allegation That the White House Has Impeded the Committee's 
        Investigation

    The majority asserts that ``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.'' \267\ 
However, the majority cites scant evidence to support this 
assertion. For example, the majority states:
---------------------------------------------------------------------------
    \267\ Majority report at 107.

        the original White House production in the e-mail 
        matter was sent in the evening, two days before the 
        Committee's first scheduled hearing of March 23, 2000. 
        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.\268\
---------------------------------------------------------------------------
    \268\ Id. at 107.

    In fact, the majority has only itself to blame for its 
``difficult position.'' The problem encountered by the majority 
was caused by the fact that the majority scheduled a hearing 
before the committee had received key documentation.
    The majority also accuses the White House of employing a 
``delaying tactic'' by asserting privilege over certain 
documents.\269\ This accusation concerns an April 28, 2000, 
letter from White House counsel to the majority in which the 
White House counsel enclosed a ``draft log'' describing several 
documents ``subject to privilege.'' \270\ The majority 
concedes, however, that 1 day after receiving a written 
objection from Mr. Burton, the White House decided not to 
pursue privilege discussions and agreed to provide the 
documents to the committee.\271\ Given that this whole process 
took all of 2 business days, it is unclear how much advantage 
this alleged ``delay'' could have given the White House.\272\
---------------------------------------------------------------------------
    \269\ Id. at 110.
    \270\ Letter from Associate Counsel to the President Dimitri J. 
Nionakis to Chief Counsel James Wilson (Apr. 28, 2000). White House 
counsel testified that the log was provided as an invitation to discuss 
seven documents that White House counsel believed concerned areas 
relating to ``the internal deliberations of the executive branch,'' and 
that ``that is exactly the kind of thing that calls for a discussion 
between the committee and the relevant executive agency.'' Testimony of 
Beth Nolan, May 4 hearing at 228-29.
    \271\ Majority report at 111.
    \272\ According to the majority, ``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.'' Id. 
at 111. The majority overlooks the more plausible assumption that the 
White House dropped its claim in order to accommodate the committee, 
and to avoid providing the majority with another pretext to complain of 
``delaying tactics.''
---------------------------------------------------------------------------
    Another trivial accusation is the majority's complaint that 
White House counsel did not initially produce copies of the 
Lewinsky-related e-mails located by Mr. Haas. In fact, after 
receiving a letter from Mr. Burton, the White House provided 
these documents. Once again, the majority construes a minor 
disagreement over document production as evidence of dilatory 
tactics--even when the White House immediately acceded to the 
majority's demands.\273\
---------------------------------------------------------------------------
    \273\ The majority states that White House counsel claimed that the 
Lewinsky e-mails ``were unrelated to the Mail2 error and therefore were 
not relevant to the Committee's inquiry.'' Id. at 111. In fact, Ms. 
Nolan testified that she took the view that the Lewinsky e-mails were 
not covered by the committee's pre-existing subpoena. Testimony of Beth 
Nolan, May 4 hearing at 253. Ms. Nolan further pointed out her view was 
evidently shared by Representative Burton, who had told Ms. Nolan 
during her previous appearance before the committee that he intended to 
issue a separate subpoena for the zip disk containing the Lewinsky e-
mails. Id.; see statement of Representative Dan Burton, March 30 
hearing at 82 (stating that ``I think we'll issue a subpoena for both 
the original zip disk and the one that was remade off of [Mr. Haas's] 
hard drive'').
---------------------------------------------------------------------------
    The majority also makes another spurious allegation:

        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.'' In other words, if the Committee 
        had not followed-up on the OVP problems . . . the White 
        House most likely would never have disclosed the 
        existence of another serious flaw in its records 
        management process.\274\
---------------------------------------------------------------------------
    \274\ Majority report at 110 (emphasis added).

    This allegation distorts the role of White House counsel. 
As Mr. Reich's letter clearly stated, White House counsel only 
discovered the backup problem with the OVP server in the course 
of responding to the committee's request. The implication that 
White House counsel were aware of the problem all along, and 
only disclosed it when they were forced to do so, is wholly 
unsubstantiated.

3. Allegation That OA Briefing Materials Are Evidence of a Conspiracy 
        to Hide the Mail2 Problem from Congress

    A reference to the Mail2 problem was removed from draft 
materials prepared to brief Mr. Lindsay prior to his testimony 
before congressional appropriators. The majority has suggested 
this deletion reflected a deliberate attempt to prevent 
Congress from finding out about the problem.\275\ In fact, the 
deletion had an innocent explanation. OA Director Michael Lyle 
explained that the briefing materials were internal documents 
prepared for Mr. Lindsay's testimony regarding appropriation 
matters, and that the reference to Mail2 was removed because 
``funds were not being sought for the e-Mail2 reconstruction 
project in this appropriation.'' \276\
---------------------------------------------------------------------------
    \275\ Id. at 89.
    \276\ Testimony of Michael Lyle, May 3 hearing at 130-33.
---------------------------------------------------------------------------

4. Allegation That Sidney Blumenthal Tried to Prevent His E-mails From 
        Being Archived

    A May 3 Washington Times article stated that a White House 
memo shows that ``White House aide Sidney Blumenthal, who 
figured prominently in the Monica Lewinsky investigation, asked 
last year to have his personal e-mail messages removed from the 
White House's automated-records management system--meaning they 
couldn't be retrieved.'' \277\
---------------------------------------------------------------------------
    \277\ ``Blumenthal Wanted His E-mail Erased from White House,'' 
Washington Times (May 3, 2000).
---------------------------------------------------------------------------
    However, according to testimony by OA's director, Michael 
Lyle, the memo regarding the Blumenthal e-mail concerned a 
single e-mail to Mr. Blumenthal that had duplicated itself to 
the point where it crashed Mr. Blumenthal's computer.\278\ Mr. 
Lyle said the Office of Administration decided to delete the 
duplicates, while keeping the original.\279\ There is no 
evidence to contradict Mr. Lyle's testimony or to suggest that 
there was an attempt to prevent Mr. Blumenthal's e-mails from 
being records-managed.
---------------------------------------------------------------------------
    \278\ Testimony of Michael Lyle, May 3 hearing at 81.
    \279\ Id. at 82.
---------------------------------------------------------------------------

      IV. Allegations Concerning the Office of the Vice President


    A. Allegation That the OVP Deliberately Attempted to Circumvent 
                          Subpoena Compliance

    The majority report alleges 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.'' \280\ According to the majority, a 
counsel to the Vice President ``personally decided that the 
Vice President would not store his records in a way that would 
permit compliance with document requests'' and there ``can be 
little doubt that the Vice President's advisors knew that their 
actions would permit his office to operate in a manner that 
would make it less susceptible to oversight.'' \281\
---------------------------------------------------------------------------
    \280\ Majority report at viii.
    \281\ Id. at xviii.
---------------------------------------------------------------------------
    This allegation is wholly without merit. The committee's 
investigation revealed that in 1994, the Office of the Vice 
President opted not to archive its e-mails electronically via 
ARMS.\282\ Instead, in order to preserve Vice Presidential 
records in compliance with the Presidential Records Act, and 
consistent with previous practice, OVP personnel were 
instructed to print out and save work-related e-mails. In 
addition, the OVP system was regularly backed up and the backup 
tapes were saved.\283\
---------------------------------------------------------------------------
    \282\ Instead, the OVP maintained its own computer system, serviced 
by a contractor rather than by OA. Statement of Counsel to the 
President Beth Nolan (Mar. 23, 2000).
    \283\ Former Counsel to the Vice President Todd Campbell described 
this system as a ``belts and suspenders'' records management policy, 
with the backup tapes in place in the event of any technical or other 
problem arising. Interview of Hon. Todd Campbell by majority and 
minority staff, House Committee on Government Reform (Aug. 18, 2000).
---------------------------------------------------------------------------
    There is no evidence whatsoever that this decision was 
intended, or could have been intended, to hamper subpoena 
compliance. At the time, ARMS was intended solely as a means of 
archiving electronic records for posterity in compliance with 
the Federal Records Act--not as a tool for subpoena 
compliance.\284\ There is no evidence that anyone had even 
considered the possibility of using ARMS to search for 
responsive documents. Indeed, former Counsel to the Vice 
President Todd Campbell, now a Federal judge, informed the 
committee that the OVP received only a few subpoenas during his 
tenure there, which lasted through the 1994 election.\285\ 
Judge Campbell also indicated that he made the decision not to 
use ARMS to archive Vice Presidential records; that his 
decision was not intended to prevent OVP e-mails from being 
saved on a searchable database; and that he had no memory of 
ARMS even being a searchable database.\286\
---------------------------------------------------------------------------
    \284\ Testimony of Beth Nolan, March 30 hearing at 85 (stating that 
``ARMS was set up in order for the executive office of the President to 
comply with the Federal Records Act'').
    \285\ Interview of Hon. Todd Campbell by majority and minority 
staff, House Committee on Government Reform (Aug. 18, 2000).
    \286\ Id. The majority notes that Judge Campbell told staff that he 
did not direct that the backup tapes be searched in response to 
subpoenas but claims that ``[h]e could not offer any explanation as to 
why not.'' Majority report at 76. In fact, Judge Campbell stated in his 
interview that the subpoenas received when he was at the White House 
were so remote from matters handled by the OVP that there was no need 
to take this step. Interview of Hon. Todd Campbell by majority and 
minority staff, House Committee on Government Reform (Aug. 18, 2000).
---------------------------------------------------------------------------
    Judge Campbell explained that he made his decision after 
consulting with Michael Gill, who handled information 
technology matters in the OVP from 1993 through the fall of 
1996, and Kimiki Gibson, then the Associate Counsel to the Vice 
President.\287\ Judge Campbell believed that his decision was 
legal and appropriate, and there is no evidence that would 
indicate his belief was mistaken. As explained above, ARMS was 
created in order to comply with the Armstrong decision, which 
held that existing EOP guidelines for managing e-mail were not 
in compliance with FRA recordkeeping requirements. Since 
records created by the OVP are governed by the PRA, not the 
FRA, the OVP was under no requirement to rely on ARMS for its 
records management.\288\ Moreover, the OVP's decision to rely 
on saving paper copies of e-mails instead of using ARMS to 
archive e-mails was fully in keeping with both the letter and 
the spirit of Armstrong.\289\
---------------------------------------------------------------------------
    \287\ Interview of Hon. Todd Campbell by majority and minority 
staff, House Committee on Government Reform (Aug. 18, 2000).
    \288\ The Armstrong decision explicitly applied only to Federal 
records, and the court made it clear that the President has great 
discretion in implementing the PRA. The PRA ``accords the President 
virtually complete control over his records during his term of 
office.'' 1 F.3d at 1291 (citation omitted). The Armstrong decision 
also made clear that judicial review of the PRA is limited: ``the 
courts may review guidelines outlining what is, and what is not, a 
`presidential record' to ensure that materials that are not subject to 
the PRA are not treated as presidential records'' but ``the PRA 
impliedly precludes judicial review of the President's decisions 
concerning the creation, management, and disposal of presidential 
records during his term of office.'' 1 F.3d at 1294 (citation omitted).
    \289\ The Armstrong decision did not hold that printing and saving 
paper copies of e-mails was inherently incompatible with records 
management responsibilities. Rather, the Armstrong decision noted that 
``important information present in the e-mail system, such as who sent 
a document, who received it, and when that person received it, will not 
always appear on the computer screen and so will not be preserved on 
the paper print-out.'' 1 F.3d at 1284. Armstrong did not hold that the 
only acceptable way to manage electronic records was via an electronic 
archiving system, but rather that retaining ``amputated paper print-
outs''--lacking data contained in the original e-mail--was not 
sufficient for purposes of the FRA. 1 F.3d at 1285. Since the OVP's 
paper print-outs apparently contained full data about the sender and 
recipients, the OVP's records management regime was in compliance with 
the spirit of Armstrong.
---------------------------------------------------------------------------
    The majority asserts that it is ``difficult to understand 
why the OVP chose not to use the White House's ARMS system.'' 
\290\ In fact, Judge Campbell told the committee that the OVP 
had technical concerns about connecting to ARMS.\291\ According 
to Mr. Gill, in order for the OVP to connect to ARMS, it would 
have had to take a giant technological step backwards by 
converting its e-mail system from the Windows-based ``Lotus 
cc:Mail'' to the character-based ``All-in-One,'' which Mr. Gill 
considered to be less user-friendly.\292\
---------------------------------------------------------------------------
    \290\ Majority report at 76.
    \291\ Interview of Hon. Todd Campbell by majority and minority 
staff, House Committee on Government Reform (Aug. 18, 2000).
    \292\ Interview of Michael Gill by majority and minority staff, 
House Committee on Government Reform (July 24, 2000).
---------------------------------------------------------------------------
    The majority further asserts that the ``decision by the 
Vice President's office to have his [sic] e-mails managed 
separately from the rest of the White House meant that the Vice 
President's office could not effectively comply with 
subpoenas.'' \293\ This assertion is simply wrong. The notion 
that the White House, or any other entity, cannot ``effectively 
comply with subpoenas'' unless it has a word-searchable 
electronic archive that preserves its e-mails has no basis in 
law. If the majority's assertion were true, there would be few, 
if any, corporations, citizens, or governmental entities 
capable of complying with subpoenas ``effectively.'' \294\ As 
any lawyer with rudimentary litigation experience can attest, 
compliance with subpoenas requires a reasonable, good faith 
effort to locate responsive documents--no more and no 
less.\295\
---------------------------------------------------------------------------
    \293\ Majority report at xvii.
    \294\ See, e.g., statement of Counsel to the President Beth Nolan 
(Mar. 23, 2000) (``archiving e-mail records is a relatively novel 
concept. I am told that the ARMS system had to be custom built because 
at that time no appropriate system was commercially available. As far 
as we are aware, no other government entity--including Congress--
maintains a similar on-line archival system''). See also ``With White 
House E-Mail, It's Click Now, Repent Later,'' Christian Science Monitor 
(Apr. 7, 2000) (noting that ``[i]ronically, the office of Rep. Dan 
Burton (R) of Indiana, who last week grilled White House counsel about 
the missing e-mails, stores its electronic messages for a mere week, 
then overrides them with new work'') (attached as exhibit 21). The 
majority's assertion that ``the difficulty in searching backup tapes 
was one of the fundamental reasons for the creation of ARMS'' is 
equally specious. Majority report at 20. The only evidence the majority 
cites in support of this proposition is a statement by Mr. Haas, a 
Northrop Grumman contract engineer who evidently took no part in the 
legal and policy discussions that led to ARMS's creation. Mr. Haas's 
assertion is inconsistent with the interviews conducted and documents 
received by the committee, which uniformly indicate that the sole 
impetus for the creation of ARMS was the Armstrong decision. See, e.g., 
testimony of Beth Nolan, March 30 hearing at 85 (stating that ``ARMS 
was set up in order for the executive office of the President to comply 
with the Federal Records Act''); interview of Daniel A. Barry by 
majority and minority staff, House Committee on Government Reform (Mar. 
9, 2000).
    \295\ See, e.g., U.S. v. Ryan, 402 U.S. 530, 534 (1971) (subpoena 
duces tecum ``placed respondent under a duty to make in good faith all 
reasonable efforts to comply with it''); Food Lion v. United Food and 
Commercial Workers International Union, 103 F.3d 1007, 1017 (D.C. Cir. 
1997) (noting that ``[s]everal courts have held that a party charged 
with contempt may assert a defense of good faith substantial 
compliance'').
---------------------------------------------------------------------------

 B. Allegation That the Reconstructed OVP E-Mails Contain Significant 
                              Information

    To date, between 180,000 and 200,000 e-mails have been 
reconstructed and reviewed, and any responsive e-mails have 
been produced to the Office of Independent Counsel Robert Ray 
or the Justice Department's campaign finance task force. Only 
56 of the e-mails produced to the independent counsel or the 
task force were responsive to this committee's subpoenas, and 
several of those had already been produced in similar form 
(e.g., with a different recipient or sender). The majority has 
alleged that the e-mails contain damaging new information. 
According to the majority report, the e-mails produced by the 
White House ``are highly relevant to the Committee's 
investigation of campaign finance matters,'' and the 
information in these e-mails is ``important for evaluating 
whether the Vice President committed perjury'' and ``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.'' \296\
---------------------------------------------------------------------------
    \296\ Majority report at viii, x.
---------------------------------------------------------------------------
    In fact, none of the 56 reconstructed e-mails provided to 
the committee contains significant new evidence.
    The majority cites as significant new information one e-
mail between two Vice Presidential staffers that refers to ``FR 
coffees'' at the White House, which the majority asserts is 
evidence that the coffees were used for fundraising 
purposes.\297\ It is not clear, however, whether the term 
``FR'' refers to ``fundraising'' or ``finance-related.'' 
Moreover, even if the term ``FR'' is construed to refer to 
fundraising, the e-mail does not add new evidence. Other 
internal communications in the Vice President's Office have 
described these coffees as ``fundraising'' events.\298\ Indeed, 
the Vice President has repeatedly said that he knew attendees 
at White House coffees would likely be solicited for 
contributions later on.\299\
---------------------------------------------------------------------------
    \297\ E-mail from Karen Skelton to Ellen L. Ochs (Apr. 23, 1996) (E 
8862) (discussed in majority report at x).
    \298\ See, e.g., Senate Committee on Governmental Affairs, 
``Investigation of Illegal or Improper Activities in Connection with 
1996 Federal Election Campaigns,'' 105th Cong., 2d sess., vol. 1, 196 
(March 1998) (stating that ``[a] number of White House and DNC 
documents underline the importance of the coffees as fundraising 
events'').
    \299\ The Vice President told investigators that the coffees 
``allowed the President to spend time with influential people who 
wanted to talk about policy, who would at some later time possibly be 
asked to financially support the DNC.'' He further stated that ``[i]t 
was contemplated at the time when they were set up that some or many of 
those who participated in those sessions would later on be likely to 
contribute.'' Interview of Vice President Gore with Robert J. Conrad, 
Jr., Head of the Department of Justice Campaign Financing Task Force 
(Apr. 18, 2000).
---------------------------------------------------------------------------
    Another e-mail relied upon by the majority is an e-mail 
from a scheduler that refers to a fundraising event in Los 
Angeles and lists an event at the Hsi Lai Buddhist Temple.\300\ 
But this e-mail is a draft schedule and it is incomplete and 
inaccurate in several places.\301\ It adds little to what is 
already known about the Hsi Lai Temple event. Internal 
communications in which the Vice President's staff apparently 
used the term ``fundraiser'' to describe the Hsi Lai Temple 
event were produced and investigated long ago.\302\ Three years 
ago, the Senate Governmental Affairs Committee talked with the 
Vice President's scheduling staff about such internal 
communications, and thoroughly explored whether staff viewed 
the event as a fundraiser and how the Vice President was 
briefed about the event.\303\ The newly reconstructed e-mails 
received by the committee contain no e-mails either to or from 
the Vice President regarding the Temple event.
---------------------------------------------------------------------------
    \300\ E-mail from Jackie A. Dycke to R. Martinez (Apr. 9, 1996) (E 
8747-54) (discussed in majority report at x).
    \301\ For example, the document indicates that the Vice President 
will attend a DNC Reception at the Hsi Lai Temple both in Los Angeles 
and San Jose. Id.
    \302\ E.g., document labeled ``Current Schedule for April 29'' (EOP 
056497) (referring to a ``DNC luncheon in LA/Hacienda Heights''); e-
mail from Jackie A. Dycke to R. Martinez (Apr. 10, 1996) (EOP 053292) 
(noting that ``the VP is going to San Jose and LA for DNC fundraising 
events on April 29'').
    \303\ Senate Committee on Governmental Affairs, ``Investigation of 
Illegal or Improper Activities in Connection with 1996 Federal Election 
Campaigns,'' 105th Cong., 2d sess., vol. 2, 1793-94, vol. 4, 4818-31 
(March 1998). Staff testified that they were sloppy in their use of the 
term ``fundraiser.'' But the key scheduler responsible for the Hsi Lai 
Temple event in the Vice President's Office testified that she viewed 
the event as a community outreach event, not a fundraiser, and the 
staff person who briefed the Vice President on the event testified that 
he informed the Vice President that the event was a community outreach 
event. Id. at 4822-26.
---------------------------------------------------------------------------

  C. Allegation That Vice President Gore Sought To Hide E-Mails from 
                             Investigators

    Mr. Burton recently alleged:

        the Vice President wanted the backup tapes on many of 
        his e-mails not kept. He didn't want there to be backup 
        tapes because they said the only way--in one of the 
        memos, they says [sic] the only way that we can keep 
        from having backup tapes is to use the Clinton-Gore 
        email system. And so there was a deliberate attempt to 
        try to keep these e-mails from being backed up on the 
        tapes.\304\
---------------------------------------------------------------------------
    \304\ ``The Edge with Paula Zahn,'' Fox News (Sept. 27, 2000).

    This allegation is wholly without merit. Mr. Burton appears 
to be referring to an e-mail sent to the Vice President which 
stated that ``[a]ll 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.'' \305\ The White House has informed the 
committee that, as best it can determine, the Vice President 
did not have a Clinton/Gore '96 computer or e-mail account in 
the White House.\306\ Nor is there anything inappropriate about 
the suggestion that ``private e-mails'' should not be archived. 
Since the PRA requires only that official Vice Presidential 
records be saved, it would be legal and appropriate not to 
archive private, personal, or campaign e-mails.
---------------------------------------------------------------------------
    \305\ E-mail from Joel Velasco to Vice President Gore (Feb. 22, 
1998) (E 8701).
    \306\ Ms. Nolan informed the committee that such computers were set 
up in the EOP as ``[u]nder federal law, equipment in the White House 
that is dedicated for political purposes must be paid for by the 
appropriate political committee, not with official funds.'' Letter from 
Counsel to the President Beth Nolan to Representative Dan Burton (Sept. 
26, 2000). However, Ms. Nolan stated that ``[a]s best we can determine, 
the Vice President did not have a Clinton/Gore '96 computer or Clinton/
Gore '96 e-mail account in the White House.'' Id.
---------------------------------------------------------------------------

 D. Allegation That the Vice President Was Aware of Records Management 
                          Problems in the OVP

    The Vice President has informed investigators that he did 
not know about the failure of the White House e-mail system to 
store or archive e-mail messages from 1998 to 1999.\307\ 
According to the majority, ``The Vice President's claim to be 
ignorant of his Office's records management problems is not 
credible.'' \308\
---------------------------------------------------------------------------
    \307\ Interview of Vice President Gore with Robert J. Conrad, Jr., 
Head of the Department of Justice Campaign Financing Task Force (Apr. 
18, 2000). See also ``The Edge with Paula Zahn,'' Fox News (June 14, 
2000).
    \308\ Majority report at 73.
---------------------------------------------------------------------------
    The only support that the majority can cite for this 
assertion, however, is the fact that the Vice President ``is 
extremely computer savvy and highly involved in issues related 
to information systems both generally and within his office.'' 
\309\ Such speculation is flimsy and provides no reasonable 
basis for questioning the Vice President's credibility.
---------------------------------------------------------------------------
    \309\ Id.
---------------------------------------------------------------------------
    There is also no evidence to suggest that the Vice 
President was aware of the decision not to use ARMS. To the 
contrary, Judge Campbell told committee staff that he did not 
inform the Vice President in 1994 about his decision not to 
connect to ARMS and that he would be surprised if anyone else 
did.\310\ Furthermore, the Vice President's Chief of Staff, 
Charles Burson, told the committee that he thought, on the 
basis of meetings he had had with White House counsel, that OVP 
e-mails were being electronically archived on the same system 
as the rest of the White House.\311\
---------------------------------------------------------------------------
    \310\ Interview of Hon. Todd Campbell by majority and minority 
staff, House Committee on Government Reform (Aug. 18, 2000).
    \311\ Interview of Charles Burson by majority and minority staff, 
House Committee on Government Reform (Aug. 3, 2000). Mr. Burson joined 
the OVP as counsel in February 1997, long after the decision about 
connecting to ARMS had been made.
---------------------------------------------------------------------------
    In fact, the committee has documentary evidence that Vice 
President Gore was told that his e-mails were being 
automatically archived. The committee received a copy of an e-
mail to Vice President Gore, discussed above, which stated that 
``[a]ll 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.'' \312\
---------------------------------------------------------------------------
    \312\ E-mail from Joel Velasco to Vice President Gore (Feb. 22, 
1998) (E 8701).
---------------------------------------------------------------------------
    While technical personnel in OA were apparently aware that 
the OVP was not connected to ARMS, it does not appear that they 
communicated this information to anyone in the White House. To 
the contrary, White House counsel repeatedly received written 
communications indicating that OVP e-mails were being archived 
on ARMS. The committee received dozens of e-mails between Tony 
Barry, OA's ARMS expert, and persons in the White House 
counsel's office which indicate that Mr. Barry told White House 
counsel that he was searching ARMS for OVP records.\313\ 
Although Mr. Barry was presumably aware that OVP e-mails were 
not being systematically captured, he apparently placed OVP e-
mails which arrived in ARMS through various secondary means 
into a ``bucket,'' which he would search in response to 
requests to look for OVP records.\314\
---------------------------------------------------------------------------
    \313\ Mr. Barry explained to the committee that after he receives 
requests to perform an ARMS search, he responds by e-mail to confirm 
the details of the search (i.e., the search definition, an estimate of 
the cost and time that the search will take, and the search schedule). 
Interview of Daniel A. Barry by majority and minority staff, House 
Committee on Government Reform (Mar. 9, 2000). Many of these e-mails 
from Mr. Barry to members of the Office of White House Counsel were 
produced to the committee and refer explicitly to Mr. Barry conducting 
searches of OVP records. See, e.g., e-mail from Daniel A. Barry to 
Michael Imbroscio (Sept. 2, 1997) (E 7845); e-mail from Daniel A. Barry 
to Karl Racine (July 27, 1998) (E 7830); e-mail from Daniel A. Barry to 
Steven Reich (Mar. 6, 2000) (E 7822). These three e-mails are attached 
as exhibit 22.
    \314\ See e-mail from Daniel A. Barry to Sandra Golas (July 28, 
1998) (describing the processing of e-mails into ARMS and referring to 
distinct ``buckets'' for records from such EOP agencies as ``WHO'' (the 
White House Office), ``VPO'' (the Vice President's Office), ``OPD'' 
(the Office of Policy Development), and ``CEA'' (Council of Economic 
Advisors)) (E 7301) (attached as exhibit 23).
---------------------------------------------------------------------------

    V. The Costs of the Investigation and the Reconstruction Effort

    As of September 29, 2000, the White House has committed, 
obligated, or expended approximately $6.9 million on 
reconstructing the ``missing'' e-mails.\315\ 39,157 hours of 
work have been spent on this mammoth project--34,822 hours by 
contract employees, 3,795 hours by employees of the Executive 
Office of the President, and 540 hours by security personnel. 
Overall, the cost of the project has been estimated at $11.7 
million.\316\
---------------------------------------------------------------------------
    \315\ Letter from Michael K. Bartosz, general counsel to the Office 
of Administration, to James C. Wilson, chief counsel (Sept. 29, 2000).
    \316\ Id.
---------------------------------------------------------------------------
    The committee has also expended considerable taxpayer 
dollars on its own investigation. The committee's investigation 
has included 5 days of hearings and 36 interviews of witnesses, 
many of them Federal Government employees. It also required the 
production of over 10,000 pages of documents, the majority of 
which were produced by the White House.
    In dollar terms, then, the majority's allegations are 
costing the taxpayers of this country millions of dollars.
    For many, however, dollars alone fail to capture the true 
cost of the e-mail investigation. The investigation is part of 
a series of scandal investigations by this committee that 
unfairly smeared reputations of many dedicated public servants 
and drove others to leave government service. The impact of 
these investigations was eloquently expressed by Cheryl Mills 
in her testimony before the committee on May 4, 2000:

        Mr. Chairman, I left because I was tired of playing a 
        role in dramas like today, when so many issues that 
        mattered to me . . . were not being addressed. You have 
        held four days of hearings, and spent countless more 
        dollars on depositions and document productions, but 
        yet you have not chosen to use your oversight authority 
        to hold one day's worth of hearings about: a man who 
        was shot dead by an undercover New York police officer 
        while he was getting into a cab, after refusing to buy 
        drugs from that officer; any of the 67 cases and 
        counting that have been overturned because officers in 
        Los Angeles Police Department planted guns and drugs to 
        frame people, shot an unarmed man, and quite possibly 
        shot another man, with no criminal record, 10 times--
        killing him; why African American youths charged with 
        drug offenses are 48 times more likely than white 
        youths to be sentenced to prison.




        

           *         *         *         *         *
        Nothing you discover here today, will feed one person, 
        give shelter to someone who is homeless, educate one 
        child, provide health care for one family, or offer 
        justice to one African American or Hispanic juvenile. 
        You could do so much to transform our country--but 
        instead you are compelled to use your great authority 
        and resources to address . . . e-mails.\317\
---------------------------------------------------------------------------
    \317\ Testimony of Cheryl Mills, May 4 hearing (attached as exhibit 
24).

                                   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.
                                   Hon. Janice D. Schakowsky.

    [The exhibits referred to follow:]
      



                               EXHIBIT 1


      



                               EXHIBIT 2


      



                               EXHIBIT 3


      



                               EXHIBIT 4


      



                               EXHIBIT 5


      



                               EXHIBIT 6


      



                               EXHIBIT 7


      



                               EXHIBIT 8


      



                               EXHIBIT 9


      



                               EXHIBIT 10


      



                               EXHIBIT 11


      



                               EXHIBIT 12


      



                               EXHIBIT 13


      



                               EXHIBIT 14


      



                               EXHIBIT 15


      



                               EXHIBIT 16


      



                               EXHIBIT 17


      



                               EXHIBIT 18


      



                               EXHIBIT 19


      



                               EXHIBIT 20


      



                               EXHIBIT 21


      



                               EXHIBIT 22


      



                               EXHIBIT 23


      



                               EXHIBIT 24



                  Additional Views of Hon. Dan Burton

    The committee's investigation into the failure to produce 
both White House Office and Office of the Vice President (OVP) 
e-mails is ongoing and active. Since the draft of this report 
was submitted on October 2, 2000, for Members' consideration, 
events have continued to unfold and new evidence has continued 
to come to light. In the last 2\1/2\ weeks, committee members 
interviewed Attorney General Janet Reno regarding a number of 
subjects, including her Department's investigation into the e-
mail matter. Committee staff also re-interviewed Northrop 
Grumman employees Robert Haas and Joseph Lucente, and attempted 
to interview former White House lawyer Lanny Breuer. The White 
House has produced additional relevant documents following the 
committee's vote on the report, and several developments arose 
from parallel proceedings in the civil FBI files case, 
Alexander v. FBI.

  I. Further Evidence That Northrop Grumman Employees were Threatened 
                 into Secrecy about the E-Mail Problem

    As explained in the report, White House employees 
threatened the Northrop Grumman employees who discovered the e-
mail problem. The motivation for the White House officials to 
threaten the contract employees into secrecy likely grew out of 
the fear that the e-mail problem would become public during the 
height of a criminal grand jury investigation of the President. 
Revelations that document searches conducted by the White House 
had been significantly incomplete would likely have rekindled 
virtually every one of the countless administration scandals of 
the previous 6 years. Thus, it was in the interest of the White 
House, first, to keep the e-mail archiving problems hidden and, 
second, to avoid reconstructing the e-mails from backup tapes 
for as long as possible. The efforts to achieve the first 
objective assisted in accomplishing the second because the 
secrecy constraints imposed by Mark Lindsay and Laura Callahan 
prevented the problem from being fixed.

           a. robert haas told joseph vasta about the threats

    Further evidence of the threats against Northrop Grumman 
employees was developed recently when committee staff re-
interviewed Robert Haas on October 11, 2000. Haas explained 
that the reason he, Sandra Golas, and John Spriggs asked to 
meet with Deputy Program Manager Joseph Vasta in late August 
1998 was that the e-mail reconstruction had not yet begun, and 
they felt that they could not get the problem solved with the 
secrecy restraints under which they had been placed.\1\ He said 
they needed to ``break this rule down because it is ridiculous. 
Without removing the rule, we could not get it fixed.'' \2\ 
Haas' contact with Vasta led to the meeting between the 
Northrop Grumman employees and Northrop Grumman counsel in 
September 1998. After this meeting, Haas felt free to tell 
Vasta everything about the e-mail problem, including the 
threats that were directed at him by White House staff.\3\
---------------------------------------------------------------------------
    \1\ Interview with Robert Haas, Lotus Notes administrator, Northrop 
Grumman, in Washington, DC (Oct. 11, 2000).
    \2\ Id.
    \3\ Id.
---------------------------------------------------------------------------
    Haas corroborated Spriggs' account of the meeting with 
Vasta. Haas stated that the group was trying to make him 
understand that there was a serious problem, but was hesitant 
to share the details of the problem with him.\4\ Like Spriggs, 
Haas said that the goal of the meeting with Vasta was to get 
the ``higher-ups'' at Northrop Grumman involved.\5\ Haas also 
recalled that Spriggs took Vasta's handwritten notes of the 
meeting away from Vasta. When asked why the notes were 
confiscated, Haas said that the group's standard practice at 
meetings discussing the Mail2 problem was to make copies of the 
notes necessary to conduct the meeting and then to tear them up 
and place them in a ``burn bag.'' \6\ Haas' recollection is 
also consistent with what Spriggs said.\7\ Haas added that he 
maintained a Mail2 burn bag separate from the standard burn 
bags used at the Executive Office of the President (EOP) for 
documents with individual's names or other private 
information.\8\ According to Haas, their practices with regard 
to Mail2 notes were pursuant to the instructions from Laura 
Callahan and Mark Lindsay not to keep notes related to the e-
mail archiving problem.\9\ This also corroborates Betty 
Lambuth's testimony with regard to keeping notes.\10\
---------------------------------------------------------------------------
    \4\ Id.
    \5\ Id.
    \6\ Id.
    \7\ See ``The Failure to Produce White House E-mails: Threats, 
Obstruction, and Unanswered Questions,'' House Committee on Government 
Reform, at sec. III.A.4.f. (hereinafter, ``e-mail report'').
    \8\ Interview with Robert Haas, Lotus Notes administrator, Northrop 
Grumman, in Washington, DC (Oct. 11, 2000).
    \9\ Id.
    \10\ See e-mail report at sec. III.A.2.
---------------------------------------------------------------------------

 b. northrop grumman director of contracts joseph lucente's letter to 
       the contractor was prompted by the allegations of threats

    As explained in the report, Northrop Grumman's director of 
contracts, Joseph Lucente, sent a letter to the Contracting 
Officer on the White House facilities contract, Dale Helms, on 
September 14, 1998.\11\ The letter explained that Northrop 
Grumman management was aware of the e-mail archiving problem 
and that the dysfunction prevented the retrieval of messages 
stored in the system.\12\ The letter also said that Northrop 
Grumman was aware that Laura Callahan had ``directed the 
Company employees to evaluate the problem and undertake 
remedial action, without Northrop Grumman management 
involvement.'' \13\ In his first interview, Lucente was asked 
about the ambiguity in that statement.\14\ Read one way, the 
statement could mean that Callahan directed the Northrop 
Grumman employees and did so while merely neglecting to involve 
their managers. Read another way, it could mean that she had 
specifically instructed the employees to do their work in such 
a way as to conceal it from their managers. In response, 
Lucente indicated that he understood at the time that Callahan 
had specifically directed the employees not to tell their 
superiors about the problem.\15\ He further indicated that he 
thought it was fundamentally unfair for the government to place 
his company's employees in that position.\16\ When asked if 
allegations of threats were an inspiration for sending his 
letter, Lucente replied affirmatively.\17\ In his second 
interview, conducted on October 17, 2000, Lucente was asked to 
explain in what way the letter had been inspired by allegations 
of threats.\18\ However, Lucente was prohibited from providing 
any further explanation by his counsel, who claimed that such 
information was privileged.\19\ Lucente did confirm, however, 
that the allegations of threats were, in fact, an inspiration 
for the letter.\20\
---------------------------------------------------------------------------
    \11\ Northrop Grumman document production NGL 00503 (exhibit 64).
    \12\ See id.
    \13\ Id.
    \14\ Interview with Joseph Lucente, director of contracts and 
subcontracts, Northrop Grumman, in Washington, DC (May 1, 2000).
    \15\ Id. Given that Lucente has never spoken to Haas without 
counsel present, this knowledge presumably comes from communications he 
witnessed during meetings between Haas, his colleagues, and corporate 
counsel. See id. (Oct. 17, 2000).
    \16\ Id. (May 1, 2000).
    \17\ Id.
    \18\ Id. (Oct. 17, 2000).
    \19\ Id.
    \20\ Id.
---------------------------------------------------------------------------

  c. earl silbert's law firm has additional documents related to his 
  contacts with the white house and representation of northrop grumman

    The report outlines how former Watergate prosecutor Earl 
Silbert was hired by Northrop Grumman as outside counsel on the 
contract dispute arising out of the e-mail matter and how Haas 
testified that during a September 11, 1998, conference call he 
told someone referred to as a ``gray beard'' \21\ about being 
threatened.\22\ The report also explains that Silbert's billing 
records indicate that he had a teleconference with a Northrop 
Grumman employee on September 11, 1998, and then on two other 
occasions had teleconferences with someone in the White House 
Counsel's Office.\23\ Silbert's contacts with Northrop Grumman 
employees and the White House raise the likelihood that White 
House lawyers were informed about the e-mail problem and the 
threats against Northrop Grumman employees by Earl Silbert.
---------------------------------------------------------------------------
    \21\ During his second interview with the committee, Joseph Lucente 
also stated that Northrop Grumman counsel had referred to a ``gray 
beard's'' involvement in the matter. Interview with Joseph Lucente, 
director of contracts and subcontracts, Northrop Grumman, in 
Washington, DC (Oct. 17, 2000).
    \22\ See e-mail report at sec. III.A.4.g.
    \23\ Id.
---------------------------------------------------------------------------
    This already compelling circumstantial evidence has been 
bolstered further by revelations in Federal court that 
Silbert's law firm, Piper Marbury Rudnick & Wolfe, is in 
possession of even more documentary evidence regarding 
Silbert's work on the matter. On October 3, 2000, Piper Marbury 
provided a privilege log in the Alexander case listing 18 
documents relating to Silbert's work on the e-mail matter, many 
of which it withheld under claims of attorney-client and work-
product privileges.\24\ Among the documents described in the 
log are undated, handwritten notes by Earl Silbert, four drafts 
of Joseph Lucente's letter to Dale Helms, a fax coversheet with 
a copy of the Drudge report from December 5, 1998, and two fax 
coversheets with handwritten notes of Earl Silbert and copies 
of the Insight article ``Computer Glitch Leads to Trove of Lost 
E-mails at White House.'' \25\ The volume of documents in 
Silbert's possession confirms that Silbert did perform 
substantive work on Northrop Grumman's behalf in the e-mail 
matter. Unfortunately, Northrop Grumman has aggressively 
asserted privileges, preventing the public from learning what 
Silbert told the White House.
---------------------------------------------------------------------------
    \24\ Response of Non-Party Witness Piper Marbury Rudnick & Wolfe 
LLP to Subpoena at exhibit A, Alexander v. FBI (D.D.C. Oct. 3, 2000) 
(CA 96-2123) (exhibit AV-1).
    \25\ Id.
---------------------------------------------------------------------------
    Judge Lamberth has indicated that these or other documents 
yet to be released may lend even further credibility to 
allegations of threats. During a status conference in Alexander 
v. FBI on Friday, October 13, 2000, Justice Department lawyer 
Thomas Millet was cautioned by Judge Lamberth in the following 
exchange:

        Millet: In fact, this whole threat issue has been blown 
        out of proportion. Remember what Mr. [Haas] said----

        The Court: Before you go too far there, you have to 
        recognize I have some documents in camera on that 
        subject; I ordered full briefing on it. But you better 
        not get too far out on a limb about what you think 
        happened.\26\
---------------------------------------------------------------------------
    \26\ Transcript of Evidentiary Hearing, Alexander v. FBI at 19 
(D.D.C. Oct. 13, 2000) (CA 96-2123).

    Of particular interest among the documents being withheld 
by Northrop Grumman are the earlier drafts of Joseph Lucente's 
September 14, 1998, letter to Dale Helms. In his first 
interview, Lucente explained that he knew of at least two 
earlier drafts of his letter, both of which were longer than 
the final version.\27\ In his second interview with committee 
staff, Lucente said that he had destroyed all copies of the 
earlier drafts as per an instruction to do so by corporate 
counsel.\28\ However, Lucente did not know until told by staff 
at the interview that his letter had been reviewed and edited 
by Earl Silbert.\29\ Therefore, he was unaware that corporate 
counsel for Northrop Grumman had provided a draft to Silbert, 
that Silbert had suggested changes, or that Silbert's firm, 
Piper Marbury, had retained copies of the earlier drafts.\30\ 
Given that Lucente has admitted that the allegations of threats 
were the inspiration for the letter, it is imperative that the 
drafts be reviewed to determine whether they describe more 
specifically the threats made by White House staff. If the 
discussion of threats was deleted, it would raise the critical 
question of who deleted the information and why.
---------------------------------------------------------------------------
    \27\ Interview with Joseph Lucente, director of contracts and 
subcontracts, Northrop Grumman, in Washington, DC (May 1, 2000).
    \28\ Id. (Oct. 17, 2000).
    \29\ Transcript of Evidentiary Hearing, Alexander v. FBI at 91 
(D.D.C. Oct. 3, 2000) (CA 96-2123); interview with Joseph Lucente, 
director of contracts and subcontracts, Northrop Grumman, in 
Washington, DC (Oct. 17, 2000).
    \30\ Id.
---------------------------------------------------------------------------

d. a telephone message slip confirmed contact between earl silbert and 
     special counsel to the president lanny breuer in december 1998

    The report details testimony from Mark Lindsay in Federal 
court regarding a conversation he had with Special Counsel to 
the President Lanny Breuer about Earl Silbert's involvement in 
the e-mail matter. Lindsay vaguely recalled being contacted by 
Breuer to discuss a conversation Breuer had with Silbert 
regarding the contract dispute arising from the e-mail 
archiving problem.\31\ While it was unclear from Lindsay's 
testimony what the substance of Silbert's conversation with 
Breuer entailed and exactly when it occurred, a new document 
has surfaced since filing the report which clarifies at least 
one of those issues. The document is a telephone message slip 
from Silbert's client file and indicates a call from Lanny 
Breuer on December 30, at 11:27 a.m.\32\ Silbert's billing 
records already indicated that he called the White House 
Counsel's Office on December 30, 1998.\33\ This message slip 
indicates that Lanny Breuer was the individual at the White 
House with whom Silbert spoke. Thus, it corroborates Silbert's 
billing records as well as Lindsay's testimony that Breuer 
relayed to him a conversation with Silbert.
---------------------------------------------------------------------------
    \31\ See e-mail report at sec. III.C.3.
    \32\ Letter from Richard J. Oparil, partner, Piper Marbury Rudnick 
& Wolfe, to Larry Klayman, chairman and general counsel, Judicial Watch 
(Oct. 4, 2000) (message slip attached) (exhibit AV-2).
    \33\ See e-mail report at sec. III.A.4.g.
---------------------------------------------------------------------------
    Only after several meritless assertions of privilege in an 
attempt to avoid the interview entirely did Silbert reluctantly 
agree to be questioned by the committee on his contacts with 
the White House.\34\ As explained in the report, Silbert 
claimed to recall neither the identity of the person at the 
White House with whom he spoke nor anything whatsoever about 
the substance of the conversation--except of course that it was 
properly billable to Northrop Grumman.\35\
---------------------------------------------------------------------------
    \34\ Id.
    \35\ Id.
---------------------------------------------------------------------------

 e. earl silbert was not northrop grumman's natural choice for outside 
                     counsel on a contracts matter

    Some have attempted to minimize the significance of Earl 
Silbert's involvement in the matter, attempting to portray it 
as the ordinary involvement of a lawyer in a dispute between 
the White House and Northrop Grumman regarding the scope of the 
contract between the two parties. However, the committee has 
learned that Silbert's involvement was highly unusual. Joseph 
Lucente informed committee staff that Northrop Grumman usually 
turned to an attorney named Neil O'Donnell with disputes 
regarding the scope of its contracts.\36\ Lucente had never 
worked with Silbert before.\37\ Furthermore, Lucente said he 
had never heard of Earl Silbert working on scope of contract 
issues for Northrop Grumman in the past.\38\ Thus, it is far 
more likely that Northrop Grumman in-house counsel would have 
consulted Silbert about whether they had an obligation to 
disclose the ``jail cell'' comment than about the finer points 
of government contracting. It is also likely that they would 
have consulted with Silbert about whether they had an 
obligation to disclose the existence of the e-mail problem 
itself and the fact that ongoing document searches were 
incomplete.
---------------------------------------------------------------------------
    \36\ Interview with Joseph Lucente, director of contracts and 
subcontracts, Northrop Grumman, in Washington, DC (Oct. 17, 2000).
    \37\ Id.
    \38\ Id.
---------------------------------------------------------------------------

    f. lanny breuer's recollection of the contact with earl silbert

    Since it became fairly well-established that Lanny Breuer 
was the White House lawyer with whom Silbert spoke at least on 
one occasion in December 1998, the committee attempted to 
interview him to determine whether he had any recollection of 
the conversation. Through his counsel, he was scheduled to be 
interviewed on October 6, 2000, the day after the committee 
voted on the report. He later canceled this interview and 
rescheduled for Monday, October 16, 2000, just before the 
deadline for these additional views. On the day of the 
interview, however, he again canceled and sought to reschedule 
the interview after his testimony in the FBI files litigation 
and the deadline for filing these additional views.\39\
---------------------------------------------------------------------------
    \39\ See letter from Mark H. Lynch, partner, Covington & Burling, 
to David A. Kass, deputy counsel & parliamentarian, Committee on 
Government Reform (Oct. 16, 2000). See also letter from David A. Kass, 
deputy counsel & parliamentarian, Committee on Government Reform, to 
Mark H. Lynch, partner, Covington & Burling (Oct. 16, 2000).
---------------------------------------------------------------------------
    On October 19, 2000, Breuer testified in the Alexander case 
that he might have had telephone conversations with Earl 
Silbert in 1998, but could not remember any specifics.\40\ 
Breuer said there could have been occasions for Silbert to have 
called him at the White House.\41\ Breuer also recalled that 
Silbert was counsel for James Riady and Erskine Bowles, and he 
and Silbert were professional friends.\42\ Also, Breuer rather 
implausibly suggested that perhaps Silbert might have contacted 
him because Silbert might not have known who else to contact at 
the White House.\43\ According to Breuer, he possibly could 
have passed Silbert along to Mark Lindsay if a contract item 
came up in a telephone call.\44\ And, Breuer suggested that 
maybe he and Silbert might have even talked about unrelated 
matters.\45\ Breuer made it clear that he does not remember 
having specific telephone conversations with Silbert regarding 
the issues of e-mail problems, contracts, or threats in 
1998.\46\ He stated that if Silbert would have have raised the 
issue of threats, Breuer would have reported it to Charles 
Ruff.\47\ He also stated that he took ``very, very'' few notes 
while working at the White House.\48\
---------------------------------------------------------------------------
    \40\ Evidentiary Hearing, Alexander v. FBI (D.D.C. Oct. 19, 2000) 
(CA 96-2123).
    \41\ Id.
    \42\ Id.
    \43\ Id.
    \44\ Id.
    \45\ Id.
    \46\ Id.
    \47\ Id.
    \48\ Id.
---------------------------------------------------------------------------

   g. lucente confirmed the extraordinary nature of oa director ada 
                 posey's ``special task order'' request

    As detailed in the report, Northrop Grumman Program 
Director Jim DeWire told committee staff that shortly after 
learning from Program Manager Steve Hawkins that his employees 
were working on some sort of secret project, DeWire received a 
call from the Director of the Office of Administration, Ada 
Posey.\49\ Posey then proceeded to seek permission from DeWire 
to have government personnel direct the private contractors on 
a special project without disclosing the nature or subject 
matter of the project.\50\ DeWire agreed, requiring only that 
Posey orally assure him that the project was legal and within 
the scope of the contract.\51\ DeWire described this as a 
``special task order.'' \52\
---------------------------------------------------------------------------
    \49\ See e-mail report at sec. III.D.1.
    \50\ Id.
    \51\ Id.
    \52\ Id.
---------------------------------------------------------------------------
    When asked if he was aware of the ``special task order,'' 
Lucente said he was not.\53\ He further said that it would not 
have been the normal way to operate.\54\ Even though she was 
the Director of the Office of Administration (OA), Ada Posey 
was not the authorized agent for the government on the 
contract. The authorized agent was the contracting officer, 
Dale Helms. Lucente said that if DeWire had asked his advice on 
the matter he would have recommended consultation with in-house 
counsel, the chief operating officer, or the president of the 
company rather than merely accepting Posey's assurances and 
failing to ensure that the contracting officer was at least 
informed.\55\ Finally, asked if he would have advised DeWire 
against approving Posey's request, Lucente said he would. 
Lucente was the director of contracts and subcontracts for 
about 12 years and thus his perspective on this issue is 
valuable. It appears that both Posey's request and DeWire's 
acquiescence to it may have been improper. The net effect of 
both was to allow the e-mail problem to remain secret from 
Northrop Grumman managers throughout the summer of 1998, 
delaying the ultimate reconstruction and production of relevant 
subpoenaed e-mail records.
---------------------------------------------------------------------------
    \53\ Interview with Joseph Lucente, director of contracts and 
subcontracts, Northrop Grumman, in Washington, DC (Oct. 17, 2000).
    \54\ Id.
    \55\ Id.
---------------------------------------------------------------------------

      II. Northrop Grumman's Recent Failure to Cooperate with the 
                             Investigation

         a. northrop grumman's specious assertions of privilege

    As part of the committee's investigation into possible 
obstruction of justice regarding the White House's e-mail 
problems, the committee has been investigating Northrop 
Grumman's retention of Earl Silbert and his efforts on the 
company's behalf. As the report notes, Silbert was a former 
Watergate prosecutor who Northrop Grumman hired as outside 
counsel specifically to deal with the White House on the e-mail 
matter. As the report also noted, the significance of Silbert's 
contacts with the White House is compelling. Such contacts 
might severely undermine the White House's current claims that 
it did not contemporaneously appreciate its e-mail problem.
    In the report, the committee describes evidence suggesting 
that on September 11, 1998, Robert Haas met with Northrop 
Grumman counsel, during which time Haas recounted to Northrop 
Grumman counsel and Silbert that he had been threatened by 
White House staff.\56\ The committee's report also describes 
how, during Silbert's interview with committee staff, Silbert 
wholly failed to recall with whom he spoke at the White House 
or the subject matter of his communications with the White 
House Counsel's Office, which took place after Haas apparently 
spoke to him. And, when his recollection was not failing him, 
Silbert refused to answer questions posed by committee staff on 
the basis of attorney-client privilege and the work-product 
doctrine. Silbert did essentially the same when he testified in 
the recent evidentiary hearings in Alexander v. FBI.
---------------------------------------------------------------------------
    \56\ See e-mail report at sec. III.A.4.g.
---------------------------------------------------------------------------
    In those proceedings, Silbert recalled that he was retained 
by Northrop Grumman in September 1998, to represent it ``on a 
matter involving government contracts between Northrop Grumman 
as the contractor and the Executive Office of the President as 
the customer.'' \57\ Silbert also recalled that the matter for 
which Northrop Grumman retained him regarded a ``scope of 
contract'' issue and ``some instruction given to employees of 
Grumman.'' \58\ He even recalled having heard that instructions 
were given to the employees not to discuss matters regarding 
non-archived e-mail outside the group.\59\ However, Silbert 
maintained that his communications with the White House 
Counsel's Office were privileged.\60\ Under either the 
attorney-client privilege or work-product doctrine, Silbert's 
claims are facially without merit.
---------------------------------------------------------------------------
    \57\ Transcript of Evidentiary Hearing at 37, Alexander v. FBI 
(D.D.C. Oct. 3, 2000) (CA 96-2123).
    \58\ Id. at 41.
    \59\ Id. at 89. Interestingly, when Silbert was asked whether he 
was told that the reason Haas could not discuss the problem was because 
he would go to jail, Silbert left the door open. He stated,

      I think in a sense I've tried to answer that question. I 
      have no recollection of that, and the predicate for your 
      question means to me you may have misconstrued my answer. I 
      did not say--I was not, in answering your question, saying 
      this was what the employee told me. What I was answering or 
      trying to answer was my understanding of an issue that 
      Northrop Grumman's management was confronting and how to 
---------------------------------------------------------------------------
      deal with it. Id. at 90 (emphasis added).

    \60\ Id. at 57.
---------------------------------------------------------------------------
    Recently, on October 11, 2000, committee staff interviewed 
Robert Haas. At that interview, committee staff attempted to 
probe facts surrounding his conversations with Earl Silbert. 
During that interview, Haas recalled having met with Northrop 
Grumman in-house counsel in Herndon, VA.\61\ Also, Haas 
recalled that, in addition to in-house counsel, Spriggs, Golas, 
several contract specialists and possibly Jim DeWire, Northrop 
Grumman's program manager, attended the meeting.\62\
---------------------------------------------------------------------------
    \61\ Interview with Robert Haas, Lotus Notes administrator, in 
Washington, DC (Oct. 11, 2000). In other words, Haas misspoke when he 
testified in Alexander v. FBI, the FBI files civil suit, in which he 
identified the location as ``Reston.''
    \62\ Id. Haas clarified that when he testified in Alexander 
regarding whether he repeated his story to the ``gray beard,'' the word 
``recanted'' in the transcript should read ``recounted.'' See also 
Transcript of Evidentiary Hearing at 56-57, 60, Alexander v. FBI 
(D.D.C. Aug. 14, 2000) (CA 96-2123) (original testimony reading 
``recanted'').
---------------------------------------------------------------------------
    However, when committee staff attempted to question Haas 
about his discussions with Silbert, Haas' counsel, John M. 
Bray, of King & Spalding, instructed Haas not to tell committee 
staff who attended the meeting via speakerphone, citing 
attorney-client privilege.\63\ Even after committee staff 
reminded counsel that the mere fact of someone's participation 
in a communication or even his identity are not 
``communications'' subject to privilege, counsel instructed 
Haas not to answer.\64\ Later in the interview, counsel 
directed Haas not to answer questions intended only to refresh 
his recollection as to his prior testimony in Alexander.\65\ It 
is troubling that counsel would claim privilege over issues 
previously discussed in a public proceeding.\66\
---------------------------------------------------------------------------
    \63\ Interview with Robert Haas, Lotus Notes administrator, in 
Washington, DC (Oct. 11, 2000). Although Haas and the other Northrop 
Grumman witnesses are being represented by King & Spalding, the cost of 
their representation is being paid by Northrop Grumman.
    \64\ Id.
    \65\ Id.
    \66\ See Transcript of Evidentiary Hearing, Alexander v. FBI 
(D.D.C. Aug. 14, 2000) (CA 96-2123) (Hass' original testimony).
---------------------------------------------------------------------------
    In the committee's October 17, 2000, interview with Joseph 
Lucente, Lucente's counsel, Ann M. Hart, also from King & 
Spalding, continued interposing expansive objections that 
prevented the committee from obtaining needed information. For 
example, she repeatedly invoked attorney-client privilege over 
numerous non-privileged matters, including (1) non-
communications, (2) mere facts underlying the purportedly 
privileged communications, and (3) facts needed to establish 
the existence of a privilege.\67\ With regard to the latter, 
counsel saw fit to ignore even the threshold requirement in 
privilege law that only communications between an attorney and 
his client are privileged.\68\ She stated that, in her view, 
even discussions between two non-lawyers regarding the need for 
getting legal advice was confidential under the attorney-client 
privilege. In fact, at the interview, counsel maintained that 
``we are putting the umbrella [of privilege] over the whole 
legal advice issue.'' \69\ Such a position either reflects a 
surprising misunderstanding of basic privilege law or an 
unacceptable failure to cooperate with the Constitutional 
prerogative of this committee to exercise its investigative 
oversight function.
---------------------------------------------------------------------------
    \67\ It is beyond dispute that the attorney-client privilege 
protects only communications between a client and the attorney. See 
Upjohn Co. v. US 449 U.S. 383 (1981). See also id. at 395 (``The 
privilege only protects disclosure of communications; it does not 
protect disclosure of underlying facts by those who communicated with 
the attorney . . . .''). To claim attorney-client privilege, the 
claimant must provide sufficient information to demonstrate that each 
element of the doctrine or privilege is satisfied, including the date 
of communication; the names of the author(s), if it's a document; the 
recipient and/or all persons given copies of the communication, if it's 
a document; the identity of those party to the communication, if it's 
oral; and a description of the subject matter of the document with 
information sufficient to demonstrate the existence of the privilege. 
See, e.g., 24 Charles Alan Wright, Kenneth W. Graham, Jr., ``Federal 
Practice and Procedure'' Sec. 5507 (2000 pocket part) (RR 503) 
(citations omitted). Some courts have required the claimant to state 
further whether the primary purpose of the communication withheld on 
the basis of privilege was to seek or provide legal advice or services; 
whether the communication was transmitted in confidence; a statement 
that the privilege has not been subsequently waived; and, if documents, 
the Bates numbers of the withheld records. See, e.g., US v. Exxon 
Corp., 87 F.R.D. 624, 637 (D.D.C. 1980); Vaughn v. Rosen, 484 F.2d 820 
(D.C. Cir. 1973), cert. denied, 415 U.S. 877 (1974).
    \68\ See, e.g., Alexander v. FBI, 186 F.R.D. 21, 27 (D.D.C. 1998) 
(holding that information is protected by attorney-client privilege 
only if it relates to a fact conveyed between client and lawyer).
    \69\ Interview with Joseph Lucente, director of contracts, Northrop 
Grumman, in Washington, DC (Oct. 17, 2000).
---------------------------------------------------------------------------
    Examples of those questions to which counsel instructed her 
client not to answer on the basis of privilege included the 
following:

 Did either Jim DeWire or Joe Cunningham (Northrop 
Grumman managers who are not lawyers) indicate to you in 
conversations without counsel present why Haas and the others 
were seeking advice from counsel?

 Did either DeWire or Cunningham indicate that 
Northrop Grumman employees were seeking legal advice for 
themselves?

 To what extent did threats inspire sending your 
September 14, 1998, letter? \70\
---------------------------------------------------------------------------
    \70\ To this question, Lucente's attorney cited in-house counsel's 
participation in drafting the letter as a basis for disallowing any 
questioning as to why the letter was written. She stated, ``Joe didn't 
write the letter in a vacuum.'' Interview with Joseph Lucente, director 
of contracts, Northrop Grumman, in Washington, DC (Oct. 17, 2000).

 How did Haas go up the chain-of-command in obtaining 
---------------------------------------------------------------------------
the advice of in-house counsel?

 If threats were indeed an inspiration of the letter, 
why did the letter not actually include reference to threats?

 Did earlier drafts of the letter mention threats?

 To what extent did your concerns about the secrecy 
instruction give rise to sending the letter?

 Did you believe that Haas, Spriggs, and Golas were 
seeking legal advice?

 Did they say or do anything to indicate that rather 
than seek legal advice, they were merely seeking to disclose 
information so that counsel could provide legal advice to the 
corporation?

 Did legal counsel explain to them that they 
represented the corporation's interests and not the employee's 
interests?

 Did legal counsel explain to them that they were 
interviewing them only in order to obtain information for use 
in providing legal advice to the corporation and not to provide 
legal advice to them as individuals?

 Did legal counsel instruct them that they were to 
keep the communication during the meeting confidential?

 Did legal counsel instruct them specifically about 
with whom they could share the details of the meeting?

    As suggested above, even if counsels' claims of privilege 
regarding Haas' communications are valid--and they plainly are 
not--the privilege might have nonetheless been waived through 
disclosures by Northrop Grumman employees. Generally, attorney-
client privilege is waived if the client discloses the 
protected communication to a third party.\71\ Even though a 
client might not have intended to waive the privilege, once the 
confidential information is disclosed to a third party, there 
is no further need to conceal the information to protect the 
attorney-client relationship; so, the privilege is waived.\72\
---------------------------------------------------------------------------
    \71\ Thomas R. Mulroy Jr. & W. Joseph Thesing Jr., ``Confidential 
Concerns in Internal Corporate Investigations,'' 25 Tort & Ins. L.J. 
48, 53 (1989).
    \72\ Ross G. Greenberg, Jordan Klingsberg & Deidre Mulligan, 
``Attorney-Client Privilege,'' 30 Am. Crim. L. Rev. 1011 (1993) (citing 
generally Michael E. Prangle, ``The Inadvertent Waiver of Privilege,'' 
28 Tort & Ins. L.J. 637 (1991)).
---------------------------------------------------------------------------
    As described in section III of the report, Haas was the 
Northrop Grumman contractor to whom Laura Callahan directed her 
comment that, if he revealed the Mail2 problem to anyone, 
``there would be a jail cell with your name on it.'' Joseph 
Vasta, Northrop Grumman's former deputy project manager on the 
facilities contract, stated that when the contractors, 
including Haas, met with him in August 28, 1998, Jim Webster 
(Betty Lambuth's replacement) had been meeting with OA staff 
without the contractors.\73\ So, he noted that the contractors 
were concerned that Webster's having done so ``might get them 
in trouble.'' \74\ Vasta further noted that ``to enable the 
employees to meet with an attorney to freely discuss their 
concerns, Jim DeWire [the program director] scheduled a meeting 
among the team and Ralph Pope [from in-house counsel's office] 
on September 9, 1998.'' \75\ Also, Joseph Lucente confirmed 
that he understood that, when Haas came in to see in-house 
counsel, Haas was in fact seeking legal advice.\76\ So, the 
evidence suggests that when Haas and the other contractors met 
with in-house counsel, they were seeking legal advice for 
themselves.
---------------------------------------------------------------------------
    \73\ Interview with Joseph Vasta, former program manager, Northrop 
Grumman, in Washington, DC (June 28, 2000). See also Joseph Vasta 
document production (exhibit 155) (documenting Aug. 28, 1998, and Sept. 
3, 1998, meetings with contractors).
    \74\ Interview with Joseph Vasta, former program manager, Northrop 
Grumman, in Washington, DC (June 28, 2000) (emphasis added).
    \75\ Joseph Vasta document production (exhibit 155) (emphasis 
added).
    \76\ Interview with Joseph Lucente, director of contracts, Northrop 
Grumman, in Washington, DC (Oct. 17, 2000). Counsel for the Northrop 
Grumman employees have consistently maintained that Haas and the other 
contractors do not bear the privilege. Presumably, they are arguing 
that when they met with in-house counsel, they were seeking legal 
advice for the corporation. However, such a position is subject to 
question. Indeed, the contractors were low-level employees, who were in 
no position to seek legal advice for the company. And, even if they 
did--such that they could be deemed within Northrop Grumman's ``control 
group''--they (as members of the company's control group) would have 
had the authority to waive the privilege on the company's behalf.
---------------------------------------------------------------------------
    Central to the question as to who may waive an attorney-
client privilege is the issue of who actually bears the 
privilege. If Haas or the other employees who sought the 
meeting with in-house counsel bear the privilege, it is theirs 
to waive. However, if the corporation bears the privilege, the 
analysis becomes more complex. Certainly, a corporation's 
directors and officers can waive the privilege. However, a 
corporation might seek, as Northrop Grumman apparently does 
here, to have the privilege expanded to capture communications 
involving employees outside the ``control group.'' In such a 
case, a reviewing court might well not allow Northrop Grumman 
to enjoy the benefits of an expanded attorney-client privilege 
without likewise accepting the consequences that the privilege 
could be waived by a lower-level employee like Haas--someone 
outside the ``control group.'' \77\ In order to evaluate the 
claim, however, the committee needs to have its questions 
regarding the merits of Northrop Grumman's privilege claim 
answered.\78\
---------------------------------------------------------------------------
    \77\ There appears to be some authority on point. See, e.g., 
Jonathan Corp. v. Prime Computer, Inc. 114 F.R.D. 693 (E.D.Va. 1987) 
(``Prime seeks protection through the attorney-client privilege on a 
legal communication made to individuals outside of Prime's `control 
group.' Then, Prime claims that while it is entitled to the benefits of 
the privilege on this communication, it is not responsible for any 
waiver of the privilege on the communication by one of these 
individuals outside the `control group.' In other words, [Prime claims] 
the privilege can be created for the benefit of legal communications 
with employees at all levels but cannot be waived or destroyed by these 
employees. This proposition is inconsistent with a joint reading and 
the holdings [of the Supreme Court] in Weintraub and Upjohn Co.'').
    \78\ ``The precedents of the Senate and House of Representatives, 
which are founded on Congress' inherent constitutional prerogative to 
investigate, establish that the acceptance of a claim of attorney-
client or work product privilege rests in the sound discretion of a 
congressional committee regardless of whether a court would uphold the 
claim in the context of litigation.'' See Morton Rosenberg, ``CRS 
Report for Congress: Investigative Oversight--An Introduction to the 
Law, Practice and Procedure of Congressional Inquiry'' 43 (1995). 
However, a committee may consider and evaluate the strength of a 
claimant's assertion in light of the potential unavailability of the 
privilege to the claimant if it were raised in a judicial forum. Id. at 
44. See also Exxon Corp., 87 F.R.D. at 637 (``This court has recognized 
the necessity of asserting the attorney-client privilege in a manner 
specific enough to allow the court to adjudicate the merits of its 
invocation. [citation omitted] A mere assertion of privilege [without 
more] is insufficient.'') (citing SEC v. Dresser Industries, Inc., 453 
F.Supp. 573, 576 (D.D.C. 1978)). As stated above, courts have required 
privilege claimants to state, among other things, whether the primary 
purpose of the communication withheld on the basis of privilege was to 
seek or provide legal advice or services. See, e.g., US v. Exxon Corp., 
87 F.R.D. 624, 637 (D.D.C. 1980).
---------------------------------------------------------------------------
    Under any analysis, Haas might very well have waived the 
privilege. For example, in Haas' most recent interview, Haas 
told committee staff of a conversation he had with Northrop 
Grumman Deputy Program Manager Joseph Vasta following his 
meeting with corporate counsel in September 1998.\79\ The 
discussion took place informally ``by the coffee pot.'' \80\ 
Haas said he told Vasta about the threats because he expected 
that Vasta would have been briefed about the threats and that 
he ``no longer had to worry about going to jail.'' \81\ Asked 
specifically if he told Vasta about his discussions with 
Northrop Grumman counsel, Haas replied, ``yes.'' \82\ Vasta did 
not attend that meeting and is not an attorney. Furthermore, 
the committee has found no evidence that Haas was authorized by 
the managers at the meeting to disclose to Vasta the details of 
his purportedly privileged communications with counsel.
---------------------------------------------------------------------------
    \79\ See interview with Robert Haas, Lotus Notes administrator, 
Northrop Grumman, in Washington, DC (Oct. 11, 2000).
    \80\ Id.
    \81\ Id.
    \82\ Id.
---------------------------------------------------------------------------

    B. Northrop Grumman's Refusal to Waive Attorney-Client Privilege

    As indicated above, Northrop Grumman's assertions of 
privilege are disturbing. Its baseless assertions of privilege 
have been made despite the fact that counsel had been informed 
that Congress need not recognize the attorney-client privilege. 
Northrop Grumman's refusal simply to waive the privilege is 
equally disturbing. Early in the committee's investigation of 
Earl Silbert's efforts on Northrop Grumman's behalf, Northrop 
Grumman indicated that it did not intend to waive attorney-
client privilege. On September 21, 2000, the committee informed 
Northrop Grumman chairman, president, and CEO, Kent Kresa, of 
its intent to issue a subpoena for his appearance before the 
committee to explain the company's decision to assert the 
privilege. Kresa responded on the next day simply saying that 
``[w]e believe that who [Silbert] contacted and for what 
purpose, and what information that he chose to report back to 
the [c]ompany are protected by the attorney-client privilege, 
and we simply will not waive that privilege.'' \83\
---------------------------------------------------------------------------
    \83\ Letter from Kent Kresa, chairman, president and chief 
executive officer, Northrop Grumman, to the Honorable Dan Burton, 
chairman, Committee on Government Reform (Sept. 22, 2000).
---------------------------------------------------------------------------
    However, to date, the committee has interviewed or taken 
testimony from several Northrop Grumman witnesses who recounted 
being subjected to threats and intimidation to work on the 
Mail2 project in secret and without direction from their 
Northrop Grumman managers. Those facts are already out in the 
open. When they--including Haas--originally gave the committee 
their accounts, none of them asserted any privileges, and 
Northrop Grumman cooperated with the committee. But now, for 
whatever reason, they have begun claiming privileges. Northrop 
Grumman's change of attitude is disappointing, and has 
prevented the committee from gathering necessary facts.
    Northrop Grumman's lack of cooperation was also evident in 
the questioning of Earl Silbert in the Alexander case: when 
asked about various documents which he claimed were privileged, 
Silbert conceded that he had not looked at them since he 
originally generated them in September 1998.

        Q. All right. Given your involvement in this 
        controversy, how is it that you never bothered to look 
        at [those documents]?

        A. [T]he reason I did not look at the notes is that I 
        was concerned that if I did look at the notes and, in 
        fact, they--that if I did look at the notes, then there 
        would be a basis for you to claim a waiver of the 
        attorney/client privilege, and I believe there is case 
        law in the District of Columbia, a 1980 decision by a 
        District Court Judge, to that effect. I tried to be 
        very careful, again, to comply with the rules of 
        professional conduct and the instructions of my client.

        Q. You're saying that simply by looking at your notes, 
        which you claim an attorney/client privilege and work 
        product----

        A. Yes.

        Q. ----that just by looking at them you would waive 
        your privileges?

        A. There was, in my view, a risk that that would 
        happen, and I believe there is some case law to support 
        that.\84\
---------------------------------------------------------------------------
    \84\ Transcript of Evidentiary Hearings at 50, Alexander v. FBI 
(D.D.C. Oct. 3, 2000) (CA 96-2123).

    The lengths to which Silbert went in order to preserve the 
privilege were in response to an instruction from Northrop 
Grumman General Counsel W. Burks Terry to ``observe the 
privilege, honor the privilege.'' \85\ Needless to say, this is 
quite troubling. As Judge Lamberth noted,
---------------------------------------------------------------------------
    \85\ Id. at 55-56.

        General Counsel of Northrop Grumman called Mr. Silbert 
        and told him to claim the attorney-client privilege to 
        the maximum extent possible; that was the instruction 
        he had when he came down here. And he didn't review one 
        note that might be attorney-client privilege, so he 
        wouldn't accidentally tell anything that he really 
        knew, that his memory could be refreshed from.\86\
---------------------------------------------------------------------------
    \86\ Id. at 21.

Silbert's rather tortured justification for not having looked 
at even a single document for which he claims privilege, prior 
to the submission of the privilege log by Northrop Grumman 
counsel, is--at the very least--indicative of the lengths to 
which Northrop Grumman is willing to go to assert the 
privilege. At the most, it reflects an intent by Silbert to 
keep relevant information from a judicial tribunal.
    After Silbert testified in Alexander, Judge Lamberth 
suggested to the Justice Department, which is representing the 
White House, that the White House ask Northrop Grumman simply 
to waive the privilege.

        It would be important for the White House to say to 
        Northrop Grumman, ``Why don't you waive your attorney-
        client privilege?'' I mean, Northrop Grumman feels 
        under some compulsion to claim this attorney-client 
        privilege on these important matters. I don't 
        understand why your client couldn't suggest to Northrop 
        Grumman [that] they waive it and allow the facts to be 
        produced, rather than hiding behind the privilege.\87\
---------------------------------------------------------------------------
    \87\ Id. at 20.

He continued, ``[the] White House can sit back and let Northrop 
Grumman do that and make no comment, if that's the posture that 
the White House wants to be in, but I suggest it would be in 
everybody's interest for the facts to come out.'' \88\ The 
Judge observed, ``It's very curious that Northrop Grumman feels 
so compelled to go to such great lengths to tell Mr. Silbert to 
come down and invoke [the privilege] the way he invoked it. 
It's just a little odd to me.'' \89\ ``But I just find it very 
odd that Northrop Grumman wants to prevent the facts from 
coming out.'' \90\
---------------------------------------------------------------------------
    \88\ Id.
    \89\ Id.
    \90\ Id. at 22.
---------------------------------------------------------------------------
    It appears that the Justice Department and the White House 
are, in fact, content with permitting Northrop Grumman to claim 
privilege over these matters, preventing the public from 
learning what really happened. It also appears that Northrop 
Grumman is intent on covering up actions taken by White House 
staff to threaten and intimidate Northrop Grumman employees. It 
is surprising that Northrop Grumman does not have greater 
concern for either the welfare of its employees, or the 
public's interest in a matter of national significance.

 C. Northrop Grumman's Failure to Provide Documents in a Timely Manner

    At the outset of the committee's investigation, a 
generalized document subpoena was sent to Northrop Grumman 
Corp. Pursuant to this March 9, 2000, subpoena, Northrop 
Grumman produced to the committee 608 pages of documents 
numbered NGL 00001 through NGL 00608 on March 20, 2000.\91\ 
Through 4 days of committee hearings held between the end of 
March and the beginning of May and throughout the summer of 
2000, the committee received no further document productions 
from Northrop Grumman. Then, on August 14, 2000, committee 
staff learned--only through monitoring the related evidentiary 
hearings being held in the Alexander litigation--that Northrop 
Grumman had produced in that proceeding documents bearing 
apparently the same numbering scheme but higher than NGL 00608. 
One document mentioned in particular, NGL 00795, was a page of 
handwritten notes reading in part, ``Instructed never to commit 
to paper. Each person on Mail2 registered from a list.'' 
Northrop Grumman failed to produce this clearly responsive 
document to the committee for more than 5 months.
---------------------------------------------------------------------------
    \91\ Letter from H. Lowell Brown, assistant general counsel, 
Northrop Grumman, to James C. Wilson, chief counsel, Committee on 
Government Reform (Mar. 20, 2000).
---------------------------------------------------------------------------
    On August 29, 2000, committee counsel wrote to the vice 
president and assistant general counsel of Northrop Grumman and 
requested that the document be produced as required by the 
March 9, 2000, subpoena. The letter also requested, ``All 
records that have been provided to the court in Alexander v. 
FBI. This includes all materials bates numbered above NGL 
00608. . . . If documents are produced pursuant to Alexander in 
the future, please provide them to the Committee.'' \92\ The 
following day, August 30, 2000, Richard Oparil responded in 
detail to the letter and provided 658 additional pages of 
responsive documents. However, since that date, he has ignored 
the committee's unambiguous, continuing request to provide all 
documents produced pursuant to Alexander in the future. For 
example, to this date Oparil has not produced to the committee 
a copy of the Lanny Breuer message slip numbered NGL 01393, 
which indicates contact with Earl Silbert. Presuming that the 
intervening numbered documents, NGL 01268 through NGL 01392, 
were also produced to the Alexander court, then Oparil has also 
failed to provide the committee with another 126 pages of 
requested documents. Additionally, on the day of Earl Silbert's 
testimony before Judge Lamberth, Oparil produced a privilege 
log and documents numbered up to NGL 01405. Ordinarily, any one 
of these shortcomings would be dismissed as inattention to 
detail or a simple oversight. However, taken together and in 
combination with the specious claims of privilege discussed 
above, the group of lawyers associated with Northrop Grumman 
appears to be doing everything possible to prevent the American 
people from learning the complete truth about the White House 
e-mail archiving problem. The question is ``why?''
---------------------------------------------------------------------------
    \92\ Letter from James C. Wilson, chief counsel, Committee on 
Government Reform, to H. Lowell Brown, assistant general counsel, 
Northrop Grumman (Aug. 29, 2000).
---------------------------------------------------------------------------

 III. Further Evidence of the Insufficiency of the Test Search and the 
                Unraveling of the ``Disconnect'' Defense


     A. The Attorney who Performed the Comparison Changed her Story

    As discussed in section III.C of the report, Associate 
White House Counsel Michelle Peterson was tasked with comparing 
a stack of e-mails to documents that had already been produced 
to the independent counsel in the Lewinsky investigation. The 
purpose of the comparison was to determine if there was a 
problem with prior document productions. Peterson, Cheryl 
Mills, and other witnesses told the committee that the results 
of the comparison test were identical and that the White House 
Counsel's Office therefore concluded that there was no problem 
with prior searches or productions. However, Peterson's story 
recently began to unravel. On September 28, 2000, Peterson 
submitted an affidavit to the Alexander court indicating that 
Peterson's earlier testimony to the court, and by implication, 
her statements to this committee, were inaccurate. Peterson 
testified that during the course of her testimony to the grand 
jury convened by the Independent Counsel's Office to 
investigate the e-mail matter, it appeared from the documents 
shown to her that she ``may have been mistaken with respect to 
one or possibly two e-mails.'' \93\ After the committee voted 
on the report, new evidence regarding her testimony came to 
light that further undermined Peterson's claim that the two 
stacks were identical.
---------------------------------------------------------------------------
    \93\ Third declaration of Michelle Peterson at para. 6, Alexander 
v. FBI (D.D.C. Sept. 27, 2000) (CA 96-2123).
---------------------------------------------------------------------------
    It now appears that even Peterson's affidavit that was 
submitted to correct her earlier misstatements understated the 
extent of her error, in that she had not described the missing 
69-page index. In an October 5, 2000, letter written to 
Peterson's attorney and courtesy copied to Judge Lamberth, the 
deputy independent counsel explained that Peterson did not 
fully correct her misstatements:

        While I appreciate Ms. Peterson disclosing to the Court 
        by way of her declaration the existence of the index 
        and the fact that it was not produced to this Office, I 
        believe that her attempt to suggest that the index was 
        not required to have been produced to this Office, at 
        least in June 1998, is both inaccurate and misleading. 
        Her declaration (paragraph 10) states that the index 
        ``appeared to be a document that was created after the 
        date of the subpoena,'' presumably because the index 
        which she reviewed had not been printed onto paper 
        until June of 1998 in conjunction with the test run. By 
        that reasoning neither the index, nor any of the e-
        mails, were required to be produced, inasmuch as they 
        were not printed onto paper (or ``created'' to use her 
        term) until after the date of the subpoena. The fact is 
        that the index, like the e-mails, was required to have 
        been produced to this Office because it existed in 
        electronic form prior to the issue date of the 
        subpoena.\94\
---------------------------------------------------------------------------
    \94\ Letter from Jay Apperson, deputy independent counsel, Office 
of the Independent Counsel, to the Honorable Royce C. Lamberth, U.S. 
District Judge, District of Columbia 5 (Oct. 5, 2000) (referring to 
attachment 3, pages 1-2) (exhibit AV-3) (emphasis in original).

    Not only did Peterson inaccurately tell this committee that 
the two stacks were identical, she also testified to the same 
in Federal court. As the Independent Counsel's Office pointed 
out in its letter, Peterson's testimony before Judge Lamberth 
on August 28, 2000, included statements such as ``[e]verything 
that was in the stack that Ms. Mills gave me was also contained 
in the stack that we had already produced to Independent 
Counsel Starr;'' \95\ and ``[t]he fact that all of these 
documents had been produced meant that I didn't have to write a 
letter or make a call explaining there were additional 
documents that hadn't been produced.'' \96\ Those statements 
were clearly false. It is telling that the Office of 
Independent Counsel found Peterson's testimony so troubling 
that they felt obliged to inform the court of all of the 
information Peterson left out of her affidavit.
---------------------------------------------------------------------------
    \95\ Id.
    \96\ Id.
---------------------------------------------------------------------------
    Given the foregoing, the assertions by White House 
officials that they could reasonably rely on the test search to 
conclude that there was no problem with e-mail productions 
become much less tenable. Indeed, the entire theory of the 
``disconnect'' rests on the White House's reliance on the 
increasingly faulty comparison test. As Michelle Peterson's 
claim that the e-mail stacks were identical continues to 
unravel, the White House's already flimsy ``disconnect'' 
defense becomes even less plausible.

 B. Mark Lindsay Failed to Act after Learning of the Comparison Results

    The validity of the ``disconnect'' defense is further 
eroded by testimony from Mark Lindsay. Prior to his August 23, 
2000, testimony in the Alexander case, Lindsay told the 
committee that, in briefing his superiors of the e-mail 
problem, he needed to ``try to collect the information as 
soberly and deliberately as we could and then present that 
information.'' \97\ He further stated that once he delivered 
the memo outlining the e-mail problem to his superiors, he 
``could put a bit of a sigh of relief, because, frankly, we had 
conveyed it, and then it was up to them to provide the--
particularly the legal folks--to provide the legal analysis 
based on the information, the evidence, and the materials that 
they had which I didn't have access to at that particular 
time.'' \98\ However, as his testimony in Alexander that 
follows shows, the memo that went to Podesta and Ruff was not 
the end of Lindsay's communications with the White House 
Counsel's Office concerning the ARMS system.
---------------------------------------------------------------------------
    \97\`` Missing White House E-mails, Mismanagement of Subpoenaed 
Records,'' hearings before the Committee on Government Reform, 106th 
Cong. 237 (Mar. 23, 2000) (testimony of Mark Lindsay, Assistant to the 
President for Management and Administration, the White House).
    \98\ Id. at 238.

        Q. And the search confirmed that, in fact, there were 
        e-mails that had not been archived that were responsive 
        to subpoenas of the Independent Counsel in the Lewinsky 
---------------------------------------------------------------------------
        matter?

        A. That was not my understanding. Quite the opposite. 
        My--I think that it is accurate to say that I was 
        concerned about what the nature of this result was 
        going to be. When it went to them, the information that 
        I got back was that the information was 100 percent 
        duplicates of information that had already been 
        provided.

        Q. Who did you talk to who said it was duplicates?

        A. I don't remember specifically who it was. But there 
        were numerous people I talked to in the counsel's 
        office.

        Q. But you say you don't remember specifically. Who 
        generically was it?

        A. It may have been Mr. Ruff. It may have been Lanny 
        Breuer. It may have been Shelly Peterson. I don't know 
        which one, but someone in the counsel's office who is 
        in a position who knew something about this matter said 
        to me, it wasn't anything.\99\
---------------------------------------------------------------------------
    \99\ Transcript of Evidentiary Hearing at 145, Alexander v. FBI 
(D.D.C. Aug. 25, 2000) (CA 96-2123). It should be noted that Lindsay 
told the committee at the Mar. 23, 2000, hearing that he heard word 
back that the test showed duplicates, but he did not say that he 
received this information from someone in the White House Counsel's 
Office. ``Missing White House E-mails, Mismanagement of Subpoenaed 
Records,'' hearings before the Committee on Government Reform, 106th 
Cong. 259 (Mar. 23, 2000) (testimony of Mark Lindsay, Assistant to the 
President for Management and Administration, the White House).

    This testimony greatly undermines the ``disconnect'' 
defense. As described in sections III.C.5 and III.E.1 of the 
report, Lindsay was told repeatedly by Kathleen Gallant and 
others on his staff that there was a problem with the ARMS 
system. Gallant also told the committee that she forwarded e-
mails from Tony Barry to Lindsay when he was OA Counsel. 
Although Gallant did not recall which e-mails she specifically 
forwarded to Lindsay, one of Barry's e-mails in that time 
period read, ``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.'' \100\ And as Gallant 
wrote in response to this 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.'' \101\
---------------------------------------------------------------------------
    \100\ White House document production E 0999 (exhibit 52).
    \101\ White House document production E 1002 (exhibit 40). This 
response to Barry's e-mail demonstrates that Gallant most likely 
communicated to Lindsay the need to re-perform the searches when she 
pulled him aside at the weekly meetings.
---------------------------------------------------------------------------
    In essence, it is virtually impossible that Lindsay did not 
know that there was an ongoing problem with e-mail searches. 
The difficulties his staff were facing in curing the e-mail 
problem were communicated to him by Gallant at weekly meetings. 
When he heard from someone at the White House Counsel's Office 
that there was a match between the two stacks, he must have 
known that either the White House Counsel's Office was 
mistaken, or that his staff were mistaken. It is simply 
illogical that Lindsay would allow the staff at OA to continue 
to struggle through the ``fixing the bleeding'' phase of the 
ARMS project if he was confident that the White House Counsel's 
Office had determined that there was not a problem with e-mail 
searches. In sum, Lindsay should have informed the White House 
Counsel's Office that they were mistaken. That he apparently 
did not is further evidence that Lindsay may have been involved 
in obstruction of justice.

IV. The Justice Department's Questionable Handling of the E-mail Matter


 A. Examples of Advocacy in Alexander v. FBI that Undermine Confidence 
                in the Purported Criminal Investigation

    As discussed in detail in section V of the report, the 
Justice Department has an inherent conflict of interest in its 
investigation of the White House e-mail problem. The Justice 
Department is on both sides of the same case. The Department's 
criminal investigation of the e-mail matter--if conducted 
properly--would entail Justice Department lawyers investigating 
the actions of the Justice Department lawyers who are currently 
defending the White House in the Alexander v. FBI case. As a 
threshold matter, a proper criminal investigation would have to 
look into the role of Justice Department lawyers, including 
James Gilligan, Allison Giles, and others, in the submission of 
Daniel Barry's false affidavits and his false deposition 
testimony to the court in Alexander. It is problematic that the 
Justice Department has already sent Barry a letter indicating 
that he is not a target of the e-mail investigation.
    At a September 26, 2000, hearing, the committee attempted 
to gather facts necessary to understand the nature of the 
Justice Department's criminal investigation. Committee members 
sought for basic facts from Alan Gershel, deputy assistant 
attorney general. Gershel refused to answer almost all of the 
committee's questions, including how many attorneys were 
working on the criminal investigation.\102\ The refusal of 
Justice Department officials to disclose even the most basic 
facts leads to the conclusion that it will be difficult, if not 
impossible, to determine whether the Justice Department has 
properly investigated the role of its own attorneys in the 
Alexander case. However, as is discussed in section V of the 
report, the evidence strongly suggests that the Department is 
not conducting a vigorous investigation and has therefore most 
likely not adequately probed the role of its own attorneys in 
covering for possible obstruction of justice by the White 
House.
---------------------------------------------------------------------------
    \102\ See ``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).
---------------------------------------------------------------------------
    In that context, the aggressive advocacy of the White House 
position by Justice Department attorneys is particularly 
troubling. Following the ``no target'' letter being sent to 
Barry, Justice Department attorneys made several arguments to 
the court in the Alexander case that appeared to be nothing 
more than a recitation of White House spin. In attempting to 
have the court end its inquiry into possible obstruction of 
justice, Justice Department attorney Thomas Millet heavily 
relied on the ``disconnect'' defense put forth by the White 
House. Millet even invoked Mark Lindsay--the very person at the 
center of the alleged obstruction of justice--as the authority 
for the defense. Several examples follow:

        Millet: [I] think the underlying question that the 
        Court had, again, is why weren't you told sooner. I 
        think Mr. Lindsay gave you your answer on Wednesday. 
        The answer was frankly----

        Court: That he passed the buck. He said it's White 
        House Counsel's problem, not his.

        Millet: In part.

        Court: That's all he did was pass the buck.

        Millet: In part, but I think he also was very candid 
        with Your Honor in saying that at the time he and the 
        other higherups who are responsible for making these 
        decisions either didn't understand or didn't appreciate 
        what he called the people who were doing the real work 
        doing these searches actually knew, and that they did 
        perform a test. It wasn't a perfect test, but it was a 
        test. And when he finished it, they thought they had 
        the problem solved that it wasn't really a problem. 
        There was clearly a disconnect between the people doing 
        the work and the people making the decision. I think 
        that's the answer to the Court's question that if we 
        want to go forward with more witnesses and more 
        evidence----

        Court: It never dawned on any of them to tell any 
        lawyer in the Justice Department about this test or any 
        of that other information? See it's really a notion 
        that is not akin to the Court's own experience in how 
        real life works. They do a little test like that to see 
        whether this works and they never tell any of the 
        lawyers working on case?

        Millet: Your Honor, if we go forward with more evidence 
        and we're required to put the Justice Department 
        attorneys on the stand and have them testify, which 
        frankly to me is a very big step that the Court should 
        not undertake lightly and I don't [sic] the Court 
        should undertake on the basis of this record, you're 
        going to hear that inquiries were made and the answer 
        that you heard from Mr. Lindsay was the answer that 
        came back to the Justice Department. I can represent 
        that to the Court. I have interviewed my colleagues. 
        That is the answer. We can go through that processes, 
        but it is the same answer that you heard from Mr. 
        Lindsay on Wednesday[.] \103\
---------------------------------------------------------------------------
    \103\ Transcript of Evidentiary Hearing at 10-11, Alexander v. FBI 
(D.D.C. Aug. 25, 2000) (CA 96-2123) (emphasis added).






           *         *         *         *         *
        Millet: [S]ometimes lawyers and technical people don't 
        always understand each other, don't always use the same 
        language, don't always use the same words to mean the 
        same things. I think, again, on Wednesday Mr. Lindsay 
        put his finger on the problem as being that kind of 
        disconnect between the lawyers and the technical people 
        just perhaps not understanding each other and not 
        appreciating what they were being told as being the 
        real core of what happened here[.] \104\
---------------------------------------------------------------------------
    \104\ Id. at 15 (emphasis added).




    

           *         *         *         *         *
        Millet: You have your answer. I think Mr. Lindsay gave 
        you your answer. I can't express it any better than he 
        did. There was a breakdown between technical people and 
        the higherups. The higherups thought the problem was 
        addressed. As Mr. Lindsay said, they didn't know or 
        understand what the people who were doing the real work 
---------------------------------------------------------------------------
        knew, and that was the----

        Court: To decide the question though of whether it was 
        negligent, reckless, or deliberate, would I not need to 
        know--have more evidence about what the testing was or 
        how that conclusion was reached?

        Millet: I don't think so, Your Honor. I think you've 
        heard in the record--for that matter you can look--for 
        that point, you can look at the congressional 
        testimony, particularly Mr. Ruff's. You can see--as the 
        people who actually pulled the documents did appear 
        before you, they told you what they did, what they did 
        with the documents, and what happened with them. I 
        think between--between what Mr. Lindsay said, I think 
        it would be appropriate to look at the congressional 
        testimony. Between what's in there, you'll see that 
        that's the answer.\105\
---------------------------------------------------------------------------
    \105\ Id. at 29 (emphasis added).

    Another Justice Department lawyer, Elizabeth Shapiro, came 
to the personal defense of White House lawyers Michelle 
Peterson and Sally Paxton in a representation to Judge 
---------------------------------------------------------------------------
Lamberth:

        I want to say one last thing and may be somewhat out of 
        turn. When the Court spoke about White House Counsel 
        who worked on this case, I just wanted to make it clear 
        that we are not--this is not the apt's [sic] case. I 
        don't know the experience of that case, but I can speak 
        to the experience in this case. That's Ms. Paxton and 
        Peterson have acted in every way as diligently any 
        [sic] agency counsel I have ever encountered. They have 
        worked long and hard and produced thousands and 
        thousands of documents and engaged in long periods of 
        discovery I have with extreme diligence. I would want 
        to say that on their behalf.\106\
---------------------------------------------------------------------------
    \106\ Id. at 99 (emphasis added).

This kind of overzealous advocacy by the Justice Department on 
behalf of the White House indicates why the Justice Department 
cannot be counted upon to conduct a thorough investigation of 
this matter. It is difficult to believe that the Justice 
Department would conduct a serious criminal investigation of a 
White House lawyer such as Peterson while, at the same time, a 
Justice Department lawyer provides such a glowing character 
reference for her in court.

B. The Attorney General's Failure to Allocate Adequate Resources to the 
                          E-mail Investigation

    The advocacy and overreaching of Justice Department 
attorneys is especially troubling in light of the apparent lack 
of a serious investigation of the e-mail scandal on the part of 
the Justice Department's Campaign Financing Task Force. The 
Justice Department seems willing to devote more attorneys and 
resources to the defense of the White House than to the 
investigation of it. Deputy Assistant Attorney General Alan 
Gershel's refusal to disclose even a ballpark estimate of the 
number of attorneys working on the criminal investigation does 
nothing to allay those concerns.
    Perhaps even more revealing are recent statements made by 
Attorney General Reno during an interview with committee staff. 
The Attorney General was asked to give an estimate of the 
number of attorneys working on the e-mail investigation because 
of the concern in hearing that only one part-time attorney was 
on the case.\107\ The Attorney General failed to provide an 
estimate.\108\ The following exchange then took place between 
committee counsel and the Attorney General:
---------------------------------------------------------------------------
    \107\ Transcript of interview with the Honorable Janet Reno, 
Attorney General, Department of Justice, in Washington, DC, at 9 (Oct. 
5, 2000).
    \108\ Id.

        Counsel: If there were for a period of weeks no 
        attorneys--and we know there are FBI agents but if 
        there were no Department of Justice attorneys devoted 
        full-time to this matter, would you answer that to be a 
---------------------------------------------------------------------------
        sufficient number of attorneys devoted to this matter?

        Reno: If there were sufficient attorneys devoted to the 
        matter, I would consider it to be sufficient.

        Counsel: But would zero be sufficient?

        Reno: Your question was whether there would be 
        sufficient people if there was not a full-time attorney 
        devoted to it. How I devote attorneys I think should be 
        an executive function and I think based on everything 
        that I have been advised--as to which I have been 
        advised, there are sufficient.

        Counsel: Okay. And we are not going to go too much 
        further but I did want to get back to my original 
        question, which is if there were zero attorneys, would 
        that be in your view in this situation sufficient?

        Reno: If there were zero attorneys what?

        Counsel: Devoted to full-time staffing of the----

        Reno: Yes, it could be possible that if you had 
        different attorneys devoted to [it] less than full-
        time.\109\
---------------------------------------------------------------------------
    \109\ Id. at 9-10.

    From this exchange, the Attorney General apparently 
conceded that in her opinion having no full-time Justice 
Department attorneys working on the e-mail investigation could 
be sufficient. While the Attorney General refused to actually 
confirm that there are no full-time attorneys working on the e-
mail investigation, such a conclusion is consistent with 
information obtained by the committee. This underscores the 
inherent conflict of interest of the Justice Department in the 
e-mail matter. The problems with Justice Department attorneys 
investigating their colleagues are exacerbated when the time 
and resources devoted to the investigation are apparently far 
less than those devoted to the defense of the White House.

V. The Critics of the Investigation Have Utterly Failed to Address the 
                         Facts on Their Merits

    A number of criticisms have been made of the committee's 
investigations. Some of these criticisms are simply inaccurate. 
Others have taken the form of baseless attacks against the 
committee. All of the criticisms, however, clearly demonstrate 
that the White House, and its allies in Congress want to keep 
the public from knowing what happened.

               A. Response to the Minority Staff Rebuttal

    Following the release of the committee's report, the 
minority circulated a ``rebuttal'' to the news media. 
Unfortunately, the minority rebuttal is riddled with errors and 
misleading statements.
    The Spin: ``The number of e-mails affected by the Mail2 
problem is relatively small compared to the total number of e-
mails properly recorded in ARMS.'' \110\
---------------------------------------------------------------------------
    \110\ Rebuttal prepared by minority staff.

---------------------------------------------------------------------------
    The Truth:

 The precise number of e-mails affected is not the 
point. To prevent the production of even one subpoenaed 
document through threats and intimidation is serious 
misconduct. The point is that the White House knew that a 
number of messages were not searched. It knew that the number 
of unsearched messages was significant. Yet it failed to either 
search the messages or inform Congress that it could not.

 The number of records properly recorded in ARMS in 
1994 was 1.7 million. In 1997 it was 4.1 million. By the end of 
2000, it is estimated that it will record 30 million.\111\ Even 
a small percentage of such large numbers would be significant. 
For example, the Mail2 problem alone affected all of 1997, when 
4.1 million records were recorded in ARMS. If only a 
``relatively small'' number of those records--say 10 percent--
were affected by the Mail2 error, that would mean 410,000 
records were not searched. That would represent only 1 year 
during only one of the several archiving errors. In fact, the 
audit prepared by Robert Haas on June 18, 1998, shows that, as 
of that date, 246,083 e-mails were not recorded in ARMS.\112\
---------------------------------------------------------------------------
    \111\ ``The Budget of the Executive Office of the President,'' 
hearings before the Treasury, Postal, and the Executive Branch 
Subcommittee of the Committee on Appropriations, 105th Cong. (Mar. 12, 
1998) (testimony of Ada Posey, Director, Office of Administration).
    \112\ E-mail report at sec. III.B.1, IV.A.2.

    The Spin: ``These e-mail problems are highly technical. All 
of them were inadvertent.'' \113\
---------------------------------------------------------------------------
    \113\ Rebuttal prepared by minority staff.

---------------------------------------------------------------------------
    The Truth:

 The net effect of the problems is not technical or 
difficult to comprehend. A large universe of documents was not 
searched.\114\ The White House was clearly told as much, but 
failed to inform those who had subpoenaed documents from 
them.\115\
---------------------------------------------------------------------------
    \114\ E-mail report at sec. II.
    \115\ Id. at sec. III.C.1.

 The OVP decision to manage e-mail solely by backup 
tapes and avoid archiving in ARMS was not inadvertent. It was 
intentional.\116\
---------------------------------------------------------------------------
    \116\ Id. at sec. II.C, III.D.3.c.

    The Spin: ``Mr. Haas found a few Lewinsky-related e-mails 
that turned out to have already been previously provided to 
Independent Counsel Kenneth Starr.'' \117\
---------------------------------------------------------------------------
    \117\ Rebuttal prepared by minority staff.

---------------------------------------------------------------------------
    The Truth:

 Haas found more than ``a few'' Lewinsky-related e-
mails. In fact, the White House produced to the committee 832 
pages of e-mails found by Haas and used by the White House 
Counsel's Office to argue that the e-mail did not affect 
document production.\118\
---------------------------------------------------------------------------
    \118\ Letter from Beth Nolan, Counsel to the President, the White 
House, to the Honorable Dan Burton, chairman, Committee on Government 
Reform (May 2, 2000). See also e-mail report at sec. IV.B.3.

 Michelle Peterson, the lawyer who compared Haas' e-
mails to those already produced to the independent counsel, 
filed a September 27, 2000, affidavit in the FBI files 
litigation stating that, during her grand jury testimony, she 
was shown documents which indicate that she may have been 
mistaken in concluding that the two stacks of e-mail she 
reviewed were identical.\119\
---------------------------------------------------------------------------
    \119\ Id.

 The e-mail provided to the Counsel's Office in order 
to perform the comparison included a 69-page index, which 
itself was withheld from the independent counsel even after 
Peterson's comparison.\120\ Peterson's ``mistake'' was far from 
merely overlooking a one or two pages, and the two stacks of e-
mail were far from identical.
---------------------------------------------------------------------------
    \120\ See letter from Jay Apperson, deputy independent counsel, 
Office of the Independent Counsel, to the Honorable Royce C. Lamberth, 
U.S. District Judge, District of Columbia 5 (Oct. 5, 2000) (referring 
to attachment 3, pages 1-2) (exhibit AV-3). Attachment 3 to Apperson's 
letter to Judge Lamberth is letter from Apperson to Mark Lynch, counsel 
for Michelle Peterson, in which Apperson describes Peterson's affidavit 
as ``both inaccurate and misleading'' in its suggestion that the index 
was not required to have been produced to the independent counsel in 
June 1998. Id.

 White House Counsel Charles F.C. Ruff conceded that 
his belief that using the Lewinsky production as a tool to 
determine whether there was a problem with the White House's 
subpoena compliance ability was erroneous.\121\ And in fact, it 
was.
---------------------------------------------------------------------------
    \121\ Id. at sec. III.C.2. See also id. at n.347-348 and 
accompanying text.

    The Spin: ``The evidence regarding alleged jail threats is 
inconclusive and contradictory. In total, eight individuals 
were present at meetings when the alleged threats were made. Of 
those eight witnesses, two deny making any jail threats; three 
have no recollection of any jail threat; one recalls a jail 
threat being made in response to a `flippant' question; and one 
recalls the word `jail' being mentioned but cannot remember who 
said it.'' \122\
---------------------------------------------------------------------------
    \122\ Rebuttal prepared by minority staff.

---------------------------------------------------------------------------
    The Truth:

 Other than Laura Callahan--the person accused of 
making the threat--there were five people present at the 
meeting at which Robert Haas claims he was threatened. Of those 
five, three recall the jail threat (Robert Haas, Betty Lambuth, 
and Sandra Golas). And a fourth, John Spriggs, believed he was 
threatened, though he did not specifically recall the word 
jail: ``Were they threatening to me? Yes, they were threatening 
to me, in--in a narrow context.'' \123\
---------------------------------------------------------------------------
    \123\ ``Missing White House E-mails, Mismanagement of Subpoenaed 
Records,'' hearings before the Committee on Government Reform, 106th 
Cong. 100 (Mar. 23, 2000) (testimony of John Spriggs, senior engineer, 
Northrop Grumman). See also e-mail report at sec. III.A.5.

 Robert Haas contemporaneously repeated his 
allegation to multiple witnesses, including Northrop Grumman 
employees Steve Hawkins, Joe Vasta, and Joseph Lucente.\124\ He 
also told IS&T Director Kathleen Gallant, as well as his wife 
and several members of his family.\125\
---------------------------------------------------------------------------
    \124\ Id. at sec. III.A.4.a, III.A.4.e-g.
    \125\ Id.

 Those who did not recall hearing the jail threat did 
not question the credibility of those who did. In fact, neither 
did Ranking Minority Member Henry Waxman. As he stated at the 
March 23, 2000, hearing: ``Mr. Haas, who seemed credible to me, 
clearly believed he had been threatened with jail by Ms. 
Callahan.'' \126\
---------------------------------------------------------------------------
    \126\ Id. at sec. III.A.5.

 Golas took the threat so seriously that she risked 
her job in trying to comply with the warnings not to tell 
anyone.\127\ Also, the other contractors took the threats so 
seriously that they felt the need to hold their meetings out of 
the office at a local park and at a Starbucks.\128\
---------------------------------------------------------------------------
    \127\ Id. at sec. III.A.4.b.
    \128\ Id. at sec. III.A.4.d.

    The Spin: ``[T]he individuals who allegedly made the jail 
threats were not even White House employees: both worked in the 
Office of Administration (OA), which provides support services 
to the White House, and one was a career civil servant. There 
is no evidence that White House officials had any knowledge 
of--or participated in--any threats.'' \129\
---------------------------------------------------------------------------
    \129\ Rebuttal prepared by minority staff.

---------------------------------------------------------------------------
    The Truth:

 OA is an entity within the Executive Office of the 
President. While the OA is not within the physical building of 
the White House, it is disingenuous and misleading to argue 
that Mark Lindsay and Laura Callahan were not White House 
employees. OA employees are responsible to the White House, and 
they ultimately answer to the Assistant to the President for 
Management and Administration. Moreover, Mark Lindsay was 
elevated to the high position of Assistant to the President--
working in the White House--after the e-mail problems occurred 
but before they became public. Also, Mark Lindsay was a 
political appointee in OA at the time he allegedly threatened 
Northrop Grumman contractors. It should also be noted that 
Laura Callahan continues to work for the Clinton administration 
at the Department of Labor.

 It is also illogical to assume that the very persons 
who allegedly threatened contractors would inform their White 
House superiors of such heavy-handed and possibly illegal 
tactics, unless their superiors were complicit in the 
misconduct.

    The Spin: ``There is no evidence that Mr. [Earl] Silbert 
was aware of, or communicated information about, threats or 
subpoena compliance--issues that were peripheral, if not 
irrelevant, to the contractual matter at stake.'' \130\
---------------------------------------------------------------------------
    \130\ Id.

---------------------------------------------------------------------------
    The Truth:

 The committee questioned Earl Silbert--former 
Watergate prosecutor and friend of then-White House Counsel 
Charles F.C. Ruff--about his contacts in late 1998 with 
Northrop Grumman (NG) and the White House Counsel's Office. 
When asked specifically about the discussion of threats with 
White House counsel, Silbert claimed he had no recollection of 
such discussions and at the same time asserted attorney-client 
privilege.\131\ On October 3, 2000, the committee also learned 
through his testimony in Federal court that Silbert took notes 
of his conversations with NG counsel and a NG employee.\132\ 
These notes have not yet been reviewed by the committee. Until 
Mr. Silbert either explains the substance of the meeting or 
produces the notes, it is simply premature for the minority to 
claim that ``[t]here is no evidence'' related to Mr. Silbert's 
communications concerning threats or subpoena compliance. This 
claim by the minority also appears to be premature when 
considering the testimony of Robert Haas on August 14, 2000, in 
the FBI files case. Haas testified that he recounted the 
threats to an outside counsel described to him as a ``gray 
beard.'' \133\ This evidence, coupled with Silbert's billing 
records, strongly suggests that Earl Silbert is the ``gray 
beard'' with whom Haas spoke.
---------------------------------------------------------------------------
    \131\ E-mail report at sec. III.A.4.g.
    \132\ Transcript of Evidentiary Hearing at 47, Alexander v. FBI 
(D.D.C. Oct. 3, 2000) (CA 96-2123).
    \133\ E-mail report at sec. III.A.4.g.

 The claim that threats were peripheral or irrelevant 
to the contractual matter at stake completely ignores the 
testimony of the persons involved in the meetings between NG 
employees, NG Director of Contracts Joseph Lucente, and NG 
counsel Ralph Pope in September 1998. In that meeting, NG 
employees discussed threats with Lucente and Pope.\134\ Lucente 
in turn drafted a letter that went to the White House on 
September 14, 1998, stating that NG would not move forward on 
the contract.\135\ It was recently learned in court that 
Silbert had direct involvement in the review and editing of 
this letter.\136\ Lucente told the committee that the threats 
were an inspiration for sending the letter.\137\
---------------------------------------------------------------------------
    \134\ Id.
    \135\ Id. at sec. III.E.1.b.ii.
    \136\ Transcript of Evidentiary Hearing at 91, Alexander v. FBI 
(D.D.C. Oct. 3, 2000) (CA 96-2123). When informed of this testimony, 
Lucente was surprised to learn that his letter had been reviewed by 
Silbert and that Silbert had provided corporate counsel with edits. 
Interview with Joseph Lucente, director of contracts and subcontracts, 
Northrop Grumman (Oct. 17, 2000).
    \137\ Id.

    The Spin: ``In the course of responding to committee 
inquiries regarding the Mail2 problem, the White House also 
discovered other e-mail problems including . . . a problem that 
prevented e-mail in the Office of the Vice President from being 
backed up from the end of March 1998 through early April 
1999.'' \138\
---------------------------------------------------------------------------
    \138\ Rebuttal prepared by minority staff.

    The Truth:
    This is merely one of the many problems in the Office of 
the Vice President (OVP). The minority failed to mention the 
others:

 The OVP decided in 1994 not to connect its e-mail 
system to ARMS, thereby ensuring that its e-mail would not be 
archived.\139\ But the White House Counsel's Office claims not 
to have been aware of this decision.\140\ ARMS searches that 
were represented as including OVP records in fact did not, and 
no one searched the OVP backup tapes in response to 
subpoenas.\141\
---------------------------------------------------------------------------
    \139\ E-mail report at sec. II.C, III.D.3.c.
    \140\ Id. at sec. II.C.
    \141\ Id. at sec. III.D.3.c.

 In April 1999, when responsibility for the OVP 
server was transferred to IS&T, backup tapes were ordered to be 
recycled on a rotating 3-week basis. This occurred at a time 
when the OVP was still not participating in ARMS. In the words 
of Senior Engineer John Spriggs, ``Every three weeks they 
overwrite the existing tapes. And so if the OVP is doing 
records management with tape backups, then they have a 
problem.'' \142\
---------------------------------------------------------------------------
    \142\ Id. at sec. II.C.

    The Spin: ``So far, between 130,000 and 150,000 e-mails 
have been reconstructed and reviewed. Of those, only 55 were 
responsive to this committee's subpoenas, and many of those had 
already been produced in similar form. None of these 55 e-mails 
provided significant new evidence.'' \143\
---------------------------------------------------------------------------
    \143\ Rebuttal prepared by minority staff.

---------------------------------------------------------------------------
    The Truth:

 The first batch of responsive e-mails produced to 
the committee on September 22, 2000, include a document 
regarding political advisor Carter Eskew sent directly to Vice 
President Gore stating ``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?'' \144\ This e-mail goes to the 
Vice President's knowledge of the archiving of his e-mail 
messages that this committee is investigating.
---------------------------------------------------------------------------
    \144\ E-mail report at 74.

 The September 22, 2000, production also includes an 
e-mail from the person ``desking the VP's trip to CA on 4/29,'' 
stating 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.\145\
---------------------------------------------------------------------------
    \145\ Id. at sec. III.D.3.b.

    Finally, it is troubling that the minority has attacked the 
credibility of the majority by citing an allegation from a 
newspaper article as if it were from the committee. The 
Democrats' rebuttal endeavors to correct a statement from the 
March 29, 2000, edition of the Washington Times concerning a 
computer disk containing Lewinsky-related e-mail.\146\ While it 
is comforting to know that the minority is chasing down 
inaccuracies in the newspapers, such charges have little to do 
with the committee's work.
---------------------------------------------------------------------------
    \146\ Rebuttal prepared by minority staff.
---------------------------------------------------------------------------

            B. Judge Todd Campbell's Comments on the Report

    In an article published in the Tennessean on October 19, 
2000, Federal Judge and former Counsel to the Vice President 
Todd Campbell was quoted as calling Chairman Burton ``a zealot 
who has no regard to the reputation of others. And he has no 
credibility.'' It is surprising to see such language from a 
sitting Federal judge. Even more surprising is that Judge 
Campbell's intemperate remarks were made in response to purely 
factual assertions in the committee's report of which he was 
the source. These facts suggest that Judge Campbell's ire is 
more likely the result of his relationship with Vice President 
Gore and the Presidential election season than it is of any 
unfair statement in the committee's report.
    Judge Campbell's name is mentioned in the report as the 
decisionmaker in the Office of the Vice President (OVP) on the 
issue of whether the OVP would participate in a system-wide 
White House e-mail archiving system. Committee staff 
interviewed him by telephone on August 18, 2000. Judge Campbell 
was cordial and candid, which was appreciated. However, he has 
mischaracterized the substance of the report as well as 
Chairman Burton's motives. He was also quoted as saying:

        The Office of the Vice President was in full compliance 
        with the Presidential Records Act in two ways: One, we 
        had backup tapes of all the e-mail, and two, the staff 
        was instructed to keep hard copies of all documents 
        that were responsive to the Presidential Records Act. 
        In 1994, it was not even clear that you had to have 
        backup tapes.\147\
---------------------------------------------------------------------------
    \147\ Rob Johnson, ``Former Gore Legal Counsel Dragged into E-mail 
Inquiry,'' the Tennessean, Oct. 19, 2000.

The report does not claim that the OVP failed to comply with 
the Presidential Records Act. In fact, the Presidential Records 
Act (PRA) is not even mentioned in either of the two sections 
dealing with the OVP. Rather, the committee's concern is that 
the Vice President's e-mail was managed in such a way as to 
avoid subpoena compliance.
    Judge Campbell also said that the report was released ``for 
partisan purposes to influence the outcome of the presidential 
elections.'' \148\ This is perhaps the Judge's most absurd 
statement. The portion of the report devoted to the Vice 
President's Office e-mail problems comprises only about 6 
percent of the total report and the conclusions are qualified 
as being preliminary. It is disappointing that a sitting judge 
would not be more concerned that an office at the Executive 
Office of the President had failed to comply with a number of 
subpoenas because of a decision he had made. That decision, and 
the resulting failure of the OVP to comply with the committee's 
subpoenas, is the committee's concern--and it should be Judge 
Campbell's as well.
---------------------------------------------------------------------------
    \148\ Id.
---------------------------------------------------------------------------

  C. Cheryl Mills' Opening Statement at the Committee's March 4, 2000 
                                Hearing

    In her opening statement before the committee on March 4, 
2000, former Deputy Counsel to the President Cheryl Mills 
demonstrated utter contempt for the committee's legitimate 
oversight authority by smugly dismissing its core function as, 
essentially, a waste of her time.
    The Weekly Standard described her statement as follows:

        At last week's House Government Reform Committee 
        hearing on the suppression of subpoenaed White House e-
        mails, Mills took the stand and immediately rebuked the 
        committee's members, while current and former Clinton 
        aides in attendance nodded their heads in vigorous 
        assent. ``Nothing you discover here today,'' the 
        allegedly impressive lady intoned, ``will feed one 
        person, give shelter to someone who is homeless, 
        educate one child, provide health care for one family, 
        or offer justice to one African-American or Hispanic 
        juvenile.''

        In other words: Favored Democratic social policies are 
        the test of all government work. A man has committed 
        murder. Should he be sent to prison? Will sending him 
        to prison ``feed one child?'' The answer being no, the 
        murderer must go free.\149\
---------------------------------------------------------------------------
    \149\ ``Mills on the Hill,'' the Weekly Standard, May 15, 2000, at 
2.

It is telling that Mills' view was contradicted later that day 
by her more seasoned and respected former boss, former Counsel 
---------------------------------------------------------------------------
to the President Charles F.C. Ruff:

        Mr. Hutchinson. How would you have failed if in your 
        defense of the President you had requested certain 
        documents from the Congress or from other body and then 
        you had come to find out that they were never produced?

        Mr. Ruff. [I] think the point you make is an absolutely 
        solid and important one. This committee has every 
        obligation to inquire into the circumstances 
        surrounding those events in order to determine, first, 
        whether indeed there was any impropriety--and I am 
        firmly of the belief that there was none; second, to 
        determine whether there's a systemic problem that needs 
        to be corrected; and, third, whether the White House is 
        responding appropriately to the committee's concerns. I 
        view all of those as entirely legitimate inquiries, and 
        we're doing our best to try to respond to them.\150\
---------------------------------------------------------------------------
    \150\ ``Missing White House E-mails, Mismanagement of Subpoenaed 
Records,'' hearings before the Committee on Government Reform, 106th 
Cong. 115-116 (May 4, 2000) (emphasis added).

While Mills dismissed the investigation as wholly illegitimate, 
Ruff described it as ``entirely legitimate.'' \151\ Moreover, 
he said the committee had not merely a legitimate interest; it 
had ``every obligation'' to inquire. This contrast with Mills' 
position could not be more stark.
---------------------------------------------------------------------------
    \151\ Id.
---------------------------------------------------------------------------
    Mills' failure to divert attention from the issue at hand 
was illustrated by the reaction of Congressman Christopher 
Shays:

        Mr. Shays. [W]hen I read your statement, Ms. Mills, 
        before you even delivered it, I became so incensed by 
        the focus on you and not about getting at this issue 
        that I've written out a statement, and I've written out 
        the statement so I don't say more than I need to say. 
        So, Ms. Mills, you're not the only one disillusioned by 
        this process. I have been pushed from disappointment to 
        anger to outrage by the pervasive ethical and moral 
        minimalism of this White House. Among the important 
        issues you omitted from your list is respect for law 
        and the affirmative obligation of sworn officers of the 
        court to disclose material facts to properly 
        constituted authorities. As much as you might not like 
        it, this committee is such a properly constituted 
        authority. While undoubtedly deeply felt, your 
        statement conveyed to me a profound lack of respect for 
        this constitutional process, and I'll say unlike the 
        profound respect that I thought you showed to the 
        Senate. It's not enough for those in the White House 
        you defend to say no evidence has been found that 
        anyone intentionally sought to hide the e-mail system 
        problems. That's far too low a bar to set for 
        yourselves, to convince yourselves prematurely the 
        problem was minimal, to hide behind the expense and 
        difficulty of the reconstruction project, to delay any 
        disclosure of a problem until forced by negative 
        publicity. All bespeak an ethical opportunism that 
        allows by omission, if not by commission, the 
        obstruction of justice.




        

           *         *         *         *         *
        Now, I also remember some people at the White House. I 
        remember Billy Dale and John Drellinger . . . They were 
        in the White House and they got fired, and then to 
        defend their being fired the FBI and the IRS had to 
        take a good look at them.

        And I was looking at an old article, and this may have 
        been said in jest, Mr. Ruff, I know it was said in 
        jest, but it has an eerie feeling of strength to it. 
        You were interviewed by Bob Woodward[.] I'll read what 
        Mr. Woodward says[:] . . . If called to testify some 
        day at such an inquiry . . . Ruff says he knows just 
        what he would do, ``I'd say, gee, I just don't remember 
        what happened back then and they won't be able to 
        indict me for perjury and that maybe that's the 
        principal thing I've learned in 4 years, I just intend 
        to rely on that failure of memory.'' I know you said it 
        in jest, but the words you used to respond to 
        questions: ``I don't recall,'' ``I don't remember,'' 
        ``I understood this is an issue'' and so on and ``[I] 
        don't remember if I was at a meeting.'' The meeting: 
        Mr. Lindsay, on June 19th, how many people were at that 
        meeting when you spoke to Mr. Ruff?

        Mr. Lindsay. I don't recall, sir.\152\
---------------------------------------------------------------------------
    \152\ ``Missing White House E-mails, Mismanagement of Subpoenaed 
Records,'' hearings before the Committee on Government Reform, 106th 
Cong. 80-82 (May 4, 2000).

    In essence, that is the story of this investigation.
    [The exhibits referred to follow:]
    
    
                                  
