[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.
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\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).
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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\
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\2\ ``The NewsHour with Jim Lehrer,'' PBS (Feb. 25, 1997).
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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\
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\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.
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\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.
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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\
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\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'').
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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\
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\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\
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\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).
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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\
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\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\
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\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\
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\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\
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\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).
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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.
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\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\
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\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\
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\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).
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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\
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\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\
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\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\
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\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\
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\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\
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\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\
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\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\
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\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\
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\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.
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\148\ Id.
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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\
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\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
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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\
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\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.
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\151\ Id.
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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\
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\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:]