White House Ordered to Preserve All Email

Verunks writes "A federal judge Monday ordered the White House to preserve copies of all its e-mails in response to two lawsuits that seek to determine whether e-mails have been destroyed in violation of federal law. The issue surfaced in the leak probe of administration officials who disclosed Valerie Plame's CIA identity. ' The Federal Records Act details strict standards prohibiting the destruction of government documents including electronic messages, unless first approved by the archivist of the United States. Justice Department lawyers had urged the courts to accept a proposed White House declaration promising to preserve all backup tapes. The judge's order "should stop any future destruction of e-mails, but the White House stopped archiving its e-mail in 2003 and we don't know if some backup tapes for those e-mails were already taped over before we went to court. It's a mystery," said Meredith Fuchs, a lawyer for the National Security Archive.'"

Already the case?

[necro81]

I suppose there is nothing wrong with the White House being directed to preserve emails, given their past history [wikipedia.org]. However, one would think that the Presidential Records Act [archives.gov] would already force them to preserve any email that might have evidentiary value (see the third bullet down on the link).

On the other hand, a Bush Executive Order in late 2001 [wikipedia.org] seems to allow almost anything from the President's or VP's office to be made off limits:

...reflecting military, diplomatic, or national security secrets, Presidential communications, legal advice, legal work, or the deliberative processes of the President and the President's advisers...

Hopefully, this loophole can be closed and tighter retention policies put in place [wikipedia.org], not just for this case, but for all Presidential Papers. To put the Administration's opacity in perspective, Bush's executive order on this subject superceded one put in place by Reagan, and seeks to undermine a law put in place in response to Nixon.

Re:Why is this still an issue? Hello.. Armitage?

[GodfatherofSoul]

Why do you dittohead nitwits keep regurgitating that refrain? Libby was a leaker as well and the leaking "campaign" was probably initiated by Libby, though he may not have made the first phone call. Libby was busted for lying about his involvement. Check out the Washington Post's Libby timeline [washingtonpost.com].

It was the CIA who requested the investigation into the leak, not the Democrats on a "witch hunt." And, the only reason Armitage wasn't brought up on charges is the leaker statute is too weakly worded to nail him (something about the act being knowledgeable and intentional).

But, I guess if you don't see it on Faux News, it didn't happen :(

Re:Way too late

[jackpot777]

Meh! The Clinton administration did plenty of shredding too. Not to mention how he let OBL go when he could have nabbed him.

Googled August 20, 1998 [google.com]

Saying "there will be no sanctuary for terrorists," Clinton pounded the bejesus out of al Qaeda locations. Note: Iraq was not on the list. Note: Taliban released a report confirming that OBL wasn't killed, despite our efforts.

So what was the response to this attempt to nab him?

Glad you asked. [washingtonpost.com]

But Sen. Arlen Specter (R-Pa.), one of Clinton's severest critics earlier in the week, said, "There's an obvious issue that will be raised internationally as to whether there is any diversionary motivation."

Sen. John D. Ashcroft (R-Mo.), a possible presidential candidate in 2000, noted "there is a cloud over this presidency."

And Sen. Dan Coats (R-Ind.), who called on Clinton to resign after his speech Monday, said: "The president has been consumed with matters regarding his personal life. It raises questions about whether or not he had the time to devote to this issue, or give the kind of judgment that needed to be given to this issue to call for military action."

Not some bystanders. Not some pundits. Senators. Saying that maybe OBL was "diversionary motivation". Saying that trying to nab him put "a cloud" over the presidency. Brushing it off as "this issue." You might have noticed which side of the political divide they're all on.

You know: you can listen to as much spin and lies and distortion as you like, but it's not going to alter the past no matter how much you repeat it. You don't redefine the history that's already written, and viewable with just the easiest of Google searches, by repeating a lie. You can watch all the dramatic made-for-TV pieces you like that try to rewrite history to your liking ...but it's nowt next to the established timeline. To fact. To how things really happened, and were reported as such AT THE TIME.

Either live in reality, or keep your delusions to yourself.

Cheers.

Re:What a waste of tax money...

[nomadic]

All this over a CIA "operative" whose was not a covert agent. Per federal regulations, she was no longer considered covert because she had not received a covert assignment in over five years.

She was a covert agent at the time of Novak's column. Anyone who says otherwise is just making stuff up.

Re:Authority of the Courts

[civilizedINTENSITY]

Actually Marbury v. Madison has to do with establishing Judicial Review. The Act of Congress which extended the jurisdiction of the Supreme Court to include writs of mandamus was declared unconstitutional. This only means that the method in which the case was brought before the court was deemed illegal. Marbury v. Madison says nothing about denying the Supreme Court's authority to holding the Executive Branch accountable to the rule of law.

Re:Separation of Powers

[Chris Burke]

At least according to the Founders, we have 3 equal and separate branches. The Executive can't order the courts to do something. Or they can, but the Executive should have the right to tell them to pound sand. The courts shouldn't be able to order the Executive Branch to do something either. They are not, or at least should not, be the super-branch.

No, no, you have Separation of Powers exactly backwards.

"Separation of Powers" does not mean that each branch holds absolute power within its domain, and none of the other branches can tell it what to do.

"Separation of Powers" means that, of those powers enjoyed by the government, each branch wields a separate set of powers, that often oppose each other so as to create a balance. It does not mean all branches are "equal" in the sense that you meant. "Balanced" would be more appropriate.

The Legislative branch creates the legal code that define not just what is legal and illegal but also allowed government behavior. They define what the government looks like, including the executive branch. President Bush couldn't just go and create the Department of Homeland Security because he felt like it, he had to ask Congress to authorize this and more importantly to allocate government funds.

Maybe you noticed how President Bush had to get his own choice for Attorney General approved by Congress? That's because the law that establishes the Department of Justice says so. This is case of one branch wielding direct power over another.

The Executive branch enforces the law and directs the government within the laws (including funding and organization laws) defined by Congress. It also wields the power to veto laws passed by Congress as a way to curb Congress' power over the Executive, and the ability to appoint Justices as a way to influence the Judicial Branch.

The Judicial Branch rules on the law, and issues orders and punishments regarding compliance with the law. They are the only branch with this power -- any claim by Bush or the AG or anyone else that something is or is not legal is merely an opinion with zero weight until the court rules on it. And when someone -- including a member of another branch in government -- is seen not to be in compliance with the law, the court absolutely has the power to order them to cease. Since "obstruction of justice" is defined in a law passed by Congress, the Judiciary also has the power to order someone to cease destroying evidence.

That's what Separation of Powers means. It's three branches with different powers, and each branch absolutely Constitutionally does have the right to exercise those powers over other branches as appropriate.

So yes, the Courts can tell the Executive branch what to do when it involves compliance with the laws passed by Congress. Anything else would not just be un-Constitutional, it would also be a blanket statement that the Executive Branch was summarily above the law. Please don't tell me you think the Founders would have agreed with that.

Re:Our company was required to delete emails

[gstoddart]

The reasoning was that if we were sued and then deleted our emails, we were obstructing justice. If it's our policy to delete emails, then we aren't treating the evidence differently than any of the other emails.

Except, there have been court rulings which say that e-mail is considered to be a corporate record, and subject to retention rules. So, in discovery, if you can't produce something you're obligated to, you're fsck'd.

Now it falls into the category of things which if you delete before the allowed time, you get into deep do do. If you don't delete it as soon as it becomes legal to do so, you could get into deep do do since it will still be around to bite you in the ass. But, you need to know when you can delete it.

It is my understanding it is no longer legal to have a policy which simply says "all e-mail is deleted within 60 days" -- it gets a lot more complicated than that. The waters are much murkier in terms of what you can and can't delete. If you didn't keep it long enough (or, worse, after you'd been served a discovery motion you then deleted it) you could be in real trouble. In fact, if the company could have legally discarded of it, and mostly did, but one employee still had it in their files, you could still be screwed -- which is why companies try very hard to delete as soon as possible, but no sooner than the law allows.

Here's [itcinstitute.com] a link which sheds some light on the now confusing rules about deletion of e-mail. The legal landscape is now way beyond simply deleting after 60 days. I'm not sure there's a simple interpretation of any of this stuff any more.

Cheers

Re:I'm afraid they're too late

[jackpot777]

Just have some small additions: first, the difference between an email address suffix and an orginization. One organization could use many suffixes. One email suffix could be used by many people in a variety of locations (Gmail, anyone?). When this was first reported in March / April [washingtonpost.com]:

Susan Ralston, formerly Karl Rove's assistant at the White House, appears to have used at least four outside email accounts: a 'gwb' domain account, a 'georgewbush.com' account, and an 'rnchq.org' account -- all run by the RNC -- plus an AOL account.

One organization using a lot of @xyz.com's.

She once emailed two associates of lobbyist Jack Abramoff, 'I now have an RNC blackberry which you can use to e-mail me at any time. No security issues like my WH email.' So it's not as though they didn't know they were circumnavigating the law concerning the security of whitehouse.gov emails. The link above says:

Here's Bob Franken discussing the story on CNN yesterday: "It's about the Presidential Records Act, which requires the preservation of all official records of and about the president. . . .

"There are also messages to and from lobbyist Jack Abramoff, now in prison. At one point, according to investigators, after an e-mail was apparently sent by accident to the White House account of an assistant to Karl Rove, Abramoff fired another one saying, 'Damn it, it was not supposed to go in the White House system.' . . .

"Neither administration aides nor Republican Party officials would agree to be interviewed on camera after repeated requests from CNN.

So, what if it's shown that any government investigation was obstructed by someone deleting these emails [cornell.edu]...?

Whoever corruptly ...obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress--

Shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both.

US Code , Title 18, Section 1505. That's US Law. According to Cornell University Law School. But what do they know?

If you want to see a PDF of one such email exchange, click here [house.gov]. Sue Ralston has "please send all replies to [e-mail]" as her sig line, fer flip's sake. Page 2 is where Jack Abramoff himself says "Dammit. It was sent to Susan on her rnc pager and was not supposed to go into the WH system."

Amazing what you can find after five minutes of rooting around on the net, huh?!