[DOCID: f:hr1023v1.106] From the House Reports Online via GPO Access [wais.access.gpo.gov] Union Calendar No. 593 106th Congress, 2d Session - - - - - - - - - - - - House Report 106-1023 THE FAILURE TO PRODUCE WHITE HOUSE E-MAILS: THREATS, OBSTRUCTION, AND UNANSWERED QUESTIONS __________ EIGHTH REPORT by the COMMITTEE ON GOVERNMENT REFORM together with MINORITY AND ADDITIONAL VIEWS Volume 1 of 2 <GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT> Available via the World Wide Web: http://www.gpo.gov/congress/house http://www.house.gov/reform December 4, 2000.--Committed to the Committee of the Whole House on the State of the Union and ordered to be printed __________ U.S. GOVERNMENT PRINTING OFFICE 67-229 WASHINGTON : 2000 COMMITTEE ON GOVERNMENT REFORM DAN BURTON, Indiana, Chairman BENJAMIN A. GILMAN, New York HENRY A. WAXMAN, California CONSTANCE A. MORELLA, Maryland TOM LANTOS, California CHRISTOPHER SHAYS, Connecticut ROBERT E. WISE, Jr., West Virginia ILEANA ROS-LEHTINEN, Florida MAJOR R. OWENS, New York JOHN M. McHUGH, New York EDOLPHUS TOWNS, New York STEPHEN HORN, California PAUL E. KANJORSKI, Pennsylvania JOHN L. MICA, Florida PATSY T. MINK, Hawaii THOMAS M. DAVIS III, Virginia CAROLYN B. MALONEY, New York DAVID M. McINTOSH, Indiana ELEANOR HOLMES NORTON, District of MARK E. SOUDER, Indiana Columbia JOE SCARBOROUGH, Florida CHAKA FATTAH, Pennsylvania STEVEN C. LaTOURETTE, Ohio ELIJAH E. CUMMINGS, Maryland MARSHALL ``MARK'' SANFORD, South DENNIS J. KUCINICH, Ohio Carolina ROD R. BLAGOJEVICH, Illinois BOB BARR, Georgia DANNY K. DAVIS, Illinois DAN MILLER, Florida JOHN F. TIERNEY, Massachusetts ASA HUTCHINSON, Arkansas JIM TURNER, Texas LEE TERRY, Nebraska THOMAS H. ALLEN, Maine JUDY BIGGERT, Illinois HAROLD E. FORD, Jr., Tennessee GREG WALDEN, Oregon JANICE D. SCHAKOWSKY, Illinois DOUG OSE, California ------ PAUL RYAN, Wisconsin BERNARD SANDERS, Vermont HELEN CHENOWETH-HAGE, Idaho (Independent) DAVID VITTER, Louisiana Kevin Binger, Staff Director James C. Wilson, Chief Counsel David A. Kass, Deputy Counsel and Parliamentarian M. Scott Billingsley, Counsel Pablo E. Carrillo, Counsel Jason A. Foster, Counsel Kimberly A. Reed, Counsel Robert A. Briggs, Chief Clerk Philip M. Schiliro, Minority Staff Director Philip S. Barnett, Minority Chief Counsel Kristin Amerling, Minority Deputy Chief Counsel Paul Weinberger, Minority Counsel LETTER OF TRANSMITTAL ---------- House of Representatives, Washington, DC, December 4, 2000. Hon. J. Dennis Hastert, Speaker of the House of Representatives, Washington, DC. Dear Mr. Speaker: By direction of the Committee on Government Reform, I submit herewith the committee's eighth report to the 106th Congress. Dan Burton, Chairman. C O N T E N T S ---------- Page Table of names................................................... VIII Key dates........................................................ X Findings......................................................... XV I. Why the committee investigated the White House failure to manage e- mail records......................................................1 A. White House document production: a pattern of delay and omission......................................... 3 B. The significance of e-mail records to this committee's investigations........................... 9 II. The e-mail problems explained: a brief summary...................12 A. The Mail2 problem.................................... 14 B. The D-User problem................................... 17 C. The Office of the Vice President problems............ 18 III.The White House concealed the e-mail problems....................20 A. Mark Lindsay and Laura Callahan threatened contract employees............................................ 20 B. The Office of Administration repeatedly informed the White House about the e-mail problem................. 41 C. The White House Counsel failed to address the e-mail problem.............................................. 48 D. Additional problems hampered efforts to repair the e- mail system.......................................... 62 E. Office of Administration management failed to act.... 70 IV. The White House has misled Congress and the public about the e-mail problem..........................................................88 A. The White House response............................. 88 B. The White House's attempts to impede the investigation........................................ 96 C. The White House's gamesmanship with the production of the missing e-mails.................................. 105 V. Concerns regarding the joint e-mail investigation undertaken by Department of Justice and the Office of Independent Counsel.....112 A. The Attorney General's refusal to appoint a special counsel.............................................. 116 B. Tony Barry's false statements to the Alexander court underscore the Justice Department's conflict of interest............................................. 117 C. The Department of Justice's failure to interview material witnesses in a timely fashion............... 124 D. The Department of Justice's failure to devote adequate resources to the e-mail investigation....... 128 Exhibits......................................................... 130 APPENDICES Appendix 1.--Committee correspondence............................ 874 Appendix 2.--Document subpoenas issued to the White House........ 1119 Appendix 3.--Subpoenas to testify issued to the White House...... 1283 VIEWS Minority Views of Hon. Henry A. Waxman, Hon. Tom Lantos, Hon. Major R. Owens, Hon. Edolphus Towns, Hon. Paul E. Kanjorski, Hon. Patsy T. Mink, Hon. Carolyn B. Maloney, Hon. Eleanor Holmes Norton, Hon. Chaka Fattah, Hon. Elijah E. Cummings, Hon. Dennis J. Kucinich, Hon. Rod R. Blagojevich, Hon. Danny K. Davis, Hon. Jim Turner, Hon. Harold E. Ford, Jr., and Hon. Janice D. Schakowsky........................................... 1285 I. Executive summary..............................................1285 A. Background........................................... 1286 B. Allegations.......................................... 1287 C. The majority's version of Events..................... 1293 II. Background.....................................................1294 A. The Automated Records Management System.............. 1295 B. The Mail2 problem.................................... 1297 C. Other e-mail problems................................ 1302 D. Committe knowledge of the e-mail matter.............. 1304 III.Allegations regarding the Mail2 problem........................1305 A. Allegation that e-mails relevant to investigations have not been produced............................... 1305 B. Allegation that Northrop Grumman employees were threatened with jail if they discussed the Mail2 problem.............................................. 1306 C. Allegation that Northrop Grumman employees were told not to tell others about the Mail2 problem........... 1310 1. The OA instructions not to discuss............... 1310 2. The OA instructions regarding Northrop Grumman management....................................... 1313 D. Allegation that the White House concealed information about the Mail2 problem from Congress and various independent counsels................................. 1314 E. Allegation that Earl Silbert told the White House about the alleged threats and problems with subpoena compliance........................................... 1316 F. Allegation that the White House failed to disclose a computer disk containing non-produced Monica Lewinsky e-mails.............................................. 1319 G. Allegation that an OA employee filed a false and misleading affidavit about the Mail2 problem......... 1320 H. Allegation that an OA employee attempted to hide information about the Mail2 problem from Congress.... 1321 I. Allegation that Cheryl Mills was responsible for the failure to disclose the Mail2 problem................ 1322 J. Allegation that the Justice Department has failed to investigate, or to appoint a special counsel to investigate, the e-mail matter....................... 1323 K. Other allegations.................................... 1325 1. Allegation that the White House has delayed reconstruction of the e-mails.................... 1325 2. Allegation that the White House has impeded the committee's investigation........................ 1326 3. Allegation that OA briefing materials are evidence of a conspiracy to hide the Mail2 problem from Congress............................ 1327 4. Allegation that Sidney Blumenthal tried to prevent his e-mails from being archived.......... 1327 IV. Allegations concerning the Office of the Vice President........1328 A. Allegation that the OVP deliberately attempted to circumvent subpoena compliance....................... 1328 B. Allegation that the reconstructed OVP e-mails contain significant information.............................. 1330 C. Allegation that Vice President Gore sought to hide e- mails from investigators............................. 1331 D. Allegation that the Vice President was aware of records management problems in the OVP............... 1332 V. The costs of the investigation and the reconstruction effort...1333 Exhibits......................................................... 1336 Additional views of Hon. Dan Burton.............................. 1460 I. Further evidence that Northrop Grumman employees were threatened into secrecy about the e-mail problem.........................1460 A. Robert Haas told Joseph Vasta about the threats...... 1460 B. Northrop Grumman Director of Contracts Joseph Lucente's letter to the contractor was prompted by the allegations of threats........................... 1461 C. Earl Silbert's law firm has additional documents related to his contacts with the White House and representation of Northrop Grumman................... 1462 D. Telephone message slip confirmed contact between Earl Silbert and Special Counsel to the President Lanny Breuer in December 1998.............................. 1464 E. Earl Silbert was not Northrop Grumman's natural choice for outside counsel on a contracts matter..... 1464 F. Lanny Breuer's recollection of the contact with Earl Silbert.............................................. 1465 G. Lucente confirmed the extraordinary nature of OA Director Ada Posey's ``special task order'' request.. 1465 II. Northrop Grumman's recent failure to cooperate with the investigation.................................................1466 A. Northrop Grumman's specious assertions of privilege.. 1466 B. Northrop Grumman's refusal to waive attorney-client privilege............................................ 1471 C. Northrop Grumman's failure to provide documents in a timely manner........................................ 1473 III. Further evidence of the insufficiency of the test search and the unraveling of the ``disconnect'' defense......................1474 A. The attorney who performed the comparison changed her story................................................ 1474 B. Mark Lindsay failed to act after learning of the comparison results................................... 1476 IV. The Justice Department's questionable handling of the e-mail matter........................................................1477 A. Examples of advocacy in Alexander v. FBI that undermine confidence in the purported criminal investigation........................................ 1477 B. The Attorney General's failure to allocate adequate resources to the e-mail investigation................ 1480 V. The critics of the investigation have utterly failed to address the facts on their merits.....................................1481 A. Response to the minority staff rebuttal.............. 1481 B. Judge Todd Campbell's comments on the report......... 1487 C. Cheryl Mills' opening statement at the committee's March 4, 2000 hearing................................ 1488 Exhibits......................................................... 1491 APPENDICES Appendix 1.--Committee correspondence since September 27, 2000... 1567 Appendix 2.--Detailed chronologies............................... 1635 Appendix 3.--Office of the Vice President documents.............. 1653 TABLE OF NAMES ---------- The White House: William Jefferson Clinton............. President of the United States John Podesta.......................... Chief of Staff Mark Lindsay.......................... Assistant to the President for Management and Administration, former Director of the Office of Administration (OA) and former General Counsel to OA Virginia Apuzzo....................... Former Assistant to the President for Management and Administration The White House Counsel's Office: Beth Nolan............................ Counsel to the President Charles F.C. Ruff..................... Former Counsel to the President Dimitri Nionakis...................... Associate Counsel to the President Cheryl Mills.......................... Former Deputy Counsel to the President Lanny Breuer.......................... Former Special Counsel to the President Sally Paxton.......................... Former Special Associate Counsel to the President Michelle Peterson..................... Former Associate Counsel to the President The Office of the Vice President: Albert Gore, Jr....................... Vice President of the United States Charles Burson........................ Chief of Staff, former Counsel to the Vice President Todd Campbell......................... Former Counsel to the Vice President Kumiki Gibson......................... Former Associate Counsel to the Vice President Michael Gill.......................... Former Staff Secretary The Office of Administration: Michael Lyle.......................... Director Ada Posey............................. Former Director Paulette Cichon....................... Former Deputy Director Dorothy Cleal......................... Former Information Systems and Technology Division (IS&T) Director Kathleen Gallant...................... Former IS&T Director Dale Helms............................ Contracting Officer (CO) and IS&T Procurement Branch Chief James Wright.......................... Former Contracting Officer's Technical Representative (COTR) and IS&T Data Center Branch Chief Laura Callahan........................ Former IS&T Desktop Systems Branch Chief Karl Heissner......................... IS&T Systems Integration Development Branch Chief Daniel A. ``Tony'' Barry.............. Computer Specialist Nell Doering.......................... Supervisory Management Analyst Christina VanFossan................... Financial Management Division Director Joseph Kouba.......................... Financial Management Division Budget Analyst Northrop Grumman: Earl J. Silbert....................... Outside legal counsel, Piper Marbury Rudnick & Wolfe Joseph Lucente........................ Director, contracts and subcontracts James DeWire.......................... Program director Steven Hawkins........................ Former program manager Joseph Vasta.......................... Former program manager Betty Lambuth......................... Former Lotus Notes team manager Robert Haas........................... Lotus Notes administrator John E. Spriggs....................... Senior engineer Sandra Golas.......................... VAX Systems administrator Yiman Salim........................... Lotus Notes developer KEY DATES ---------- September 1996............................ A computer contractor mislabels a White House e- mail server ``Mail2'' instead of ``MAIL2'' causing incoming e-mail not to be recorded. December 2, 1997.......................... Attorney General Reno declines to appoint an independent counsel to investigate telephone fundraising by President Clinton or Vice President Gore. January 21, 1998.......................... Lewinsky scandal breaks. January 30, 1998.......................... Daniel A. ``Tony'' Barry prepares incident report describing e-mail anomaly with Lewinsky (INTERNETUSER1) and Raines (EOPUSER1) e-mail. June 11, 1998............................. Barry is deposed in the Alexander v. FBI case regarding the ARMS system. Asked by a Justice Department lawyer if e-mail sent from Idaho to a White House PC would be stored in the ARMS system, Barry states, ``If it was directed to their E-mail ID at the EOP, yes, it would be.'' June 12, 1998............................. Northrop Grumman (NG) contractors discover the Mail2 problem. June 15, 1998............................. Laura Callahan, Mark Lindsay, and NG contractors discuss Mail2 problem. Contractors say they were threatened, and three say ``jail'' was mentioned. June 18, 1998............................. Robert Haas (NG) completes an audit of the White House e-mail system. Document lists unrecorded e-mails totaling 246,083. June 19, 1998............................. Memorandum from Assistant to the President Apuzzo to John Podesta advising of anomaly in the Mail2 server. June 19, 1998............................. Charles Ruff calendar entry indicating meeting with Mark Lindsay and Cheryl Mills. July 10, 1998............................. Barry writes e-mail to his supervisor indicating he reviewed Alexander deposition transcript. Made changes and faxed to Department of Justice attorney. Same e-mail indicates that Barry spent ``a considerable amount of time this week working on the Mail2 problem.'' August 13, 1998........................... Barry writes e-mail to his supervisor: ``As far as I can tell, there is no movement under way to fix the problem and recover the lost records from the backup tapes. . . . I feel that the records must be recreated and any searches need to be reperformed if the requestors feel it is necessary[.] . . . This seems like a daunting proposition but I do not see any other alternative . . . I appologize [sic] for the rambling nature of this memo but I hope it captures my concerns and frustration level.'' August 17, 1998........................... President Clinton testifies before the grand jury and tells the Nation that he had an ``inappropriate relationship'' with Monica Lewinsky. August 28, 1998........................... NG Deputy Program Manager Vasta meets with NG contractors. They tell him about threats, express concern about document searches, and say they have been prohibited from speaking to superiors. Pursuant to previous instructions from OA management not to take notes, a contractor seizes Vasta's notes at the end of the meeting. September 9, 1998......................... NG Director of Contracts Lucente and NG corporate counsel meet with contractors. They tell him about threats, express concern about document searches, and say they have been prohibited from speaking to superiors. September 10, 1998........................ Barry sends e-mail to supervisors: ``I am growing increasingly concerned about the seeming lack of movement on the Mail2 problem. Do you know where the hold up is. We have known about this problem for 4 months now and not a single record has been passed to ARMS . . . even worse, the root problem has not been fixed.'' September 11, 1998........................ House of Representatives releases the report of independent counsel Starr to the public. September 11, 1998........................ Earl Silbert (former Watergate prosecutor retained by NG) has teleconferences with NG counsel and an NG employee. September 12, 1998........................ Earl Silbert has teleconference with NG counsel. September 14, 1998........................ Northrop Grumman sends letter to the White House stating that ``Ms. [Callahan] directed the Company employees to evaluate the [Mail2] problem and undertake remedial action, without Northrop Grumman management involvement. . . . Based on our review, the level of effort required to remedy the dysfunction will substantially exceed the scope of work contemplated under the referenced contract. As a consequence we are not proceeding with our efforts to remedy the dysfunction until we have received further contractual direction.'' September 15, 1998........................ Earl Silbert has teleconference with Northrop Grumman counsel. September 22, 1998........................ Earl Silbert has teleconference with Northrop Grumman counsel. September 25, 1998........................ Barry e-mail to his supervisor and to IS&T Director Gallant indicating there has still been no movement on Mail2 problem, even though he sent the ``concerned memo'' 2 weeks ago--needs to know his role for his ``own sanity.'' September 28, 1998........................ Earl Silbert has teleconference with ``White House counsel.'' October 9, 1998........................... Earl Silbert has teleconference with NG counsel. October 10, 1998.......................... Laura Callahan leaves the EOP (approximate date given by Callahan in her testimony). November 23, 1998......................... The Mail2 problem is prospectively cured. Henceforth, e-mail messages from outside the White House will be archived. Unarchived e-mails, however, still cannot be reviewed for subpoena compliance. November 24, 1998......................... Attorney General Reno declines to appoint an independent counsel to investigate Vice President Gore's solicitations from the White House. December 4, 1998.......................... Insight article on ``Computer Glitch Leads to Trove of `Lost' E-mails at White House'' is published. In the article, White House spokesman Barry Toiv confirms there is a problem but claims that e-mails were duplicative of documents produced to independent counsel Starr in the Lewinsky matter. December 7, 1998.......................... Attorney General Reno declines to appoint an independent counsel to investigate President Clinton's role in 1996 fundraising activities. December 11, 1998......................... Vasta sends memo on weekly COTR meeting. Northrop Grumman notified the ``Government'' about Insight magazine article. December 12, 1998......................... House Judiciary Committee approves articles of impeachment against President Clinton. December 15, 1998......................... Earl Silbert has a teleconference with Northrop Grumman counsel. December 19, 1998......................... The House of Representatives impeaches President Clinton. December 30, 1998......................... Earl Silbert has teleconference with ``White House counsel.'' January 29, 1999.......................... Attorney General Reno declines to appoint an independent counsel to investigate Harold Ickes' role in 1996 fundraising activities. February 12, 1999......................... The Senate acquits President Clinton of the impeachment charges. February 24, 1999......................... Kate Anderson (OA Counsel's office) deletes a reference to Mail2 reconstruction from materials used to brief Mark Lindsay for his testimony before congressional appropriators. Lindsay later explains that he did not need his briefing materials to cover things he already understood. March 2, 1999............................. Lindsay testifies before Congressman Kolbe's Appropriations Subcommittee. He neither requests funding to reconstruct unrecorded e- mails, nor informs the subcommittee about the Mail2 problem. March 19, 1999............................ OA General Counsel Lyle sends e-mail to Joe Kouba asking Kouba to ``correct'' OA budget materials used for briefing Virginia Apuzzo by removing bullet relating to Mail2 reconstruction. April 9, 1999............................. D-user problem discovered. This problem meant that all users whose names commenced with ``D'' did not have their e-mails archived from October 21, 1998, until June 1, 1999. July 9, 1999.............................. Barry declaration in Alexander v. FBI fails to mention the failure of ARMS. February 15, 2000......................... First article on the e-mail scandal mentioning threats appears in the Washington Times. The White House fails to inform the committee that there is a problem with subpoena compliance. March 17, 2000............................ White House finally acknowledges Mail2, D-user, and Office of the Vice President (OVP) e-mail problems in letter from Counsel to the President Beth Nolan to Chairman Burton. March 20, 2000............................ Mark Lindsay of OA sends letter to Congressman Kolbe requesting $1.7 million from the Armstrong account to remedy the e-mail problem. March 23, 2000............................ Michael Lyle appears before Congressman Kolbe's Appropriations Subcommittee. Lyle does not mention e-mail problems in his opening statement. March 23, 2000............................ Committee on Government Reform holds its first hearing on the e-mail scandal. March 30, 2000............................ Committee on Government Reform holds its second hearing on the e-mail scandal. April 27, 2000............................ Congressman Kolbe sends letter to Mark Lindsay stating: ``the Committee is extremely concerned that it took nearly two years for the White House to notify the Committee of this critical problem and the potential implications for additional moneys to both solve the problem and reconstruct the e-mails.'' May 3, 2000............................... Committee on Government Reform holds its third hearing on the e-mail scandal. May 4, 2000............................... Committee on Government Reform holds its fourth hearing on the e-mail scandal. June 7, 2000.............................. White House admits over 1 year's worth of OVP e-mail permanently destroyed. Although four hearings discussing the White House failure to comply with subpoenas have been held, this is the first notification that there is a significant problem with OVP subpoena compliance. August 23, 2000........................... Attorney General Reno declines to appoint a special counsel to investigate Vice President Gore's fundraising activities. September 22, 2000........................ White House produces first batch of reconstructed e- mails responsive to the committee's previous subpoenas. Documents include several e-mails related to the Vice President. New e-mails have a bearing on the Hsi Lai Temple event and White House fundraising coffees. However, the universe of e- mails reconstructed appears not to have been searched for other issues of interest to the committee. September 26, 2000........................ Committee on Government Reform holds its fifth hearing on the e-mail scandal. The Justice Department refuses to provide the committee with the number of full time attorneys assigned to their e-mail investigation. FINDINGS OF THE COMMITTEE ON GOVERNMENT REFORM A computer problem caused a failure to archive e-mail messages sent from outside the White House to over 400 White House officials from September 1996 until November 1998. Consequently, White House lawyers were unable to review information in order to determine whether it should be turned over to investigators in order to comply with subpoenas. As the Committee on Government Reform began to investigate this matter, it became clear that congressional, Justice Department, and independent counsel investigations were harmed by this failure. Earlier this year the White House was forced to admit that it had not complied with subpoenas issued by the Committee on Government Reform. On September 22, 2000, the White House made its first production of recovered e-mails to the committee. A number of those e-mails are highly relevant to the committee's investigation of campaign finance matters and had not been provided to the committee in the preceding 3\1/2\ years. Furthermore, the recently released e-mails point to individuals who would have been interviewed years ago, if their involvement in matters under investigation had been known earlier. Soon after the committee began its investigation, it also learned of other information management failures. Most significantly, the committee learned that the Vice President's Office took affirmative steps to keep from storing its e-mail records in the only system that would permit full and accurate subpoena compliance, thereby ensuring incomplete document productions. In addition, approximately 1 year of e-mail records from the Vice President's Office were never backed up, meaning that any e-mails that were deleted during that critical time period are lost forever. Unlike the other White House e- mail problems, the Office of the Vice President problems stem from a conscious decision made by the Vice President's Office, and span at least 6 years of the Clinton Presidency. The implications of these revelations are profound. When the Nixon White House was forced to admit that there was an 18\1/2\ minute gap on a recorded tape, there was a firestorm of criticism. The ``gap'' created by hundreds of thousands of missing e-mails, and by a Vice Presidential staff decision to manage records so they could not be searched, is of no less consequence. If senior White House personnel were aware of these problems, and if they failed to take effective measures to recover the withheld information--or inform those with outstanding document requests--then the e-mail matter can fairly be called the most significant obstruction of congressional investigations in U.S. history. While the White House's obstruction in Watergate related only to the Watergate break-in, the potential obstruction of justice by the Clinton White House reaches much further. The e-mail problem effects almost every investigation of the administration, from campaign finance to Monica Lewinsky. It is important to remember that the White House first discovered that there was a problem with its subpoena compliance at critical periods in two of the most significant investigations in our recent history: the inquiry that led to the impeachment of President Clinton, and the Justice Department investigation into efforts by China and other foreign entities to influence U.S. elections. This report presents information that personnel in the Clinton White House knew that the e-mail problems necessarily meant that there had been incomplete document production to investigators, and that senior personnel did nothing to correct the problem until it was independently discovered. The failure to report the missing e-mails is the latest in a long string of actions meant to thwart congressional and criminal investigations focused on the White House. These actions include a White House Counsel's refusal to comply with a document subpoena for months until threatened with a contempt citation, the fraudulent use of legal privileges to withhold documents, the failure to produce videotapes of the President until they were independently discovered, and the intentional concealment of relevant documents in the Counsel's office itself. The gravity of the White House obstruction became much clearer on September 22, 2000, when the White House released e- mails reconstructed by the Federal Bureau of Investigation. Although the FBI only reconstructed a small percentage of available backup tapes, the recently produced e-mail revealed significant new evidence, and identified new witnesses who have never been interviewed. The new information in the e-mails would have been highly relevant to the Justice Department's three interviews of the President and five interviews of the Vice President. In fact, the new evidence directly undermines testimony previously given by the Vice President. The Committee on Government Reform has conducted an investigation into the White House e-mail problems, and the concomitant failure by the White House to produce documents to Congress, the Justice Department, and a number of independent counsels. From the outset, the committee set about determining whether senior White House officials were aware of the problem, what steps they had taken to cure the problem, and why Congress had not been informed. The committee held 5 days of hearings, issued 5 document subpoenas, and interviewed 34 individuals. It has been hampered in its investigation by a White House staff that is more interested in covering up the problem than in full disclosure. This report describes what the committee learned, and this preliminary section explains the findings of the committee. The committee's findings have been grouped in seven categories: (1) an explanation of why e-mail records are critical to the committee's investigations; (2) evidence that the White House Counsel's Office failed to cooperate with the committee; (3) findings that the e-mail problem was understood by senior White House staff; (4) a description of evidence that the White House obstructed numerous investigations; (5) a recommendation that a special counsel be appointed to investigate the e-mail matter; (6) a recommendation that a special master should be appointed to supervise the review and production of responsive White House e-mail after the reconstruction process has been completed; and (7) a finding that the White House decision to keep the e-mail matter secret has added to the cost of reconstructing the e-mails. E-mail Records Are Critical to the Committee's Investigations <bullet> E-mail communication is indispensable to fact-finding. Technological innovations have made e-mail one of the most effective methods of communication. It is not possible to conduct a thorough investigation without reviewing all relevant information about a subject, and e-mail provides a particularly candid insight into people's thoughts and communications. For example, when the committee investigated President Clinton's decision to grant clemency to 16 Puerto Rican terrorists in 1999, it was significant that one senior adviser to the President e-mailed the White House Deputy Chief of Staff, the White House Director of Intergovernmental Affairs, and two Deputy Assistants to the President: ``[t]he VP's Puerto Rican position would be helped.'' E-mail communications have been no less important in other investigations. When a key National Security Counsel aide was asked about giving photographs to DNC fundraiser Johnny Chung, a man he described as a ``hustler,'' he replied by e-mail ``to the degree it motivates him to continue contributing to the DNC, who am I to complain?'' Prior to the Hsi Lai Temple event, when the Vice President was e-mailed by one of his staff members that ``[w]e've confirmed the fundraisers for Monday, April 29th,'' he replied, also by e-mail, ``[I]f we have already booked the fundraisers then we have to decline.'' The production of recently reconstructed e-mails on September 22, 2000, to this committee shows that the concerns about withheld e-mails are not hypothetical. One e-mail from the person ``desking the VP's trip to CA on 4/29'' states that the Vice President was committed to do a fundraising event in Los Angeles on April 29, 1996. The e-mail was drafted on April 9, 1996, and the only event in Los Angeles as of that date was a luncheon at the Hsi Lai Temple. This information is significant because as of April 9, 1996, the Hsi Lai Temple event was considered a fundraiser, and there is no mention of an event at another venue--a direct contradiction of representations that a separate fundraising event had been scheduled and then canceled at the last minute. Another e-mail from Vice President Gore's political director, in discussing a ``coffee list,'' asks whether ``these are FR coffees right?'' * It is significant that the author of this e-mail, Karen Skelton, has never been interviewed by the Justice Department. Yet another e-mail to the Vice President himself offers him suggestions on how to avoid having his e-mails recorded by the White House recordkeeping system. The information in these e- mails is not only important for evaluating whether the Vice President committed perjury in any of his Justice Department interviews, it also shows that it is impossible to come to a final conclusion about underlying campaign finance matters without a complete review of all the previously withheld information. --------------------------------------------------------------------------- * When the White House released these documents, White House staff suggested that ``FR'' could stand for ``finance-related,'' not ``fundraiser.'' However, other documents authored by the same individual leave little doubt that she used the abbreviation ``FR'' to refer to fundraisers. For example, in a March 18, 1997, e-mail she writes: ``one FR date before 2 pm today.'' In another e-mail authored on the same day she uses ``FR information'' for the subject description and then goes on to talk about a specific fundraising event in explicit detail. She also uses ``FR'' in the following construction: ``The questions on the FR are . . . [.]'' --------------------------------------------------------------------------- The White House e-mail problems began in September 1996, a particularly significant period in the White House fundraising scandal. Within a month, articles about fundraising improprieties began to surface in major publications, triggering a torrent of communication between participants in various elements of the scandal. There is, therefore, a legitimate expectation that there would be significant e-mail traffic that has not been produced to this committee. The archiving problems have also prevented most of the e-mails from a much longer period of time in the Office of the Vice President from being searched in response to subpoenas. This is important because the Vice President is at the center of significant aspects of the campaign fundraising investigation. Indeed, the September 22, 2000, production of e-mails to this committee shows how significant some of the withheld e-mails are. There is also a realistic expectation of additional information responsive to subpoenas in the Puerto Rican terrorist issue and to the Hudson, WI gaming permit matter. At present, the Justice Department is apparently not even making an effort to extract e-mails discussing these issues. Although obstruction of the impeachment inquiry is not the focus of an investigation by this committee, the e-mail problems also cover almost the entire period that led to the impeachment of President Clinton. The White House Has Failed to Cooperate Fully With the Committee's Investigation <bullet> The White House and White House employees have not cooperated fully with this committee's investigation of the e- mail problems. Assistant to the President Mark Lindsay, former Deputy Counsel to the President Cheryl Mills, and former White House supervisor Laura Callahan declined to be interviewed by the committee, thus necessitating the issuance of subpoenas. It is rare to have government employees elect not to cooperate with congressional investigations, and the failure of Callahan and Lindsay to be interviewed impeded the committee's investigation. Another example of the White House failure to cooperate occurred in May 2000, when an Associate Counsel to the President dodged service of a congressional subpoena in an effort not to testify before Congress about his own role in the White House e-mail problems. This conduct by a legal adviser to the President was shameful. Document production has also been a source of some frustration to the committee. For example, an important document drafted by White House computer supervisor Daniel A. Barry was provided to the committee the day after Barry testified before the committee. This purposeful action by the White House prevented the committee from questioning Barry effectively about this document when he was under oath. Doubtless, it took more time, thought, and effort to withhold the document than it would have taken to produce it in a timely fashion. By holding the document back, however, the White House obtained a small tactical advantage. The White House also initially refused to provide the committee with the ``test'' e-mail messages furnished to the White House Counsel to determine if the e-mail problem was responsible for ongoing document production problems. As with other actions of the Counsel's Office, the initial obstructionist position wasted time. If the committee had not followed up on this matter, it would still not know the extent of the White House's deficient efforts to solve the e-mail problem. As soon as the e-mail problem was discovered in early 2000, White House and Justice Department officials made public statements diminishing the scope and importance of the problem. If the White House was prepared to tolerate these self-serving and inaccurate statements, there is far less reason to believe subsequent statements made to investigators by those who continue to protest that nothing improper was done. The E-Mail Problem Was Explained to Senior White House Staff and Their Assertions That a ``Disconnect'' Caused Them Not to Understand the Ramifications of the Problem Are Not Believable <bullet> White House senior staff, including the Counsel to the President and the Deputy Chief of Staff, were clearly told about the e-mail problem. The fact that a memorandum about the e-mail problem was drafted for the White House Deputy Chief of Staff within days of supervisors being informed of the problem illustrates that White House staff understood that this was a matter of significance. The memorandum conveys very clearly that incoming internet e-mail was not being captured by the ARMS system, and that ARMS was responsible for ``identification and retrieval of documents in response to information requests.'' Of course, the Counsel to the President, as the person responsible for producing documents pursuant to subpoenas, was required to have a very clear understanding of the importance of ARMS to document production. John Podesta, who is now the White House Chief of Staff, and who had extensive experience dealing with scandal-related matters, told the committee that in his role as Deputy Chief of Staff at the time, he understood that the problem might have an impact on subpoena compliance. Mark Lindsay, now an Assistant to the President and then the top lawyer at the Office of Administration, discussing what he told senior White House personnel, informed the committee: ``I remember being very specific about the technical problem and the fact that incoming e-mail was probably not being ARMS managed.'' He also indicated that he understood that there was a potential impact on searches for documents. It is important to note that when he was first informed of the e-mail problem, Lindsay personally spoke to the contract employees, with whom he had never spoken before or since. Given the high profile treatment of the issue, the easily understood description of the problem in the memorandum from an Assistant to the President to the White House Deputy Chief of Staff, and the briefings that accompanied the memorandum, it is implausible that senior White House staff did not understand the ramifications of the White House e-mail problem. <bullet> On two separate occasions in 1998, after particularly important developments in the e-mail problem, a Washington superlawyer contacted White House lawyers. In September 1998, employees went to Northrop Grumman management months after discovering the e-mail problem. They talked about being threatened, how they were told not to write things down, and how they thought the law required a speedy reconstruction of the e-mails. Northrop Grumman then retained Washington superlawyer Earl Silbert. He talked to Northrop Grumman counsel and an employee. He then called the White House Counsel's Office. Two months later, in December 1998, a magazine article explained some of the elements of the e-mail story. Northrop Grumman forwarded the article to the White House. Earl Silbert was again brought into the loop and again called the White House Counsel's Office. Silbert now states that he does not remember with whom he talked to or what was discussed on either of these calls. The fact of the calls indicates that the White House Counsel's Office may have had exposure to the e-mail problem in addition to the initial briefing and memorandum. Thus, White House claims of a ``disconnect'' become difficult to believe. <bullet> The explanation that White House officials failed to understand the legal ramifications of the e-mail problem from the very beginning is not credible. The e-mail problem was not technically complex--a large universe of records had not been put in the only place that allowed for comprehensive searches of those records. This was understood immediately by technical staff, and it was communicated effectively to senior political staff. Indeed, the importance of this matter--and the fact that it was understood to be important--is seen in the fact that this was the only e-mail problem in the history of White House computer usage that resulted in a memorandum from an Assistant to the President to the President's Deputy Chief of Staff, and that involved an immediate briefing of the Counsel to the President. Given what the committee has learned during its investigation, the mere fact that e-mail was not being archived in the ARMS system was not the rationale behind the urgency with which the problem was communicated to Deputy Chief of Staff John Podesta and Counsel to the President Charles Ruff. Rather, the urgency came from the fact that people clearly understood that there was a potentially very large number of documents, in the hundreds of thousands, that had never been reviewed and that might be responsive to earlier document requests. The fact that this matter came up during the investigation that led to the impeachment of the President could have only dramatized the potential significance of the problem. Furthermore, the memorandum and briefing did not languish for weeks or months; the memorandum was drafted, approved, submitted, and the President's Counsel was briefed within 4 days of a supervisor first being notified of the problem. As one former White House official told the committee: ``you'd have to be an idiot not to understand that the problem affected subpoena compliance.'' The only people who claim that they did not understand the problem were senior advisors to the President. These people had the greatest stake in not doing anything to solve the problem, particularly when one considers the intense investigative scrutiny the White House was facing in June and July 1998. For example, on the day that Charles Ruff was being briefed about the e-mail problem, Presidential friend Vernon Jordan appeared before the grand jury for a fifth time. The Lewinsky probe was proceeding vigorously and individuals were appearing before a grand jury, the Secret Service privilege claim was being appealed, and Presidential confidant Bruce Lindsey was invoking privileges in order to avoid testifying in the Lewinsky matter. The fact that the White House was under such pressure would have made it even more memorable when senior White House advisors were told that there was an entirely new source of information that had never been reviewed by White House lawyers. In addition, the candid nature of most e-mail messages would have made the prospect of a large universe of unreviewed e-mail information particularly worrisome. Evidence That the White House Obstructed Numerous Investigations <bullet> Contract employees were threatened by White House staff. This helped the White House conceal the problem for almost 2 years after it was first discovered. Apparently, the White House was worried that a contract employee would disclose that there was a problem with White House recordkeeping. Thus, White House managers threatened employees, prohibited them from disclosing the problem to their supervisors, and required that no records be committed to paper. White House staff even threatened at least one Northrop Grumman employee with jail if he disclosed the existence of the problem. By successfully intimidating employees and limiting the number of people who knew about the e-mail problems, the White House caused the following to happen: (1) Congress, the Justice Department, and various independent counsels were obstructed in their legitimate investigations; (2) months passed before any remedial steps were taken; (3) the problem was kept a secret until 2000; (4) taxpayers have been forced to pay more money for reconstruction efforts than would have been necessary if the problem had been disclosed and cured immediately; and (5) additional embarrassing information was kept from investigators and the public until long after the impeachment vote and until the public had substantially lost interest in the investigation of Chinese efforts to influence U.S. elections. So strong was the impression left by the threats that Northrop Grumman contract employees met with supervisors to discuss their concerns 2 months after the threats were first conveyed. Shortly thereafter, the problem was communicated to Earl Silbert, a prominent Washington lawyer hired specifically to deal with Northrop Grumman's problems with the White House. Two weeks after Silbert called the White House, Laura Callahan--who allegedly threatened employees--left the White House. <bullet> White House staff told Northrop Grumman contract employees that they could not consult with their supervisors. The White House's actions show a disregard for the welfare of the employees, and a desire not to solve the e-mail problem. As a rationale for his secrecy orders, Mark Lindsay claimed that he did not want the Northrop Grumman employees to discuss sensitive information ``around the water cooler.'' Lindsay's explanation admits that he was concerned about news of the e- mail problem leaking out. However, there was no legitimate reason to keep the Northrop Grumman employees from consulting with their superiors. At a minimum, it should have been obvious that the work performed by employees who are unable to consult with their supervisors and who are prohibited from taking notes will usually be substandard. <bullet> White House staff told Northrop Grumman employees that they could not take notes, indicating premeditated concern that the e-mail matter could get White House officials into trouble. At the same time they told Northrop Grumman staff not to speak about the e-mail problem, White House staff also instructed them not to take any notes. It is difficult to perform professional tasks when one is not able to take notes. The only reasonable explanation for instructing professional staff not to take notes is a fear that at some point those notes might become public. The White House's decision to work in secrecy indicates that there was more concern about public disclosure than solving the problem. <bullet> Low-level employees made it very clear that without assistance from supervisors, there would be no solution to the problem. It is self-evident that if an employee says that it is not possible to complete a task without assistance, and no assistance is offered, then the task will probably not be completed. That is what happened. It is dishonest for the White House to argue now--as Counsel to the President Beth Nolan has done--that the White House failed to address the problem because of a ``disconnect.'' A Branch Chief in the Office of Administration office that was responsible for e-mail matters was asked if he ever got directions from his superiors to move forward with the restoration project, and he responded ``no.'' When asked: ``at any time before the year 2000 did any manager of yours come and say you must do something to get this fixed,'' the answer was again ``no.'' He added: ``I was waiting for direction to proceed along with the funding that's required to do that.'' Another employee told the committee that her office could not get an answer out of senior supervisors Mark Lindsay or Michael Lyle about money to reconstruct the e-mails. This story was repeated often to the committee--senior officials who had an understanding of the problem simply refused to do anything to fix it. Another indication of the insincerity of senior management regarding intent to cure the problem is the fact that the problem was identified in June 1998 and it took until November 1998 to take steps to prevent incoming e-mail from not being properly archived. Thus, even after the problem was identified and brought to the attention of the White House Counsel, Deputy Chief of Staff and other high-level Presidential advisers, White House staff allowed the initial problem to be compounded by 5 additional months of unarchived e-mail before a prospective solution was implemented. Thus, the failure by senior management to effect an immediate cure caused the problem to become approximately 20 percent worse. In September 1998, ARMS manager Tony Barry wrote: ``I am growing increasingly concerned about the seeming lack of movement on the Mail2 problem. Do you know where the hold up is. We have known about this problem for 4 months now and not a single record has been passed to ARMS . . . even worse, the root problem has not been fixed.'' When one manager pressed Mark Lindsay to do something, she was repeatedly told, ``Mark's working on it.'' Lindsay, however, did nothing to provide direction to subordinates. He failed to take steps to archive the unarchived e-mail, thus ensuring that it was unavailable for searches. He and others in the Office of Administration also took steps to prevent Congress, the Campaign Financing Task Force at the Justice Department, and the independent counsels from learning of the problem. In sum, the committee believes that the sheer number of ignored inquiries for technical direction, contractual direction and funding assistance suggests that the lack of leadership by OA management is not simply attributable to incompetence, or to a series of ``disconnects'' as the White House has claimed. Rather, it appears to the committee that the failure to give direction was an intentional decision on the part of OA management. <bullet> The failure to notify Congress about the e-mail problem indicates that the White House wanted to cover up the e-mail problem, not solve it. The committee has interviewed most principals in the e-mail matter. No one has been able to offer a cogent explanation as to why Congress was kept uninformed. Michael Lyle, the Director of the Office of Administration, was asked why the e-mail problems were not raised with Congress. His response perfectly demonstrates the state of mind of the White House in this matter: ``[w]hen you go to appropriators, they ask a lot of questions.'' If senior White House officials were not purposefully obstructing various investigations, they would have raised the issue with Congress, sought funding to fix the problem, and answered all relevant questions. Assistant to the President Mark Lindsay told the committee that ``my first belief was to do whatever was necessary to fix the computer problem.'' This self-serving statement is contradicted by the fact that he and his staff took no steps ``to do whatever was necessary,'' and they did not even ask for funding to do the work that was required. The former Deputy Director of the Office of Administration stated that she understood that if money and personnel were not dedicated to the problem, it would not get fixed. Mark Lindsay also understood that nothing would happen without funding. As one former employee put it: ``[h]e knew because I communicated that without this money, [the problem] would not be fixed.'' For the fiscal years 1996, 1997, 1998, 1999, and 2000, the White House Office of Administration asked Congress for $169,231,000. It received $186,278,000. Thus, over the 1996- 2000 timeframe, Congress gave the White House over $17 million more dollars than it requested. If the White House had informed Congress that all oversight of the White House was being obstructed by a records management problem, there is no doubt that Congress would have provided the funds to cure the problem. <bullet> A minimally competent lawyer, much less the two most senior White House lawyers, could not have believed that the ``test'' performed to determine the extent of the e-mail problem, had any probative value. Counsel to the President Charles Ruff was told, in writing, that there was a problem that involved a failure to archive incoming e-mail in the one place that could be searched for document request compliance. Neither he, nor Deputy Counsel to the President Cheryl Mills, performed even a minimally competent analysis to understand the scope of the problem. They simply did nothing remotely reasonable to determine the impact of the problem on subpoena compliance. In fact, it appears that they ultimately compared two stacks of documents that were apparently obtained in the same way, and from the same place. Predictably, there was no difference between the documents. It should have been obvious then, as it is now, that the ``test'' conducted shed no light on whether the ARMS system was functioning properly. The poor effort they made can only be understood in terms of a predisposition to cover up the problem. Furthermore, 10 months after he first briefed the White House Counsel's Office, Mark Lindsay returned and informed the Counsel's Office that additional e-mails had not been archived because of a computer problem affecting users whose names commenced with the letter ``d,'' and that this body of information also could not be searched. Thus, a new universe of documents existed that had never been properly searched for responsiveness to document requests. Given how simple it is to explain the problem, and the fact that variations of the same problem were explained twice, the White House contention that a ``disconnect'' had occurred is not believable. If the White House was not attempting to cover up wrongdoing, it would have responded promptly to the committee's request for the e-mails that Charles Ruff and Cheryl Mills used to conclude that there was no ongoing problem. Former White House Counsel Ruff told the committee that the ``test'' involving e-mail from Monica Lewinsky to Ashley Raines stood for the proposition that there was no ongoing problem. Seeking to verify Ruff's testimony, the committee requested that the White House produce the ``test'' batch of e-mails. The White House refused. Counsel to the President Beth Nolan argued that the batch of e-mails Ruff used in the test was unrelated to the committee's investigation. Perhaps realizing the mutual exclusivity of her position with Ruff's original reasoning, Nolan ultimately reversed herself and produced the documents. The initial refusal to make these documents available is particularly interesting given another recent development regarding the ``test.'' On September 28, 2000, former White House lawyer Michelle Peterson filed an affidavit in Federal court that comments on the ``test'' and the two stacks of e- mails that were compared. She stated: ``during the course of my testimony to the Grand Jury, it appeared from the documents shown to me that I may have been mistaken with respect to one or possibly two e-mails.'' Thus, it now appears that even the original White House claim that the ``test'' stood for the proposition that there was no problem is now in doubt. <bullet> In November 1998, Insight magazine published an essentially accurate description of the initial e-mail problem. The fact that the White House failed to notify Congress and take steps to cure the problem after the publication of this article makes it appear that the White House purposefully continued to cover up the e-mail problem. Northrop Grumman employees working in the White House understood that the Insight magazine story was essentially accurate. They provided a copy of the article to White House employees. The fact that nothing was done to commence work to cure the problems or notify Congress indicates a willingness to cover up the problem. <bullet> The White House and Justice Department allowed a White House staffer to file a false affidavit which helped cover up the e-mail problem. On July 9, 1999, Tony Barry--a White House employee who fully understood that the e-mail problems prevented the White House from complying with subpoenas--signed an affidavit that stated: ``since July 14, 1994, e-mail within the EOP system administered by the Office of Administration has been archived in the EOP Automated Records Management System (ARMS.)'' This statement was false, and had the effect of covering up the e-mail problem for 8 more months. Although many White House lawyers dishonestly continue to argue that this statement is technically true, Assistant to the President Mark Lindsay recently admitted the obvious when he testified in Federal court that this statement was false. There was only one reason to permit Barry to sign this false affidavit--a desire on the part of White House and the Justice Department lawyers who represented the White House to cover up the e-mail problem so that Congress, the Justice Department Campaign Financing Task Force, and various independent counsels would not know that their investigations had been obstructed. Ongoing representations that Barry's statements are ``technically correct'' indicate an element of bad faith that should be taken into account when assessing White House credibility. Barry also testified at a deposition that internet e-mail coming into the White House would have been captured by ARMS. Shortly thereafter, Barry learned that this testimony was not true. Neither Barry, nor the Justice Department, nor the White House, corrected this testimony. <bullet> The testimony of White House lawyers that they could not recall key facts and events is not credible. Information that there was a large universe of documents that had not been reviewed apparently had such minimal impact on White House lawyers that they failed to take competent steps to determine the extent of the problem. It is more likely that they understood the extent of the problem and simply did nothing effective to solve it. The current failures of recollection about various important matters by White House lawyers is simply not credible. <bullet> A decision by the Vice President's Office to have his e-mail records managed separately from the rest of the White House meant that the Vice President's Office could not effectively comply with subpoenas. Recognition that the law requires records to be managed in such a manner that they will be preserved led to the creation of the White House's Automated Records Management System (ARMS). Furthermore, the ARMS system provided White House lawyers the only possibility of effective compliance with subpoenas. However, Counsel to the Vice President Todd Campbell personally decided that the Vice President would not store his records in a way that would permit compliance with document requests. Users would be able to search what was in their electronic mailbox at any given time, but they would not be able to produce records that had been deleted, as one is able to do with a proper records management system. Thus, it is clear that searches for e-mails in the Office of the Vice President were incomplete. Only those e-mails that OVP staff chose to print out or had saved on their computers could have been retrieved. There can be little doubt that the Vice President's advisers knew that their actions would permit his office to operate in a manner that would make it less susceptible to oversight. In effect, they ``reinvented government'' to stay above the law and congressional oversight. Based on what the committee has learned thus far, it is highly likely that the Vice President, or his staff, made a decision that prevented e-mails from being preserved in a manner that would lead to the production of e-mail communications to Congress, the Justice Department, or other potential investigators, such as independent counsels. The Vice President's Office appears to have adopted a prophylactic program to guarantee that fewer documents would exist in the event that document requests were made. In fact, the OVP system prevented many incoming, outgoing and internal e-mails from being preserved, and prevented most from being searched throughout the Vice President's time in office. A Special Counsel Must Be Appointed to Investigate the E-mail Matter <bullet> The Justice Department is on both sides of the same case. Justice Department lawyers have represented the White House and have helped cover up the underlying problem. In fact, they prepared a critical affidavit that, according to an Assistant to the President, was ``not true.'' As of the writing of this report, however, the Attorney General has the same lawyers who helped prepare the false affidavit representing the White House in Federal district court. Indeed, the false affidavit that was prepared by Justice Department lawyers appears to have resulted in one substantive investigative step--letters from the Justice Department and the Office of Independent Counsel to the man who signed the affidavit promising that he is not a target of the investigation. This letter was sent out before key interviews were conducted, and it appears to be part of an effort to sweep this matter under the carpet. <bullet> The Justice Department has devoted insufficient resources to this case. The Justice Department has allegedly had one part-time lawyer conducting the criminal probe into the e-mail problem, and she has recently left the Justice Department. At present, it appears that no full time Justice Department lawyers are assigned to the case. The fact that the Justice Department has devoted few personnel to the e-mail investigation also indicates that it is not being taken seriously by the Clinton administration. Perhaps more important, the Justice Department is currently devoting more lawyers to defending the White House than to investigating possible criminal obstruction of its own campaign finance investigation. Thus, there is not even an appearance of impartiality. <bullet> The Justice Department has failed to interview a number of key witnesses. The failure to talk to witnesses early in the investigation means that there has been considerable time for collaboration and deterioration of memories. Nevertheless, it is important to interview as many individuals as possible, and the Justice Department has failed thus far. A special counsel would interview relevant witnesses and, if necessary, bring witnesses before a grand jury. <bullet> The Justice Department is overstating the ability of the Office of Independent Counsel Ray to investigate the White House e-mail problems. In an effort to deflect attention from its understaffed and woefully inadequate investigation of the potential criminal aspects of the e-mail problem, the Justice Department has repeatedly referred to the fact that Office of Independent Counsel (OIC) is also investigating the e-mail matter. When making these statements, Justice Department personnel have made misleading references to the OIC's jurisdiction. The Office of the Independent Counsel has no jurisdiction to pursue allegations that Congress or the other independent counsels have been obstructed. Therefore, it cannot investigate the effect of the e-mail problem on the campaign finance investigation, or other areas of concern to this committee. It is unseemly for the Justice Department to misstate this important fact, and it indicates a willingness on the part of some Justice Department officials to put the onus for the investigation on the independent counsel. <bullet> A special counsel is needed to investigate obstruction of justice and perjury charges against Mark Lindsay, Laura Callahan, Cheryl Mills, Charles Ruff, Daniel A. Barry, and the Justice Department lawyers who advised Barry to submit a false affidavit in Federal court and who failed to correct Barry's false deposition testimony. As this report makes clear, there are significant unanswered questions regarding the White House e-mail problems. At a minimum, however, there should be a serious investigation of the conduct of Mark Lindsay, Laura Callahan, Cheryl Mills, Charles Ruff and Daniel A. Barry. In addition, serious consideration should be given to the conduct of the Justice Department attorneys who assisted Tony Barry in the preparation of the false affidavit filed in Federal court. On June 11, 1998, Barry also testified during a civil deposition that internet e-mail coming into the White House would have been recorded in ARMS. At the time of his deposition testimony, Barry most likely did not know his statement was false. Shortly thereafter, however, Barry learned facts about the e-mail problem that made his statement untrue. At that point, both he and his government attorneys were legally obligated to correct the record of his deposition testimony. They did not. A Special Master Should Be Appointed to Supervise the Review and Production of Responsive White House E-mail and the Reconstruction Process <bullet> A special master should be appointed to supervise the review and production of White House e-mail and the reconstruction process. Within a matter of months, the current White House Counsel's Office will no longer exist. Given the immediacy of this practical problem, it is important to ensure fairness, accuracy and continuity in the review and production of responsive documents. This can only be achieved by the appointment of a special master to supervise the document production process. The White House Decision to Keep the E-mail Matter Secret Has Added to the Cost of Reconstructing the E-mails <bullet> If the White House had not delayed attempts to cure the e-mail problems until 2000, it would have been far less expensive to archive e-mail and make responsive records available to Congress and other investigative bodies. Union Calendar No. 593 106th Congress Rept. 106-1023 HOUSE OF REPRESENTATIVES 2d Session Vol. 1 of 2 ====================================================================== THE FAILURE TO PRODUCE WHITE HOUSE E-MAILS: THREATS, OBSTRUCTION, AND UNANSWERED QUESTIONS _______ December 4, 2000.--Committed to the Committee of the Whole House on the State of the Union and ordered to be printed _______ Mr. Burton, from the Committee on Government Reform submitted the following EIGHTH REPORT On October 5, 2000, the Committee on Government Reform approved and adopted a report entitled, ``The Failure to Produce White House E-Mails: Threats, Obstruction, and Unanswered Questions.'' The chairman was directed to transmit a copy to the Speaker of the House. I. Why the Committee Investigated the White House Failure to Manage E- mail Records The Committee on Government Reform (``the committee'') is the primary oversight committee of the House of Representatives. Its unique charter grants it broad authority to conduct investigations into allegations of waste, fraud, and abuse throughout the government. During the 1990s, the committee has conducted oversight investigations into such wide-ranging issues as illegal foreign campaign fundraising, Federal vaccine policy, Presidential grants of clemency to members of a terrorist organization, and the Branch Davidian standoff in Waco, TX. The committee, through its oversight activities, functions as a check on the executive branch. An important investigative tool that the committee utilizes in the performance of its oversight function is the subpoena. Subpoenas allow the committee to compel the production of documents and the presence of witnesses.\1\ All persons and entities, including the White House and its employees, have a legal obligation to comply with the committee's subpoenas. Those who fail to comply with a committee subpoena risk criminal prosecution for contempt of Congress,\2\ prosecution for obstruction of a congressional investigation,\3\ or prosecution for fraud and false statements.\4\ --------------------------------------------------------------------------- \1\ U.S. House of Representatives Rule XI(2)(m) and Committee on Government Reform Rule 18(d). Specifically, the committee rule permits that ``the chairman of the full committee shall . . . authorize and issue subpoenas as provided in House Rule XI(2)(m), in the conduct of any investigation or activity or series of investigations or activities within the jurisdiction of the Committee.'' \2\ U.S.C. Sec. Sec. 192, 194 (1994 & Supp. IV 1998). \3\ The relevant portion states, in part, that ``[w]hoever corruptly . . . obstructs, or impedes or endeavors to influence, obstruct, or impede . . . the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by . . . any committee of either House . . . --(s)hall be fined under this title or imprisoned not more than five years, or both.'' 18 U.S.C. Sec. 1805 (1994 & Supp. IV 1998). \4\ ``[W]hoever, in any matter within the jurisdiction of the . . . legislative . . . branch of the Government of the United States, knowingly and willfully--(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact; (2) makes any materially false, fictitious, or fraudulent statement or representation; or (3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry; shall be fined under this title or imprisoned not more than 5 years, or both.'' 18 U.S.C. Sec. 1001 (1994 & Supp. IV 1998). --------------------------------------------------------------------------- In January 1997, as part of the committee's oversight of the executive branch, the committee commenced an investigation into political fundraising improprieties and possible violations of law stemming from the 1996 elections. Since January 1997, the committee has issued a total of 40 subpoenas to the White House or White House officials. This figure is comprised of 31 document subpoenas \5\ and 9 subpoenas to testify before the committee.\6\ Prior to resorting to the subpoenas, the committee attempted to secure the White House's cooperation with informal document requests. White House Counsel Charles Ruff did promise Chairman Burton the White House's full cooperation with document production. However, it soon became apparent that the cooperation would not be forthcoming. Therefore, the committee issued its first document subpoena in March 1997.\7\ --------------------------------------------------------------------------- \5\ A chart of all document subpoenas issued since January 1997, followed by the subpoenas in chronological order, can be found at appendix II. \6\ A chart of all subpoenas to testify before the Committee on Government Reform issued since January 1997, can be found at appendix III. \7\ The Senate Committee on Governmental Affairs, as part of its campaign finance investigation, also encountered problems with White House document requests. Originally, the Senate committee submitted document requests. This was done-- In response to the White House Counsel's pledges of cooperation and the Committee's optimism that the document production problems that burdened prior Congressional investigations into the Clinton Administration could be avoided, the Committee, at the request of the White House, elected to proceed with the production of White House documents without first issuing a subpoena to the White House. Instead, on April 9, 1997, the Committee delivered a request for production of documents in the form of a letter --------------------------------------------------------------------------- to the White House Counsel's office. ``Investigation of Illegal or Improper Activities in Connection with 1996 Federal Election Campaigns,'' Senate Committee on Governmental Affairs, S. Rept. No. 105-107, at 4278-4279 (1998) (footnotes omitted). On July 31, 1997, after months of broken promises and delay by the White House, the committee had no choice but to issue a subpoena for the requested documents. Id. at 4280. Even though the committee turned to the practice of issuing subpoenas to ensure it would receive all necessary information in its oversight inquiries, the White House failed to produce key information on many occasions. The central issue of this report--the White House's mismanagement of its e-mail system and the resulting failure to comply with many of the committee's subpoenas--must be seen against this backdrop of the Clinton White House's refusal to cooperate with congressional committees. It evidences White House recalcitrance toward congressional oversight. More fundamentally, by elevating short-term political needs over long-term Constitutional requirements, the White House has shown an intolerable disregard for our Constitutional system of government. A. White House Document Production: A Pattern of Delay and Omission For over 3 years, this committee has been hampered in its efforts to conduct oversight by the White House's failure to comply fully with subpoenas and document requests. This frustration is not limited exclusively to this committee. Rather, it has been experienced in both houses of Congress. Unfortunately, some senior White House aides have been oblivious to their legal and Constitutional responsibilities. For example, White House Deputy Chief of Staff Harold Ickes was quoted as advocating a `` `foot-dragging, f - - k-you attitude' toward subpoenas,'' and that practice appears to have been adopted by other White House lawyers.\8\ When a senior aide to the President advocates such a policy, it becomes particularly difficult to believe the current representations that the e- mail problems are not the result of improper or illegal activities. As the Washington Post editorialized 3 years ago, focusing specifically on Vice President Gore's response to the Hsi Lai Temple controversy: --------------------------------------------------------------------------- \8\ Susan Schmidt & Michael Weisskopf, ``Truth at Any Cost'' 15 (2000). It is emblematic of the way this administration has dealt with inconvenient facts time after time when it has found itself in difficulty. It puts up a false front, offers a misleading version of events. If and when that fails, as often occurs, it puts up another, and another--as many as it takes. Then administration officials bemoan the cynicism with which what they have to say is so often greeted and wonder aloud, or pretend to wonder, why they are not believed. . . . The dispensing of truth in reluctant dribs and drabs does indeed have the corrosive effect that the White House itself periodically deplores.\9\ --------------------------------------------------------------------------- \9\ ``The Truth in Dribs and Drabs,'' the Washington Post, Jan. 17, 1997, at A20. It is not an insignificant fact that the White House produced new and important information about the Hsi Lai Temple event on September 22, 2000--a full 3 years and 8 months after these observations were made. 1. Problems Faced in Other Investigations The following conclusions are those of committee chairmen who have conducted oversight of the Clinton White House. Taken together, they depict a widespread dissatisfaction with how the White House has treated its legal and Constitutional responsibilities in the face of congressional oversight jurisdiction. <bullet> Senate Campaign Fundraising Investigation--The Senate Governmental Affairs Committee devoted an entire section in its 1996 campaign fundraising investigation report on the White House's consistently uncooperative and dilatory approach to document production. In that report, the committee stated that the White House consistently failed ``to abide by any reasonable production schedule--as well as its frequent production of documents either immediately before or even after deposition or hearing testimony relating to the author or subject of the documents[.]'' \10\ For example, ``[l]ate in the afternoon of July 29, 1997, after the completion of [Senate] testimony [on Charlie Trie's source of funds for contributions to the Democratic National Committee], the White House hand-delivered to the committee a package of documents containing WAVES records revealing that Ng Lap Seng [the Macau-based businessman and financial supporter of Trie] had visited the White House ten times between June 22, 1994 and October 21, 1996.'' \11\ ``These records had been requested from the White House three months earlier.'' \12\ --------------------------------------------------------------------------- \10\ ``Investigation of Illegal or Improper Activities in Connection with 1996 Federal Election Campaigns,'' Senate Committee on Governmental Affairs, S. Rept. No. 105-167, at 4280 (1998) (emphasis in original). \11\ Id. at 4283-4284. \12\ Id. at 39 n.5. In addition, ``the White House's intentional omission from the document search directive disseminated among White House employees of any indication of the breadth of the materials sought by the Committee caused a six-month delay in the production of the critically important White House videotapes.'' \13\ --------------------------------------------------------------------------- \13\ Id. at 4289-4290. The White House also produced highly relevant documents after the December 31, 1997, termination of the committee's investigation. For example, the White House produced documents regarding Johnny Chung, a major figure in the campaign finance investigation, on January 16, 1998.\14\ --------------------------------------------------------------------------- \14\ Id. at 4280-4281. <bullet> White House Travel Office Investigation--In 1996, the Committee on Government Reform and Oversight, under Chairman Bill Clinger, voted to hold White House Counsel Jack Quinn, White House Director of Administration David Watkins, and White House aide Matthew Moore in contempt of Congress for failure to produce subpoenaed documents regarding the investigation of White House Travel Office firings.\15\ --------------------------------------------------------------------------- \15\ ``Proceedings Against John M. Quinn, David Watkins, and Matthew Moore (Pursuant to Title 2, United States Code, Sections 192 and 194),'' House Committee on Government Reform and Oversight, H. Rept. No. 104-598 (1996). The committee found that: This White House embarked on an unmistakable course which frustrated, delayed, and derailed investigators from the White House itself, the GAO, the Federal Bureau of Investigation, and the administration's own Justice Department Office of Professional Responsibility and Public Integrity Sections. That is what has brought the Committee to this unfortunate impasse. This White House simply refuses to provide this Committee with the subpoenaed documents that will help us bring this Travel Office investigation to a close, something [Chairman Bill Clinger has] sought to do for nearly three years. Documents have been misplaced in ``stacks,'' or ``book rooms'' or storage boxes, where they languished for months if not years, despite subpoenas and document requests from numerous --------------------------------------------------------------------------- official investigative bodies. Id. at 3. For example, ``a Travel Office notebook kept by the late Deputy Counsel Vince Foster was withheld from relevant investigators, including the Independent Counsel, for two years.'' Id. at 4. ``The compliance date for the subpoenas was more than three months ago. The time for the White House to seek to avoid contempt has come and gone. The White House neither has complied with this committee's subpoenas nor has it offered a legally rational basis for its refusal to comply.'' Id. at 5. <bullet> Whitewater Investigation--The Senate Special Committee to Investigate the Whitewater Development Corporation was ``hindered by parties unduly delaying the production of, or withholding outright, documents critical to its investigation. . . . [T]he White House has most often and most notably engaged in this course of action[.]'' \16\ For example, ``[o]n June 2, 1995, the [Whitewater] Committee sent its first request for documents to the White House. Documents continued to trickle in from the White House until as late as May 11, 1996.'' \17\ --------------------------------------------------------------------------- \16\ ``Progress of the Investigation into Whitewater Development Corporation and Related Matters and Recommendation for Future Funding,'' Senate Special Committee to Investigate Whitewater Development Corporation and Related Matters, S. Rept. No. 104-204, at 11 (1996). \17\ ``Investigation of Whitewater Development Corporation and Related Matters,'' Senate Special Committee to Investigate Whitewater Development Corporation and Related Matters, S. Rept. No. 104-280, at 237 (1996). The report also discusses how the Whitewater Committee ``was forced to engage in protracted efforts to obtain documents [that] often were produced months after they were first requested or subpoenaed.'' \18\ One of the more notable examples occurred when Bruce Lindsey, Deputy Counsel to the President, produced responsive documents to the Whitewater Committee the day after committee funding expired.\19\ --------------------------------------------------------------------------- \18\ Id. \19\ Id. at 239 (emphasis added). On December 19, 1995, the Whitewater Committee recommended that the Senate bring a civil action to compel William Kennedy, Associate Counsel to President Clinton, to comply with the committee's subpoena.\20\ On December 20, 1995, the full Senate adopted the resolution to bring the action.\21\ On the brink of a civil contempt proceeding, the White House produced the documents on December 22, 1995.\22\ These documents were ``highly relevant to the Committee's investigation.'' \23\ --------------------------------------------------------------------------- \20\ ``Refusal of William H. Kennedy, III, to Produce Notes Subpoenaed by the Special Committee to Investigate Whitewater Development Corporation and Related Matters,'' Senate Special Committee to Investigate Whitewater Development Corporation and Related Matters, S. Rept. No. 104-191, at 20 (1995). \21\ S. Res. 104-199. \22\ ``Investigation of Whitewater Development Corporation and Related Matters,'' Senate Special Committee to Investigate Whitewater Development Corporation and Related Matters, S. Rept. No. 104-280, at 238 (1996). \23\ Id. <bullet> Waco Investigation--In the 1996 Government Reform and Oversight and Judiciary Committees' joint investigation of law enforcement activities at Waco, the committees did not receive important documents from the White House until just days before congressional hearings.\24\ --------------------------------------------------------------------------- \24\ ``Investigation into the Activities of Federal Law Enforcement Agencies Toward the Branch Davidians,'' House Committee on Government Reform and Oversight and House Committee on the Judiciary, H. Rept. No. 104-749 (1996). Despite public commitments and private assurances of cooperation by the relevant departments, the subcommittees experienced a lack of cooperation which clearly frustrated hearing preparations. . . . [R]epresentatives of the White House . . . attempted to narrow the scope of the subcommittees' requests and restrict access to a wide array of information. The first significant documents were delivered only 3 weeks prior to the hearings, some just days before, and tens of thousands of others were received after the hearings had already begun. This ``wait-and- dump'' strategy rendered meaningful staff review of many key documents virtually impossible prior to commencement of --------------------------------------------------------------------------- the hearings. Id. at 8. <bullet> White House Database Investigation--The Committee on Government Reform and Oversight also faced unprecedented attempts by the White House to withhold documents and mislead the committee: \25\ --------------------------------------------------------------------------- \25\ ``Investigation of the Conversion of the $1.7 Million Centralized White House Computer System, Known as the White House Database, and Related Matters,'' House Committee on Government Reform and Oversight, H. Rept. No. 105-828, at 7 (1998). The investigation . . . uncovered evidence which reveals that persons in the White House Counsel's Office, which was charged with responding to the Committee's inquiry, were themselves central figures in the scheme to put the Database to prohibited uses. Those same persons, with ample motivation to protect at least themselves, actively sought to provide misleading --------------------------------------------------------------------------- explanations and conceal and alter documents. These actions severely hampered the Committee in the exercise of its proper oversight role and needlessly prolonged the investigation at taxpayer expense. More importantly, despite the best efforts to find the facts and to present them to the American people, the Committee may never know many of the facts which would be revealed by the production of contemporaneous documents which the Committee has specifically sought, but which the White House reports ``cannot be found.'' \26\ --------------------------------------------------------------------------- \26\ Id. <bullet> Warner Creek Investigation--Starting at the beginning of the 106th Congress, the House Resources Committee experienced lengthy delays in trying to obtain documents from the White House regarding the Warner Creek matter.\27\ The Warner Creek investigation was an oversight review of Forest Service Law Enforcement activities initiated to examine the Forest Service's response to an 11-month environmentalist protest and occupation of Federal land that blocked a pending Forest Service timber sale site in Oregon. In July 1999, the U.S. House of Representatives Office of General Counsel concluded that the White House did not properly invoke executive privilege regarding documents it withheld.\28\ The committee, however, did not receive the documents until August 2000. --------------------------------------------------------------------------- \27\ Letter from Geraldine R. Gennet, general counsel, and Michael L. Stern, senior counsel, U.S. House of Representatives, Office of General Counsel, to the Honorable Don Young, chairman, Committee on Resources 1 (July 27, 1999) (exhibit 189). \28\ Id. --------------------------------------------------------------------------- 2. Problems Faced by the Campaign Fundraising Investigation This committee is also all too familiar with White House patterns of delay and omission. The following briefly describes White House dilatory and obstructionist practices: <bullet> On January 15, 1997, the committee made a document request of the White House that was due on January 30, 1997. On January 17, 1997, White House Counsel Jack Quinn claimed that this January 30 deadline was not feasible. Yet, on January 24, the White House released a number of the documents dealing with the White House coffees to the press. These documents, however, were not produced to the committee until January 29--5 days later.\29\ --------------------------------------------------------------------------- \29\ See letter from the Honorable Dan Burton, chairman, Committee on Government Reform, to Charles F.C. Ruff, Counsel to the President, the White House 1 (Jan. 31, 1997) (exhibit 165). <bullet> By May 1997, the committee was facing consistent delays in receiving documents from the White House, despite the fact that it had subpoenaed them 2 months earlier.\30\ As a result, the committee scheduled a contempt vote against White House Counsel Charles Ruff for May 15, 1997. Only with this deadline staring them in the face did the White House finally agree to begin producing documents.\31\ --------------------------------------------------------------------------- \30\ See appendix I. \31\ In a letter to President Clinton, Chairman Burton recounted the committee's experiences with document production and the scheduled contempt vote: Upon scheduling of that hearing, your counsel, Charles Ruff, candidly admitted to me that the contempt hearing finally ``focused'' his attention on promptly responding to the committee's subpoenas and he committed to complete production by mid-June 1997. I believed then, as I believe now, that it is unfortunate that it took the scheduling of a contempt hearing to ``focus'' White House attention on complying with congressional subpoenas. The recent events with the White House videotapes of fundraising events demonstrates that the White House still is not complying --------------------------------------------------------------------------- with our subpoenas. Letter from the Honorable Dan Burton, chairman, Committee on Government Reform, to President Clinton 1 (Oct. 6, 1997) (exhibit 166). <bullet> Although first subpoenaed on March 4, 1997, the White House took 7 months to produce White House Communications Agency videotapes, including tapes of the White House coffees and other fundraisers. These tapes were highly relevant to the committee's investigation. Regarding the lengthy delay in production, the Washington Post observed the following: And now the White House has found and turned over to congressional investigators videotapes of some of the coffees the President gave for campaign contributors last year. . . . It's enough to give good faith a bad name. The attitude of this White House toward the truth whenever it is in trouble is the same. Don't tell it, or tell only as much of it as you absolutely must, or as helps. . . . They keep asking indignantly, even a little petulantly, over there why they're not believed as they keep putting out their successive versions of the story. Can anyone really believe they don't know the answer? Can anyone believe this is on the up and up? \32\ --------------------------------------------------------------------------- \32\ ``Giving Good Faith a Bad Name,'' the Washington Post, Oct. 7, 1997, at A16. <bullet> On November 6 and 7, 1997, the committee held a 2- day hearing devoted exclusively to addressing the White House's failure to comply with committee subpoenas regarding the investigation of fundraising abuses and the funneling of foreign money into political campaigns.\33\ --------------------------------------------------------------------------- \33\ ``White House Compliance with Committee Subpoenas,'' hearings before the House Committee on Government Reform, 106th Cong. (1997). <bullet> In July 1998, the White House belatedly produced documents regarding Vice President Gore's fundraising from the White House. The documents, requested by the committee in March 1997, contained handwritten notations by Vice President Gore's Deputy Chief of Staff David Strauss. Although Special Counsel to the President Lanny Breuer characterized the production as ``not new documents,'' the committee found them highly relevant to its ongoing campaign finance investigation.\34\ In fact, the Strauss notes were so important to the Department of Justice, as well as to this committee, that it triggered a 90-day preliminary investigation to determine whether Attorney General Reno should appoint an independent counsel to investigate Vice President Gore's fundraising in the 1996 campaign. --------------------------------------------------------------------------- \34\ Letter from the Honorable Dan Burton, chairman, Committee on Government Reform, to Charles F.C. Ruff, Counsel to the President, the White House (Sept. 1, 1998) (exhibit 167). <bullet> The White House relentlessly dragged out the document production process, failing to produce documents until months after the subpoena deadlines. Additionally, the White House was notorious for producing documents late at night or on Friday evenings. When documents were delivered, they were often heavily redacted. Included in document productions were thousands of documents that lacked the necessary information to be helpful to the investigation, including identification of the sources that produced or created the documents as called for by the subpoena. Finally, the Clinton administration abused executive privilege, claiming it over documents simply as a delaying tactic, or worse, hoping the committee would abandon --------------------------------------------------------------------------- the request. These obstructionist maneuvers wasted valuable time and countless taxpayer dollars. Regrettably, this committee is forced to concur with the Senate Governmental Affairs Committee's warning that ``lawful authorities who are investigating criminal conduct and who are subpoenaing White House records, [must] exercise extreme caution in assuming that any White House document production is either complete or accurate.'' \35\ --------------------------------------------------------------------------- \35\ ``Investigation of Illegal or Improper Activities in Connection with 1996 Federal Election Campaigns,'' Senate Committee on Governmental Affairs, S. Rept. No. 105-167, at 4290 (1998). --------------------------------------------------------------------------- 3. Observations by Third Parties Regarding White House Document Production In trying to understand the rationale behind the White House's approach to congressional inquires, President Clinton's own advisors have provided some excellent insight. For example, President Clinton's personal lawyer, David Kendall said, ``[i]f they want it, . . . they can litigate for it.'' \36\ While Kendall appears to have been referring to impeachment-related matters, this attitude seemed to carry over to all document requests. White House Special Counsel Jane Sherburne, who handled scandals and document productions for the White House, reportedly adopted the `` `foot-dragging, f - - k-you attitude' toward subpoenas'' that Harold Ickes advocated.\37\ Even President Clinton's confidant and Deputy White House Counsel Bruce Lindsey ``advised other [White House staffers] not to give investigators an inch.'' \38\ --------------------------------------------------------------------------- \36\ Susan Schmidt & Michael Weisskopf, ``Truth at Any Cost'' 14 (2000). \37\ Id. at 15. \38\ Id. at 14. --------------------------------------------------------------------------- The above observations, when put into actual practice as noted in the many examples, illustrate a systematic effort by the White House to delay and obstruct the investigations of this committee. They also show a deliberate effort by the White House to undermine the rule of law for partisan purposes and to evade legitimate oversight scrutiny. The current administration's repeated pattern of refusal to produce documents pursuant to congressional subpoenas displays a fundamental refusal to appreciate the legitimate exercise of Congress' oversight jurisdiction. The ``victory at all costs'' approach has taken a toll on our system of government. In attempting to hamper congressional investigations, the White House Counsel's Office has approached every controversy as though the only thing that mattered was keeping embarrassing information from becoming public. Special Counsel John C. Danforth, commenting on the Waco tragedy, aptly describes what he believes to be the appropriate role for government lawyers: Lawyers in private practice often volunteer as little information as possible. But playing it close to the line is not acceptable for people representing the United States government. Government lawyers have responsibilities beyond winning the cases at hand. They are not justified in seeking victory at all costs. A government lawyer should never hide evidence or shade the truth, and must always err on the side of disclosure. Government lawyers carry on their shoulders responsibility for not only the prosecution of specific cases, but also for public confidence in our system of government--the ``consent of the governed'' enshrined in the Declaration of Independence. Indeed, this responsibility rests heavily on the shoulders of all government officials.\39\ --------------------------------------------------------------------------- \39\ John C. Danforth, Special Counsel, ``Interim Report to the Deputy Attorney General Concerning the 1993 Confrontation at the Mt. Carmel Complex, Waco, Texas,'' at ii-iii (July 21, 2000). From the committee's perspective, White House lawyers who have supervised document productions on behalf of President Clinton would do well to reflect upon these words. It is with these troubles and frustrations as background that this committee has attempted to understand why the White House failed to notify this committee for almost 2 years that there was a serious problem with its e-mail search capability. To date, an entire universe of documents has never been searched in response to subpoenas from the committee, the Department of Justice, the courts, and several independent counsels. This report also undertakes the necessarily frustrating task of attempting to understand why the White House was dilatory in taking steps to remedy the problem so that it could produce relevant information in response to those requests. B. The significance of e-mail records to this committee's investigations As this report will describe in detail, the missing White House e-mail problem involved several technical errors in the White House's computer system. These curable problems, which the White House knew existed but chose not to rectify, prevented hundreds of thousands of e-mails to the White House from being properly archived. Thus, the White House Counsel's Office was unable to review 2\1/2\ years of missing e-mails for responsive information, thereby ensuring that the White House failed to comply with document requests and subpoenas from this committee, as well as other congressional committees, the Department of Justice, and several independent counsels. Because of the extensive nature of the e-mail problem, the committee now knows that the White House has failed to comply with subpoenas in the committee's campaign fundraising investigation, and may have failed to comply with subpoenas in four other investigations.\40\ The White House's failure to turn over documents may have kept additional investigative leads from the committee, as well as hindering the committee from pursuing its investigations more expeditiously and effectively. Furthermore, this White House-imposed delay also has permitted the White House to attack Congress for the length of time it has taken to conclude legitimate oversight activities. Congress is thus placed in an untenable position-- either close an investigation before all relevant evidence is received, or be criticized unfairly for taking the time required to do a thorough job. --------------------------------------------------------------------------- \40\ The investigations include Secretary of the Interior Bruce Babbit's decision to reject a gaming permit in Hudson, WI, the Waco tragedy, President Clinton's decision to pardon FALN terrorists, and, most recently, the missing White House e-mails. See appendix I for a listing of all items the committee has subpoenaed from the White House in its investigations. On Mar. 17, 2000, the White House also admitted that the e-mail problem affected the committee's subpoenas. Letter from Beth Nolan, Counsel to the President, the White House, to the Honorable Dan Burton, chairman, Committee on Government Reform 7 (Mar. 17, 2000) (within appendix I). The committee, however, rejected Nolan's Waco analysis: ``[T]he Waco matter precedes August 1996, when the first configuration error occurred. Thus, we do not believe that [the missing e-mail problem] would have affected a search of ARMS for e-mails responsive to [the Waco] subpoena.'' Id. Chairman Burton responded that ``[i]t is not unreasonable to suspect that individuals might have provided commentary on these allegations during the period that e-mails were not being properly managed.'' Letter from the Honorable Dan Burton, chairman, Committee on Government Reform, to Beth Nolan, Counsel to the President, the White House, 3 (Mar. 19, 2000) (within appendix I). --------------------------------------------------------------------------- Aside from the failure to take corrective measures to remedy the e-mail problem and the failure to comply fully with congressional subpoenas, the White House also engaged in other questionable conduct regarding the handling of the e-mail problem. When the White House did produce documents, the White House Counsel's Office never informed the committee of the existence of an entire universe of documents that had not been searched for responsiveness. Rather, it suggested that all records, including e-mail, had been searched. Such failures of communication by White House counsel are, at a minimum, unacceptable. The White House must comply fully with subpoenas and, if it cannot, it has an obligation to inform the committee. The White House was first put on notice that there was a failure to manage e-mail records in June 1998. Therefore, earlier false certifications that Congress did in fact have all relevant documents, and that searches had been completed, should have been corrected. Even if one credits White House arguments that the problem was not properly understood when White House Counsel Ruff and Assistant to the President Virginia Apuzzo were notified, at some point the White House should have notified Congress that obligatory searches had not been conducted. This applies, in particular, to two investigations in which the White House Counsel's Office had provided clear indications that all responsive documents had been produced to this committee: the 1996 campaign finance scandal and Secretary of the Interior Bruce Babbitt's decision to reject a gaming permit in Hudson, WI.\41\ It is troubling that the White House failed in its obligation to notify the committee when it learned that these prior certifications were rendered inaccurate. --------------------------------------------------------------------------- \41\ Regarding the 1996 campaign finance scandal, Counsel to the President Charles Ruff and White House Special Counsel Lanny Breuer made three certifications to the committee that were later invalidated by the e-mail problem. On June 27, 1997, Ruff wrote that: [T]his letter serves to certify that, to the best of my knowledge, the White House has produced all documents responsive to the Committee's subpoenas, with the exception of those documents that appear on the privilege logs that we have provided to the Committee. . . . [I]n order to ensure to the maximum extent possible that no responsive documents have been overlooked, I have directed my staff to continue their efforts to see to it that all areas that may contain such documents have been searched and that all --------------------------------------------------------------------------- responsive documents have been produced. Letter from Charles F.C. Ruff, Counsel to the President, the White House, to the Honorable Dan Burton, Committee on Government Reform (June 27, 1997) (exhibit 140). On Oct. 21, 1997, Ruff provided another certification that the White House had produced all responsive documents: ``I believe that, with the production of these documents we have satisfied all of the outstanding requests except for any recent informal requests my staff may have received.'' Letter from Charles F.C. Ruff, Counsel to the President, the White House, to Richard D. Bennett, chief counsel, Committee on Government Reform and Oversight 1 (Oct. 21, 1997) (exhibit 54). In this letter, the White House stated that: [O]n Friday, we delivered the remaining product of our completed search for electronic mail records. This search covered the time period dating from July 1994. As we have indicated, because of the nature of the White House electronic mail system, electronic mail messages from the period July 1994 to December 1995 only recently became readily searchable. Electronic mail messages from before July 1994 are not currently searchable, although certain limited scattered records for this period do exist and have been searched. At this time, we have completed the search of the electronic mail system from July 1994 (including any earlier searchable scattered records) for the White House Office, the Office of the Vice President, the Office of Policy Development and the National Security Council. My staff is informed by the professional staff of the Office of Information Systems and Technology that a search of these components--which include the political units of the EOP--will yield any responsive e-mail either sent to or from any individual in any of those offices. Search of these units was designed to capture all e-mails responsive to the Committee's requests. Id. at 2. On Feb. 20, 1998, Special Counsel to the President Lanny Breuer wrote: ``I understand that all e-mails currently searchable regarding Mr. Trie have been provided to the Committee.'' Letter from Lanny Breuer, Special Counsel to the President, the White House, to Barbara Comstock, chief investigative counsel, Committee on Government Reform and Oversight (Feb. 20, 1998) (exhibit 142). Regarding Secretary of the Interior Bruce Babbit's decision to reject a gaming permit in Hudson, WI, Counsel to the President Charles Ruff provided one certification to the committee that was later invalidated by the e-mail problem. On Jan. 16, 1998, Ruff wrote: ``[t]o the best of our knowledge, we have provided the Committee with all responsive materials that we have located as a result of our EOP-wide search for documents relating to the St. Croix Meadows Greyhound Racing Park.'' Letter from Charles F.C. Ruff, Counsel to the President, the White House, to the Honorable Dan Burton, chairman, Committee on Government Reform (Jan. 16, 1998) (exhibit 141). These false certifications misled the committee and may have encouraged certain members of the committee to make inaccurate statements. For example, on October 8, 1998, 17 members of this committee \42\ all unwittingly claimed that ``[t]here are currently no outstanding disputes over document production issues between the White House and this Committee. Thus, contrary to the majority's claim of obstruction, the majority has, in fact, received every document it sought.'' \43\ --------------------------------------------------------------------------- \42\ The 17 members include Representative Henry Waxman, the ranking minority member, Representative Tom Lantos, Representative Robert Wise, Representative Major Owens, Representative Edolphus Towns, Representative Paul Kanjorski, Representative Gary Condit, Representative Bernard Sanders, Representative Carolyn Maloney, Delegate Eleanor Holmes Norton, Representative Chaka Fattah, Representative Elijah Cummings, Representative Dennis Kucinich, Representative Rod Blagojevich, Representative Danny Davis, Representative Thomas Allen, and Representative Harold Ford, Jr. \43\ ``Investigation of Political Fundraising Improprieties and Possible Violations of Law, Interim Report,'' House Committee on Government Reform and Oversight, H. Rept. No. 105-829, at 3991 (1998). --------------------------------------------------------------------------- Like Congress, President Clinton also may have been misled by White House staff regarding the missing e-mails. At a White House photo opportunity on February 15, 2000, the following exchange with the press took place: Q. Mr. President, did the White House deny congressional committees' access to e-mails and subpoenas [sic]? President Clinton: (Laughs.) No, I believe that we have complied with every request, and there have been thousands. (Laughter.) If the American people knew how much of their money we'd have to spend complying with requests for . . . e-mails, they might be quite amazed, but we certainly have done our best to do that. There has never been an intentional effort to do that, and I think that we are in full compliance. I believe we are. That's what Mr. Podesta told me right before we came out.\44\ --------------------------------------------------------------------------- \44\ President Clinton, remarks at White House photo opportunity, Washington, DC (Feb. 15, 2000). As ensuing revelations have made clear, the President's statement was not true--the White House was not in full compliance with congressional, Office of Independent Counsel, and Justice Department document requests. Notwithstanding the political spin of the President and his spokesmen, this committee has learned that White House Counsel Charles Ruff, Deputy Chief of Staff John Podesta, Assistant to the President Virginia Apuzzo, and Office of Administration Counsel Mark Lindsay all immediately understood the potential significance of the e-mail problem. Deputy White House Counsel Cheryl Mills was tasked with determining the parameters of the problem. Based on a test with no coherent rationale, she falsely reported that the White House did not have a problem with past or future document production. For reasons to be explained in the body of this report, the committee rejects the current suggestion that incompetence on the part of Cheryl Mills and other White House attorneys led to the current failure to comply with congressional, independent counsel, and Justice Department subpoenas. The committee is concerned that the White House has undermined investigations within the committee's jurisdiction, and ignored its responsibility to the American people. At a May 4, 2000, hearing before this committee, President Clinton's former White House Counsel, Charles Ruff agreed with the committee's concerns regarding e-mail production: This Committee has every obligation to inquire into the circumstances surrounding those events in order to determine . . . whether indeed there was any impropriety . . . and . . . whether the White House is responding appropriately to the Committee's concerns. I view all of those as entirely legitimate inquiries[.] \45\ --------------------------------------------------------------------------- \45\ ``Missing White House E-mails: Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 116 (May 4, 2000) (statement of Charles F.C. Ruff, former Counsel to the President, the White House) (all citations to testimony from this series of hearings are to the preliminary transcripts). The committee continues to seek vigorously all subpoenaed information from the White House, and awaits production of information from the missing White House e-mails.\46\ --------------------------------------------------------------------------- \46\ See appendix I. Because congressional subpoenas expire at the end of each Congress, the committee had to reissue subpoenas for White House e-mail related to the investigation into illegal fundraising activities for the 106th Congress (Mar. 16, 2000, and June 1, 2000). Since the subpoenas for the FALN and Waco matter were issued in the 106th Congress, they continue to remain in effect. --------------------------------------------------------------------------- II. The E-mail Problems Explained: A Brief Summary Federal law requires that Federal and Presidential records be preserved and archived.\47\ This requirement extends beyond paper records to electronic records such as e-mail messages.\48\ In an effort to facilitate full compliance with these and other legal requirements, the White House developed the Automated Records Management System, (ARMS), which began operating on July 14, 1994.\49\ ARMS was developed under the direction of Computer Specialist Daniel A. ``Tony'' Barry, an employee in Information Systems and Technology (IS&T), a division of the White House Office of Administration (OA).\50\ --------------------------------------------------------------------------- \47\ The Presidential Records Act (PRA), 44 U.S.C. Sec. Sec. 2201- 2207 (1988), and the Federal Records Act (FRA), 44 U.S.C. Sec. Sec. 2101-2118, 2901-2909, 3101-3107, 3301-3324 (1988), and their implementing regulations provide requirements for the management and disposition of Presidential and Federal agency records, respectively. \48\ See 44 U.S.C. Sec. 2201(1) (defining ``documentary materials'' as ``all books, correspondence, memorandums [sic], documents, papers, pamphlets, [etc.], including, but not limited to, audio, audio-visual, or other electronic or mechanical recordations'') (emphasis added). See also Armstrong v. Executive Office of the President (``Armstrong II''), 1 F.3d 1274 (D.C. Cir. 1993). Although the Armstrong cases apply to Federal records--not Presidential records--Counsel to the President and to the Vice President have conceded in internal documents that a reviewing court would likely extend the Armstrong e-mail records management holding to Presidential records. See White House document production E 5395 (exhibit 159). \49\ Interview with Daniel A. ``Tony'' Barry, Computer Specialist, Office of Administration, in Washington, DC (Mar. 7, 2000). \50\ OA is the unit within the Executive Office of the President (EOP) responsible for all administrative matters throughout the EOP, including the White House itself. Among its areas of responsibility are the computer equipment and infrastructure, which are handled by its IS&T division. Most of the OA staff are career government employees, but the leadership is Presidentially appointed. --------------------------------------------------------------------------- When first designed and implemented, ARMS received and archived e-mail from an early computer e-mail system known as OASIS All-in-One. ARMS received and retained copies of all incoming and outgoing Executive Office of the President (EOP) e-mail messages in a word-searchable format in order to preserve an accurate record of all e-mail traffic for archiving and other purposes. It was also routinely searched in order to comply with subpoenas from investigative bodies such as the Department of Justice (DOJ), Offices of Independent Counsel (OIC) and Congress, as well as requests under the Freedom of Information Act (FOIA).\51\ --------------------------------------------------------------------------- \51\ Letter from Beth Nolan, Counsel to the President, the White House, to the Honorable Dan Burton, chairman, Committee on Government Reform 2 (Mar. 17, 2000) (within appendix I). --------------------------------------------------------------------------- During 1996, various offices within the EOP began converting from All-in-One to systems such as Lotus Notes. The new e-mail program required specially developed software in order to format and send records to ARMS for archiving and later retrieval. This software was known as the Notes/ARMS interface.\52\ It is the failure of the Notes/ARMS interface in September 1996, and the failure of senior White House officials to respond properly to the resulting technical problems, that led to the mismanagement of an enormous number of e-mails potentially responsive to subpoenas from various entities, including this committee. --------------------------------------------------------------------------- \52\ Interview with John Spriggs, senior engineer, Northrop Grumman, in Washington, DC (Mar. 7, 2000). --------------------------------------------------------------------------- The failure to manage records appropriately extended to at least three distinct problem areas: the ``Mail2'' problem, the ``D-user'' problem, and the Office of the Vice President (OVP) problem.\53\ This section provides a brief description of these technical problems. At the outset, it is important to note that while understanding the technical aspects of the problems can be difficult, it is very easy to understand the result--a large universe of documents could not be searched. While it has been clear for months that these e-mails had not been searched, recently the committee has confirmed that, because of the incomplete searches, responsive documents sought under lawful subpoenas were actually withheld from the committee and the Justice Department for years. Not until September 22, 2000, did this committee finally receive the first of these e-mails related to its campaign fundraising investigation.\54\ It is unclear how many more responsive e-mails have been withheld from Congress and the Justice Department. --------------------------------------------------------------------------- \53\ On Aug. 31, 2000, the White House notified the committee of a new e-mail problem involving recent messages from May 4, 2000, to the present. These messages were transferred to ARMS with mismatched headers and body formats. See letter from Lisa Klem, Associate Counsel to the President, the White House, to James C. Wilson, chief counsel, Committee on Government Reform (Aug. 31, 2000) (within appendix I). \54\ Letter from Steven Reich, Senior Associate Counsel to the President, the White House, to James C. Wilson, chief counsel, Committee on Government Reform (Sept. 22, 2000) (within appendix I). See, e.g., White House document production E 8701, E 8755, E 8787, E 8807, E 8843, E 8862 (exhibits 193-198). --------------------------------------------------------------------------- a. the mail2 problem In September 1996, the EOP began operating four e-mail servers. The servers were each to be named MAIL1, MAIL2, MAIL3, and MAIL4. These server names are case sensitive, meaning that the computer distinguished between ``Mail2'' and ``MAIL2.'' While the other three servers were properly named with all capital letters, a technician's error led one server to be mislabeled ``Mail2'' \55\ instead of ``MAIL2.'' As a result of this error, the portion of the Notes/ARMS interface that was to collect incoming internet e-mail and send it to ARMS for archiving and later searching did not function for any users whose account resided on the Mail2 server. The committee has found no evidence that the improper casing was intentional or the product of any improper purpose. --------------------------------------------------------------------------- \55\ ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 20 (Mar. 23, 2000) (testimony of Yiman Salim, Lotus Notes developer, Northrop Grumman). --------------------------------------------------------------------------- The Mail2 server held approximately 500 e-mail accounts, the vast majority of which belonged to users in the subdivision of the EOP known as the White House Office (WHO).\56\ The WHO consists of the senior personnel who work in the White House proper, including the West Wing. Although the error originated in September 1996, it was not corrected prospectively until November 20, 1998, more than 2 years later. One of the reasons more than 2 years passed is that for most of the time, the error went undetected.\57\ However, even after it was detected, another 5 months passed before the error was prospectively cured. --------------------------------------------------------------------------- \56\ Id. at 19. \57\ Letter from Beth Nolan, Counsel to the President, the White House, to the Honorable Dan Burton, chairman, Committee on Government Reform 4 (Mar. 17, 2000) (within appendix I). --------------------------------------------------------------------------- 1. Tony Barry Discovered a Problem in January 1998 The first hint that there might be a problem with incoming e-mail arose in January 1998. Tony Barry, who developed and continues to administer ARMS, was performing a search of the system pursuant to a request from the White House Counsel's Office. Such searches were a regular part of his job responsibilities. On average, he performed two or three searches per month.\58\ The searches assisted the White House Counsel's Office and the counsels' offices for other divisions of the EOP in complying with FOIA requests and subpoenas. This particular search, however, related to records subpoenaed by the Federal grand jury investigating criminal allegations that the President had engaged in obstruction of justice and witness tampering in the Monica Lewinsky matter. --------------------------------------------------------------------------- \58\ Inverview with Daniel A. ``Tony'' Barry, Computer Specialist, Office of Administration, in Washington, DC (Mar. 7, 2000). --------------------------------------------------------------------------- In reviewing the results of his search, Barry noticed that some e-mails seemed to be missing. He could determine from the content that an apparent exchange of messages seemed to be one- sided. In other words, it appeared as if only half of the conversation had been captured. The e-mail conversation was between Ashley Raines, a White House user on the Mail2 server, and Monica Lewinsky, who was then working at the Pentagon, on an e-mail system external to the White House system. The outgoing messages from Raines were captured in ARMS, but the incoming messages from Lewinsky were not.\59\ --------------------------------------------------------------------------- \59\ ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 101-102 (Mar. 23, 2000) (testimony of Daniel ``Tony'' Barry, Computer Specialist, Office of Administration). --------------------------------------------------------------------------- Barry brought this issue to the attention of John Spriggs and sought his assistance in determining the source of the problem and locating the missing e-mail. Spriggs was, and still is, a contract employee working onsite at the EOP for Northrop Grumman, an outside contractor hired to administer the White House computer system.\60\ After some investigation, Spriggs was able to determine that the incoming e-mail from Lewinsky had entered the White House system.\61\ However, neither Barry nor Spriggs could ascertain why these messages had not been archived in ARMS. Barry wrote what he referred to as an incident report to his supervisor, Jim Wright.\62\ Generally, Barry sent his weekly activity reports to Wright via e- mail.\63\ Contrary to this general practice, however, Barry did not send this particular report via e-mail, but rather hand delivered a paper copy to Wright.\64\ Furthermore, Barry did not refer to Lewinsky and Raines by name, but rather by the generic designations ``INTERNETUSER1'' and ``EOPUSER1.'' \65\ This was also contrary to his general practice.\66\ --------------------------------------------------------------------------- \60\ Technically, some of the individuals referred to in this report as ``Northrop Grumman employees'' or ``contractors'' for ease of reference are actually subcontractors to Northrop Grumman employed by other companies. \61\ Interview with John Spriggs, senior engineer, Northrop Grumman, in Washington, DC (Mar. 7, 2000). \62\ White House document production E 3443 (exhibit 49). The White House did not produce this document to the committee until after the first and only hearing at which Tony Barry testified. Another version of the document was provided prior to the hearing. However, that version lacked a handwritten notation present on the later version which indicated the date of the document. None of the versions list a sender, recipient, or subject line. See id. at E 2496 (exhibit 160). \63\ Interview with Daniel A. ``Tony'' Barry, Computer Specialist, Office of Administration, in Washington, DC (Mar. 7, 2000). \64\ Interview with James Wright, IS&T Data Center Branch Chief, Office of Administration, in Washington, DC (June 1, 2000). \65\ White House document production E 3443 (exhibit 49). \66\ See, e.g., id. at E 4286 (exhibit 129), in which Barry specifically references Sidney Blumenthal in a description of a problem with his e-mail account. --------------------------------------------------------------------------- Neither Wright nor Barry informed either the White House Counsel--the office that had requested the search--or Wright's supervisor of the incident.\67\ Nor did they provide a copy of the incident report or the incoming Lewinsky e-mails to Wright's superiors or the White House Counsel's Office.\68\ No further evaluation or diagnosis of the problem was done until nearly 6 months later. --------------------------------------------------------------------------- \67\ Interview with Daniel A. ``Tony'' Barry, Computer Specialist, Office of Administration, in Washington, DC (Mar. 7, 2000). \68\ Interview with James Wright, IS&T Data Center Branch Chief, Office of Administration, in Washington, DC (June 1, 2000). --------------------------------------------------------------------------- 2. Robert Haas and Yiman Salim Discovered That the Problem Was Systemic Sometime in early June 1998,\69\ two contract employees for Northrop Grumman were doing unrelated research on the Notes/ ARMS interface.\70\ One of the two, Yiman Salim, was a new employee learning how the system worked. The other, Robert Haas, was explaining the system to her when he attempted to show her a list of e-mails that had not yet been collected by the Notes/ARMS interface. This list was called the ``$unrecorded view.'' \71\ It should have been a short list because the Notes/ARMS interface is supposed to collect incoming e-mails from users' in boxes once every few minutes. However, Haas noticed that there were thousands and thousands of e-mails not yet collected, dating as far back as September 1996.\72\ Both Haas and Salim knew immediately that there was ``a big problem.'' \73\ They notified their Northrop Grumman manager, Betty Lambuth and explained the situation to her. Lambuth then requested that they draft an e-mail to her with the details. Lambuth reported the problem to her EOP counterpart, Laura Callahan,\74\ that evening. --------------------------------------------------------------------------- \69\ Evidence suggests that the contractors actually discovered the Mail2 problem on June 12, 1998. First, several key witness recalled having learned about it sometime in June 1998. See, e.g., interview with Yiman Salim, Lotus Notes developer, Northrop Grumman, in Washington, DC (Mar. 7, 2000); interview with John Spriggs, senior engineer, Northrop Grumman, in Washington, DC (Mar. 7, 2000); declaration of Kathleen Gallant, former IS&T Director, Office of Administration, at para. 3 (May 10, 2000) (exhibit 154). Second, Haas recalls having sent an e-mail to Betty Lambuth outlining his discovery of the problem soon after he discovered it and, on the following Monday, discussing the problem with the other contractors and Lindsay and Callahan. See interview of Robert Haas, Lotus Notes administrator, Northrop Grumman, in Washington, DC (Mar. 7, 2000). That e-mail is dated June 12, 1998. See White House document production E 0181 (exhibit 12). Also, several witnesses told committee staff that Betty Lambuth was at a doctor's appointment the Monday following the initial discovery. Interview with Steve Hawkins, former program manager, Northrop Grumman (Mar. 7, 2000). One document indicates Betty Lambuth sent an e-mail with the subject line ``Doctor's Appointment'' on Sunday, June 14, 1998. Northrop Grumman document production NGL 00825 (exhibit 187). However, other evidence suggests that the problem may have been discovered earlier. For example, a document, marked ``draft'' and describing the problem in detail, is dated ``Tuesday, May 16.'' See id. at NGL 00516 (exhibit 65). Inasmuch as May 16th did not fall on a Tuesday and June 16th did, the date on that document is likely incorrect and should probably be read as June 16th. Nonetheless, Haas told committee staff that it took him about 4 weeks to produce an audit of unrecorded e-mail. Interview of Robert Haas, Lotus Notes administrator, Northrop Grumman, in Washington, DC (Mar. 13, 2000). See Northrop Grumman document production NGL 00291-00365 (exhibit 62). See also section III.B.1, below (discussing audit). That audit is dated, June 18, 1998. Obviously, if Haas spent several weeks preparing the audit and if he discovered the problem on June 12th, he could not have completed the audit by June 18th. Given the foregoing, the committee is unable to state definitively exactly when the contractors discovered the problem. However, for the purposes for this report, the committee will presume that the contractors discovered the problem on June 12, 1998. \70\ Interview with Yiman Salim, Lotus Notes developer, Northrop Grumman, in Washington, DC (Mar. 7, 2000). \71\ Id. \72\ Interview with Robert Haas, Lotus Notes administrator, Northrop Grumman, in Washington, DC (Mar. 7, 2000). \73\ Interview with Yiman Salim, Lotus Notes developer, Northrop Grumman, in Washington, DC (Mar. 7, 2000). \74\ Ms. Callahan's name at the time was Laura Crabtree. She has since married and assumed her husband's name. --------------------------------------------------------------------------- After a short period of technical diagnosis by a handful of Northrop Grumman employees, the general scope of the problem became clear. A substantial number of incoming internet e-mail messages to White House users spanning a period of more than 2 years had not been archived in ARMS as had been believed. Consequently, all past searches of ARMS seeking e-mail from that time period had been significantly incomplete. Furthermore, all such future searches of ARMS would continue to be incomplete until a process known as ``reconstruction'' could occur. Reconstruction refer to the process of extracting e-mail from backup tapes.\75\ Despite the continuing, incomplete nature of ARMS searches, the White House took no action to obtain funding for Mail2 reconstruction from Congress until March 20, 2000,\76\ after the committee had begun interviewing witnesses and announced public hearings on this matter. --------------------------------------------------------------------------- \75\ White House document production E 0934 (exhibit 23). \76\ Letter from Chairman Jim Kolbe, Subcommittee on Treasury, Postal Service, and General Government, Committee on Appropriations, to Mark Lindsay, Assistant to the President for Management and Administration, the White House 1 (Apr. 27, 2000) (exhibit 145). --------------------------------------------------------------------------- The Mail2 problem, the first to come to the attention of congressional investigators, began sometime in September 1996, just 2 months before the Presidential election. This was a critical period in the investigation of fundraising improprieties, as many illegal acts were just starting to come to light. It is easy to imagine a high level of e-mail traffic between participants in some of these now well-known events. Indeed, the production of documents to this committee by the White House on September 22, 2000, shows that there was significant probative information that was withheld from Congress. B. The D-User Problem A second and separate error involved the e-mail of users whose first names begin with the letter ``D'' (``D-users'') and involved all four EOP mail servers from October 21, 1998, to June 1, 1999.\77\ Unlike the Mail2 problem, which impacted only users in the White House Office, this problem spanned all of the EOP e-mail servers, preventing the archiving of any incoming mail to approximately 190 people in the EOP.\78\ The problem was discovered in April 1999, but not corrected prospectively until approximately 2 months later.\79\ --------------------------------------------------------------------------- \77\ Letter from Beth Nolan, Counsel to the President, the White House, to the Honorable Dan Burton, chairman, Committee on Government Reform 5 (Mar. 17, 2000) (within appendix I). \78\ Northrop Grumman document production NGL 00530 (exhibit 79). Individuals whose e-mail was not archived during the affected period include: Dawn Chirwa, Dorothy Cleal, Dimitri Nionakis, DeVere Patton, Douglas Sosnik, and Dorian Vanessa Weaver. \79\ Letter from Beth Nolan, Counsel to the President, the White House, to the Honorable Dan Burton, chairman, Committee on Government Reform 6 (Mar. 17, 2000) (within appendix I). --------------------------------------------------------------------------- The cause of the problem was an error by a computer technician working on the Notes/ARMS interface. Due to the rapidly increasing volume of e-mail, the Notes/ARMS interface had to be modified so that it would process incoming mail in batches rather than archiving it all at once. A programmer split the process into batches based on ranges of letters in the alphabet. However, the programmer inadvertently excluded the letter D, so that users whose last names began with A through C were archived in one batch, and then those with E through G and so on. One reason the error went undetected for approximately 5 months is that users whose last names began with J were included in the process twice, making the total number of letters processed appear to be all 26 letters in the alphabet even through the letter D was omitted.\80\ As with the Mail2 problem, there is no indication that this problem was anything but inadvertent human error. --------------------------------------------------------------------------- \80\ White House document production E 0829-0830 (exhibit 161). --------------------------------------------------------------------------- Since the Notes/ARMS interface did not function properly for D-users, it failed to collect, format, and archive their incoming mail into ARMS. Once this problem was discovered, Yiman Salim, who had helped discover and remedy the Mail2 problem, wrote an auditing program in order to avoid similar problems going undetected in the future. The auditing program alerts the technicians if e-mail is not being archived properly so that the problem can be diagnosed and solved in a timely fashion.\81\ --------------------------------------------------------------------------- \81\ ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 22 (Mar. 23, 2000) (testimony of Yiman Salim, Lotus Notes developer, Northrop Grumman). Not only does the committee question why it took 2 years to discover the problem, but also why the problem was not discovered when the Notes/ARMS interface was originally installed in October 1996. As is apparent from the forgoing, OA did not independently validate and verify (IV&V) the interface when it was installed to determine whether all records were being properly recorded. There can be little doubt that the problem would have been found earlier than it actually was (if not entirely avoided) had the interface been IV&V'ed, as according to standard industry practices. This point was not lost on Congressman Jim Kolbe, whose subcommittee appropriates funds for OA. See letter from the Honorable Jim Kolbe, chairman, Subcommittee on Treasury, Postal Service, and General Government, to Mark Lindsay, Assistant to the President for Management and Administration, the White House (Apr. 27, 2000) (exhibit 145). --------------------------------------------------------------------------- C. The Office of the Vice President Problems In some respects, the series of problems in the Vice President's Office may be the most serious and extensive of all, though the committee only learned of these OVP issues in the course of its Mail2 investigation. Many witnesses remain to be questioned, and many documents remain to be analyzed. Generally speaking, however, the committee has learned that these problems prevented many incoming, outgoing, and internal e-mails from being preserved, and prevented most from being searched throughout the Vice President's tenure. This is a much longer period than that of the other problems. Two additional factors are most troubling: (1) rather than being the product of merely technical errors, several aspects of the OVP problems appear to have resulted from conscious decisions by policymakers about records management; and (2) unlike with other systems in the EOP, vast quantities of OVP e-mail cannot even be recovered from backup tapes and are most likely lost forever. Unlike users in the rest of the EOP, the OVP decided shortly after the creation of ARMS that it would not use ARMS to manage its electronic records.\82\ Instead, the OVP decided to rely on backup tapes as the sole method of electronic records management.\83\ This decision created a host of difficulties, and it also guaranteed that the Vice President's records would never be properly reviewed to ensure compliance with subpoenas and document requests because backup tapes are, by nature, not readily searchable. In fact, only if all backup tapes were searched at the time of each request would document production have been complete. This could hardly have been lost on the Vice President's staff. --------------------------------------------------------------------------- \82\ Telephone interview with Hon. Todd Campbell, former Counsel to the Vice President, the White House (Aug. 18, 2000). \83\ Id. See also White House document production E 6369 (exhibit 162). --------------------------------------------------------------------------- One of the reasons for managing electronic records properly is to be able to respond to investigative subpoenas and other document requests. Relying solely on backup tapes as a method of records management, as the OVP did, makes it difficult and costly to search the records. In fact, the difficulty in searching backup tapes was one of the fundamental reasons for the creation of ARMS.\84\ In addition to the benefits of being able to search and retrieve records, ARMS provides redundancy, so that if either the backup tapes or ARMS happens to fail, the e-mail messages would still be preserved. --------------------------------------------------------------------------- \84\ See ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 83-84 (Mar. 23, 2000) (testimony of Robert Haas, Lotus Notes administrator, Northrop Grumman). --------------------------------------------------------------------------- By relying solely on backup tapes and failing to have its e-mail archived in ARMS, the OVP created a situation that led directly to the loss of at least 1 year's worth of messages.\85\ Early in the Vice President's tenure, his office administered its own mail server rather than allowing the IS&T division of OA to do so. In March 1998, IS&T took over management of the OVP mail server because that office had lost a key member of its server administration staff and could no longer administer the server.\86\ When the server was transferred to IS&T, a technician failed to configure properly the scheduled backups, excluding the location where the e-mail messages were stored. This error went undetected until April 2, 1999, more than a year later.\87\ Because most OVP users' e- mail was not being archived in ARMS, the failure of these backups means that it is impossible to reconstruct and search the vast majority of OVP e-mail messages sent and received during the relevant period. --------------------------------------------------------------------------- \85\ Letter from Steven F. Reich, Senior Associate Counsel to the President, the White House, to James C. Wilson, chief counsel, Committee on Government Reform 4 (June 7, 2000) (within appendix I). \86\ White House document production E 6369 (exhibit 162). \87\ Id. --------------------------------------------------------------------------- This problem is compounded by what was, at a minimum, a failure of communication within the EOP about whether the OVP e-mail was being ARMS-managed. The White House Counsel's Office purportedly conducted ARMS searches under the erroneous belief that that they would capture OVP records.\88\ At the same time, OVP was purportedly managing e-mail records solely by backup tapes.\89\ For a substantial period of time, the reality is that neither was true. In July 1999, responsibility for administering the OVP e-mail server's backup system was transferred to IS&T personnel who began overwriting backup tapes on a 3-week cycle rather than preserving them. Senior Northrop Grumman Engineer John Spriggs testified: --------------------------------------------------------------------------- \88\ Interview with Michelle Peterson, former Associate Counsel to the President, the White House, in Washington, DC (June 1, 2000). See also letter from Steven Reich, Associate Counsel to the President, the White House, to James C. Wilson, chief counsel, Committee on Government Reform 2 (June 7, 2000) (within appendix I). \89\ Telephone interview with Hon. Todd Campbell, former Counsel to the Vice President, the White House (Aug. 18, 2000). See also White House document production E 6369 (exhibit 162). We, OA, began to do the backup systems for the OVP- underscore-l server, but at that point I'm not aware of any instructions to do records management by that same method for the OVP. My understanding is that by July of 1999, we were given instructions--Jim Wright gave instructions to actually start doing a three-week cycle on the backups for all of our servers, which included the OVP-underscore-l server, so that now we are on a three-week cycle. Every three weeks they overwrite the existing tapes. And so if OVP is doing records management with tape backups, then they have a problem.\90\ --------------------------------------------------------------------------- \90\ ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 181-182 (Mar. 23, 2000) (testimony of John Spriggs, senior engineer, Northrop Grumman). The committee's investigation into these and related OVP electronic records management failures is ongoing. The OVP e- mail problems are discussed in detail below, in section III.D.3. III. The White House Concealed the E-Mail Problems A. Mark Lindsay and Laura Callahan Threatened Contract Employees When Northrop Grumman contract employee Betty Lambuth learned from Robert Haas and Yiman Salim that there was a major e-mail records management problem, she immediately attempted to notify her superior, Steve Hawkins.\91\ Hawkins was not available, so Lambuth decided to inform White House employee Laura Callahan.\92\ At the time, Callahan was Desktop Systems Branch Chief for the IS&T division of OA. After Lambuth explained that there was a major problem with e-mail not being properly archived in ARMS, Callahan seemed to have understood the gravity of the situation immediately. According to Lambuth, Callahan said, ``yes, it's very serious. Let me go talk to Ada Posey's office.'' \93\ Ada Posey was then the Director of OA. --------------------------------------------------------------------------- \91\ Interview with Betty Lambuth, former Lotus Notes team manager, Northrop Grumman, in Washington, DC (Mar. 21, 2000). \92\ Id. Lambuth, like many IS&T personnel, drew sharp distinctions between contract employees, like those working for Northrop Grumman, and personnel who were employees at the EOP. \93\ Id. --------------------------------------------------------------------------- 1. Laura Callahan Relayed Mark Lindsay's Threat to Betty Lambuth When Callahan returned, she allegedly told Lambuth that she had spoken about the e-mail problem to Mark Lindsay, then the General Counsel for OA.\94\ Callahan allegedly told Lambuth that Lindsay directed that, ``if you or any of your staff tell anyone, especially, Steve Hawkins or Jim Wright, about the problem, you will lose your jobs, be arrested and go to jail.'' \95\ Both Mark Lindsay and Laura Callahan squarely denied this allegation at the committee's first hearing on this matter.\96\ According to Lambuth, she then requested to hear those instructions directly from Lindsay himself. Callahan said that she understood and agreed. Lambuth related Lindsay's message to the rest of the team and told them that she ``wanted to hear it straight from Lindsay.'' \97\ --------------------------------------------------------------------------- \94\ Id. \95\ See declaration of Betty Lambuth, former Lotus Notes team manager, Northrop Grumman, at para. 5, Alexander v. FBI (D.D.C. Feb. 24, 2000) (CA 96-2123) (exhibit 190). \96\ ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 221, 229, 244 (Mar. 23, 2000) (testimony of Laura Callahan, IS&T Desktop Services Branch Chief, Office of Administration, and Mark Lindsay, Assistant to the President for Management and Administration, the White House). \97\ Interview with Betty Lambuth, former Lotus Notes team manager, Northrop Grumman, in Washington, DC (Mar. 21, 2000). However, none of the other Lotus Notes team members corroborated this aspect of Lambuth's testimony. --------------------------------------------------------------------------- Lambuth then went to see Paulette Cichon, Deputy Director of OA.\98\ Lambuth assumed that Cichon had been present when Lindsay gave Callahan the instructions to keep the problem secret because Cichon asked Lambuth, ``how are things going?'' \99\ However, Cichon denied ever hearing Mark Lindsay give any such instruction or make any such threat.\100\ Lambuth told Cichon that she had not yet heard from Lindsay.\101\ Cichon then took Lambuth to Lindsay's office.\102\ After they went into Lindsay's office, Lambuth alleges that Lindsay explicitly repeated the precise instructions she claims to have heard from Callahan: that Lambuth was not to tell anyone about the problem and that, if she or any of her staff did, they would lose their jobs, be arrested, and go to jail.\103\ When asked about the tone of the meeting, Lambuth stated that Lindsay made his remarks matter-of-factly, not in a confrontational manner. Because Lambuth already heard the ``jail'' comment during her conversation with Callahan, the comment did not shock or surprise her when it came from Lindsay.\104\ --------------------------------------------------------------------------- \98\ Id. \99\ Id. \100\ Interview with Paulette Cichon, former Deputy Director, Office of Administration, in Washington, DC (Apr. 18, 2000). \101\ Interview with Betty Lambuth, former Lotus Notes team manager, Northrop Grumman, in Washington, DC (Mar. 21, 2000). \102\ Id. \103\ Id. After having been interviewed by minority staff without majority staff present, Paulette Cichon signed a statement in which she noted that she recalled no such threat. See statement of Paulette Cichon, Deputy Director, Office of Administration (Mar. 29, 2000) (exhibit 157). Her husband witnessed the statement. See id. \104\ Id. --------------------------------------------------------------------------- Lambuth understood Lindsay's warning to mean that if any one employee disclosed the problem all of Lambuth's staff would be arrested and have their security clearance stripped.\105\ In other words, if any one employee spoke, the entire team would be penalized.\106\ Lambuth feared that the threat of arrest amounted to a threatened loss of security clearance that would damage her ability to obtain employment in the future. In an interview with committee staff she explained, ``regardless of what happens with the arrest, there is no quick or easy way to recover your clearance.'' \107\ --------------------------------------------------------------------------- \105\ Id. \106\ Id. \107\ Id. --------------------------------------------------------------------------- 2. Betty Lambuth Relayed the Secrecy Instructions to Her Team Lambuth did not speak to her team until the following Monday.\108\ At that time, she reported that Lindsay specifically instructed them to ``record nothing. Do no e-mails on this matter. Absolutely no telephone calls on this matter.'' \109\ Lambuth's claim in this regard is corroborated not only by other contract employees, but also by Tony Barry, who told committee staff that at his first meeting on the e-mail issue, Lambuth told him they had been instructed not to take any notes.\110\ Barry told her that he would document the meeting in his weekly report as always to his supervisor, Jim Wright.\111\ The instruction to avoid making records is also corroborated by handwritten notes about the Mail2 problem produced to the committee by Northrop Grumman which state in part, ``1. Instructed never to commit to paper.'' \112\ --------------------------------------------------------------------------- \108\ Id. \109\ Id. \110\ See interview with Daniel A. ``Tony'' Barry, ARMS Manager, Office of Administration, in Washington, DC (Mar. 7, 2000). \111\ See id. \112\ Norththrop Grumman document production NGL 00795 (exhibit 199). Northrop Grumman counsel was unable to identify the author of the handwritten notes. Letter from Richard Oparil, partner, Piper Marbury Rudnick & Wolfe, to James C. Wilson, chief counsel, Committee on Government Reform (Sept. 20, 2000) (within appendix I). --------------------------------------------------------------------------- Lambuth specifically communicated that Lindsay emphasized keeping the matter secret from the program manager, Steve Hawkins, and the Contracting Officers' Technical Representative (COTR), Jim Wright.\113\ This claim is also corroborated by John Spriggs and Robert Haas in their testimony before the committee.\114\ --------------------------------------------------------------------------- \113\ Interview with Betty Lambuth, former Lotus Notes team manager, Northrop Grumman, in Washington, DC (Mar. 21, 2000). Projects with which Northrop Grumman employees were tasked were to be performed under the general direction of the contracting officer and the technical direction of the COTR. White House document production E 8330 (exhibit 206). See also interview with Steve Hawkins, former program manager, Northrop Grumman, in Washington, DC (Mar. 7, 2000). \114\ ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 31-32, 48-49 (Mar. 23, 2000) (testimony of Robert Haas, Lotus Notes administrator, Northrop Grumman and John Spriggs, senior engineer, Northrop Grumman). --------------------------------------------------------------------------- 3. The E-mail Team Met With Laura Callahan and Mark Lindsay The Monday following the initial discovery and reporting of the e-mail problem, Laura Callahan requested a meeting with all of the contract employees then aware of the issue.\115\ At 10 a.m., Northrop Grumman contract workers Robert Haas, Yiman Salim, Sandy Golas and John Spriggs, along with their manager, Betty Lambuth, met in Laura Callahan's office. Mark Lindsay participated in the meeting via speakerphone.\116\ Callahan and Lindsay told the Northrop Grumman employees that the e-mail issue was extremely sensitive and cautioned them not to tell anyone about it.\117\ Callahan and Lindsay also instructed the contract employees to say nothing without their explicit authorization,\118\ and they specifically prohibited disclosure to co-workers, spouses, and the Northrop Grumman supervisors, including--by name--Program Manager Steve Hawkins, COTR Jim Wright, and Senior Manager Bob Whiteman.\119\ They were also instructed to write down as little as possible related to the project, not to work on any networked computers or to send any further e-mail relating to the project.\120\ This statement is also corroborated by contemporaneous statements to IS&T Director Kathleen Gallant.\121\ Laura Callahan then allegedly asked each person in the room individually if they understood the consequences of speaking about the e-mail problem.\122\ --------------------------------------------------------------------------- \115\ Interview with Robert Haas, Lotus Notes administrator, Northrop Grumman, in Washington, DC (Mar. 7, 2000). \116\ Id. See also ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 31, 45 (Mar. 23, 2000) (testimony of Robert Haas, Lotus Notes administrator, Northrop Grumman and Sandra Golas, VAX Systems administrator, Northrop Grumman). \117\ Interview with Robert Haas, Lotus Notes administrator, Northrop Grumman, in Washington, DC (Mar. 7, 2000). \118\ Id. \119\ Id. See also ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 31-32, 48-49 (Mar. 23, 2000) (testimony of John Spriggs, senior engineer, Northrop Grumman). \120\ Interview with Robert Haas, Lotus Notes administrator, Northrop Grumman, in Washington, DC (Mar. 7, 2000). \121\ Interview with Kathleen Gallant, former IS&T Director, Office of Administration, in Chantilly, VA (May 17, 2000). \122\ Interview with Robert Haas, Lotus Notes administrator, Northrop Grumman, in Washington, DC (Mar. 7, 2000). --------------------------------------------------------------------------- At some point during the meeting, Lindsay ended his involvement via speakerphone.\123\ After Lindsay was no longer participating, Bob Haas asked what would happen if he told someone about the e-mail problem without authorization. Callahan responded, ``there would be a jail cell with your name on it.'' \124\ Haas' testimony is directly corroborated on the use of the word ``jail'' by both Betty Lambuth and Sandy Golas.\125\ It is indirectly corroborated by Steve Hawkins who, while not in the room when the threat was made, heard contemporaneous statements about the threat from Sandy Golas and Robert Haas.\126\ Haas, Golas, and Lambuth each recalled Callahan's ``jail cell'' comment. Salim and Spriggs have no specific recollection of the comment, but did not dispute their colleagues' recollections. --------------------------------------------------------------------------- \123\ Id. See also ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 32 (Mar. 23, 2000) (testimony of Robert Haas, Lotus Notes administrator, Northrop Grumman). \124\ Interview with Robert Haas, Lotus Notes administrator, Northrop Grumman, in Washington, DC (Mar. 7, 2000). \125\ See ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 32, 45 (Mar. 23, 2000) (testimony of Robert Haas and Sandra Golas, respectively). See also id. at 25 (testimony of Betty Lambuth). \126\ Id. at 31, 45, 136. --------------------------------------------------------------------------- 4. Corroborating Evidence and Testimony This committee first learned these basic facts in a series of interviews with the Northrop Grumman contract employees in March 2000. Most of the story was repeated by these witnesses at a March 23, 2000, committee hearing. However, this was not the first time that these employees have told this story. Rather, they told a number of individuals in 1998 that they had been threatened. a. Robert Haas Told Steve Hawkins About the Threats Several witnesses have corroborated the alleged threats by their independent recollections of the behavior and statements of the Northrop Grumman employees in the summer and early fall of 1998. Robert Haas' claim that Laura Callahan threatened him with jail, for example, is corroborated by Steve Hawkins. Hawkins was not in the Monday morning meeting in Laura Callahan's office in which Haas claims he was threatened. However, Haas contemporaneously explained the threat to Hawkins.\127\ --------------------------------------------------------------------------- \127\ Id. at 145-146 (testimony of Steve Hawkins, former program manager, Northrop Grumman). --------------------------------------------------------------------------- b. Sandra Golas Risked Her Job by Refusing to Tell Steve Hawkins About the E-mail Problem Steve Hawkins, Jim Wright, John Spriggs, and Sandy Golas all gave the committee similar accounts of an incident that occurred shortly after the alleged jail threat. Sandy Golas had returned to her office.\128\ Jim Wright, the COTR, came in and asked her what she was doing, as he routinely did.\129\ Her response was that she could not tell him.\130\ He told her that, as the COTR, his job required that he know about the projects on which she was working.\131\ He immediately escorted her to the office of the program manager, Steve Hawkins, where Golas also refused to divulge what she was doing.\132\ Hawkins told her she was being insubordinate and must tell him or be fired.\133\ She responded, ``if it's a choice of being insubordinate or going to jail, I guess I'll have to be insubordinate.'' \134\ Hawkins, Wright, and Golas each gave consistent accounts regarding this incident. Their testimony is highly corroborative evidence that Golas had heard threats of jail earlier that day. Golas clearly feared retaliation and imprisonment if she told Hawkins--her superior--what work she was doing at the direction of the White House. Hawkins' testimony about Golas' appearance and demeanor is also corroborative of the threat allegations. Indeed, Hawkins stated: ``Well, once I asked Ms. Golas to come to my office, she was very nervous, to say the least, very fidgety.'' \135\ --------------------------------------------------------------------------- \128\ Interview with Sandy Golas, VAX Systems administrator, Northrop Grumman, in Washington, DC (Mar. 7, 2000). \129\ Interview with Jim Wright, former COTR and IS&T Data Center Branch Chief, Office of Administration, in Washington, DC (June 8, 2000). \130\ Id. \131\ Id. \132\ Id. \133\ Interview with Sandy Golas, VAX Systems administrator, Northrop Grumman, in Washington, DC (Mar. 7, 2000). \134\ ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 45-46 (Mar. 23, 2000) (testimony of Sandra Golas, VAX Systems administrator, Northrop Grumman). \135\ Id. at 54 (testimony of Steve Hawkins, former program manager, Northrop Grumman). --------------------------------------------------------------------------- Following her refusal to speak, Hawkins gave Golas 30 minutes to consider her decision.\136\ She returned to his office with Bob Haas and John Spriggs.\137\ According to Hawkins, all three of them were ``extremely nervous.'' \138\ They told him that their immediate supervisor, Betty Lambuth, had ordered them not to talk about the work.\139\ The three of them relayed to him what had occurred in the earlier meeting with Callahan and Lindsay.\140\ --------------------------------------------------------------------------- \136\ Interview with Sandy Golas, VAX Systems administrator, Northrop Grumman, in Washington, DC (Mar. 7, 2000). \137\ ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 54 (Mar. 23, 2000) (testimony of Sandra Golas, VAX Systems administrator, Northrop Grumman). \138\ Id. at 55. \139\ Interview with Steve Hawkins, former program manager, Northrop Grumman, in Washington, DC (Mar. 7, 2000). \140\ ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 55 (Mar. 23, 2000) (testimony of Sandra Golas, VAX Systems administrator, Northrop Grumman). --------------------------------------------------------------------------- c. Steve Hawkins Discussed the Threats With Lindsay and Callahan Hawkins contacted Lambuth and ordered her to come to his office as soon as possible.\141\ Lambuth told Hawkins she was merely repeating the instructions of then-General Counsel for the Office of Administration, Mark Lindsay.\142\ She explained that she had been ordered by Laura Callahan and Mark Lindsay not to discuss the matter.\143\ --------------------------------------------------------------------------- \141\ Interview with Steve Hawkins, former program manager, Northrop Grumman, in Washington, DC (Mar. 7, 2000). \142\ Id. \143\ Id. This account corroborates Betty Lambuth's testimony and is particularly reliable given the friction between Hawkins and Lambuth which eventually led to Hawkins having Lambuth removed from the contract. --------------------------------------------------------------------------- Steve Hawkins was then called to a meeting with Mark Lindsay in his office. When Hawkins arrived, Laura Callahan was already present.\144\ They wanted to know why Hawkins had become involved in the e-mail matter.\145\ Hawkins expressed his concern that employees were being directed without the knowledge or involvement of their supervisors, and that they were being directed to perform work potentially outside the scope of the contract between Northrop Grumman and the EOP.\146\ Hawkins testified about the meeting with Lindsay and Callahan: --------------------------------------------------------------------------- \144\ Id. \145\ Id. \146\ Id. Mr. LaTourette. And let me stop you there. When you talked to the majority staff, I believe, you recall a comment being made to you by Ms. [Callahan] that --------------------------------------------------------------------------- everything was fine before you stepped in. Mr. Hawkins. Absolutely. Mr. LaTourette. Is that a direct quote from Ms. [Callahan] to you? Mr. Hawkins. That was a direct quote. Mr. LaTourette. OK. And at this time were you aware what the problem was, that there was this e-mail e- server problem? Mr. Hawkins. No, sir. I didn't have any idea, other than I had a COTR breathing down my neck, I had a CO-- the contracting officer--telling me to stay in bounds of my contract. And, first of all, as I told Mr. Lindsay, my contract was with the U.S. Government and it was not with Mr. Lindsay nor was it with Ms. Posey.\147\ --------------------------------------------------------------------------- \147\ ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 144 (Mar. 23, 2000) (testimony of Steve Hawkins, former program manager, Northrop Grumman). Hawkins replied to Callahan by saying that he ``did not appreciate her threatening the Northrop Grumman employees.'' \148\ Callahan did not deny Hawkins' accusation, but merely turned and left the room.\149\ Callahan's failure to refute such a serious charge, especially when made in the presence of her superior, Mark Lindsay, is especially disturbing. Most individuals in a similar situation would have denied such a charge in order to avoid negative employment or legal consequences. Callahan's failure to do so may indicate confidence that Lindsay would take no action to report or discipline her for making such a threat. This would be consistent with Betty Lambuth's account in which Lindsay was the original source of the threat, which Callahan merely repeated--first to Lambuth and then to Haas.\150\ --------------------------------------------------------------------------- \148\ Declaration of Steve Hawkins, former program manager, Northrop Grumman, at para.5 (May 18, 2000) (exhibit 158). This declaration was provided to the committee after the first hearing to clarify a matter that became a point of contention at that hearing. Majority and minority members disputed whether or not Hawkins claimed to have mentioned threats to Mark Lindsay and Laura Callahan, both of whom denied hearing of any such allegations until the news reports of February 2000. ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 144-145, 338-339 (Mar. 23, 2000) (testimony of Steve Hawkins and colloquy between Chairman Burton and Ranking Minority Member Waxman). As is made clear from the declaration, although unclear in the hearing transcript, Hawkins did not confront Lindsay and Callahan with his knowledge of a specific threat of jail. However, he did confront them about the threat more generally and unequivocally expressed his displeasure with White House personnel threatening his employees. \149\ Declaration of Steve Hawkins, former program manager, Northrop Grumman, at para.6 (May 18, 2000) (exhibit 158). \150\ Interview with Betty Lambuth, former Lotus Notes team manager, Northrop Grumman, in Washington, DC (Mar. 21, 2000). --------------------------------------------------------------------------- According to Hawkins, Lindsay flatly refused to yield to Hawkins' request to follow proper procedure and allow Northrop Grumman managers to know about the nature of the project in order to supervise their employees.\151\ On this point, Hawkins directly contradicted Lindsay who testified as follows: ``I wanted the information to be limited, but the definition of `group' is the group of people necessary to solve the problem. That means if Northrop Grumman chose to bring in 20 people who were going to actually solve the problem, that was fine with me.'' \152\ As the program manager, Hawkins was the most senior Northrop Grumman employee onsite and was responsible for supervising his employees' activity to ensure that they were within the scope of the contract.\153\ Yet, Hawkins claims Lindsay refused to inform him about the nature of the work the contractors were being directed to perform.\154\ Hawkins also testified that he felt threatened by Mark Lindsay during their meeting: --------------------------------------------------------------------------- \151\ See section III.A.6.a (discussing relevant contract provisions setting forth scope of contract). \152\ ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 257 (Mar. 23, 2000) (testimony of Mark Lindsay, Assistant to the President for Management and Administration, the White House). \153\ Interview with Steve Hawkins, former program manager, Northrop Grumman, in Washington, DC (Mar. 7, 2000). \154\ Id. Mr. Hawkins. It was very specific in the contract that the COTR gave directions to the program manager and no one else. And, therefore, I took the position that I could not support this project and would not do it without an internal work order, which was compliant with our contract. At two or three points in the conversation, it got very tense. Matter of fact, Mr. Lindsay said over and over, ``I hope you appreciate my position here.'' And I repeated back to him, ``I hope --------------------------------------------------------------------------- you appreciate my position here.'' Mr. Souder. What do you think he meant by, ``I hope you appreciate my position?'' Mr. Hawkins. I took it straight as a strong arm. I took it as a direct assertion that my employees should go do this work and I should not be involved. To the contrary, the contracting officer, which was [Dale] Helms, Mr. Jim Wright, gave me explicit instructions when we talked, ``Don't `crater in,' '' and I never did at any time. And I did feel threatened the whole meeting with Mr. Lindsay.\155\ --------------------------------------------------------------------------- \155\ ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 106-107 (Mar. 23, 2000) (testimony of Steve Hawkins, former program manager, Northrop Grumman). --------------------------------------------------------------------------- d. The Northrop Grumman Employees Met in a Park and a Coffee Shop in Order to Maintain Secrecy The atmosphere of intimidation created by OA management is also evident in the behavior of the Northrop Grumman employees. For example, all five testified that they began meeting off the EOP premises in order to comply with the secrecy directives. They specifically mentioned having technical meetings about the Mail2 problem in a nearby park and at Starbucks.\156\ It was not only unusual for them to have attempted to work on complex technical issues outside the normal environment, but also ineffective. As Sandra Golas testified: --------------------------------------------------------------------------- \156\ Id. at 26, 51. We weren't provided any place that we could go to work, and so this was our place where we would go to have discussions. We didn't have any equipment, so we really couldn't do a whole lot of testing, so it was really difficult for us to come away with any conclusions in any one period of time, so we had a number of meetings.\157\ --------------------------------------------------------------------------- \157\ Id. at 134 (testimony of Sandra Golas, VAX Systems administrator, Northrop Grumman). Given that it limited their ability to remedy the problem, leaving the workplace in order to discuss Mail2 issues is more likely the product of fear and intimidation about the consequences of divulging the problem than any other explanation. These actions by the Northrop Grumman contractors are strong corroborating evidence supporting their testimony that they were threatened into secrecy. e. The Northrop Grumman Employees Told Kathleen Gallant About the Threats Shortly thereafter, contractors Betty Lambuth, Robert Haas, John Spriggs, and Sandy Golas also told Kathleen Gallant, Director of the IS&T division of OA, about the threats they had received. They told Gallant, who was Laura Callahan's superior, that Callahan had threatened them with jail if they disclosed information about the e-mail problem to unauthorized persons.\158\ Gallant told committee staff that there was ``no doubt in their mind that they took [the threats] seriously.'' \159\ Steve Hawkins came to Gallant and told her that no one would work on the project. Gallant suggested that he get his Northrop Grumman corporate counsel involved to reassure the contractors that they would not go to jail.\160\ Immediately upon learning of the threats, Gallant removed Callahan from any responsibility for the Mail2 issue. The decision to remove Callahan was not documented, but Gallant cited the following reasons: (1) Callahan went outside the chain-of-command in directing the Northrop Grumman employees; (2) Callahan was exercising authority over staff members not in her charge; and (3) Gallant ``most certainly'' credited as true the contract employee's account that they were threatened.\161\ --------------------------------------------------------------------------- \158\ Declaration of Kathleen Gallant, former IS&T Director, Office of Administration, Alexander v. FBI (D.D.C. May 10, 2000) (CA 96-2123) (exhibit 154). \159\ Interview with Kathleen Gallant, former IS&T Director, Office of Administration, in Chantilly, VA (May 17, 2000). \160\ Id. \161\ Id. --------------------------------------------------------------------------- f. The Northrop Grumman Employees Told Joe Vasta About the Threats Later that summer, on August 28, 1998, Robert Haas, John Spriggs, and Sandy Golas requested a meeting with Joe Vasta, Northrop Grumman's deputy program manager.\162\ Vasta would later succeed Steve Hawkins as program manager. The employees were reportedly worried that a new member of their team, Jim Webster, was learning details about the Mail2 problem and could not be trusted not to speak about it.\163\ This corroborates Lambuth's testimony that she had conveyed to the other contractors Lindsay's warning that if any one of them talked, all of them would be fired. Vasta's account illustrates that the contractors remained in fear of some retribution upon the group if any single member were to reveal the e-mail problem. John Spriggs told committee staff: ``Clearly, we were under duress. The pressure was continuing. We felt like we were between a rock and a hard place.'' \164\ They had been directed to fix the problem, but to do so without telling anyone, even their corporate management. Without a manager and without guidance, the employees were seeking assistance in dealing with the no-win situation imposed on them by Lindsay and Callahan. According to Spriggs, they wanted to give Vasta enough information about their dilemma to communicate the gravity of the situation while revealing ``as little information as possible.'' \165\ --------------------------------------------------------------------------- \162\ Interview with Joseph Vasta, former program manager, Northrop Grumman, in Washington, DC (June 27, 2000). \163\ Id. \164\ Telephone interview with John Spriggs, senior engineer, Northrop Grumman, in Washington, DC (Sept. 12, 2000). \165\ Id. --------------------------------------------------------------------------- At the August 28, 1998, meeting, Robert Haas repeated to Vasta that he had been threatened with jail if he spoke about the project.\166\ John Spriggs corroborated Vasta's recollection of the meeting generally, and specifically on the issue of Haas' being threatened with jail.\167\ Vasta took handwritten notes at the meeting, but the committee has been unable to obtain copies of them to date. After the meeting, John Spriggs reminded Vasta that they were to collect all notes regarding the project.\168\ In order to gain the trust of the employees, Vasta relinquished his contemporaneous notes to Spriggs.\169\ Spriggs told committee staff that because of Lindsay and Callahan's instructions, their general practice was to collect all Mail2 related notes and give them to Robert Haas, who kept them in ``a burn bag.'' \170\ Unfortunately, however, Vasta's notes have disappeared.\171\ However, Vasta later wrote a memo dated September 9, 1998, regarding the meeting. While the specific threat of jail is not recorded in the typewritten memo, the general circumstances of the meeting were described as follows: --------------------------------------------------------------------------- \166\ Interview with Joseph Vasta, former program manager, Northrop Grumman, in Washington, DC (June 27, 2000). \167\ Telephone interview with John Spriggs, senior engineer, Northrop Grumman, in Washington, DC (Sept. 12, 2000). \168\ Id. \169\ Interview with Joseph Vasta, former program manager, Northrop Grumman, in Washington, DC (June 27, 2000). \170\ Telephone interview with John Spriggs, senior engineer, Northrop Grumman, in Washington, DC (Sept. 12, 2000). \171\ Id. On June 28, 2000, the committee specifically requested, pursuant to its earlier subpoena, a copy of Vasta's handwritten notes from the White House. Associate Counsel to the President Edward McNicholas responded on July 6, 2000, ``we have not been able to determine that the EOP ever had possession of any such notes. As a result, you may wish to contact counsel for Northrop Grumman on this matter.'' Letter from Edward McNicholas, Associate Counsel to the President, the White House, to James C. Wilson, chief counsel, Committee on Government Reform (July 6, 2000) (within appendix I). See also letter from Richard Oparil, partner, Piper Marbury Rudnick & Wolfe, to James C. Wilson, chief counsel, Committee on Government Reform (Sept. 20, 2000) (within appendix I). The committee contacted not only counsel for Northrop Grumman, but also Mr. Spriggs' and Mr. Haas' personal counsel. To date, no one has produced the notes to the committee. Members of the project team were called into a meeting (date of the meeting is not clear) and were told they were working on a special project that could not be discussed with anyone. In this meeting, a government employee declared the project was to be held in confidence and could not be discussed with anyone. When Steve [Hawkins] asked if the government employee providing this direction was Laura [Callahan], the employee said[,] ``[h]e would not deny she was the source.'' \172\ --------------------------------------------------------------------------- \172\ Joseph Vasta document production (exhibit 155). The memo also corroborates the testimony of several of the contractors that they were instructed not to take notes or make written records of their work on the e-mail problem--a charge denied by both Lindsay and Callahan.\173\ However, according to Vasta's memo, ``they said they were told they could not discuss the project with anyone, could not create soft copy or hard copy notes about the effort, and all meetings about the project had to be out of earshot of people who were not on the team.'' \174\ --------------------------------------------------------------------------- \173\ ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 282 (Mar. 23, 2000) (testimony of Mark Lindsay, Assistant to the President for Management and Administration and Laura Callahan, former IS&T Desktop Systems Branch Chief). \174\ Joseph Vasta document production (exhibit 155). --------------------------------------------------------------------------- g. The Northrop Grumman Employees Told Joseph Lucente and Northrop Grumman Counsel About the Threats On September 9, 1998, Robert Haas and his fellow Northrop Grumman employees told yet more people about the threats when they sought legal advice about working on the secretive Mail2 project from their in-house corporate legal counsel.\175\ According to Joseph Lucente, a senior Northrop Grumman manager who helped facilitate and attended the meeting, Robert Haas told him that he had been threatened with jail.\176\ The evidence also suggests that 2 days later, on September 11, 1998, Haas had a telephone conversation with an outside counsel hired by Northrop Grumman, former Watergate prosecutor Earl Silbert. Haas testified to the following in Federal court: --------------------------------------------------------------------------- \175\ Haas also claims to have contemporaneously told his sister, his wife, and members of his wife's family about the threats. Transcript of Evidentiary Hearing at 133, Alexander v. FBI (D.D.C. Aug. 14, 2000) (CA 96-2123). \176\ Interview with Joseph Lucente, director of contracts and subcontracts, Northrop Grumman, in Washington, DC (May 1, 2000). Lucente specifically confirmed that what the employees told him at the meeting was consistent with their testimony before the committee at the Mar. 23, 2000, hearing. See id. Q. One of the lawyers' name was Earl Silbert? Remember --------------------------------------------------------------------------- Earl Silbert's name? A. The name is familiar. I'm not sure if--if he works for Northrop Grumman, there was a guy from California and a local guy that we met with, but I'm sorry, I don't remember the names. Q. You remember the way of referring to him by the name of Gray Beard? A. Oh, I never met with the person referred to as Gray Beard. That was a phone conversation from the Northrop Grumman lawyer's office. He called a person he referred to as a Gray Beard. And I recanted [sic] my story to him. Q. That was during the meeting that you're describing in Reston? A. Yes, yes. Q. Mr. Haas, during this meeting out at headquarters in Reston of Northrop Grumman, you may have testified to this already, but just to make sure the answer is on the record, you did relay the threats that had occurred? A. Yes.\177\ --------------------------------------------------------------------------- \177\ Transcript of Evidentiary Hearing at 56-57, 60, Alexander v. FBI (D.D.C. Aug. 14, 2000) (CA 96-2123). The committee subpoenaed Earl Silbert's billing records and received redacted versions along with a privilege log describing generally the activities Silbert billed to Northrop Grumman.\178\ The privilege log indicates that on September 11, 1998, Earl Silbert had a ``teleconference with Northrop Grumman counsel and a company employee.'' \179\ It also lists a second teleconference on the same day with ``Northrop Grumman employees.'' \180\ During an interview with committee staff, Silbert's lawyer said that the second privilege log entry listing multiple employees was a mistake and should have read, ``Northrop Grumman counsel.'' \181\ Silbert refused to reveal the identity of the Northrop Grumman employee to whom he spoke in the first September 11th call, citing work-product privilege. However, the testimony of Robert Haas quoted above, together with Silbert's billing records, suggest very strongly that it was Haas to whom Silbert spoke on that date and that Silbert is the ``gray beard'' of whom Haas spoke. Haas further testified as follows: --------------------------------------------------------------------------- \178\ Earl Silbert document production (exhibit 202) (privilege log). \179\ Id. \180\ Id. \181\ Interview with Earl Silbert, partner, Piper Marbury Rudnick & Wolfe, in Washington, DC (Sept. 25, 2000). Q. And you also expressed your concern, did you not, that the Mail2 reconstruction should be done quickly because of the need to comply with the law, the --------------------------------------------------------------------------- Presidential Records Act? A. Yes, yes. Q. And that this concerned you and your colleagues? A. Yes. Q. You also told people out at headquarters that you had been instructed not to write anything down about this whole matter? A. That's correct. Q. And you told them that you felt quite threatened and abused by this whole thing, correct? A. Yes. Q. And that you were frightened? A. Yes.\182\ --------------------------------------------------------------------------- \182\ Transcript of Evidentiary Hearing at 57, Alexander v. FBI (D.D.C. Aug. 14, 2000) (CA 96-2123). Silbert's billing records indicate that soon after this initial teleconference, he called someone in the White House Counsel's Office. According to those records, that conversation took place on September 28, 1998. When the committee sought to interview Silbert, his lawyer claimed that an interview would be fruitless because Silbert would refuse to answer questions about his contacts with the White House on the grounds of attorney-client privilege. After the committee issued a subpoena to compel Silbert to appear at a hearing, he agreed to be interviewed privately by committee staff. However, at that interview, Silbert claimed to be unable to recall anything at all about his contact with the White House, not even the identity of the person with whom he spoke.\183\ Nonetheless, the evidence strongly suggests that Robert Haas informed Earl Silbert in 1998 of essentially the same material facts to which he testified before the committee this year. --------------------------------------------------------------------------- \183\ Id. --------------------------------------------------------------------------- Silbert's September 28, 1998, conversation with someone in the White House Counsel's Office is of particular interest to the committee for a number of reasons. First, if Silbert complained to the White House Counsel's Office that White House Staff had threatened the Northrop Grumman employees into silence, it would undermine the claims that the White House Counsel's Office was unaware of the threats. Charles Ruff, Cheryl Mills and Michelle Peterson (all with the White House Counsel's Office) have stated that they were unaware of the threats against the Northrop Grumman employees until press accounts surfaced in 2000. Second, if Silbert made those kinds of complaints to the Counsel's Office, it would dramatically undermine claims that the Counsel's Office never appreciated the significance of the problem. It should be noted that 2 weeks after Silbert's call to the White House, Laura Callahan discontinued her employment with the EOP.\184\ As described above, several Northrop Grumman employees recalled that Callahan threatened them into concealing the problem from their Northrop Grumman managers. Callahan left the EOP soon after Silbert's conversations with Haas and someone at the White Counsel Counsel's Office. Those facts are consistent with the possibility that not only did Silbert learn that Callahan might have threatened the employees, but also that Silbert might have conveyed that information to the person at the White House Counsel's Office with whom he spoke. --------------------------------------------------------------------------- \184\ See ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 222 (Mar. 23, 2000) (Callahan testifying that she left EOP on Oct. 10th or 11th, 1998). --------------------------------------------------------------------------- h. Mark Lindsay Consulted OA Counsel on His Own Secrecy Instructions Deputy OA Counsel Adam Greenstone told committee staff that in 1998, Mark Lindsay, then his immediate superior, asked him an apparently hypothetical question, the significance of which Greenstone did not understand until much later. According to Greenstone, who handles employment law issues for the OA General Counsel's Office, Lindsay asked him ``if a group of employees discover a problem, to find the solution is it appropriate to ask them not to discuss it with co-workers?'' \185\ Greenstone answered ``yes.'' \186\ He said Lindsay was only looking for a hypothetical reaction and not a formal legal opinion.\187\ --------------------------------------------------------------------------- \185\ Interview with Adam Greenstone, Deputy Counsel, Office of Administration, in Washington, DC (May 22, 2000). \186\ Id. \187\ Id. --------------------------------------------------------------------------- At the time of the conversation with Lindsay, Greenstone did not understand that this question had anything to do with Mail2. However, Greenstone also recalled a conversation in which Kate Anderson, a colleague of his in the OA General Counsel's Office, stated that Steve Hawkins was angry because Northrop Grumman employees were told to do work without Hawkins' knowledge.\188\ After the discussion with Anderson, Greenstone finally understood that Lindsay's hypothetical was connected to the Mail2 error and contract dispute.\189\ In a related proceeding in Federal court, Lindsay confirmed under oath that his question was, in fact, connected to the Mail2 problem and resulting contract dispute: --------------------------------------------------------------------------- \188\ Id. \189\ Id. Q. Let me read it again. If a group of employees discovers a problem, is it appropriate to ask them not to discuss it with anyone else? You asked him that --------------------------------------------------------------------------- question, did you not? A. I may have, yes. Q. So you did? A. I believe I did. Q. And you asked him that question because you had told Laura [Callahan] to instruct the Northrop Grumman employees that they should not discuss the Mail2 problem outside of their group? A. Outside of the people who needed to work on it, yes.\190\ --------------------------------------------------------------------------- \190\ Transcript of Evidentiary Hearing at 76-77, Alexander v. FBI (D.D.C. Aug. 23, 2000) (CA 96-2123). Lindsay's question to Greenstone indicates that he was, at least at one time, considerably less confident about the propriety of his secrecy instructions than he appeared to be at the committee's hearings. Greenstone noted that Lindsay did not specify in the hypothetical that the employees were contractors or that the co-workers were actually supervisors.\191\ Greenstone added that if either additional factor had been mentioned, he would have told Lindsay that the instruction was improper.\192\ He said he would have responded, ``it should go through the proper contractor channels.''\193\ --------------------------------------------------------------------------- \191\ Interview with Adam Greenstone, Deputy Counsel, Office of Administration, in Washington, DC (May 22, 2000). \192\ Id. \193\ Id. --------------------------------------------------------------------------- 5. Inconsistencies in the Contractors' Testimony Are Easily Reconciled The testimony of the Northrop Grumman employees is in all material respects consistent. However, as would be expected when a number of individuals describe events from years before, there are some minor variations. These inconsistencies are natural and to be expected. In fact, their absence could indicate a fabrication, in which witnesses collude to tell the exact same story. There is no evidence of any motive for these six employees to invent such a story. If such a motive did exist, it is highly unlikely that they would have created a story with the level of detail and intricacy exhibited here. For example, only three of the five Northrop Grumman employees present for the meeting with Callahan in which Lindsay participated by speakerphone recall hearing the alleged ``jail cell'' threat to Haas. Yiman Salim and John Spriggs did not recall hearing that comment. However, neither of them disputed their colleagues' testimony. Neither of them had an affirmative recollection that no such threat occurred, and neither offered any reservations about Haas' credibility on the point. Indeed, Ranking Minority Member Henry Waxman also found Robert Haas' testimony credible: Mr. Haas, who seemed credible to me, clearly believed he had been threatened with jail by Mrs. Callahan. He told us that, in a meeting with Mrs. Callahan and his four coworkers, he flippantly asked what would happen if he discussed the computer glitch with others. He remembers Mrs. Callahan warning him that, ``there would be a jail cell with his name on it.'' \194\ --------------------------------------------------------------------------- \194\ ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 18 (Mar. 30, 2000). Furthermore, testimony from Steve Hawkins indicates that shortly after the threat was made, Robert Haas told Hawkins of the threat in the presence of Spriggs and Golas.\195\ According to Hawkins, Spriggs seemed more calm than other two, but Hawkins described him as ``concerned'' and said that all three of them appeared to be ``extremely nervous.'' \196\ This indicates that while Spriggs may not have had an independent recollection of the threat, he heard Haas' contemporary re- telling of the event to Hawkins and offered no objection or dissent about whether the threat had occurred. In fact, according to Hawkins' testimony, Spriggs' behavior at the time was consistent with his having either witnessed a threat himself or believing Haas' claim of being threatened. --------------------------------------------------------------------------- \195\ Id. at 55 (Mar. 23, 2000) (testimony of Steve Hawkins, former program manager, Northrop Grumman). \196\ Id. at 55. --------------------------------------------------------------------------- Betty Lambuth is the only witness who claims that Mark Lindsay threatened her with jail. This is not necessarily inconsistent with the testimony of other Northrop Grumman employees that they were threatened by Laura Callahan because it allegedly occurred at a separate meeting. However, there is less corroborating evidence for Lambuth's testimony with regard to Lindsay than there is for the others' testimony with regard to Callahan. After Lambuth claimed that Paulette Cichon had overheard Lindsay threaten her, Cichon told committee staff that she recalled no such threat. Cichon was initially interviewed by minority staff without majority staff present. As a result of that interview, Cichon provided a written statement to the minority, which was neither notarized nor sworn, in which she described a meeting she attended with Mark Lindsay and Betty Lambuth.\197\ Cichon's written statement as well as her later interview with both majority and minority staff directly contradicts Lambuth's sworn account. According to Cichon, Lindsay merely authorized Lambuth to speak to Cichon about the problem. Cichon does not recall hearing Mark Lindsay make any sort of threat to Lambuth.\198\ --------------------------------------------------------------------------- \197\ Statement of Paulette Cichon, former Deputy Director, Office of Administration (Mar. 29, 2000) (exhibit 157). \198\ Id. --------------------------------------------------------------------------- While Cichon's statements fail to corroborate Lambuth's on the primary issue of Lindsay's alleged threat, Cichon does corroborate other important aspects of Lambuth's testimony. For example, Cichon said that Lambuth appeared ``apprehensive or uncomfortable'' speaking about the problem.\199\ This supports Lambuth's claim that she was afraid to discuss the matter with anyone absent express authorization from Mark Lindsay and is consistent with her having been intimidated earlier. Kathleen Gallant provided a similar account in which Lambuth was apprehensive and reluctant to speak to her about the problem until specifically and personally authorized to do so by Mark Lindsay.\200\ --------------------------------------------------------------------------- \199\ Id. \200\ Interview with Kathleen Gallant, former IS&T Director, Office of Administration, in Chantilly, VA (May 17, 2000). --------------------------------------------------------------------------- None of these apparent inconsistencies significantly diminish the fact that at least half a dozen witnesses believed that contract employees were threatened by White House officials. More amazing is that this occurred at the height of the Monica Lewinsky scandal, while a Federal grand jury was investigating the President of the United States for perjury, witness tampering, and obstruction of justice. If any of the contractors' allegations were politically motivated, they would surely have come forward at the height of the impeachment debate. Instead, all of these witnesses kept silent and kept doing their jobs throughout impeachment. Meanwhile, those accused of threatening the contract employees are still employed in the administration and no disciplinary action has been taken against them. Of course, Mark Lindsay and Laura Callahan have denied that they threatened anyone. However, their denials must be viewed in proper perspective. First, they had a powerful motive to threaten the Northrop Grumman employees. The White House was in the middle of the impeachment investigation, and the last thing it needed was news that thousands of potentially responsive e- mails had not been searched. Second, Lindsay's credibility must be evaluated in the context of his behavior throughout the e- mail matter. As explained in this report, Mark Lindsay was at the center of the White House's failure to fix the e-mail problem or to notify Congress of the problem's existence. When questioned about this matter, he has strained credulity beyond reasonable limits on numerous occasions. Finally, there is scant evidence to support the denials of Lindsay and Callahan. Only one witness, Paulette Cichon, offered any factual statement corroborating Lindsay or Callahan, and as described above, even her story confirmed a key aspect of the Northrop Grumman employees' testimony. Furthermore, Cichon has reason to be supportive of Lindsay and Callahan because she may in part be accountable for the failure to take effective steps to cure the problem or notify Congress. The only other witnesses on the threat issue who made favorable statements about Lindsay and Callahan were essentially character witnesses who made general statements about Lindsay and Callahan lacking the propensity to make threats. For example, Virginia Apuzzo said that she could not imagine Callahan threatening anyone and that it was not Lindsay's style to make threats.\201\ However, other witnesses contradicted these assessments. For example, former OA Director Ada Posey said that Lindsay ``ruled like Mussolini,'' \202\ and former IS&T Director Kathleen Gallant said Callahan ``would embarrass people by criticizing them publicly. She berated them, chastised them.'' \203\ The paucity of evidence in favor of Lindsay and Callahan must be weighed against the mountains of evidence supporting the conclusion that Mark Lindsay and Laura Callahan threatened Northrop Grumman employees. --------------------------------------------------------------------------- \201\ Interview with Virginia Apuzzo, former Assistant to the President for Management and Administration, the White House, in Kingston, NY (May 24, 2000). \202\ Interview with Ada Posey, former Director, Office of Administration, in Washington, DC (May 18, 2000). \203\ Interview with Kathleen Gallant, former IS&T Director, Office of Administration, in Chantilly, VA (May 17, 2000). --------------------------------------------------------------------------- 6. Lindsay and Callahan Kept the E-mail Problem Secret From Individuals Who Needed to Know About It As described above, Mark Lindsay and Laura Callahan threatened Northrop Grumman employees to remain silent about the problem. Another result of these threats, other than keeping the problem from the attention of Congress and the public, was that it required the Northrop Grumman employees to work in secret. This prevented them from working on the problem with proper supervision or assistance and, therefore, delayed a solution to the problem. However, as described below, Lindsay and Callahan also attempted to keep the e-mail problem secret from EOP officials who should have been involved in the process of fixing the problem, and whose involvement would have been advantageous. a. Lindsay and Callahan Did Not Disclose the Problem to the Program Manager and the COTR Apparently recognizing that there was an effort to conceal the problem from the contractors' on-site managers, Representative Waxman asked Hawkins at a hearing before the committee for his opinion as to why the problem might have been concealed from him: Mr. Waxman. I just have one last question. Mr. Hawkins, people didn't want them to talk to you. Was that because they might have had a fear that you might have come back and said, ``This is outside the scope of the Northrop Grumman contract,'' and you might not go out and fix it? Mr. Hawkins. I believe their intent, because they had a computer failure, they should have at least acknowledged within their own Civil Service and follow contractual guidelines. I believe, in my own opinion, that they did try to cover up the fact that they had a computer glitch and there were e-mails involved and it did include the President and Monica Lewinsky. I had-- at no time did I ever feel that they were trying to be up-front and open and honest because of my discussions with Mr. Lindsay.\204\ --------------------------------------------------------------------------- \204\ ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 92-93 (Mar. 23, 2000). So concerned was management at OA with concealing the nature of the problem from Steven Hawkins, Northrop Grumman's program manager on the EOP facilities contract, that they also sought to keep Jim Wright, who was then the COTR, from knowing about the problem.\205\ Hawkins told committee staff that he once ran for office as a Republican.\206\ It is not known whether his party affiliation was known by EOP or OA management. However, his political affiliation suggests one motive for keeping him uninformed of the e-mail problem. --------------------------------------------------------------------------- \205\ The COTR is the functional equivalent of the program manager but on the government side. He is the government's onsite representative and, therefore, is the primary government onsite official with whom the program manager interacts. With regard to work being done on the EOP facilities contract, the practice was that projects with which Northrop Grumman employees were tasked required authorization by either the COTR or the contracting officer. Interview with Jim Wright, former COTR and IS&T Data Center Branch Chief, Office of Administration, in Washington, DC (June 8, 2000) (citing base contract and Federal Acquisition Regulations). \206\ Interview with Steve Hawkins, former program manager, Northrop Grumman (Mar. 7, 2000). --------------------------------------------------------------------------- Unlike Hawkins, Wright was an EOP employee. As described above, several Northrop Grumman employees recall that Lindsay and Callahan specified that Hawkins and Wright were not to be told about the problem.\207\ In addition, on July 23, 1998,\208\ Catherine Anderson, Assistant General Counsel for OA, recommended Wright's immediate removal as COTR because Wright and Hawkins were ``not operating at arm's length.'' \209\ Without knowing the precise context of Anderson's recommendation, it nonetheless corroborates that the Northrop Grumman employees might have been instructed not to inform Wright of the problem. --------------------------------------------------------------------------- \207\ ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 31-32, 48-49 (Mar. 23, 2000) (testimony of John Spriggs, senior engineer, Northrop Grumman). \208\ During this time, there was no movement in either remedying the problem's effect on future searches or reconstructing the unrecorded e-mail from the backup tapes. See White House document production E 3990 (exhibit 119). \209\ Id. at E 8149 (exhibit 168). When making that recommendation, Anderson specified Wright's removal in reference to ``non-Y2K related work,'' which would encompass the Mail2 problem. Id. Interview with Jim Wright, former COTR and IS&T Data Center Branch Chief, Office of Administration, in Washington, DC (June 8, 2000) (understood Anderson recommended Wright's immediate removal as COTR because he was ``too close'' to Hawkins); interview with Kathleen Gallant, former IS&T Director, Office of Administration, in Chantilly, VA (May 17, 2000) (same). --------------------------------------------------------------------------- It is noteworthy that the White House's concealment of the employees' work on the Mail2 problem from their Northrop Grumman managers deviated from contractual provisions requiring active involvement by the contracting officer, his COTR and the project manager. The task order operative when the employees discovered the problem \210\ requires that --------------------------------------------------------------------------- \210\ The salient provisions are found within the statement of work (SOW) attached to task order OA8004, which provides for Northrop Grumman's support for facilities management and information technology functions for the EOP. See White House document production E 8319 (exhibit 206). Generally, a SOW is attached to a task order and its provisions, setting forth the duties and obligations of the parties to the underlying contract, are incorporated by reference. The committee has received no documentation that indicates that task order OA8004 was abrogated. Accordingly, that task order, dated Sept. 30, 1997, appears to have been operative when the contract employees discovered the Mail2 problem. [a]ll work shall be performed under the general direction of the CO and the technical direction of the COTR. The Contractor's [project manager] will maintain continuing day-to-day contact about all operational matters with the COTR, or other IS&T managers as designated by the COTR. Contact procedures will be established by the COTR and the CO in consultation with the [project manager].\211\ --------------------------------------------------------------------------- \211\ Id. at E 8330 (exhibit 206). Significantly, the task order also provides that ``[t]he Government will not exercise any supervision or control over Contractor employees or subcontractors performing services under this task order. Contractor employees and subcontractors shall be accountable solely to the Contractor and its management, who, in turn, shall be accountable to the Government.'' \212\ The task order also states that ``[t]he Contractor shall be responsible for managing and overseeing the activities of all Contractor personnel, as well as the activities of subcontractors and vendors used in performance of this [Statement of Work (SOW)]'' and that ``[t]he Contractor shall provide the management and administrative activities[.]'' \213\ --------------------------------------------------------------------------- \212\ Id. at E 8324 (exhibit 206) (emphasis added). \213\ Id. at E 8324 (exhibit 206) (emphasis added). --------------------------------------------------------------------------- Under the task order, the COTR monitors and administers the contractor's performance and notifies the contractor and contracting officer of any deficiencies observed.\214\ The task order also restricts each contract employee from working more than 40 hours per year on other projects outside of required task, unless the CO or COTR has granted permission to a written request to exceed this limit.\215\ --------------------------------------------------------------------------- \214\ Id. at E 8323 (exhibit 206). See also id. at E 8368. \215\ Id. at E 8379-8380 (exhibit 206). --------------------------------------------------------------------------- As described above, Lindsay and Callahan sought to conceal Northrop Grumman's work on the problem from their managers, namely Steve Hawkins, Northrop Grumman's program manager, and Jim Wright, the COTR. Also, as discussed below in section III.D.1, Northrop Grumman Program Director Jim DeWire subsequently approved OA Director Ada Posey's request that the contractors work on a project without disclosure to their managers. However, before DeWire authorized this special arrangement, Posey did not specify, and DeWire did not understand, the nature of the project.\216\ Nonetheless, the provisions cited above require disclosure to and direction from the contracting officer, his COTR and the project manager. In addition, the task order plainly provides, ``in no event will any understanding, agreement, modification, change order, or other matter deviating from the terms of the contract be effective or binding upon the government unless proper, formal contractual documents are executed by the Contracting Officer prior to completion of the task.'' \217\ Those provisions underscore the position Hawkins took in his meeting with Lindsay: ``my contract was with the United States Government and it was not with Mr. Lindsay nor was it with Ms. Posey.'' \218\ Under the express language of the contract, Hawkins' position appears to have been well-grounded. There can be little doubt that their deliberate concealment of the problem from both Wright or Hawkins prevented the White House from properly managing the problem and, ultimately, complying with outstanding congressional and grand jury subpoenas. --------------------------------------------------------------------------- \216\ See section III.D.2, below. \217\ Id. at E 8323 (exhibit 206). \218\ See ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 144 (Mar. 23, 2000). --------------------------------------------------------------------------- b. Lindsay Concealed the Problem From the Contracting Officer and Chief of the Procurement Branch Sometime in June 1998, Hawkins told Dale Helms, Contracting Officer and Chief of the Procurement Branch for the Executive Office of the President, that Callahan directed the employees to remedy the problem without management involvement.\219\ Rather than confront Callahan directly, Helms spoke to Lindsay about this issue and said that he would like to be involved and needed to know what was happening with the contract in the future.\220\ Lindsay agreed to this, but noted that in some cases there might be sensitivity concerns that might require that he not discuss it with Helms.'' \221\ However, despite Helms' assertion that he ``wasn't terribly happy'' with his meeting with Lindsay, Helms failed to pursue the matter any further.\222\ --------------------------------------------------------------------------- \219\ Interview with Dale Helms, CO and IS&T Procurement Branch Chief, Office of Administration, in Washington, DC (June 5, 2000). \220\ Id. \221\ Id. \222\ Id. --------------------------------------------------------------------------- In an interview with the committee, Helms indicated that he likely expressed his concern to Lindsay in the abstract and did not specifically refer to the Mail2 problem. \223\ Helms justified his ambivalence regarding Hawkins' concern by noting that cases involving ``the automated data processor, security concerns associated with the firewall and other security issues we deal with,'' required that he not be told certain things.\224\ However, when asked whether the Mail2 problem was within the category of cases to which Lindsay referred, Helms was simply unresponsive: ``[the Mail2 problem] is not something that is in any way a secret. I took from our conversation the assurance that he would inform me except in certain situations. He did not say that [in this case] you were not informed because there is a security issue.'' \225\ Helms further stated that his level of involvement on a day-to-day basis did not require that he be informed all the time.\226\ He also noted that he was typically involved in only management-level discussions with Northrop Grumman on tasks they were working on and until there was a need for contractual modification, he would not necessarily be informed.\227\ Nonetheless, Helms conceded that the Mail2 problem was the only time he ever had to talk to someone at Lindsay's level about such confidentiality protocols.\228\ --------------------------------------------------------------------------- \223\ Id. \224\ Id. \225\ Id. \226\ Id. \227\ Id. \228\ Id. Curiously, Lindsay appears not to have mentioned to Helms a special arrangement made between Northrop Grumman Program Director Jim DeWire and OA Director Ada Posey, in which DeWire authorized that work on the Mail2 project proceed without disclosing it to Northrop Grumman's management. Interview with Jim DeWire, program director, Northrop Grumman, in Washington, DC, (June 15, 2000) (discussing ``special task order'' made with Posey). However, as discussed below, DeWire's authorization was conditioned on Posey's certifying that the project was legal and within the scope of the contract. Id. But see section III.A.6.c, ``Remedying the Problem,'' below (noting Posey was not informed sufficiently about Mail2 problem to certify that it was legal or within scope of base contract). --------------------------------------------------------------------------- As described in the previous section, the task order for the EOP facilities contract identifies the contracting officer and his technical representative as government officials responsible for overseeing Northrop Grumman's administration of the White House's computer systems. In fact, Jim Wright was Tony Barry's direct superior. Barry was individually responsible for searching e-mails on ARMS when the White House was producing documents requested under subpoenas. In that context, it is unclear why Lindsay apparently concluded that the contracting officer and his technical representative did not have a need to know about the e-mail problem, which Lindsay understood to have affected ARMS and, therefore, subpoena compliance. Lindsay's refusal to disclose the problem to those officials delayed a solution to the problem. It also appears to have exacerbated the cost of fixing the problem. c. Lindsay Failed to Inform Adequately the Director of Office of Administration About the Problem Lindsay testified to having immediately and fully informed Ada Posey, who was then the Director of the Office of Administration, about the problem as soon as he learned about it.\229\ However, whether he actually did so is questionable. Lindsay knew of the problem no later than June 15, 1998.\230\ Posey confirmed to the committee that Lindsay informed her that the ARMS system did not appear to be capturing certain records.\231\ Posey was unsure, however, as to when Lindsay so informed her and believes that, by the time he informed her, he might have mentioned that there was a test being performed manually to determine ``if subpoenas had been fully complied with.'' \232\ Lindsay testified that he would never have ordered that a search be done before receiving direction to do so from White House Counsel.\233\ So, Lindsay might have initially spoken to Posey about the problem after he consulted with Counsel to the President Charles Ruff--on June 19, 1998.\234\ As OA Director, Posey was Lindsay's direct supervisor. It is unclear why Lindsay failed to inform his direct supervisor as soon as he learned about the problem. --------------------------------------------------------------------------- \229\ ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 200 (Mar. 23, 2000) (testimony of Mark Lindsay, Assistant to the President for Management and Administration, the White House). \230\ Interview with Robert Haas, Lotus Notes administrator, Northrop Grumman (Mar 7, 2000); White House document production E 0181 (exhibit 12). \231\ Interview with Ada Posey, former Director for the Office of Administration, in Washington, DC (May 18, 2000). \232\ Id. \233\ See e.g., ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 201 (Mar. 23, 2000) (``[N]or would I have [directed a particular search for e-mail] without the direction of White House Counsel.''). \234\ Id. at 31 (Ruff confirming that he first spoke with Lindsay regarding problem on June 19, 2000). --------------------------------------------------------------------------- In any case, it appears that Lindsay provided Posey only the barest of explanations regarding the problem. For example, Lindsay failed to show Posey many important documents about the problem, including the memorandum he drafted for Virginia Apuzzo, which went to Deputy Chief of Staff John Podesta and Counsel to the President Charles Ruff.\235\ That memorandum fully explained the problem. Lindsay also failed to show Posey the letter from Joseph Lucente, the Director of Contracts for Northrop Grumman, to Dale Helms, the Contracting Officer for the EOP, which recorded Northrop Grumman's finding that Callahan directed the contractors to remedy the problem without involvement by Northrop Grumman managers.\236\ Posey observed that, with regard to both letters, she should have been both informed and involved.\237\ --------------------------------------------------------------------------- \235\ Interview with Ada Posey, former Director for the Office of Administration, in Washington, DC (May 18, 2000); Transcript of Evidentiary Hearing at 48, Alexander v. FBI (D.D.C. Aug. 17, 2000) (CA No. 96-2123). See also White House document production E 3373-3374 (exhibit 3). \236\ See Northrop Grumman document production NGL 00503 (exhibit 64). \237\ Interview with Ada Posey, former Director for the Office of Administration, in Washington, DC (May 18, 2000); Transcript of Evidentiary Hearing at 48, Alexander v. FBI (D.D.C. Aug. 17, 2000) (CA No. 96-2123) (regarding Podesta memo); interview with Ada Posey, former Director for the Office of Administration, in Washington, DC (May 18, 2000) (regarding Lucente letter). --------------------------------------------------------------------------- OA was the executive agency responsible for managing, among other things, the White House computer system. Within that system was ARMS, which the White House used to search e-mail in complying with subpoenas. As described above, OA Director Ada Posey was Lindsay's direct supervisor, and it is unclear why Lindsay apparently concluded that the OA Director did not have a need to know significant details about the e-mail problem, which Lindsay understood to have affected ARMS and, therefore, subpoena compliance. At a minimum, Lindsay's refusal to disclose fully the problem to Posey likely hindered a solution to the problem. d. Implications of the White House's Secrecy Mark Lindsay's extensive efforts to keep the e-mail problem secret undermines the White House's self-serving explanation that no one at OA actually understood the problem's profound subpoena compliance implications. There simply is no innocent explanation for briefing the White House Deputy Chief of Staff and the Counsel to the President about the Mail2 problem, while at the same time keeping Northrop Grumman managers ignorant of the problem. At a March 23, 2000, hearing before the committee, Lindsay conceded that he instructed Callahan that ``this was a matter . . . that needed to be kept in bounds with those people who needed the information to perform repairs to the system. I believed that very, very much.'' \238\ However, Lindsay attempted to justify his original instruction to Callahan by observing that: --------------------------------------------------------------------------- \238\ See ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 198-199 (Mar. 23, 2000). I knew that in many cases there were investigations being conducted about individuals who were at the White House. I preferred very much that those individuals not hear about the way they were being treated by people who were talking around at the water cooler, but they learned in official processes and procedures. I felt very, very strongly about that.\239\ --------------------------------------------------------------------------- \239\ See id. at 199. This explanation is disingenuous, self-serving and unpersuasive. Lindsay's justification does nothing to explain his withholding information from various Northrop Grumman and OA managers, particularly given the fact that this appears to be the only time that Lindsay took affirmative steps to keep such supervisors uninformed. Communications between engineers and their managers about solving a technical problem are not tantamount to office gossip around the water cooler. These managers were all senior officials within the EOP with responsibility to manage the EOP's computer systems. Therefore, Lindsay's explanation is without merit. The instructions to keep work on the Mail2 problem secret even from Northrop Grumman managers were improper and should not have been given. Regardless of whether the instructions were enforced with a threat, it was outrageous and inexcusable for Lindsay and Callahan to put the contractors in the untenable position of keeping their work secret from their employer. Such behavior by OA management toward career, technical employees shows an astonishing level of disdain for their well-being and disrespect for their work. Sadly, however, it is consistent with what Mark Lindsay once told Ada Posey about his ambition to move from OA to the White House Office. According to Posey, Lindsay told her, ``I don't care about the OA people. That's your thing. I don't know them, and I don't care what happens to them.'' \240\ --------------------------------------------------------------------------- \240\ Interview with Ada Posey, former Director, Office of Administration, in Washington, DC (May 18, 1998). --------------------------------------------------------------------------- B. The Office of Administration Repeatedly Informed the White House About the E-mail Problem Although the e-mail problem was concealed from those within the White House who could have assisted in solving the problem, it was reported to some senior aides to the President almost immediately. In fact, on several occasions, OA management reported the problem to the White House in detail sufficient to convey both the nature and the scope of the problem. However, regardless of these clear communications, White House lawyers have publicly claimed that there was a ``disconnect'' between technical staff and management.\241\ The evidence obtained by this committee tells a very different story. It shows that the technical staff understood what was, in essence, a very simple problem. It shows that the problem was communicated to OA General Counsel Mark Lindsay, Deputy Chief of Staff John Podesta, Counsel to the President Charles Ruff, and Assistant to the President for Management and Administration Virginia Apuzzo. As detailed below, the committee finds that each of these high-level White House employees immediately understood fundamental elements of the problem and each understood its potential implications for subpoena compliance--both past and future. Notwithstanding clear communication between technical staff and high-level White House management, there was a failure to remedy an obvious problem. --------------------------------------------------------------------------- \241\ See, e.g., ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 137 (Mar. 30, 2000) (testimony of Counsel to the President Beth Nolan) (``I think there was a disconnect between those who were doing the searching for subpoenas and those who were handling the computer issues.''); id. at 50 (May 4, 2000) (testimony of former Counsel to the President Charles F.C. Ruff). See also letter from Beth Nolan, Counsel to the President, to the Honorable Dan Burton, chairman, Committee on Government Reform (Mar. 17, 2000) (within appendix I). --------------------------------------------------------------------------- 1. Robert Haas Performed an Audit Outlining the Magnitude of the Problem In mid-June 1998, the Northrop Grumman employees told Lambuth about the Mail2 problem. Lambuth then informed Callahan, who in turn notified Lindsay.\242\ Sometime after Callahan first reported the problem to Lindsay, Lindsay claims to have immediately notified Posey and Apuzzo.\243\ He then directed his staff to prepare a memorandum to White House Counsel.\244\ This memorandum would later take the form of a memorandum from Apuzzo to Podesta and will be discussed below. --------------------------------------------------------------------------- \242\ ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 292-293 (Mar. 23, 2000) (testimony of Mark Lindsay, Assistant to the President for Management and Administration, the White House). \243\ Id. at 200 (Lindsay stating that he informed Apuzzo and Posey). But see section III.A.6.c, above (arguing that Lindsay insufficiently informed Posey); n.304, below (noting delay in Lindsay's notification to Apuzzo). \244\ ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 107 (May 4, 2000) (testimony of Mark Lindsay, Assistant to the President for Management and Administration, the White House). --------------------------------------------------------------------------- When Lindsay was first told about the problem, he claimed that he ``did not know the breadth or scope of the issue.'' \245\ He further claimed that his ``instruction to [his] staff was to investigate and conduct a review to try to identify the breadth and scope of the problem.'' \246\ Soon afterwards, Betty Lambuth asked Robert Haas to determine how much e-mail had not been archived and the date of the earliest e-mail not archived.\247\ --------------------------------------------------------------------------- \245\ Id. \246\ Id. According to Lindsay, ``[m]y recollection of any conversations that I had with people at this time was that my number one objective was to make sure . . . that I got the information so that I could report that information to my superiors so that we understood what was going on.'' Id. at 255-256 (Mar. 23, 2000). \247\ See interview with Robert Haas, Lotus Notes administrator, Northrop Grumman, in Washington, DC (Mar. 7, 2000). At about this time, Lambuth also asked Haas to ``search for incoming e-mails from Monica Lewinsky and to run a search of four or five names.'' See id. This task is considered in depth in section III.C, below. --------------------------------------------------------------------------- On June 18, 1998, Haas completed his audit. As of that date, he found that a large number of e-mails were not archived, and that the date of the earliest e-mail that was not archived was in October 1996.\248\ Haas' audit also indicated that a considerable number of those e-mails that were not properly archived resided in the e-mail accounts of various White House staff members who were possible witnesses or subjects in congressional and independent counsel investigations or civil litigation. Those staff members included, among others, Cheryl Mills \249\ (3,071 unrecorded e- mails), Phillip Caplan \250\ (944 unrecorded e-mails), Bruce Lindsey (17 unrecorded e-mails), Ira Magaziner \251\ (3,693 unrecorded e-mails), Betty Currie (811 unrecorded e-mails), Ashley Raines (1,477 unrecorded e-mails), Charles Duncan (791 unrecorded e-mails), Bob Nash (959 unrecorded e-mails), Evan Ryan (2,106 unrecorded e-mails), Douglas Sosnik (47 unrecorded e-mails), Maria Echeveste (329 unrecorded e-mails), Sidney Blumenthal (126 unrecorded e-mails), and Jeffrey Farrow (40 unrecorded e-mails). Haas turned in his audit to Lambuth and does not know what she did with it after he gave it to her.\252\ In fact, the White House has claimed not even to have known of the document's existence until March 21, 2000.\253\ --------------------------------------------------------------------------- \248\ See Northrop Grumman document production NGL 00291-00365 (exhibit 62). Non-archived e-mails totaled 246,083 as of June 18, 1998. Generally, for each affected account existing on June 18, 1998, the audit shows among other things: (1) the date of its creation; (2) the total number of e-mails existing on the server; and (3) the total number of e-mails existing on the server that were not records managed by ARMS. \249\ See n.658 and accompanying text (discussing Mills' involvement in various criminal and congressional investigations and materiality as witness in e-mail investigation). \250\ Caplan, former Assistant to the President and Staff Secretary, authored a memorandum--important in the campaign finance investigations--in which he advised that $1 million be maintained as a reserve to fund the cost of paying campaign fundraising fines. The memorandum evoked a handwritten response from the President, formulated simply as ``ugh.'' Representative Shays cited that memo to illustrate the considerable evidentiary value that even a single document can have in an investigative context. See ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 125 (Mar. 30, 2000). \251\ Magaziner, a consultant to the First Lady on health care policy, was implicated in a civil suit arising from the formulation of the First Lady's health care plan and its violation of openness laws. \252\ See interview with Robert Haas, Lotus Notes administrator, Northrop Grumman, in Washington, DC (Mar. 7, 2000); ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 61 (Mar. 23, 2000). \253\ See letter from Dimitri Nionakis, Associate Counsel to the President, the White House, to James C. Wilson, chief counsel, Committee on Government Reform 1 (Mar. 21, 2000) (within appendix I) (noting, in producing audit, that ``OA and IS&T personnel were previously unaware that this document existed or that anyone had estimated the number of unrecorded e-mails''). Ruff and Mills testified to never having seen the Haas audit before their appearance before the committee. See ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 128 (May 4, 2000) (testimony of Charles F.C. Ruff, former Counsel to the President, the White House and Cheryl Mills, former Deputy Counsel to the President, the White House). --------------------------------------------------------------------------- Lindsay testified that he never saw the audit.\254\ Despite Lindsay's contention that he had not seen the audit, the evidence suggests that OA management might have nonetheless known of the problem's potential magnitude. First, Lindsay affixed his initials to a document dated on the same day as the audit.\255\ That document plainly sets forth the scope of the problem.\256\ In particular, that document reflects that ARMS failed to capture e-mails from 464 user accounts within the White House Office alone.\257\ Further, Lindsay asterisked language on this document that the type of user e-mail traffic that would fail the ARMS scan included incoming internet e- mail.\258\ In fact, on this document, Lindsay noted that ``[t]his list does not include `regular' internal e-mail.'' \259\ The document also sets forth a ``sampling of the volume of e-mail records that reside in each users'' . . . view [that contains e-mail rejected by ARMS that had been saved].'' \260\ Second, in an interview with the committee, Kathleen Gallant, former Associate Director for IS&T, indicated that she was well aware of the problem's general magnitude.\261\ She also recalled a meeting with Lindsay, Callahan and Paulette Cichon, former Deputy Director for Information Management at OA, during which the audit was discussed.\262\ In that meeting, which Gallant, Callahan, and Lambuth attended, Lambuth said that several hundred thousand e-mails and over 400 users were affected by the problem.\263\ Third, Cichon confirmed in a committee interview that she heard from Gallant that the number of affected e-mails was large and that she once heard it was more than 100,000.\264\ Although Cichon was unsure whether Gallant had told her that the number of affected e-mails was 100,000, she recalls having contemporaneously heard that figure.\265\ Finally, budgetary materials referring to the Mail2 problem suggest that OA management recognized the problem's potential magnitude. By December 1998, consideration was given to obtaining funding for Mail2 reconstruction from the Armstrong Resolution Account, an account established pursuant to settlement in the Armstrong civil litigation.\266\ In that context, the Financial Management Division of OA worked up cost estimates for Mail2 reconstruction and, in so doing, increased the cost estimate for the project from $650,000 in fiscal year 1999 to $1 million in fiscal year 2000.\267\ An increase of this magnitude in the cost estimate can be attributed only to an accompanying increase in what was known about the problem. According to Joseph Kouba, a budget analyst with the Financial Management Division, IS&T staff provided him with justification for the increased cost estimate.\268\ Mark Lindsay was responsible for appropriations issues at OA and was in fact hired to work closely with the appropriators on OA's behalf.\269\ Accordingly, whether or not Lindsay or Callahan actually saw Haas' audit, the evidence shows that OA management likely knew of the problem's potential magnitude. Nevertheless, OA management apparently failed to inform their superiors that at least 100,000 e-mails were affected, some of which were responsive to outstanding congressional subpoenas.\270\ --------------------------------------------------------------------------- \254\ See id. at 126-129 (testimony of Mark Lindsay, Assistant to the President for Management and Administration, the White House). \255\ See White House document production E 3461-3463 (exhibit 50) (entitled, ``Lotus Notes to ARMS Interface Anomaly,'' June 18, 1998, and marked ``draft''). \256\ Id. \257\ Id. \258\ See id. at E 3462 (exhibit 50). \259\ Id. \260\ Id. (emphasis added). \261\ Interview with Kathleen Gallant, former IS&T Director, Office of Administration, in Chantilly, VA (May 17, 2000). \262\ Id. (June 20, 2000). \263\ Id. Although Gallant was uncertain as to whether Lindsay was in the room when Lambuth made this comment, she was confident that at least Callahan was present. See id. Regardless of whether Lindsay was in the room when Lambuth made her comment, it is unlikely that Callahan would have withheld this information from Lindsay. \264\ Interview with Paulette Cichon, former Deputy Director for Information Systems, Office of Administration, in Washington, DC (Apr. 18, 2000). \265\ Id. \266\ See White House document production E 3357 (exhibit 32); id. at E 3333 (exhibit 147). \267\ See id. \268\ Interview with Joseph Kouba, former Budget Analyst, Financial Management Division, Office of Administration, in Washington, DC (May 12, 2000). Regrettably, Kouba could not recall specifically how IS&T staff justified the estimate. Id. \269\ See Ada Posey, former Director of Office of Administration, Executive Office of the President, in Washington, DC (May 18, 2000). \270\ See, e.g., White House document production E 8701, E 8755, E 8787, E 8807, E 8843, E 8862 (exhibits 193-198) (reconstructed e-mail responsive to the committee's campaign fundraising subpoenas). --------------------------------------------------------------------------- 2. The Office of Administration Promptly Informed Senior White House Staff of the E-mail Problem On June 19, 1998, the day after Haas completed his audit to determine the breadth of the e-mail problem, Lindsay drafted a memorandum, which was sent from Virginia Apuzzo, the Assistant to the President for Management and Administration, to John Podesta, the Deputy Chief of Staff to the President.\271\ This memorandum, which Apuzzo asked Lindsay to prepare after Lindsay informed her of the problem, was entitled, ``Technical Anomaly in Automated E-mail Records Management System.'' \272\ The memorandum, which Lindsay drafted with the assistance of his IS&T staff, plainly describes ARMS, stating that ``[t]he main utility of the [ARMS] system is to provide a central e-mail repository with search and retrieval capability'' \273\ and that ARMS is important in complying with document requests.\274\ The memorandum also clearly describes the Mail2 problem: --------------------------------------------------------------------------- \271\ White House document production E 3373-3374 (exhibit 3). \272\ Id. \273\ Id. \274\ Id. This memorandum is to advise you of an anomaly in the system involving the Mail2 server, which primarily supports the day-to-day e-mail traffic of the White House Office (WHO). . . . In identifying which messages to save from Mail2, the ARMS system was designed to recognize user identifications with an electronic ``stamp'' which reads ``Mail2''. However, when user identifications for WHO . . . were entered into the system, the majority were hand-keyed using all capital letters as ``MAIL2''. Because ARMS was not programmed to recognize the all capital version, messages in certain categories for these Mail2 users have not been captured by or transferred to ARMS. These omitted types of e-mails include: Incoming Internet e-mail[.] \275\ --------------------------------------------------------------------------- \275\ Id. After Apuzzo received the memorandum, she forwarded copies to White House Counsel Charles F.C. Ruff and John Podesta.\276\ Apuzzo sent the memorandum to Podesta in an envelope with a ``red dot'' affixed.\277\ Apuzzo used red dots to bring particular documents to Podesta's immediate and individual attention.\278\ --------------------------------------------------------------------------- \276\ Interview with Virginia Apuzzo, former Assistant to the President for Management and Administration, the White House, in Kingston, NY (May 25, 2000). \277\ Id. \278\ Id. (stating that a red dot ``gets John [Podesta] to read it instead of his secretary'' and marks document for ``high priority''). --------------------------------------------------------------------------- Podesta recalls that he spoke to Lindsay about the problem and that the conversation covered what was in the memorandum.\279\ Thus, Podesta knew that the Mail2 problem affected ARMS, that ARMS was important for responding to information requests (of which subpoenas are an example) and that the problem was ongoing. However, although Podesta understood these salient aspects of the Mail2 problem, he recently explained that as Deputy Chief of Staff, his responsibility was to see only that the records management aspects of the problem were solved.\280\ Podesta felt that responding to subpoenas and other information requests was within the exclusive purview of the White House Counsel's Office.\281\ Accordingly, Podesta said that he contented himself with directing Lindsay to address these problems and to brief Ruff so that Ruff could address any issues relating to subpoena compliance.\282\ --------------------------------------------------------------------------- \279\ Interview with John Podesta, Chief of Staff for the President, the White House, in Washington, DC (May 30, 2000). \280\ Id. \281\ Id. \282\ Id. Podesta's delegation of responsibility for fixing the problem to Lindsay is not unreasonable. However, less reasonable is Podesta's complete failure to follow-up at all on how the problem was handled or to inquire about how the problem was finally resolved. In fact, Podesta's failure to do so resulted in no movement in reconstruction of the e-mails for over 2 years. It is noteworthy that reconstruction of the e-mails not only relates to document production but also falls well within the White House's legal archiving obligations to the National Archives and Records Administration (NARA), which Podesta conceded was within his purview. See id. Accordingly, Podesta's complete failure to follow-up on handling of the problem was unreasonable. --------------------------------------------------------------------------- The memorandum shows that high-level White House management actually knew as early as June 19, 1998, that: (1) there was a problem with the automated records management system associated with the White House's Mail2 server; and (2) the problem resulted in a failure to capture a universe of records potentially responsive to outstanding subpoenas. The memorandum also reflects the seriousness with which the White House originally considered the problem. Mere technical glitches are not reported to the Deputy Chief of Staff or the White House Counsel.\283\ In fact, it is indicative of the significance attributed to the problem that so many high-level White House employees were informed about it. Accordingly, the mere existence of the memorandum belies the White House's representation that, because of a ``disconnect,'' they mistakenly considered the problem to be a relatively innocuous glitch. --------------------------------------------------------------------------- \283\ See interview with John Podesta, Chief of Staff to the President, the White House, in Washington, DC (May 30, 2000) (noting that technical ``glitches'' are not reported to Deputy Chief of Staff); interview with Paulette Cichon, former Deputy Director for Information Management, Executive Office of the President, in Washington, DC (Apr. 14, 2000) (same). --------------------------------------------------------------------------- The memorandum also squarely contradicts the White House's current position that, when it originally discovered the Mail2 problem, it was unable sufficiently to comprehend the problem's subpoena compliance implications. In a hearing before the committee, only after about 5 minutes of rigorous cross- examination did Mark Lindsay reluctantly concede to Congressman Shays what was plain from the language of the memorandum--that the problem affected the White House's ability to conduct electronic searches of the e-mail system for information responsive to subpoenas.\284\ Indeed, the problem's subpoena compliance implications were so obvious to former IS&T Director Kathleen Gallant that she told committee staff that ``[y]ou'd have to be an idiot not to have understood that the problem affected subpoena compliance.''\285\ Also, while testifying before the committee, Charles Ruff noted that as soon as he heard about the problem, he was concerned about the extent to which the problem might affect the White House's ability to comply with outstanding subpoenas.\286\ The foregoing casts serious doubt on the testimony of Michael Lyle, presently OA Director, who stated in defense of not having submitted a Mail2 appropriations request earlier, ``in 19--in the time frame I was operating under, I'm not aware and don't know--and I believe my staff is not aware of any subpoena compliance issues.'' \287\ --------------------------------------------------------------------------- \284\ See ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 112 (May 4, 2000). \285\ Interview with Kathleen Gallant, former IS&T Director, Office of Administration, in Chantilly, VA (May 17, 2000). \286\ See ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 31 (May 4, 2000). \287\ See id. at 70 (May 3, 2000). See also id. at 116-117. --------------------------------------------------------------------------- Overall, the Podesta memo and other facts communicated to senior advisors to the President support the proposition that they actually knew or should have known about the Mail2 problem and its profound subpoena compliance implications. In that context, the White House's failure to act decisively to satisfy its subpoena compliance obligations in congressional, Department of Justice, and independent counsel investigations is inexcusable. 3. The Office of Administration Informed Current White House Counsel Beth Nolan About the E-mail Problems in January 2000 On January 18, 2000, Michael Lyle, Lindsay's successor as Director of the Office of Administration, Jack Young, General Counsel for OA, and Katherine Anderson, Assistant OA General Counsel, briefed Beth Nolan regarding records management issues.\288\ Nolan was Ruff's successor as White House Counsel. At this briefing, OA staff first informed Nolan of the Mail2 and the D-user problems.\289\ According to Nolan, she ``understood from the briefing that [the Mail2 and D-user problems] were highly technical and had a historical impact on [the White House's] archival system.'' \290\ She also claimed that she did not take away from that briefing that the problems had ``ongoing consequences--in particular, effects on document requests.'' \291\ --------------------------------------------------------------------------- \288\ Statement of Beth Nolan, Counsel to the President, the White House, to Committee on Government Reform, Mar, 23, 2000; interview with Michael Lyle, Director, Office of Administration, in Washington, DC (Apr. 27, 2000); interview with Katherine Anderson, Assistant General Counsel, Office of Administration, in Washington, DC (May 2, 2000). See also White House document production E 3412-3417 (exhibit 51). \289\ Statement of Beth Nolan, Counsel to the President, the White House, to Committee on Government Reform, Mar. 23, 2000. \290\ Id. \291\ Id. --------------------------------------------------------------------------- It is difficult to understand why Nolan did not understand that the e-mail problems had ongoing subpoena compliance consequences.\292\ The bullet-point outline supporting the briefing describes that ``[d]ue to human error . . . some lotus notes [sic] e-mail for users on [the] Mail2 [server] were not records managed in ARMS.'' \293\ Nolan contemporaneously knew that ARMS was used to search for e-mail responsive to outstanding subpoenas.\294\ The outline further notes that the Mail2 problem affected 464 database users in the White House Office alone and impacted incoming internet e-mail.\295\ --------------------------------------------------------------------------- \292\ It is interesting to note that Podesta appreciated that the problem was ongoing when he was briefed but Nolan, who was responsible for document production, did not. See interview with John Podesta, Chief of Staff to the President, the White House, in Washington, DC (May 30, 2000) (indicating he knew problem was ongoing). \293\ See White House document production E 3416 (exhibit 51). The outline erroneously notes that the Mail2 problem was discovered in November 1998--it was in January 1998 and, later, in June 1998. \294\ See e.g., interview with Michael Lyle, Director, Office of Administration, in Washington, DC (Apr. 27, 2000) (recalling that at January 2000 briefing Nolan asked whether e-mail problems, which related to Notes/ARMS interface, affected subpoena compliance ability). See also interview with Katherine Anderson, Assistant General Counsel, Office of Administration (May 2, 2000) (same). \295\ See White House document production E 3416 (exhibit 51). The outline notes that the total volume of affected e-mail was not then known. As described above, Haas' audit, which was completed on June 18, 1998, showed that, as of that date, about 250,000 e-mails were affected. --------------------------------------------------------------------------- With regard to the D-user problem, the outline notes that ``[d]uring the configuration of the L[otus] N[otes]/ARMS test environment, it was discovered that . . . user's [sic] accounts with the first names beginning with the letter `D' have not been records managed via ARMS since November 1998.'' \296\ It also notes that e-mail coming into the accounts of 42 users in the White House Office were affected.\297\ --------------------------------------------------------------------------- \296\ Id. at E 3417 (exhibit 51). \297\ Id. --------------------------------------------------------------------------- At the briefing, Nolan asked Lyle whether the problems would have affected prior searches for e-mails in compliance with subpoenas.\298\ Lyle and Anderson responded that they were unsure how to answer Nolan's question but recalled for Nolan that Lindsay and the White House Counsel's Office handled that issue when it first arose in 1998.\299\ To determine how the Counsel's Office handled the problem in 1998, Lyle offered to check with Lindsay and the Counsel's office.\300\ In response to their inquiry, Lindsay told Lyle and Young that he touched base with either White House Counsel's Office or the Justice Department.\301\ Unfortunately, what Lindsay told Lyle or Young about his conversation with Counsel's Office is unknown. --------------------------------------------------------------------------- \298\ Interview with Michael Lyle, Director, Office of Administration, in Washington, DC (Apr. 27, 2000). See also interview with Katherine Anderson, Assistant General Counsel, Office of Administration, in Washington, DC (May 2, 2000). \299\ Interview with Michael Lyle, Director, Office of Administration (Apr. 27, 2000). See also interview with Katherine Anderson, Assistant General Counsel, Office of Administration (May 2, 2000). \300\ Interview with Katherine Anderson, Assistant General Counsel, Office of Administration, in Washington, DC (May 2, 2000). It should be noted that when the committee interviewed Lyle about a week earlier, in response to the same line of questioning, he failed to mention either his offer to Nolan or his subsequent follow-up with Lindsay--much less what Lindsay told him as a result of that follow-up. \301\ Id. --------------------------------------------------------------------------- Nonetheless, at the January 18, 2000, briefing, Anderson told Nolan that most of the affected records were likely Presidential, rather than Federal agency records.\302\ She also told Nolan that although the Armstrong case did not require the reconstruction of those e-mails, she could have them reconstructed if she wanted to do so \303\--indicating that reconstruction of the e-mails might be unnecessary. --------------------------------------------------------------------------- \302\ Id. \303\ Id. However, Anderson also suggested that Nolan confer with the Office of Legal Counsel at DOJ as to whether the Presidential Records Act required the reconstruction of Presidential records. See id. --------------------------------------------------------------------------- If it is true that at the January 18, 2000, briefing, Nolan indeed failed to reach a complete understanding of the e-mail problem's ongoing subpoena compliance consequences, she plainly failed to exercise the minimal due diligence expected of a White House Counsel. Consistent with how the Mail2 problem was originally handled, whatever ``disconnect'' actually occurred between the Office of Administration and the White House Counsel's Office was either a function of intentional disregard or gross negligence rather than of technical complexity. Furthermore, negligence is an unlikely explanation, given the obvious importance to White House Counsel of the existence of unsearched--and possibly damaging--documents. It is also worth noting that the people who now claim that they did not understand the implications of the e-mail problem were people who have been vigorous in their efforts to keep Congress from getting information. It strains credulity to argue that otherwise intelligent lawyers such as Charles Ruff, Beth Nolan, and Cheryl Mills simply failed to grasp what is in essence an extremely simple matter. Rather, the likely explanation is that they either disregarded what they had been told because they did not want to open a Pandora's box of new documents, or they overstated their own incompetence to justify their inaction. c. the white house counsel failed to address the e-mail problem 1. The ``Test Search'' As described above, Mark Lindsay prepared a detailed memorandum describing the e-mail problem. This memo was sent by Virginia Apuzzo to John Podesta and Charles Ruff on June 18, 1998.\304\ Accordingly, Lindsay directed his staff to prepare a memorandum for Ruff.\305\ This memorandum prompted Lindsay to brief Ruff who was then not aware of the problem, on the same day.\306\ Despite Lindsay's assertion that he could not recall what he specifically told Ruff, he remembers that he told him ``essentially the material or the information that is contained in the memorandum--that there was a glitch with the computer system where incoming e-mails may not have been collected by the ARMS records management system.'' \307\ Lindsay further testified, ``I remember being very specific about the technical problem and the fact that incoming e-mail was probably not being ARMS managed. I remember being very specific about that.'' \308\ --------------------------------------------------------------------------- \304\ See ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 209, 257 (Mar. 23, 2000). The testimony of other witnesses casts serious doubt on Lindsay's testimony that he informed Apuzzo of the problem as soon as he learned about it. As established above, Lindsay would have learned about the problem on or before June 15, 1998--when Lindsay had his telephone conference with Callahan and the Lotus Notes group. Haas recalls that at that meeting, which occurred the Monday after the Lotus Notes group discovered the problem, Callahan told him that ``[he] could not tell even Ms. Virginia Apuzzo anything if she asked.'' See id. at 32 (Mar. 23, 2000). Further, when Lindsay finally informed Apuzzo of the problem, Apuzzo directed Lindsay to inform Ruff immediately. See id. at 256-257 (testimony of Mark Lindsay, Assistant to the President, the White House); id. at 111 (May 4, 2000) (same). However, Ruff recalls that Lindsay first informed him of the problem at a briefing on the Podesta memorandum on June 19, 2000. See id. at 31. Taken together, the testimony suggests that Lindsay waited at least 4 days to inform White House Counsel about the problem after having been instructed by the Assistant to the President for Management and Administration to inform him immediately. This is not likely. Far more likely is that Lindsay simply failed to inform Apuzzo about the problem until some time after he first learned about it. What precisely Lindsay did in the interim to address the problem is unclear. The memorandum has been referred to in hearings before the committee as ``the Podesta memo'' because, although originally drafted for Ruff, it was ultimately drafted for John Podesta, former Deputy Chief of Staff for the President. See White House document production E 3373-3374 (exhibit 3). See generally section III.B.2, above (discussing ``the Podesta memo''). \305\ See ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 107 (Mar. 23, 2000). \306\ See id. at 31 (May 4, 2000). \307\ See id. at 246 (Mar. 23, 2000). Ruff generally recalls that Lindsay told him that there was a failure with the ARMS system and that the failure disabled ARMS from capturing incoming e-mail. See id. at 31 (May 4, 2000). \308\ Id. at 304 (Mar. 23, 2000). --------------------------------------------------------------------------- Ruff agreed that at the briefing, Lindsay told him about ``some failure in the ARMS process. That meant that for a period of time . . . incoming [e-mails] were not being captured in ARMS and, therefore, had potentially eluded whatever searches had been conducted for e-mails in the past.'' \309\ Ruff also recalled that ``the heart of the explanation [was] that the ARMS system, which was supposed to capture both incoming and outgoing [e-mail], was not capturing incoming.'' \310\ However, Ruff's immediate concern at the time was the Lewinsky independent counsel's grand jury investigation of the White House.\311\ Notwithstanding the obvious distraction of the Lewinsky matter, it is hard to understate the potential impact of learning about a second--and perhaps equally serious--problem at the time of the looming impeachment crisis. The prospect of a universe of additional unreviewed documents that could compound the Lewinsky matter, or even re-ignite another scandal, could hardly have been lost on a senior White House attorney. In any event, Lindsay's briefing to Ruff concluded with a consensus between Lindsay and Ruff that they ``needed to go and see what could be done, [to] see whether in fact [they] had a past or recurring problem.'' \312\ --------------------------------------------------------------------------- \309\ Transcript of interview with Charles F.C. Ruff, former Counsel to the President, the White House, in Washington, DC, at 26 (Apr. 6, 2000). \310\ Id. at 26-27. \311\ Id. at 27. \312\ Id. at 30-31. --------------------------------------------------------------------------- Ruff informed the committee that he came away from the meeting with Lindsay believing that ``there would be a manual method of reconstructing these things and discussed that, [he] think[s], with Ms. Mills.'' \313\ Accordingly, Ruff understood that there would be follow-up between the Counsel's Office and OA, an effort to determine the nature of the problem, and ultimately, a report as to the results of the search.\314\ As mentioned above, Ruff subsequently approached Cheryl Mills, Deputy White House Counsel, and asked her to make sure that the problem had not in fact tainted the White House's ability to find materials that were responsive to the independent counsel's inquiry.\315\ --------------------------------------------------------------------------- \313\ Id. at 28. \314\ Id. at 31. \315\ Id. at 27. At a hearing before the committee, Ruff recalled ``[and] it is not a detailed recollection . . . that, following the meeting with Mr. Lindsay, [he] discuss[ed] the matter with Ms. Mills. [He] believe[d] that the next steps--and [he] [could not] tell the committee exactly what those steps were--was [sic] to make further inquiry into whether or not the problem that Mr. Lindsay described did indeed have an adverse affect on [the White House's] collection and production of documents.'' See ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 33 (May 4, 2000) (emphasis added). --------------------------------------------------------------------------- From her conversation with Ruff, Mills testified as having understood: [T]here had been a problem with certain e-mails that might not have been captured, that [the Office of Administration] was gathering them, that they were going to forward them to our office. We were going to then need to make a determination whether or not those e-mails had or had not been produced and if they had not been produced that we needed to produce them immediately.\316\ --------------------------------------------------------------------------- \316\ Id. at 33-34. As if it were a mantra, Mills asserted this position even to questions to which it was not responsive. See id. at 35, 40-41, 47, 48, 90 and 168. Mills testified to never having seen the Podesta memo. Transcript of Evidentiary Hearing at 128-29, Alexander v. FBI (D.D.C. Sept. 1, 2000) (CA No. 96-2123). However, as Judge Lamberth observed in a hearing in Alexander, common sense suggests that Ruff would have given Mills a copy of the memo when he asked her for her assistance. Id. Shortly after he briefed Ruff, the White House Counsel's Office gave Lindsay a list of individuals whose inboxes were to be searched.\317\ Lindsay conveyed those names to his staff and, after they completed their search, Lindsay returned the gathered documents to the Counsel's Office for comparison with other documents previously produced to the Independent Counsel's Office.\318\ However, Lindsay could not recall who at the White House Counsel's Office provided him the names of the individuals whose documents were to be gathered.\319\ --------------------------------------------------------------------------- \317\ ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 247 (Mar. 23, 2000); id. at 166-167 (Mar. 4, 2000) (Lindsay speculating that Callahan might have requested search). \318\ See id. at 247 (Mar. 23, 2000). Lindsay confirmed that he passed the information he received from White House Counsel on to Callahan. See id. at 38 (May 4, 2000). This is corroborated by Lambuth's recollection that she received Lindsay's instruction ``[to] print out e-mails involving Monica Lewinsky'' through ``an intermediary'' before passing the instruction on to Haas. See interview with Betty Lambuth, former Computer Systems Manager, Office of Administration, in Washington, DC (Mar. 21, 2000). Haas independently learned that Callahan relayed Lindsay's instruction to Lambuth. See interview with Robert Haas, Lotus Notes administrator, Northrop Grumman, in Washington, DC (Mar. 7, 2000). At this critical point in the chronology, the decisionmaking appears to lie with Mills and/or Callahan. This is supported by Ruff's assurance that ``I can vouch for this much. I knew that a search was being conducted by one of the members--one or more members of my staff . . . [who] I am certain was talking to the Office of Administration.'' ``Missing White House E- mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 45 (May 4, 2000). However, Mills has testified that she never knew Callahan and never spoke to Lindsay about OA's handling of the matter. See Transcript of Evidentiary Hearing at 65, 113, Alexander v. FBI (D.D.C. Sept. 1, 2000) (CA 96-2123). Collectively, Haas, Spriggs and Barry corroborate that two of the names on the list were Ashley Raines and Betty Currie. See interview with Robert Haas, Lotus Notes administrator, Northrop Grumman, in Washington, DC (Mar. 7, 2000); interview with John Spriggs, senior engineer, Northrop Grumman, in Washington, DC (Mar. 7, 2000); and interview with Daniel A. ``Tony'' Barry, Computer Specialist, Office of Administration, in Washington, DC (Mar. 7, 2000). This accords with Ruff's testimony that, upon learning of the problem, he was most immediately concerned about its affect on the outstanding Lewinsky investigation. See transcript of interview with Charles F.C. Ruff, former Counsel to the President, the White House, in Washington, DC, at 27, 53 (Apr. 6, 2000). \319\ ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 36 (May 4, 2000). --------------------------------------------------------------------------- It appears that four or five names were passed from Mark Lindsay to Betty Lambuth and, in turn, to Robert Haas.\320\ Haas was asked to search for incoming e-mails from Monica Lewinsky in the inboxes of those four or five individuals.\321\ Haas then went into the inboxes of the four or five individuals whose names were provided to him and sorted the e-mails by sender to find e-mail from Monica Lewinsky.\322\ Haas then gave his search results to Lambuth in an accordion file.\323\ Lambuth recalls delivering the folder to Lindsay, who was then in a meeting in the Old Executive Office Building.\324\ After Lindsay received the accordion folder, he walked it over to the White House Counsel's Office in the West Wing, but could not recall with whom he left the folder.\325\ Lindsay likely left the file with one of Mills' assistants.\326\ --------------------------------------------------------------------------- \320\ See n.318, above. \321\ See interview with Robert Haas, Lotus Notes administrator, Northrop Grumman, in Washington, DC (Mar. 7, 2000). Lindsay recalls from ``[t]he person who conveyed the request for the search to [him]'' that the terms were ``names of certain individuals.'' ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 167-168 (May 4, 2000). He believes that the person who conveyed the request to him was Callahan. See id. at 167. \322\ See interview with Robert Haas, Lotus Notes administrator, Northrop Grumman, in Washington, DC (Mar. 7, 2000). \323\ Id. \324\ Interview with Betty Lambuth, former Lotus Notes team manager, Northrop Grumman (Mar. 20, 2000). \325\ ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 88-90 (May 4, 2000). \326\ Id. at 210 (Mar. 23, 2000) (Lindsay testifying he deposited results at White House Counsel's Office); id. at 90 (May 4, 2000) (Mills recalling she likely retrieved results left by Lindsay from her assistant). --------------------------------------------------------------------------- After Mills received the e-mails produced by the test search, she provided them to Michelle Peterson, an Associate White House Counsel.\327\ She directed Peterson to review the e-mails to determine whether they were duplicative of e-mails already produced to the Independent Counsel's Office in the Lewinsky matter.\328\ Mills chose Peterson for this task because Peterson was the primary White House lawyer responsible for document production in the Lewinsky investigation.\329\ --------------------------------------------------------------------------- \327\ Id. See also interview with Michelle Peterson, former Associate Counsel to the President, the White House, in Washington, DC (June 8, 2000). \328\ See ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 91 (May 4, 2000). \329\ Id. at 39. --------------------------------------------------------------------------- Peterson recalled that Mills told her that there was a problem with the Counsel's Office's search for documents in the Lewinsky matter ``and with OA,'' that Counsel's Office was expecting a stack of e-mails, and that she needed to review that stack to determine if it was duplicative of what had already been produced.\330\ Apparently, from her discussion with Mills, Peterson understood that the problem affected the Lewinsky production and ``was related to OA.'' \331\ --------------------------------------------------------------------------- \330\ See interview with Michelle Peterson, former Associate Counsel to the President, the White House, in Washington, DC (June 8, 2000). \331\ Id. Peterson was less than clear when asked whether Mills told her that the problem was limited to the Lewinsky productions or more systemic in nature, as explained in the Podesta memo. Peterson observed that Mills said that there was a problem with the Lewinsky search. Id. Peterson took that comment to mean that it related to OA/ IS&T. ``I can't recall that Ms. Mills said it was limited to OA. But, the only group that could have had a problem with e-mails would have been OA/IS&T. But, I have no specific recollection of Ms. Mills telling me that. It may have been just the understanding I obtained by my review of the documents.'' Id. When asked for clarification, Peterson recalled, ``I have a picture that the documents came from OA/IS&T.'' Id. ``I was either told that the problem was limited to `Monica Lewinsky' or I came to that understanding because it was consistent with the Ashley Raines documents.'' Id. She also stated, ``I do not have a specific recollection that OA computers weren't properly searched. I took it to mean that some e-mails at OA had not been recovered in this search.'' Id. --------------------------------------------------------------------------- After Peterson received the stack of e-mails from Mills, she looked through them quickly, since she was already very familiar with the documents that had been produced to the independent counsel in the Lewinsky matter.\332\ After a cursory examination, the documents in question appeared to Peterson to have been previously produced to the independent counsel.\333\ Peterson then put the documents side-by-side in chronological order.\334\ Peterson examined two stacks: one was e-mail from Monica Lewinsky to Ashley Raines which Peterson received from Mills, and the other was Ashley Raines' e-mail that had already been produced to the independent counsel.\335\ Upon close examination over a 4 or 5 hour period, Peterson determined that the documents she received from Mills were duplicative of those that had already been produced to the independent counsel and informed Mills of her findings.\336\ --------------------------------------------------------------------------- \332\ Id. \333\ Id. \334\ Id. \335\ Id. (noting that ``[o]ur stack for comparison came from people within the White House producing their e-mails.''). \336\ Id. (noting that ``[she] [did not] remember sitting and reading the documents in detail--the thing that took time was putting them in chronological order''). The volume of documents that had already been produced to the OIC was likely a lot larger than what Peterson received from Mills. Interview with Peterson. Id. Peterson learned what she knew about the problem simply from her one telephone call with Mills. Id. And, after Peterson reported her finding to Mills, ``That [was] it. Nothing else. Nothing else happened. There were no further conversations. [After I found it was duplicative,] it was a non-issue.'' Id. ``I was never involved in conversations about how to fix the problem or even what the problem was.'' Id. --------------------------------------------------------------------------- According to Peterson, she was never involved in selecting which documents would be pulled by OA to match up against the previous production to the independent counsel.\337\ Nor had Peterson any knowledge as to the origin of the e-mails Mills provided to her.\338\ After completing her comparison of the documents, Peterson placed the documents into an accordion folder and sent the files over to either Records Management or to Charles Easely, Director of White House Security.\339\ --------------------------------------------------------------------------- \337\ Id. \338\ See id. See also ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 170 (May 4, 2000) (Mills noting, ``I do not know whether [Peterson formulated the search terms], though I would be surprised, primarily because I provided the materials that came over from the Office of Administration to her for her to conduct her review[.]''). \339\ See interview with Michelle Peterson, former Associate Counsel to the President, the White House, in Washington, DC (June 8, 2000). --------------------------------------------------------------------------- The results of Peterson's analysis were passed on to Ruff. Ruff informed the committee that ``at some point . . . I was told--and I do not remember specifically by whom, probably Ms. Mills, but it may have been another member of my staff--that the search had been conducted and that there was a match between what we had turned over and what had been produced in the search.'' \340\ Ruff specified: --------------------------------------------------------------------------- \340\ Transcript of interview with Charles F.C. Ruff, former Counsel to the President, the White House, in Washington, DC, at 72 (Apr. 6, 2000). At an interview with the committee, Ruff elaborated as to what Mills reported to him after Peterson completed her search. See id. at 28 (``The next thing [Ruff] recall[ed] [after having spoken with Mills] . . . was being informed [likely by Mills] that . . . a search had been conducted of the incoming E-mails for . . . Ms. Raines . . . [and] that [the] search reflected . . . that what was found matched what had already been produced to the independent counsel, and thus [he] believed [he] had an assurance that, indeed, [their] past searches had not been tainted and believed as well that [their] forward going capacity to search was not affected by that.''), 47-48 (``[That there was no problem that would undermine White House document productions] was my very clear understanding at the end of that meeting--or if Ms. Mills was not at the meeting, at the end of my subsequent conversation with her. . . . [T]he word coming back to me, and I cannot remember a specific conversation to you, left me with the understanding that what we thought might be a major problem, could be a major problem, in fact was not and that we were all right. . . . I believe that my subsequent conversations would have been with Ms. Mills and perhaps others on my staff responsible for the overall document production. I don't remember whether I had a subsequent meeting with Mr. Lindsay. I don't think so. But it would not be out of the realm of possibility[.]''). [T]he conclusion that was given to me and that as I understood it was that, in fact, there was no defect in our prior searches, and thus that there was no need to visit them because we presumably had gotten whatever responsive materials there were to be gotten in response to your subpoenas or anybody else's subpoenas.\341\ --------------------------------------------------------------------------- \341\ Transcript of interview with Charles F.C. Ruff, former Counsel to the President, the White House, in Washington, DC, at 71 (Apr. 6, 2000). Ruff concluded that ``there was no reason to believe that there was a retrospective problem [with the ARMS system].'' \342\ Thus, ``having believed that the problem didn't exist, [Ruff] moved on to other things.'' \343\ Of course, if anyone had made an effort to consult with the technical employees, they would have been told that e-mails could not be searched in the ARMS system and, therefore, there was a major potential subpoena compliance problem. Mark Lindsay had in fact consulted with the technical employees, and it is inconceivable that he failed to pass what he knew to be true along to others in the White House. --------------------------------------------------------------------------- \342\ See transcript of interview with Charles F.C. Ruff, former Counsel for the President, the White House, in Washington, DC (Apr. 6, 2000). See also id. at 29 (``My recollection is that once I was advised of the match between what had been found and what had previously been produced and understood, . . . that that gave us assurance that the integrity of our earlier searches [was maintained].''). \343\ See id. at 29. Ruff noted that he ``didn't believe there was a problem after the report came back to me.'' Id. at 73. After having understood that the ``glitch'' ``did not affect [his Office's] prior production and collection of information, [he] put it aside and went on to other pressing matters.'' Id. at 132. --------------------------------------------------------------------------- 2. The White House Counsel's Office Grossly Mishandled the E-mail Problem The White House Counsel's Office grossly mishandled the Mail2 problem. Although senior White House officials were told that the e-mail problem was significant and systemic, and knew that understanding the problem's extent was a gravely important matter, their ultimate efforts were worse than negligent. Indeed, the actions undertaken to learn about the problem appear to have been purposefully designed to preserve the status quo rather than remedy it. The failure of the White House Counsel's Office to address the problem in 1998 led to the problem's being kept from Congress until 2000. The problem was a convenience to those who had concerns about the emergence of damaging information, and the White House did nothing to upset this convenience. The White House Counsel's Office did two things that cannot logically be explained. First, it treated the problem as if it pertained only to e-mails relating to the independent counsel's Monica Lewinsky investigation when, in fact, it was a technical problem that affected all e-mails, regardless of content. Second, the White House Counsel's Office ordered a test search that, even under the best of circumstances, could not have proved whether the ARMS system had or had not missed responsive e-mails. Both errors were so fundamental that they cannot be dismissed as mere incompetence. Rather, they suggest that the White House simply chose not to understand the problem or determine its effect on its legal obligations to produce documents under subpoena. Almost as soon as he was told that the White House had a significant e-mail problem that had a potential effect on its subpoena compliance obligations, Charles Ruff twisted that information to mean that there was a potential problem only with the Lewinsky document production. However, such an understanding was unjustified and contradicted by every piece of evidence that had been provided to Ruff. On June 19, 1998, when Ruff was first informed about the problem, he was provided with a memorandum that clearly explained the Mail2 problem. As noted above, the memorandum explained that the problem was preventing ARMS from capturing e-mail incoming to the White House. Nothing in that memorandum suggested that the Mail2 problem was limited to e-mails relating only to the Lewinsky investigation: This memorandum is to advise you of an anomaly in the system involving the Mail2 server, which primarily supports the day-to-day e-mail traffic of the White House Office (WHO). . . . In identifying which messages to save from Mail2, the ARMS system was designed to recognize user identifications with an electronic ``stamp'' which reads ``Mail2''. [sic] However, when user identifications for WHO . . . were entered into the system, the majority were hand-keyed using all capital letters as ``MAIL2''. [sic] Because ARMS was not programmed to recognize the all capital version, messages in certain categories for these Mail2 users have not been captured by or transferred to ARMS. These omitted types of e-mails include: Incoming Internet e- mail[.] \344\ --------------------------------------------------------------------------- \344\ White House document production E 3373-3374 (exhibit 3) (memorandum from Assistant to the President Virginia Apuzzo to Deputy Chief of Staff to the President John Podesta, June 19, 1998). The plain language of the memorandum was further explained to Ruff by Lindsay, who himself had been briefed by his technical staff, who had a clear understanding of how the problem impacted subpoena compliance. Lindsay briefed Ruff on the e-mail problem the day Ruff received the memorandum. Lindsay specified to the committee that his briefing of Ruff addressed those issues set forth in the memorandum.\345\ He did not give any suggestion that the e-mail problem was somehow limited to the Lewinsky investigation. --------------------------------------------------------------------------- \345\ See ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 30 (Mar. 23, 2000). See also id. at 130 (May 4, 2000) (``the information I provided Mr. Ruff is roughly the information that was provided in the June 18th memorandum from Ms. Apuzzo. That is sum and substance of what I understand we conveyed.''). --------------------------------------------------------------------------- Finally, common sense supports the conclusion that the Mail2 problem could not have been limited to e-mails relating to the Lewinsky matter. It would be a strange technical error indeed that limited itself to e-mails relating to one particular investigation. Like all technical errors, the Mail2 problem could not, and did not, discriminate as to the content of the e-mail messages. When he appeared before the committee on May 4, 2000, Ruff was asked, ``[t]his was a very broad problem. How is it confined down to a very narrow search of just the Lewinsky case?'' \346\ He responded, ``[m]y understanding of the problem was that the problem existed. I did not know how broad it was or what effect it had. Thus, in my view, a search particularly focused on compliance with the Lewinsky--with the independent counsel's subpoena in the Lewinsky matter was a device for determining whether indeed the problem described to me had had an affect on our compliance with subpoenas.'' \347\ However, when Ruff was asked how the search as conducted could have provided him with dispositive information as to the underlying extent of the problem, he responded, ``I will tell you that I did not--I don't believe I knew then, no recollection of knowing then, nor do I know now or have any recollection right now what exactly was done and what instructions were given. . . . I do not recall having any personal conversations on the subject with OA or anybody else. So I unhappily direct you to my colleagues.'' \348\ --------------------------------------------------------------------------- \346\ ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 45 (May 4, 2000). \347\ Id. at 45, 50-51 (May 4, 2000). Ruff was concerned that the problem might effect the White House's ability to comply with outstanding subpoenas. Id. at 31. However, ``[his] focus initially was on the Lewinsky subpoenas because those were the ones of the most immediate and practical concern to [his] office.'' See id. at 50-51. See also id., at 119 (focus was on Lewinsky production ``because it was the nearest in time and in June of '98 the most sort of prominent [sic] I think in all our minds in the Counsel's Office''). \348\ See transcript of interview with Charles F.C. Ruff, former Counsel to the President, the White House, in Washington, DC, at 67-68 (Apr. 6, 2000). Ruff's argument that determining whether the stack of documents his office received from OA was duplicative of those documents that had already been provided to the Lewinsky independent counsel could have meaningfully informed him as to whether the problem tainted all prior searches is specious, at best. This is underscored by the basis current Counsel for the President, Beth Nolan, cited for withholding the production of the search results from the committee. According to Nolan, the batch of e-mails Ruff cited as a basis for concluding that the problem did not taint the White House's prior searches was unrelated to the committee's investigation of the White House's Mail2 problem. See ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 251-256 (May 4, 1999). See also letter from Dimitri Nionakis, Associate Counsel to the President, the White House, to James C. Wilson, chief counsel, Committee on Government Reform (Apr. 28, 2000) (within appendix I). So, she withheld the documents. However, perhaps realizing the mutual exclusivity of her position with Ruff's original reasoning, Nolan ultimately reversed herself and produced the documents. --------------------------------------------------------------------------- When asked to explain why he never attempted to determine whether the Mail2 problem had affected other investigations, Ruff claimed that the results of the test search gave him confidence that there was no problem. However, the test search proved nothing, and even Ruff and Mills, who were apparently making minimal effort to understand the problem, should have seen the flaws in their search. The basic problem with the White House Counsel's test search is that, even under the best of circumstances, it could prove nothing about whether ARMS was capturing all e-mails that were responsive to subpoenas. Either Ruff, or more likely Mills, directed the Office of Administration to search the e-mail boxes of several users and print out all of the e-mails those users had received from Monica Lewinsky.\349\ So, by its very nature, the White House's test search could not capture any e-mail that those users had received from Lewinsky and then deleted.\350\ Thus, to the extent that White House's prior production of e-mails to the independent counsel was the product of an ARMS search, there could have been no reasonable expectation that a review of the e-mails in the users' inboxes would indicate whether ARMS was working properly. Indeed, if a user had deleted a particular e- mail (as he likely would an incriminating e-mail), it would not be in his inbox; and, if ARMS was malfunctioning--as it was--it would not be in ARMS either. --------------------------------------------------------------------------- \349\ Before the committee, Mills denied having done so. ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 35, 36 (May 4, 2000). However, other testimony suggests the contrary. Ruff stated, ``I can vouch for this much. I knew that a search was being conducted by one of the members--one or more members of my staff . . . [who] I am certain was talking to the Office of Administration.'' Id. at 45. At a hearing before the committee on May 4, 2000, Beth Nolan, current Counsel for the President, testified that she completed her internal investigation into the Mail2 problem and still could not conclude who formulated the search terms or what they were. See id. at 224-225. She further testified that she and her staff asked ``everyone [they] could think of.'' See id. However, when the committee asked former associate counsels Michelle Peterson and Sally Paxton whether they had spoken with White House Counsel's Office about the Mail2 problem anytime after they left the office through the present, they both responded in the negative. Interview with Michelle Peterson, former Associate Counsel to the President, the White House, in Washington, DC (June 8, 2000); interview with Sally Paxton, former Special Associate Counsel to the President, the White House, in Washington, DC (June 22, 2000). This suggests that Nolan had not spoken to former members of the White House Counsel's Office. The only remaining former member of Counsel's Office who was exposed to the Mail2 problem was Mills. Peterson and Paxton's exposure to the problem have been confirmed as narrow, with respect to the former, and non-existent, with respect to the latter. See, e.g., interview with Michelle Peterson, former Associate Counsel to the President, the White House, in Washington, DC (June 8, 2000); interview with Sally Paxton, former Special Associate Counsel to the President, the White House, in Washington, DC (June 22, 2000). In fact, neither Peterson nor Paxton discussed with the Office of Administration the work they were doing on the Mail2 problem. Accordingly, given Ruff's assurance that the search was being conducted by someone in his office who was dealing with the Office of Administration, the likelihood is that Mills devised or helped devise, the test search. \350\ Any e-mail deleted by a user would not be found in the user's inbox. Rather, it can be found only in the ARMS system (if ARMS were working properly) or on back-up tapes. --------------------------------------------------------------------------- To the extent that the production to the independent counsel was the product of a manual search of the server, the White House's test would appear even more ludicrous, as it would essentially be comparing two sets of identical e-mails from the same source--neither of which related in any way to the ARMS system. For that reason, the search designed by the White House Counsel's Office could not possibly indicate whether ARMS was functioning properly. Therefore, the only way that the White House could accurately determine whether ARMS missed deleted, responsive e-mail would be by searching the backup tapes, and this was not done. Ruff failed to provide any adequate explanation for these considerable oversights. Rather, he attempted to make a blanket acceptance of responsibility and, thus, avoid any serious scrutiny of his failures: ``[a]s has been the case from the very first moment that you and I talked, I take--I took responsibility then, I take responsibility now for the work of my office and my staff. And in that sense the buck stops with me.'' \351\ He continued: --------------------------------------------------------------------------- \351\ ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 44 (May 4, 2000). [I]t was my judgment or misjudgment and my misunderstanding of the circumstances that led me to conclude--and for that I blame no one other than my own failure of understanding, that led me to conclude that indeed the problem did not have an adverse effect on our prior productions. In that sense, I take responsibility for not pursuing further the inquiry that I thought had been adequately pursued by the search that had been conducted.\352\ --------------------------------------------------------------------------- \352\ Id. at 131-132. However, Ruff noted that he relied extensively on Cheryl Mills to help him determine whether the problem in fact tainted prior searches. Ruff stated that he based his determination that no prior searches were tainted on ``[s]imply, the conclusion that was described to me [by Mills] and my acceptance of that conclusion.'' \353\ He continued, ``I did not have a full and detailed understanding of the steps that had been taken from the end of my meeting with Mr. Lindsay until that message was conveyed to me.'' \354\ --------------------------------------------------------------------------- \353\ Transcript of interview with Charles F.C. Ruff, former Counsel for the President, the White House, in Washington, DC, at 69 (Apr. 6, 2000). \354\ Id. --------------------------------------------------------------------------- Other White House personnel also deserve substantial blame for what happened. For example, Cheryl Mills, who Ruff charged with helping him determine the problem's actual extent, denied knowing how the search was actually conducted, stating, ``I didn't have the requisite knowledge to express . . . concern [regarding the sufficiency of the search], if I were to have that type of concern.'' \355\ Similarly, Mark Lindsay, who acknowledged that he received a set of names from White House Counsel's Office to conduct the test search, could not recall the names or even who at Counsel's Office provided him with the names.\356\ Cheryl Mills could not recall who devised the search terms,\357\ what the search terms were \358\ or why the search terms would have been sufficient to determine whether any additional messages responsive to outstanding subpoenas existed.\359\ In that context, it is difficult to understand how Mills could have reasonably assured Ruff with any degree of confidence that the unrecorded e-mails were duplicative of those that had already been provided pursuant to grand jury and congressional subpoenas.\360\ --------------------------------------------------------------------------- \355\ ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 170 (May 4, 2000). Ruff testified that in discussing the problem with Mills, he sought to ``inquir[e] . . . whether or not the problem that Mr. Lindsay described did indeed have an adverse affect on [the White House's] collection and production of documents.'' See id. at 33 (emphasis added). Ruff conceded that the problem that Lindsay described at the June 19th briefing and in the Podesta memo related to an ARMS failure. See transcript of interview with Charles F.C. Ruff, former Counsel to the President, the White House, in Washington, DC, at 22 (Apr. 6, 2000). See also id. at 26-27 (recalling that ``the heart of the explanation [was] that the ARMS system, which was supposed to capture both incoming and outgoing [e-mail], was not capturing incoming.''). As established above, the Podesta memo and the briefing sufficiently conveyed that the problem affected the e-mail system's interaction with ARMS and that it affected subpoena compliance. Given the foregoing, Mills understood, or should have understood, from Ruff that the White House Counsel's Office was to determine that e-mails found to have been unrecorded by ARMS were, in fact, produced to all investigative authorities. See ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 33-34, 35, 40-41, 46, 48, 90, 168 (May 4, 2000) (Mills recalling Ruff's instructions). Therefore, Mills knew or should have known that Ruff would rely on her assurance as the basis for concluding that there was no systemic problem with the ARMS system. In that context, her failure to understand the proposition the search was intended to support is implausible. By contrast, Peterson, whose involvement with the problem was isolated to comparing the two stacks of documents, was asked whether she had any concern that her comparison was being done with a stack of unknown origin. See interview with Michelle Peterson, former Associate Counsel to the President, the White House, in Washington, DC (June 22, 2000). Consistent with her narrow exposure to the problem, Peterson answered, ``Since everything in the stack had been produced. I had no reason to believe that it wasn't produced. All I was told was that there's a problem, [a search has] been done, compare it to see if everything went out. When I compared them, they'd all been produced. In my limited, ministerial duty, there wasn't a problem. I was given a very specific task and I did it.'' Id. \356\ See ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 247 (Mar. 23, 2000). \357\ See id. at 35, 36 (May 4, 2000). \358\ See id. at 167-168. \359\ See n.349, above. \360\ Interestingly, when Mills testified in Federal court in the Alexander hearings, after having done so before the committee, she appears to have materially changed her testimony as to what Ruff told her about the scope of the problem. When asked in court what Ruff told her about the problem after Lindsay briefed him, Mills stated: ``[h]e indicated to me it was--to the best of my recollection that there was [sic] certain e-mails that may or may not have been captured in a search, in particular with respect to the OIC investigation, Monica Lewinsky and other matters, and that OA was in the process of collecting these materials.'' Transcript of Evidentiary Hearing at 64, Alexander v. FBI (D.D.C. Sept. 1, 2000) (CA 96-2123) (emphasis added). The testimony regarding Ruff's telling Mills that the problem might have affected ``other matters'' in addition to the Lewinsky investigation is new. If Ruff in fact told Mills that the problem might have affected prior searches, Mills' reliance on the inherently faulty Lewinsky test search is made all the more unreasonable. This would mean that Mills likely understood that the problem was systemic and had potentially tainted prior searches. As unlikely as it is for Ruff to have misunderstood the problem so fundamentally, it is considerably more unlikely that both Ruff and Mills did so. --------------------------------------------------------------------------- In summary, the Mail2 problem was understood as affecting the ARMS process, which enables the archiving of e-mail for subpoena compliance purposes. The problem was regarded as so substantial that it required both a memorandum and briefing to the Deputy Chief of Staff and the Counsel to the President shortly after its discovery. Moreover, the problem's implications were regarded as so serious that Mark Lindsay personally spoke to his Lotus Notes Group--members of his computer staff with whom he had never spoken before or since.\361\ At that meeting, Lindsay directed the group not to disclose their work on the problem to their onsite managers. Plainly, nothing about this problem at that time was regarded as ordinary or typical. Despite the seriousness of the problem, the test that the White House Counsel's Office conjured to determine the problem's actual scope was careless and clueless. Charles Ruff immediately ignored the true scope of the problem and instead acted as if it were limited to Lewinsky-related material alone, despite considerable evidence to the contrary. Then, relying on his subordinates, he apparently ordered an inadequate test search supposedly designed to determine the problem's impact. The test was so ill-conceived that one cannot help but question the motives behind it. --------------------------------------------------------------------------- \361\ Transcript of Evidentiary Hearing at 28, Alexander v. FBI (D.D.C. Aug. 15, 2000) (CA 96-2123). --------------------------------------------------------------------------- 3. Contacts Between Earl Silbert and the White House As explained above, it is difficult to believe that the White House Counsel's Office failed to understand the e-mail problem, which was explained to it clearly by the Office of Administration. However, the failure of the White House Counsel's Office looks even more suspect when Earl Silbert's activities are closely examined. As discussed above in section III.A.4.g, Earl Silbert was apparently hired by Northrop Grumman as outside counsel after some of the employees met with company representatives about their discovery of the problem and the fact that they had been threatened. Silbert was a former Watergate prosecutor and professional associate of Charles Ruff. During the 1998 timeframe, Silbert had contact with the White House on a number of investigative matters, as he represented James Riady, a target in the 1996 campaign financing investigations; Peter Knight, a former Clinton/Gore campaign manager and lobbyist involved in a criminal investigation into illegal fundraising; and Erskine Bowles, President Clinton's Chief of Staff in the independent counsel's Lewinsky investigation and this committee's investigation into the White House's misuse of the White House database.\362\ As described above, Silbert had a telephone conference with Northrop Grumman's counsel and a Northrop Grumman contractor, likely Robert Haas, on September 11, 1998, that is, 2 days after the employees met with senior manager Joseph Lucente and Northrop Grumman's in-house counsel. Silbert had subsequent conversations with Northrop Grumman counsel on September 12, 15 and 22, 1998.\363\ --------------------------------------------------------------------------- \362\ See ``White House Acknowledges Riady Talk,'' Associated Press (Sept. 28, 1999) (identifying Silbert as counsel to Riady); interview with Earl Silbert, partner, Piper Marbury Rudnick & Wolfe, in Washington, DC (Sept. 25, 2000) (Silbert confirming representation of Knight during criminal investigation); ``Lewinsky Legal Team Brings Credibility,'' the Washington Post, June 4, 1998 at A09 (identifying Silbert as counsel to Bowles in Lewinsky investigation); deposition of Erskine Bowles, ``Investigation of the Conversion of the $1.7 Million Centralized White House Computer System, Known as the White House Database, and Related Matters,'' House Committee on Government Reform and Oversight (May 5, 1998) (Silbert appearing as counsel to Bowles in congressional investigation). Inasmuch as his clients were targeted or implicated in various criminal and congressional investigations, Northrop Grumman's reconstruction of potentially inculpatory e-mails would be contrary to the interests of Silbert's administration clients. Accordingly, simultaneous representation of both Northrop Grumman and those administration clients created a conflict of interest. \363\ See Earl Silbert document production (exhibit 202) (privilege log describing billing records). Because Silbert claimed the billing records were privileged, the records were provided to the committee reacted. --------------------------------------------------------------------------- On September 28, 1998, Silbert contacted someone at the White House Counsel's Office.\364\ However, when Silbert was interviewed by committee staff, he was unable to remember having made that call--much less with whom he spoke or what was discussed.\365\ Nonetheless, the timing of the call in relation to the meeting among the employees and Northrop Grumman's in- house counsel makes it clear that the call was made as a result of Northrop Grumman management's being informed of the problem. Although it is unclear with whom Silbert spoke at the White House or what he discussed, Silbert likely understood a number of facts about the e-mail problem when he called the White House: (1) at least one Northrop Grumman employee claimed that he was threatened with jail by a White House staffer and was frightened; \366\ (2) White House staff were forcing Northrop Grumman staff to work in secret; \367\ (3) White House staff were forcing Northrop Grumman staff to perform work that likely exceeded the scope of the contract; \368\ and (4) Northrop Grumman employees felt that the law required a speedy solution to the problem.\369\ Therefore, it is difficult to believe that Silbert did not pass all of this highly relevant information on to the White House when he called on September 28, 1998. --------------------------------------------------------------------------- \364\ See id. \365\ Interview with Earl Silbert, partner, Piper Marbury Rudnick & Wolfe, in Washington, DC (Sept. 25, 2000). \366\ See, e.g., interview with Robert Haas, Lotus Notes administrator, Northrop Grumman, in Washington, DC (Mar. 7, 2000) (stating that Callahan told him that ``there would be a jail cell with your name on it'' if he disclosed e-mail problem). \367\ At Silbert's interview with committee staff, Silbert's counsel conceded that, in the course of representing Northrop Grumman, Silbert reviewed a document related to Joseph Lucente's Sept. 14, 1998, letter, which noted that Northrup Grumman found that Laura Callahan directed its employees to evaluate and remedy the problem without Northrop Grumman management involvement. See interview with Earl Silbert, partner, Piper Marbury Rudnick & Wolfe, in Washington, DC (Sept. 25, 2000). However, Silbert was not in a position to say whether or not it was a final draft. See id. \368\ Lucente's Sept. 14, 1998, letter, also noted that effort required to remedy the problem substantially exceeded the scope of work contemplated under the base contract. See id. \369\ See, e.g., Transcript of Evidentiary Hearing at 57, Alexander v. FBI (D.D.C. Aug. 14, 2000) (CA 96-2123) (Haas noting that he was concerned that Mail2 reconstruction needed to be done quickly because of requirements under Presidential Records Act). --------------------------------------------------------------------------- The only indication as to the substance of Silbert's call comes from the courtroom testimony of Mark Lindsay in the Alexander case. In that case, Lindsay recalled that Special Counsel to the President Lanny Breuer told him that Silbert expressed concern about the ``scope of the contract.'' \370\ When asked whether Breuer expressed concern about the Mail2 problem, Lindsay responded: --------------------------------------------------------------------------- \370\ See Transcript of Evidentiary Hearing at 139, Alexander v. FBI (D.D.C. Aug. 23, 2000) (CA 96-2123). I don't think that came up at all. I don't think it was a matter of that. I think it was a very, very general reference about scope of work. I don't think he knew about what the work was necessarily, but just that there was some kind of concern about scope, if my --------------------------------------------------------------------------- memory serves me correctly. * * * * * And I think it was just raised to him about, hey, I heard that there's something about, you know, the scope of this contract, and our folks want to get this work. Is there a problem? He called me and essentially said, well, is there a problem with whatever, just as a courtesy. And I said, no, I think we've got it resolved.\371\ --------------------------------------------------------------------------- \371\ Id. at 140. Even if these representations were true, the ``resolution''-- which consisted of doing nothing and allowing the problem to become more expensive to cure--suggests improper motive. The foregoing suggests that Silbert spoke to Breuer and that at a minimum a ``scope of contract'' issue was discussed.\372\ However, Lindsay's testimony leaves many unanswered questions about Silbert's September 28, 1998, call to the White House. Breuer was a Special Counsel at the White House Counsel's Office generally in charge of investigative matters.\373\ If Silbert was concerned with contractual matters involving Northrop Grumman, it is unclear why he would have contacted Breuer rather than, for example, someone at the Office of the General Counsel at OA. It is also unclear how Breuer could have meaningfully discussed a ``scope of contract'' issue relating to the Mail2 problem with Silbert without knowing the underlying facts about the problem, which would have necessarily included information about the ARMS failure and probably information about the threats as well. And, if Breuer did indeed learn about the threats from Silbert, it is unlikely that he would have withheld such information from his superior, Charles Ruff.\374\ --------------------------------------------------------------------------- \372\ The committee was unable to interview Breuer prior to the completion of this report. \373\ Transcript of interview with Charles F.C. Ruff, former Counsel to the President, the White House, in Washington, DC, at 63 (Apr. 6, 2000). \374\ When asked whether he was aware of an impasse between Northrop Grumman and OA with regard to the scope of the facilities contract, Ruff responded, ``More to the point, I have no recollection of even knowing that there was an ongoing issue with respect to what Northrop was doing, what anybody was doing with respect to the reconstruction of this process.'' Id. at 57. In fact, Ruff testified that he was not even sure that he contemporaneously knew that Northrop Grumman was the contractor. Id. at 34. Ruff also testified to having absolutely no contemporaneous knowledge about the employees' having been instructed to keep the problem secret from their Northrop Grumman managers or the fact that they were threatened. Id. at 34, 84-85. --------------------------------------------------------------------------- If Silbert did discuss the threats or the legal ramifications of the e-mail problem with Breuer, or anyone else in the White House Counsel's Office, the repercussions would be significant. First, Ruff and a number of other White House Counsel staff have testified that they were unaware of the allegations that Northrop Grumman personnel were threatened until 2000. Second, if Silbert explained the facts of the e- mail problem and its legal consequences, it makes it difficult for the White House to claim that it failed to understand the problem. Rather, it makes it appear that the White House engaged in a conscious effort to cover up the problem. However, given the failure of Silbert to recall his discussion, it will be difficult to reach definitive conclusions regarding his September 28, 1998, contact with the White House. 4. The December 1998, Insight Article On December 4, 1998, Insight magazine published the first news account to mention the possibility of missing White House e-mail.\375\ As evidenced by the article's having been attached to a COTR report, dated December 11, 1998, that article was discussed in a COTR meeting, which took place on December 9, 1998.\376\ That meeting was attended by Joseph Vasta, Steve Hawkins' replacement as program manager, and other senior managers at Northrop Grumman.\377\ --------------------------------------------------------------------------- \375\ Paul M. Rodriguez, ``Computer Glitch Leads to Trove of `Lost' E-mails at White House,'' Insight on the News, Dec. 28, 1998, at 6. Although the cover of the magazine is dated Dec. 28, 1998, the article was first published on Dec. 4, 1998. \376\ See Northrop Grumman document production NGL 00252 (exhibit 63). \377\ See id. --------------------------------------------------------------------------- The article was provided to the White House by Northrop Grumman staff at the COTR meeting on December 11, 1998. The White House was aware of the article before its publication, as the reporter had asked the White House to comment about the e- mail allegations. Deputy White House Press Secretary Barry Toiv informed the reporter that the missing e-mails ``appear[ed] to duplicate some already turned over to requesters like Starr.'' \378\ Nevertheless, the publication of the Insight article appears to have initiated another call from Earl Silbert to the White House. On December 15, 1998, Silbert spoke to Northrop Grumman Counsel, and on December 30, 1998, he called the White House Counsel's Office.\379\ Again, when he was questioned by committee staff, Silbert was unable to recall with whom he spoke at the Counsel's Office or what was discussed. --------------------------------------------------------------------------- \378\ Paul Rodriguez, ``Looking for Information in All the Wrong Places,'' Insight on the News, Dec. 28, 1998, at 6. \379\ See Earl Silbert document production (exhibit 202). --------------------------------------------------------------------------- The December 1998 contact between Silbert and the White House is significant in that Silbert might have discussed the threats made against the Northrop Grumman employees, the legal ramifications of the e-mail problem, or even the fact that those issues seemed to have been leaked to the press. To the extent that those serious issues were raised with the White House, the White House's claims that it failed to fully comprehend the e-mail problem are further diminished. 5. The White House Failed to Inform the Committee of the Problem By June 19, 1998, Mark Lindsay, Charles Ruff, and John Podesta had all been told that there was a systemic problem with ARMS. Despite knowledge of the problem reaching these senior officials so early, none of the parties with outstanding document requests--Congress, the Offices of Independent Counsel, or the Department of Justice--were officially notified of the ongoing e-mail problems until March 17, 2000. Given the foregoing, it is troubling that no one in the White House came forward to confirm that the story was essentially accurate. That no one was able to confirm the essential truth of the story shows an almost purposeful effort to avoid the matter. Recently, some have attempted to argue that because there were unofficial descriptions of the problem in a news magazine, Congress was on notice that e-mails had not been produced.\380\ This, of course, is an absurd position. To argue that an article in Insight magazine absolves the White House Counsel's Office from providing proper notification that subpoenas have not been complied with and that past certifications are false is, at a minimum, silly. Should those who make such an argument stipulate that everything printed about the Clinton administration is true, the argument would be slightly less absurd. Nevertheless, it would still be very misguided. --------------------------------------------------------------------------- \380\ See, e.g., ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 53 (May 3, 2000) (statement of Ranking Minority Member Henry Waxman). --------------------------------------------------------------------------- In fact, the White House kept the e-mail problem under wraps until there was significant public exposure by the press, a series of developments in the Alexander case, and prompting by this committee. On February 15, 2000, the Washington Times published the first news story of the e-mail problem that included the threat allegations.\381\ The committee sent letters inquiring about the e-mail problems and threat allegations on February 16, 2000, and March 8, 2000. Finally, in response to the committee's letters, the White House acknowledged the existence of e-mail problems to the committee in a March 17, 2000, letter from White House Counsel Beth Nolan to Chairman Burton.\382\ --------------------------------------------------------------------------- \381\ Jerry Seper and Andrew Cain, ``White House Accused of Cover- Up: Ex-Worker Tells of Hidden E-mails,'' the Washington Times, Feb. 15, 2000, at A1. \382\ Letter from Beth Nolan, Counsel to the President, the White House, to the Honorable Dan Burton, chairman, Committee on Government Reform (Mar. 17, 2000) (within appendix I). --------------------------------------------------------------------------- This failure to inform investigative agencies of the Mail2 problem has been explained repeatedly by the White House to be the result of a ``disconnect.'' \383\ Charles Ruff and Cheryl Mills have testified that, based on the test search discussed above, they believed that there had been no defect in prior searches conducted in response to subpoenas. Mark Lindsay has testified that once he explained the problem to the Counsel's Office, ``then it was up to them to provide the--particularly the legal folks--to provide the legal analysis based on the information.'' \384\ --------------------------------------------------------------------------- \383\ See, e.g., ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 140 (Mar. 30, 2000) (testimony of Beth Nolan, Counsel to the President, the White House). \384\ Id. at 238 (May 4, 2000) (testimony of Mark Lindsay, Assistant to the President for Management and Administration, the White House). --------------------------------------------------------------------------- As it turned out, the failure of the ARMS system and the need to reconstruct responsive e-mails remained a pressing problem for Lindsay's OA employees responsible for conducting such searches. As seen in an August 13, 1998, e-mail, Tony Barry specifically stated, ``I feel that the records must be recreated and any searches need to be reperformed if the requestors feel it is necessary[.] . . . This seems like a daunting proposition, but I do not see any other alternative.'' \385\ Kathleen Gallant stated in an e-mail on the same date, ``I also agree with Tony about the new searches that will have to be done. We need direction from OA counsel on that front.'' \386\ --------------------------------------------------------------------------- \385\ White House document production E 0999 (exhibit 52). For a detailed discussion of the failure of the White House Office of Administration to respond to requests by staff to reconstruct the e- mails, see section III.E.1.a, below. \386\ White House document production E 1002 (exhibit 40). --------------------------------------------------------------------------- Whether or not Lindsay subsequently communicated the concerns of his staff to the White House Counsel's Office remains uncertain. However, it is the view of the committee that Lindsay's failure to inform the White House Counsel's Office of the continuing problem cannot reasonably be described as the result of a ``disconnect'' between Lindsay and OA staff. Based on the totality of the evidence discussed in section III.E below, it seems implausible to the committee that the concerns of Tony Barry, Jim Wright, Kathleen Gallant, and others were not communicated to Mark Lindsay. As a result, it is the view of the committee that Mark Lindsay should have taken steps to repair the ARMS system, reconstruct the missing e-mails, and inform the White House Counsel of the continuing inadequacy of ARMS searches stemming from the Mail2 anomaly. Lindsay's efforts, however, appear to have been focused more on attempts to keep anyone from finding out about the problem, and not on taking steps to cure the problem through either e-mail reconstruction or congressional notification. D. additional problems hampered efforts to repair the e-mail system Within the Executive Office of the President, the Mail2 problem was only one of a series of problems with the e-mail system. Each problem that successively arose compounded the scope of the original Mail2 problem and, accordingly, affected the White House's subpoena compliance obligations. 1. ``Stopping the Bleeding''--the Prospective Management of the Mail2 Problem In mid-June 1998, Jim DeWire, the project manager at Northrop Grumman, learned from Steve Hawkins, Northrop Grumman's program manager for the EOP computer systems contract, that some of the Northrop Grumman employees were working on ``a project'' and refused to disclose the nature of the project.\387\ Shortly after his conversation with Hawkins, DeWire received a call from Director Ada Posey telling him she had a sensitive task for the Northrop Grumman employees, the details of which needed to be kept from the onsite Northrop Grumman managers.\388\ Typically, DeWire was not informed about technical issues. In response, DeWire asked Posey to certify that the task was legal and within the scope of the contract between Northrop Grumman and the EOP.\389\ She gave him oral assurances on both points in the phone conversation and he accepted those assurances at face value.\390\ He did not question Posey about why the project was sensitive.\391\ Posey did not tell DeWire which government supervisor would direct the activity. After DeWire authorized that work on this ``project'' continue without disclosure to the Northrop Grumman managers, he called Hawkins back to tell him there would be this special arrangement.\392\ In accepting Posey's assurances and authorizing the ``special task order,'' DeWire did not confer with Northrop Grumman counsel.\393\ Hawkins unequivocally objected to DeWire's decision to accept Posey's assurances at face value and his authorization to Posey to proceed with the ``special task order.'' \394\ --------------------------------------------------------------------------- \387\ Interview with Jim DeWire, program director, Northrop Grumman, in Washington, DC (June 15, 2000). \388\ Id. Posey's telephone call to DeWire is made all the more curious given that she was told so little about the project relating to the Mail2 problem. See III.A.6.c, above (describing Lindsay's and Callahan's failure to provide timely disclosure to Posey). Posey told the committee that she cannot remember this conversation, let alone who Jim DeWire is. \389\ Interview with Jim DeWire, program director, Northrop Grumman, in Washington, DC (June 15, 2000). \390\ Id. \391\ Id. DeWire's acquiescence is made all the more curious by his explicit instruction to Hawkins (prior to Hawkins' meeting with Lindsay) ``don't `crater in.' '' In accepting Posey's bald assurances, DeWire apparently did precisely as he advised Hawkins not to do. \392\ Id. \393\ Id. In September 1998, Joseph Vasta, Northrop Grumman's deputy program director, intervened and facilitated a meeting between the Northrop Grumman and Ralph Pope, Northrop Grumman's general counsel, regarding the employees' concern that ``what they were working on was not legal.'' Id. Interview with Joseph Vasta, former program manager, Northrop Grumman, in Washington, DC (June 27, 2000). Only then did DeWire consult with and defer to counsel's determination that the work requested was outside the scope of the contract. See interview with Jim DeWire, program director, Northrop Grumman, in Washington, DC (June 15, 2000). \394\ See interview with Jim DeWire, program director, Northrop Grumman, in Washington, DC (June 15, 2000). --------------------------------------------------------------------------- Without authorization or direction from Northrop Grumman management, the ``special task order'' proceeded as follows. Northrop Grumman employees were to correct the Mail2 problem in two phases: in the first of the two phases, the employees would effectively ``stop the bleeding,'' that is, implement a solution that would enable the accounts in the Mail2 server to be records managed prospectively.\395\ John Spriggs and Yiman Salim worked together in ``stopping the bleeding'' on both the hardware and software aspects of the problem.\396\ With only Posey's bald assurance that the project was within the scope of the contract and legal, and without the authorization of Northrop Grumman's onsite managers, the White House purportedly ``stopped the bleeding'' on or about November 23, 1998.\397\ The second of the two phases was the Mail2 reconstruction project. As of November 23, 1998, the Northrop Grumman employees were ``not aware of the status of this [phase].'' \398\ The White House decided to undertake this project in March 2000--almost 2 years after it first sufficiently appreciated the need for reconstructing the e-mails. --------------------------------------------------------------------------- \395\ See White House document production E 0159-0160 (exhibit 55). \396\ Id. \397\ Id. \398\ Id. --------------------------------------------------------------------------- 2. The D-User Problem--the ``Bleeding Continues'' Although the White House thought that it had ``stopped the bleeding,'' it discovered another problem with its e-mail system in April 1999.\399\ This problem was called the D-user problem. The technical cause and scope of the problem is discussed above in section II.B. However, it is noteworthy here that the D-user problem resulted in ARMS failing to capture e- mail from nearly 200 accounts (of users whose name began with the letter ``D'') within the EOP, including 42 in the White House Office, from November 1998 through May 1999.\400\ --------------------------------------------------------------------------- \399\ See id. at E 3948-3950 (exhibit 125) (with forwarded e-mails from IS&T staff announcing problem attached). See also letter from Beth Nolan, Counsel to the President, the White House, to the Honorable Dan Burton, chairman, Committee on Government Reform 5 (Mar. 17, 2000) (within appendix I); statement of Beth Nolan, Counsel to the President, the White House, to Committee on Government Reform, Mar. 23, 2000, at 5-6. \400\ Letter from Beth Nolan, Counsel to the President, the White House, to the Honorable Dan Burton, chairman, Committee on Government Reform 5 (Mar. 17, 2000) (within appendix I); statement of Beth Nolan, Counsel to the President, the White House, to Committee on Government Reform, Mar. 23, 2000. --------------------------------------------------------------------------- There is no dispute that the White House contemporaneously knew about the D-user problem.\401\ In fact, Lindsay testified that he handled the D-user problem in the same manner as he handled the Mail2 problem. He notified his superiors and spoke to someone at the White House Counsel's Office, although he could not recall with whom he spoke.\402\ Curiously, neither Ruff, Mills, Peterson nor Paxton recalled having spoken with Lindsay about the D-user problem.\403\ By its very nature, the D-user problem compounded the scope of the original Mail2 problem and, accordingly, affected the White House's subpoena compliance obligations. --------------------------------------------------------------------------- \401\ White House document production E 3948-3950 (exhibit 125). \402\ ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 176-178, 179 (May 4, 2000) (testimony of Mark Lindsay). \403\ Id. at 183-184 (Ruff testifying that he could not recall having been told and Mills testifying that she was actually not told about the D-user problem). --------------------------------------------------------------------------- 3. The Vice President's E-mail Problems a. One Year's Worth of OVP E-mail Was Irretrievably Lost In an interview with Dorothy Cleal, former director for IS&T at OA, regarding the Mail2 problem, the committee learned of the existence of a memorandum prepared by the Office of Administration regarding a problem with the backing up of e- mail at the Office of the Vice President.\404\ At that time, the committee had not received any documents from the White House about such an e-mail problem. Accordingly, the committee sought certification from the White House that all records relating to the OVP problem and responsive to its e-mail investigation subpoena had been produced to the committee.\405\ On June 7, 2000, White House Counsel responded by informing the committee that its ``May 16, 2000 letter regarding non-records managed e-mail has led us to discover that a technical configuration error apparently prevented e-mail on the OVP server from being backed-up from the end of March 1998 through early April 1999.'' \406\ The failure to ARMS-manage OVP accounts resulted in the permanent loss of more than a year's worth of e-mail both to and from OVP staff. As the letter from the White House Counsel's Office indicates, the White House disclosed this information only because of this committee insisted that OVP-related records be produced pursuant to its earlier subpoena. --------------------------------------------------------------------------- \404\ Dorothy Cleal mentioned that, after e-mail in the OVP server were discovered not to have been backed up, Moe Vela, Staff Secretary to the Vice President, told her that the Vice President wanted a memorandum to him which explained ``why IS&T was so incompetent.'' Interview with Dorothy Cleal, former IS&T Director, Office of Administration, in Washington, DC (May 15, 2000). Ms. Cleal told the committee that in February or March 1999 she drafted a four-page memorandum to the Vice President on that issue. Id. White House Counsel has reported that it has not been able to locate any OA memoranda to the Vice President regarding the non-records management of e-mail. See letter from Steven F. Reich, Esq., Senior Associate Counsel to the President, the White House, to James C. Wilson, chief counsel, Committee on Government Reform (June 7, 2000) (within appendix I). \405\ See letter from James C. Wilson, chief counsel, to Beth Nolan, Counsel to the President, the White House (May 16, 2000) (within appendix I). On May 16, 2000, the committee informed White House Counsel that ``[i]t has come to [the Committee's] attention . . . that there may be documents relating to non-records managed e-mails from the Office of the Vice President (OVP) that have not been produced in response to the Committee's March 9, 2000, subpoena.'' Id. The committee noted that ``[b]ecause OVP is a part of EOP, any memoranda or other records relating to the failure to records manage properly OVP e- mails are responsive to the Committee's subpoena.'' Id. \406\ Letter from Steven Reich, Senior Associate Counsel to the President, the White House, to James C. Wilson, chief counsel, Committee on Government Reform 4 (June 7, 2000) (within appendix I). --------------------------------------------------------------------------- In searching for the memorandum from Cleal to the Vice President, the White House located and produced several drafts of other memoranda from Cleal to various White House personnel describing ``Office of the Vice President Computer Problems.'' \407\ Both the draft and final versions of the document include an explanation of the failure of the backup system, but neither specifically explain that it had been failing for more than a year.\408\ An earlier version of the document included a bullet under the heading ``Actions Taken:'' reading, ``Department of Justice was notified by the Office of Administration, General Counsel about the loss of the Vice President's E-mail files.'' \409\ The later version signed by both Mark Lindsay and Dorothy Cleal does not include the bullet about notifying the Justice Department.\410\ This discrepancy is among the many OVP-related issues the committee has not yet been able to examine thoroughly due to the White House's belated disclosure of the OVP problems. --------------------------------------------------------------------------- \407\ See, e.g., White House document production E 6526 (exhibit 173); id. at E 6962 (exhibit 204). \408\ Id. at E 6527 (exhibit 173); id. at E 6963 (exhibit 204). \409\ Id. at E 6529 (exhibit 173). \410\ Id. at E 6962 (exhibit 204). --------------------------------------------------------------------------- However, through documents produced in response to its subpoenas and witness interviews, the committee was able to determine the following preliminary facts regarding the Vice President's e-mail problems. In March 1998, Bill Van Horn, a Northrop Grumman employee, converted the OVP server into a new operating system, Windows NT 4.0.\411\ While converting the server, Van Horn added a partition so that OVP would have IS&T's standard server configuration.\412\ A partition is a division of a single physical hard disk drive that is seen by the operating system as a separate physical disk, or logical drive. This partition--an ``E:'' drive--stored all of the OVP's e-mail files.\413\ However, the E: drive was not included in the server's backup schedule.\414\ As a result, successive backups of the OVP server failed to capture e-mails that were transferred to the E: drive.\415\ Apparently, this oversight was not discovered until April 1999 in the context of attempting to restore from the Vice President's personal laptop 3 days of e-mail lost due to the corruption of his mail file on the server.\416\ An e-mail blind carbon-copied to Vice President Gore instructs OVP staff, ``[i]f you sent an email [sic] to the Vice President between 12am [sic] on Tuesday, March 30th through 2pm [sic] Friday, April 2, would you please resend it to him via email [sic] with a notation that you are forwarding one from this period. Please use discretion in discussing this network/Lotus Notes problem.'' \417\ Ultimately, IS&T corrected the problem and enabled the OVP's e- mail to be backed up prospectively.\418\ --------------------------------------------------------------------------- \411\ See White House document production E 5201-5203 (exhibit 170); id. at E 6404-6406 (exhibit 172); id. at E 6526-6530, E 6398- 6399, E 6400-6402 (exhibits 173-175). See also id. at E 6369 (exhibit 162) (anonymous and undated summary of events titled, ``Received from John Spriggs'' handwritten); letter from Steven Reich, Senior Associate Counsel to the President, the White House, to James C. Wilson, chief counsel, Committee on Government Reform (June 7, 2000) (within appendix I). \412\ See n.411. \413\ See n.411. \414\ See n.411. \415\ See n.411. \416\ See n.411. \417\ White House document production E 6562 (exhibit 207). This belatedly-produced document possibly indicates an intent by the White House--consistent with its mishandling of the Mail2 and D user problems--to conceal the OVP problem. Although the committee is presently unable to arrive at any definitive conclusions, the implications of this document are troubling. \418\ See n.411. --------------------------------------------------------------------------- b. The Vice President's Claim to Be Ignorant of His Office's Records Management Problems Is Not Credible When the Vice President was asked whether he knew about his office's failure to backup e-mail for over a year, he said: No, the problem I asked about was three days of e-mails that disappeared and computers crash, and that's what happened. And I asked them to make sure it didn't happen again. And I don't know about the backup tapes. I read about that in the papers recently. I don't know anything about why that happened or how it happened. I'm not an expert on computers.\419\ --------------------------------------------------------------------------- \419\ ``The Edge with Paula Zahn'' (Fox News television broadcast, June 14, 2000). However, despite his claim to the contrary, it is clear that the Vice President is extremely computer savvy and highly involved in issues related to information systems both generally and within his own office. For example, documents indicate that the Vice President personally interviewed at least three technical contract employees from Northrop Grumman.\420\ Furthermore, Northrop Grumman Program Manager Steve Hawkins wrote in an October 9, 1998, e-mail, ``Mr. Gore calls upon our technical staff while on business trips for updated software or to troubleshoot a problem he might be having with one of his laptops or his new palmtop machine.'' \421\ Another document includes handwritten notes from Associate OVP Counsel Kumiki Gibson to OVP Counsel Jack Quinn that read, ``As you know, VP is very concerned about e-mail.'' \422\ Moreover, as described in the Washington Post: --------------------------------------------------------------------------- \420\ See White House document production E 7419 (exhibit 186). \421\ Id. at E 6696 (exhibit 208). \422\ Id. at E 5561 (exhibit 201). Gore is an e-mail addict, people on his staff say. Every day he reads through more than a hundred messages and sends out almost as many, sometimes doing it from his residence late into the night. During staff meetings in his office, White House aides say, he often has one eye on his computer screen, scanning through new arrivals in his mail box. . . . Gore keeps himself wired into Netscape and the rest of the Silicon Valley crowd through informal monthly meetings with about two dozen technology leaders. The group, nicknamed ``Gore- Tech,'' has met over pizza and beer to discuss issues such as using software to filter objectionable material on the internet and improving communication between teachers and parents though computer networks. ``We don't have to talk down to him,'' said Marc Andreessen, the 26-year-old co-founder of Netscape and a regular member of the group. ``He has a very good conceptual understanding of technology.'' \423\ --------------------------------------------------------------------------- \423\ Rajiv Chandrasekaran, ``Gore's Best Friend is his Computer,'' the Washington Post, Nov. 29, 1997, at A01. Given his sophisticated understanding of e-mail and personal involvement in related issues, Vice President Gore would certainly have been capable of understanding that managing records solely by backup tapes would render word-searching of his e-mail messages prohibitively time-consuming, expensive, and would risk permanent loss in the event of a backup system failure. Furthermore, even if he did not personally know, members of his staff would have certainly known that the OVP was not conducting searches of the backup tapes. That his office was using backup tapes to manage e-mail records was also likely communicated to the Vice President in a February 1996 e-mail from a member of his staff. The newly reconstructed e-mail--among those recently produced to the committee by the White House--also indicates a desire to prevent e-mails from being recorded in any form. This message conveys to the Vice President a possible way to exchange e-mail with a political advisor, Carter Eskew, while preventing the messages from being recorded on a government computer: Reminder: All internet e-mails are recorded on the White House computers. According to Michael, the only way not to have your e-mails backed up on government computers would be to get a Clinton/Gore computer in your office and set it up for private e-mails. QUESTION: How would you like to proceed on this? \424\ --------------------------------------------------------------------------- \424\ White House document production E 8701 (exhibit 193). It should be noted that if the Vice President replied to this e-mail using his OVP computer, his response should be on one of the backup tapes yet to be reconstructed by the White House. In any event, the mere fact that his staff elevated this decision to the Vice President's level is consistent with his having been involved in records management decisions as well. Documents also demonstrate conclusively that the Vice President was, in fact, personally involved in decisions related to the Armstrong case and its implications for preserving e-mail. For example, in a June 28, 1995, e-mail an OA staff member wrote: This seems worth bringing to your attention because among the series of e-mails is one from the Vice President expressing dismay at the restrictions that Armstrong places on internet access. As you can see from the e-mail that he is responding to (the last in the series), it appears that OA is being made to be the bad guy (``As you know I pressed hard to get internet features other than normal EMAIL available through the system and OA would not budge.'') We need to straighten out this misimpression right away especially given the VP's personal concern. Perhaps we could arrange a meeting with the VP's staff to explain why we have to be concerned about capturing external e-mail, and to offer to work with the VP and NPR to provide them the access they seek through a means that properly complies with records requirements.\425\ --------------------------------------------------------------------------- \425\ Id. at E 6533 (exhibit 205). Unlike the e-mail problems with the White House's e-mails, a considerable number of the unrecorded e-mails at the OVP were irretrievably lost. This is because the OVP chose not to be a part of the ARMS system used by the rest of the EOP. Instead, it chose to rely exclusively printouts of e-mail by individual staff members and the use of backup tapes as the means of records managing its e-mail. By contrast, the White House Office's e-mails were stored both on backup tapes and on ARMS, providing a redundant records management system. Thus, if one system were to fail, the other would render the failure less catastrophic. In the case of the White House Office, ARMS partially failed, but the e-mail may be recovered from backup tapes.\426\ In the case of the OVP, the backup tape system failed, but the e-mail cannot be retrieved from ARMS.\427\ --------------------------------------------------------------------------- \426\ Six months of White House e-mail cannot be recovered from backup tapes because they were inadvertently recycled. Interview with Kathleen Gallant, former IS&T Director, Office of Administration, in Chantilly, VA (May 17, 2000). \427\ The committee has also received testimony that, from July 1999 through some unspecified time, OVP e-mail in addition to the year's loss discussed above might have been irretrievably deleted. John Spriggs, an e-mail specialist with IS&T, testified that by July 1999, IS&T was overwriting backup tapes of the OVP server on a 3-week cycle. As Spriggs appropriately noted that ``[i]f OVP is doing records management with tape backups, they have a problem.'' See ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 182 (Mar. 23, 2000). This remains an area of inquiry for the committee. --------------------------------------------------------------------------- c. The OVP's Decision to Avoid ARMS-management Hindered Subpoena Compliance The decision not to use ARMS was made by Todd Campbell, former Counsel to the Vice President, and now a Federal judge in Tennessee. Campbell stated that he made the decision in consultation with Kumiki Gibson, a former Associate Counsel to the Vice President, and Michael Gill, a former Staff Secretary whose responsibilities included management of the computer system at the OVP.\428\ Campbell explained that he made his decision not to use ARMS because he was told by Michael Gill that it would require OVP to use All-in-One, an older and less desirable e-mail system.\429\ --------------------------------------------------------------------------- \428\ Telephone interview with Hon. Todd Campbell, former Counsel to the Vice President (Aug. 18, 2000). \429\ Id.; interview with Michael Gill, former Staff Secretary, Office of the Vice President, in Washington, DC (July 24, 2000). It is unclear as to whether Gill's advice was accurate. By September 1996, ARMS interfaced with the Lotus Notes system. Interview with Daniel A. ``Tony'' Barry, Computer Specialist, Office of Administration, in Washington, DC (Mar. 12, 2000). Given Gill's lack of experience with the management of information systems, it is not surprising that he did not know about the potential for the Notes/ARMS interface. Interview with Michael Gill, former Staff Secretary, Office of the Vice President, in Washington, DC (Jul. 24, 2000) (noting that, with a background in finance, he had no appreciable experience with systems administration, information systems management or Lotus Notes prior to working at OVP). Gill departed the OVP in December 1996. --------------------------------------------------------------------------- Because the White House has not completed its production of relevant documents concerning this matter, it is difficult to reach definitive conclusions.\430\ However, given the fact that the OVP did not properly implement the other two methods of records management--saving hard copies of e-mails or electronically backing them up--the decision not to use ARMS was ill-considered. --------------------------------------------------------------------------- \430\ Another factor making it difficult to reach definitive conclusions is that two significant witnesses involved with the OVP problem, Kumiki Gibson and Jonathan Gill, have not yet made themselves available for interviews. --------------------------------------------------------------------------- It is difficult to understand why the OVP chose not to use the White House's ARMS system. Similarly, there appears to be no sensible rationale for relying on manual printouts and use of backup tapes. In deciding not to have OVP e-mail ARMS- managed, the OVP effectively decided that it should not have to manage its e-mail in the same manner chosen by the White House Office. More meaningfully, it also effectively decided that it did not need to have the capability to word search electronically its e-mail when complying with outstanding subpoenas. This could not have been lost on senior staff in the Vice President's Office. When asked whether he directed that the backup tapes be searched in response to subpoenas, Judge Campbell said he did not.\431\ He could not offer any explanation as to why not.\432\ Campbell noted that searching the tapes would be a slow and expensive process, but admitted that he was not aware of the cost or difficulty of searching the backup tapes at that time.\433\ --------------------------------------------------------------------------- \431\ Telephone interview with Hon. Todd Campbell, former Counsel to the Vice President (Aug. 18, 2000). \432\ Id. \433\ Id. --------------------------------------------------------------------------- The committee continues to investigate this matter, focusing on the OVP's decision not to use ARMS. The OVP's decisions raise troubling questions, for example: (1) whether it was reasonable in the context of reoccurring problems with its backup system for the OVP to rely on backup tapes to records manage its e-mail electronically; \434\ and (2) whether it was proper in the context of subpoena compliance for the OVP to rely on backup tapes to records manage its e-mail electronically, particularly when the backup tapes were not used to retrieve e-mail. The committee will also consider more fundamental questions such as who at the OVP knew about its failure to records manage its e-mails, what they knew about it, when they knew about it, and why investigative bodies were not informed in a timely fashion that e-mail records were not being properly searched. --------------------------------------------------------------------------- \434\ Another issue the committee is exploring is whether OVP's reliance on the backup system to records manage its e-mail was reasonable in the context of a recurrently problematic backup system. Some documents the committee has received describe the loss of records from Feb. 22, 1994, through Mar. 19, 1994. See, e.g., White House document production E 5651 and E 6321 (exhibit 209). --------------------------------------------------------------------------- E. Office of Administration Management Failed to Act Whether the result of incompetence, indifference, or willfulness, the cavalier attitude of the White House Counsel's Office toward the e-mail problems was also apparent in the White House Office of Administration. Despite his testimony to the committee that his ``No. 1 priority'' was to solve the e- mail problems, Mark Lindsay allowed the project to languish. Even though his staff repeatedly expressed their clear concerns regarding the technical problems, the funding needed to solve them, and the ramifications for document requests, Lindsay and others in OA management failed to provide the leadership or obtain the resources necessary for a timely solution. Notwithstanding his egregious failures, Lindsay was promoted and is now an Assistant to the President. 1. The Office of Administration Failed to Provide Direction The first and most obvious failure of Office of Administration management--and in particular Mark Lindsay--was the creation of an atmosphere of fear and intimidation among the Lotus Notes team. This issue is discussed above in detail in section III.A. Nevertheless, it should be noted here that the threats to Northrop Grumman contractors were responsible for the entire reconstruction project starting on the wrong foot. By directing the contract employees to operate in secrecy, Mark Lindsay and Laura Callahan placed Betty Lambuth, Robert Haas, and the rest of the Lotus Notes team in an untenable position with respect to their own managers at Northrop Grumman. By providing insufficient independent direction to the staff to remedy the Mail2 problem, OA management failed to compensate for these restrictions. Another problem plaguing the Office of Administration was the high rate of turnover among the staff. Essential personnel left OA at the same time that the Mail2 problem emerged. In some cases, the Mail2 problem was a contributing factor to the departure of staff. As discussed above in section III.A.6.c, Ada Posey was kept out of the loop regarding many of the decisions that involved the e-mail problems.\435\ She also felt she had little authority to get things done.\436\ Posey explained to committee staff that she refused to tolerate the situation, and she left the White House in December 1998.\437\ Posey told the committee that her leaving was partially, though not directly, related to the Mail2 problem.\438\ --------------------------------------------------------------------------- \435\ Interview with Ada Posey, former Director, Office of Administration, in Washington, DC (May 18, 2000). \436\ Id. \437\ Id. \438\ Id. --------------------------------------------------------------------------- Kathleen Gallant, who was widely respected in OA, departed in October 1998.\439\ Paulette Cichon left OA in August 1998.\440\ As Gallant explained to committee staff, Cichon's departure was one of the reasons that Gallant left, in addition to ``a series of events in OA'' that made her unhappy.\441\ ``Given the leadership of OA, it was not a good place to stay,'' said Gallant.\442\ Assistant to the President Virginia Apuzzo asked Gallant not to leave, as did a number of other employees.\443\ The departures of Posey and Gallant made the leadership vacuum in OA even worse. --------------------------------------------------------------------------- \439\ Interview with Kathleen Gallant, former IS&T Director, Office of Administration, in Chantilly, VA (May 17, 2000). \440\ Id. \441\ Id. \442\ Id. \443\ Id. --------------------------------------------------------------------------- a. Lower Level OA Employees Wanted to Solve the Problem The difficulties faced by OA staff in receiving direction toward a solution were expressed early on by Tony Barry. On July 24, 1998, Barry sent the first of several e-mail messages detailing the lack of movement toward correcting the problem.\444\ In an e-mail of August 13, 1998, his tone became more serious. As he wrote to Jim Wright: --------------------------------------------------------------------------- \444\ White House document production E 3990 (exhibit 119). I am concerned about several aspects of this problem. As far as I can tell, there is no movement under way to fix the problem and recover the lost records from the backup tapes. When I talk to Sandy, John or Bob they tell me that there is no movement on this project from their side and the last activity was the meeting we had with Betty before she left (7/28). . . . I appologize [sic] for the rambling nature of this memo but I hope it captures my concerns and frustration level.\445\ --------------------------------------------------------------------------- \445\ Id. at E 0998-0999 (exhibit 52). Nearly a month later, Barry sent another e-mail of a similar tone to both Wright and Gallant. On September 10, 1998, he wrote, ``I am growing increasingly concerned about the seeming lack of movement on the Mail2 problem. Do you know where the hold up is. We have known about this problem for 4 months now and not a single record has been passed to ARMS . . . even worse, the root problem has not been fixed.'' \446\ Again, on September 25, 1998, Barry sent an e-mail to Gallant and Wright with the subject line, ``Concerned.'' He wrote, ``It has been about 2 week [sic] since I sent my last `concerned memo' regarding the Mail2 problem and I am still not seeing any movement on fixing the problem. I need to know, for my own sanity, exactly what my role in this project should be.'' \447\ --------------------------------------------------------------------------- \446\ Id. at E 4009 (exhibit 113). \447\ Id. at E 4063 (exhibit 109). --------------------------------------------------------------------------- In his interview with the committee, Jim Wright stated that he agreed with Barry's concerns.\448\ Wright told the committee that he tried to ``get the holdup fixed upstairs'' through Gallant.\449\ Wright pestered Gallant every Monday at their weekly meetings and forwarded Daniel Barry's e-mail to Gallant.\450\ He told the committee, however, that Gallant could never get an answer from management.\451\ --------------------------------------------------------------------------- \448\ Interview with Jim Wright, former COTR and IS&T Data Center Branch Chief, Office of Administration, in Washington, DC (June 8, 2000). \449\ Id. \450\ Id. See also White House document production E 3989 (exhibit 119). \451\ Interview with Jim Wright, former COTR and IS&T Data Center Branch Chief, Office of Administration, in Washington, DC (June 8, 2000). --------------------------------------------------------------------------- Gallant corroborated this account to committee staff.\452\ In an interview, Gallant stated that ``on multiple occasions'' she brought the concerns of Barry and others to the attention of Mark Lindsay.\453\ Because of his admonition about secrecy, Gallant took Lindsay aside at the end of Ada Posey's weekly staff meetings to discuss the lack of direction and the need for funding.\454\ Gallant also said that, while she had no specific recollection of forwarding Barry's ``concerned'' e- mails to Lindsay, doing so would have been consistent with her past practice.\455\ Despite these repeated reminders, Gallant explained to the committee, she could never get a straight answer from Lindsay, or anyone around him.\456\ She further stated that the response was always ``Mark's working on it,'' but nothing would ever get done.\457\ As with the increasing frustration expressed in Barry's e-mails, Gallant said she eventually realized that her requests related to this issue were going nowhere.\458\ --------------------------------------------------------------------------- \452\ Interview with Kathleen Gallant, former IS&T Director, Office of Administration, in Chantilly, VA (July 20, 2000). See also White House document production E 1002 (exhibit 40), in which Gallant states to Wright and Barry in an e-mail, ``I also agree with Tony about the new searches that will have to be done. We need direction from OA counsel on that front.'' At this time, Mark Lindsay was OA General Counsel. \453\ Interview with Kathleen Gallant, former IS&T Director, Office of Administration, in Chantilly, VA (July 20, 2000). \454\ Id. \455\ Id. \456\ Id. (May 17, 2000). \457\ Id. \458\ Id. --------------------------------------------------------------------------- b. Disputes as to the Scope of the Contract Hindered a Solution to the Problems Another factor in the delay in remedying the problem was the dispute between the White House and Northrop Grumman as to the scope of the contract. As discussed above, the decisions to have White House employees direct Northrop Grumman employees in secrecy and to keep program managers such as Steve Hawkins uninformed, created an environment that quickly degenerated into distrust and inaction. This led to a paralysis that in part prevented a solution to the e-mail problem. But even when Northrop Grumman informed the White House of their dissatisfaction with the treatment of the contract employees, OA management failed to take steps to resolve the dispute. i. Hawkins Objected to Lindsay's Handling of the Contract Steve Hawkins testified to the committee that after he learned through Jim Wright of the problems of secrecy with the Northrop Grumman employees, Mark Lindsay confronted him at a meeting in Lindsay's office.\459\ According to Hawkins, Lindsay asked him why he had gotten involved. Hawkins testified that he told Lindsay that it was because of the contract.\460\ Hawkins further stated: ``It was very specific in the contract that the COTR gave direction to the program manager and no one else. And, therefore, I took the position that I could not support this project and would not do it without an internal work order, which was compliant with our contract.'' \461\ In his own testimony, Lindsay confirmed that this meeting took place and that Hawkins complained about the work being outside the scope of the contract.\462\ Hawkins further testified that Lindsay said repeatedly at the meeting, ``I hope you appreciate my position here.'' \463\ Asked what he thought Lindsay's statement meant, Hawkins said he ``took it straight as a strong arm. I took it as a direct assertion that my employees should go do this work and I should not be involved.'' \464\ At this point, however, Hawkins and Northrop Grumman did not know what exactly the secret project--which was so mysterious that it was called ``Project X'' by the employees--entailed. --------------------------------------------------------------------------- \459\ ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 106 (Mar. 23, 2000) (testimony of Steve Hawkins, former program manager, Northrop Grumman). \460\ Id. \461\ Id. \462\ Id. at 279 (testimony of Mark Lindsay, Assistant to the President for Management and Administration, the White House). \463\ Id. at 106 (testimony of Steve Hawkins, former program manager, Northrop Grumman). \464\ Id. at 106-107. --------------------------------------------------------------------------- ii. The Lucente Letter On August 28, 1998, Joe Vasta of Northrop Grumman had a meeting with Haas, Spriggs, Golas and Salim.\465\ Vasta had just succeeded Steve Hawkins as the Program Manager. The Northrop Grumman employees explained to Vasta the threats as well as the secrecy that they were ordered to work under by OA management.\466\ According to Jim DeWire, Vasta informed him over the phone that the Northrop Grumman employees were concerned that what they were working on was not legal.\467\ As a result, DeWire arranged a meeting between these employees and Northrop Grumman corporate counsel, Ralph Pope.\468\ That meeting took place on September 9, 1998, and included Joseph Lucente, director of contracts and subcontracts for the company.\469\ As a result of this meeting, Northrop Grumman drafted a letter of September 14, 1998, signed by Lucente.\470\ The letter stated in part: --------------------------------------------------------------------------- \465\ Interview with Joe Vasta, former program manager, Northrop Grumman, in Washington, DC (June 27, 2000). The Aug. 28, 1998, meeting was intended to familiarize Vasta with the Mail2 problem. Vasta stated to the committee that, in this meeting, the Northrop Grumman contract employees told Vasta about the threats and secrecy. Vasta also stated that, at the end of this meeting, John Spriggs confiscated the notes Vasta had just taken on these details. \466\ Id. \467\ Interview with Jim DeWire, program director, Northrop Grumman, in Washington, DC (June 15, 2000). As discussed in section III.D.1, DeWire had originally agreed to Ada Posey's special arrangement, so long as the work was inside the scope of the contract and legal. \468\ Id. \469\ Interview with Joseph Lucente, director of contracts and subcontracts, Northrop Grumman, in Washington, DC (May 1, 2000). \470\ Northrop Grumman document production NGL 00503 (exhibit 64). Ms. [Callahan] directed the Company employees to evaluate the problem and undertake remedial action, without Northrop Grumman management involvement. Since that time, Company employees have studied the nature and extent of the dysfunction and have undertaken with some incomplete remedial efforts. Based on our review, the level of effort required to remedy the dysfunction will substantially exceed the scope of work contemplated under the referenced contract. As a consequence we are not proceeding with our efforts to remedy the dysfunction until we have received further contractual direction.\471\ --------------------------------------------------------------------------- \471\ Id. Lucente and Vasta both stated to the committee that they did not receive feedback from anyone at the White House responding to the September 14, 1998, letter.\472\ Dale Helms stated to the committee that he believed the White House responded to the September 14, 1998, letter from Northrop Grumman by submitting a Statement of Work (SOW) to the company.\473\ As far as Helms was concerned, the October 20, 1998, SOW provided the feedback Northrop Grumman had requested.\474\ The SOW, however, did not address the issue of White House employees directing contractors without management involvement. Lucente and Vasta apparently did not view the SOW as providing sufficient contractual direction. It is likely that Lucente and Vasta were referring to direction that should be received under the base contract. In any event, OA management did not take timely action necessary to remedy the confusion over the scope of the contract and the management of Northrop Grumman employees. --------------------------------------------------------------------------- \472\ Interview with Joseph Lucente, director of contracts and subcontracts, Northrop Grumman, in Washington, DC (May 1, 2000); and interview with Joe Vasta, former program manager, Northrop Grumman, in Washington, DC (June 27, 2000). \473\ Interview with Dale Helms, CO and IS&T Procurement Branch Chief, Office of Administration, in Washington, DC (June 5, 2000). \474\ Id. --------------------------------------------------------------------------- Northrop Grumman responded to the SOW from the White House with an Internal Work Order (IWO), presented on December 2, 1998. This ``Rough Order of Magnitude'' to study the costs of recovering the unrecorded e-mails was for $602,492.\475\ This estimate did not include the actual cost of reconstruction. According to Ada Posey and others, the White House balked at this estimate. Posey said she had ``absolute sticker shock'' at the cost.\476\ She told the committee that she wanted Northrop Grumman to know that the estimate was unacceptable.\477\ Dale Helms, on the other hand, told the committee that the White House simply chose not to fund the proposal.\478\ It is not clear whether Posey's specific cost concerns were ever communicated to Northrop Grumman.\479\ --------------------------------------------------------------------------- \475\ Northrop Grumman document production NGL 00268 (exhibit 72). \476\ Interview with Ada Posey, former Director, Office of Administration, in Washington, DC (May 18, 2000). \477\ Id. \478\ Interview with Dale Helms, CO and IS&T Procurement Branch Chief, Office of Administration, in Washington, DC (June 5, 2000). \479\ See, e.g., White House document production E 0943 (exhibit 29). This e-mail shows that Barry communicated to Vasta that they could not proceed as described in the IWO, but it does not explicitly mention the cost. --------------------------------------------------------------------------- Apparently, OA staff were not kept informed of the progress--or lack thereof--in resolving the contractual difficulties between the White House and Northrop Grumman. The long-running confusion and hold-up over contractual issues is evidenced in several e-mails from Tony Barry. In November 1998, Barry sent two e-mails indicating that Northrop Grumman needed technical guidance on the Mail2 IWO.\480\ And as late as October 1999, Barry attempted to receive direction from OA management on the IWO issue. As he wrote to Kate Anderson on October 26, 1999, ``I am trying to find out the status (From [sic] your perspective) on the `Mail2' issue and the related `D problem.' . . . NG put together an IWO for recovering the data (&600K +) [sic]. I am now trying to find out If [sic] this needs to be accomplished. Any help would be appreciated.'' \481\ Anderson responded to Barry saying, ``I will check with Mark Lindsay and Mike Lyle.'' \482\ It is unclear whether Anderson followed through on this assurance.\483\ It is clear, however, that rather than actively seek another solution, the White House did nothing to resolve this contractual logjam. In fact, the White House did not seek another contractor for the job until after this committee began its investigation in March 2000, leaving the reconstruction project to languish for a year and a half. --------------------------------------------------------------------------- \480\ White House document production E 0944, E 0945 (exhibits 30- 31). \481\ Id. at E 4484 (exhibit 164). \482\ Id. \483\ Barry received an e-mail response from Anderson on Nov. 8, 1999, stating ``Tony: Please forward me a copy of [Northrop Grumman's] IWO.'' White House document production E 4486 (exhibit 200). Although it seems strange that someone in the OA Counsel's office would be requesting a copy of the IWO from a computer specialist at such a late date, it is unclear why this request was made or what was done with it. --------------------------------------------------------------------------- c. The White House's Inaction Caused Numerous Additional Problems Even though the root problem with the ARMS system was prospectively fixed in November 1998, the problems plaguing OA staff were far from over. After ``the bleeding'' was stopped, responsibility for the reconstruction phase of the project was given to Karl Heissner.\484\ At a committee hearing on May 4, 2000, Heissner was asked by committee counsel, ``did you ever get directions from your superiors to move forward?'' Heissner testified, ``[n]o, sir.'' \485\ Counsel further asked, ``[a]t any time before the year 2000 did any manager of yours ever come and say you must do something to get this fixed?'' Heissner again testified, ``[n]o, sir.'' \486\ Heissner also testified, ``I was waiting for direction to proceed along with the funding that's required to do that.'' \487\ --------------------------------------------------------------------------- \484\ See White House document production E 4007 (exhibit 103). See also ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 22 (May 4, 2000) (testimony of Karl Heissner, IS&T Systems Integration and Development Branch Chief, Office of Administration). \485\ Id. at 96. \486\ Id. \487\ Id. at 95. --------------------------------------------------------------------------- The failure by OA management to give direction to Heissner caused additional problems for the staff responsible for records management. The fact that so many tapes had not been reconstructed created inventory problems and added significant costs to the entire backup process necessary for archiving and subpoena compliance. Nell Doering summarized these concerns in an e-mail sent to Dorothy Cleal, Jim Wright, and Chuck Sigman on March 17, 1999. She wrote: The Server 2 Backup Tapes that were not records managed need to be restored and ultimately put into ARMS. These tapes have not been inventoried, documented, sampled, tested, or anything else according to Tony Barry. . . . Sooooo [sic]--as I understand it from Tony--the backup tapes just keep piling up and now are a complete mess and a mounting problem. As long as the backup tapes keep piling up--its costing money. It will cost money to do nothing.\488\ --------------------------------------------------------------------------- \488\ White House document production E 3837 (exhibit 116). Doering continued in her e-mail to explain the results of --------------------------------------------------------------------------- inaction. She listed them as: 1. Continue to buy more backup tapes. At what cost?? 2. Unnecessary backup tapes keep piling up. 3. We still will not have an inventory, documentation, etc. of these backup tapes and is danger [sic] of loss and/or damage. 4. If a solution to restoring the backup tapes is not resolved soon--this information will not get into ARMS in time for the reconversion to the NARA format. 5. This will probably mean a separate recovery project just for these backup tapes at a later time. Given it is getting close to transition--this is really not acceptable.\489\ --------------------------------------------------------------------------- \489\ Id. at E 3839 (exhibit 116). Despite such warnings about the administrative difficulties and costs of inaction, the reconstruction project did not commence for another year, that is, not until after it was discussed by the media in a light unfavorable to the White House. 2. The White House's Failure to Secure Funding Delayed a Solution The failure by OA management to respond to staff requests to fix the ARMS system and reconstruct unrecorded e-mail extended not only to moving forward with the technical fix, but also to securing the moneys necessary to solve the problem. Lindsay, Lyle, and others in OA management failed to take steps necessary to fund a timely solution to the e-mail problem. In her interview on April 14, 2000, Paulette Cichon, former Deputy Director of OA, attributed the lack of movement to resolve the e-mail problems to the lack of ``funding and bodies.'' \490\ Cichon stated that she understood that, if there was no money and no personnel, nothing would happen to fix the problem.\491\ According to Kathleen Gallant, the need for funding was communicated directly to Mark Lindsay. Gallant stated in an interview that ``[h]e knew because I communicated that without this money, it would not be fixed.'' \492\ Nevertheless, Mark Lindsay did not request the necessary funding until March 20, 2000--after this committee had scheduled hearings on the matter.\493\ It could not have been lost on senior White House staff that delay and inaction have considerably postponed a full solution to the problem. --------------------------------------------------------------------------- \490\ Interview with Paulette Cichon, former Deputy Director, Office of Administration, in Washington, DC (Apr. 14, 2000). It should be noted that Cichon did not originally return the calls of the majority staff of the committee. Instead, she made first contact with the committee through the minority staff, providing them with a written statement. \491\ Id. \492\ Interview with Kathleen Gallant, former IS&T Director, Office of Administration, in Chantilly, VA (May 17, 2000). \493\ See letter from the Honorable Jim Kolbe, chairman, Subcommittee on Treasury, Postal Service, and General Government, to Mark Lindsay, Assistant to the President for Management and Administration, the White House (Apr. 27, 2000) (exhibit 145). --------------------------------------------------------------------------- a. Internal Funding Requests Were Ignored The OA employees responsible for correcting the e-mail problems sought funding from within to remedy the situation. As she testified in her May 10, 2000, affidavit, former Director of IS&T, Kathleen Gallant, ``requested that Mark Lindsay and Ada Posey take action to determine if National Security Council (NSC) funds allocated by law for the ARMS system as it related to NSC . . . which still had a large amount of unspent funds, could be directed to shoring up the ARMS system.'' \494\ Management, however, ignored her requests. As Gallant further testified: ``[d]espite my repeated requests, . . . nothing of consequence was ever done to reallocate funds, and therefore no funds were available to purchase the equipment needed to rectify the email [sic] problem.'' \495\ --------------------------------------------------------------------------- \494\ Declaration of Kathleen Gallant, former IS&T Director, Office of Administration, at para. 12 (May 10, 2000) (exhibit 154). \495\ Id. at para. 13. --------------------------------------------------------------------------- Gallant further stated that she asked Mark Lindsay personally about the progress of funding. Gallant said she discussed funding with Lindsay several times. She told him, ``[w]e're in dire straits here. We need to do something.'' \496\ She said that Lindsay himself mentioned the possibility of transferring the NSC funds as opposed to asking Congress for additional appropriations.\497\ Despite these discussions, Lindsay never acted to approve a transfer of funds to purchase the hardware necessary to recover the e-mails.\498\ --------------------------------------------------------------------------- \496\ Interview with Kathleen Gallant, former IS&T Director, Office of Administration, in Chantilly, VA (May 17, 2000). \497\ Id. (July 20, 2000). \498\ Id. (May 17, 2000). --------------------------------------------------------------------------- In his interview with the committee, Jim Wright specifically corroborated Gallant's account about reallocation of existing funds. He stated that use of NSC funds to fix the e-mail problem was pushed because of the significant amount of leftover money in the account.\499\ Several other witnesses interviewed by the committee corroborated Gallant's statements more generally, stating that several employees in the Office of Administration sought funding, but that management never took action. Dorothy Cleal told the committee that her staff kept pushing for money to fix the e-mail problem and that she supported them.\500\ Nell Doering stated to the committee that her office could not get an answer out of either Lyle or Lindsay about getting money to reconstruct the e-mails.\501\ --------------------------------------------------------------------------- \499\ Interview with James Wright, IS&T Data Center Branch Chief, Office of Administration, in Washington, DC (June 1, 2000). \500\ Interview with Dorothy Cleal, former IS&T Director, Office of Administration, in Washington, DC (May 15, 2000). \501\ In her interview, Doering also stated that she thought she remembered Tony Barry suggested using Armstrong money to reconstruct the e-mails, but that he was denied. Interview of Nell Doering, Supervisory Management Analyst, OA, in Washington, DC (May 26, 2000). --------------------------------------------------------------------------- b. For Two Years, the White House Failed to Seek the Appropriations Necessary to Fix the Problem As was the case in failing to notify the numerous document requestors, the White House also failed to inform congressional appropriators of the e-mail problems until after the issue was public and this committee had begun its investigation. In fact, the Office of Administration did not seek appropriations until March 20, 2000, 3 days before Michael Lyle was scheduled to testify before Chairman Kolbe's subcommittee.\502\ Mark Lindsay sent a letter to Chairman Kolbe requesting the use of $1,700,000 in funds previously appropriated to the Armstrong Resolution Account for reconstruction of the e-mails.\503\ So, between June 19, 1998, and March 20, 2000, no effort was made by anyone in the White House to explain the e-mail problems to appropriators or to secure the congressional funding necessary to reconstruct the unrecorded e-mails. It is particularly troubling to the committee that there was a general awareness within White House management that without money there would be no progress. The White House allowed itself to remain in the situation that would prevent compliance with subpoenas. From the committee's perspective, the White House's actions are not mysterious: without money, documents could not be produced, and the fear of unknown oversight problems was thereby eliminated. --------------------------------------------------------------------------- \502\ Letter from the Honorable Jim Kolbe, chairman, Subcommittee on Treasury, Postal Service, and General Government, to Mark Lindsay, Assistant to the President for Management and Administration, the White House (Apr. 27, 2000) (exhibit 145). As in other instances, the committee finds the timing of this action by the White House to be the result of outside pressure, rather than a genuine attempt to solve the problem. \503\ Id. --------------------------------------------------------------------------- i. The March 2, 1999, Appropriations Hearing One year before Michael Lyle sat before the House Treasury, Postal Service, and General Government Appropriations Subcommittee, his predecessor as Director of OA had the same opportunity. Mark Lindsay testified before the Subcommittee on March 2, 1999.\504\ Lindsay had been hired by Ada Posey to be in charge of the appropriations process, and to improve relations between OA and congressional appropriators.\505\ During the 1999 hearing, Lindsay testified that his office was ``confident that this budget request will allow the Executive Office of the President to maintain a high level of effective service to the President and the Nation[.]'' \506\ Nevertheless, the budget request did not address the e-mail problems. Moreover, at no time in his testimony did Mark Lindsay address the failure of the ARMS system or the need to use Armstrong funds to reconstruct unrecorded e-mails.\507\ The White House let its best and most logical opportunity to address and remedy the problem pass without securing the funding necessary to do so. As is detailed below, there is strong evidence that this failure to act was intentional.\508\ --------------------------------------------------------------------------- \504\ Such hearings are part of the normal course of the annual appropriations process, and are held at a similar time each year so that the Director of OA can submit his budget request to the Congress. \505\ Interview with Ada Posey, former Director, Office of Administration, in Washington, DC (May 18, 2000). \506\ ``Treasury, Postal Service, and General Government Appropriations for Fiscal Year 2000: Hearings Before a Subcommittee on Appropriations--Part 3, Executive Office of the President and Funds Appropriated to the President,'' House of Representatives, 106th Cong. (1999) (statement of Mark Lindsay, then Director, Office of Administration, the White House). \507\ Id. \508\ This committee also finds it troubling that in his prepared remarks on paper for the Mar. 23, 2000, hearing before the appropriations subcommittee, Michael Lyle made no reference to the Mail2 problem whatsoever. Such an omission raises a question as to whether Lyle would have brought the e-mail problems to the attention of Chairman Kolbe and the subcommittee if he had not been questioned about it. --------------------------------------------------------------------------- ii. Deletion of the Mail2 Bullet From the March 1999 Briefing Book The White House's preparation process for the March 2, 1999, hearing is revealing. Several members of the staff of OA created a briefing book for Lindsay to prepare him for his testimony before Congress. Preliminary drafts of the briefing book were reviewed by Dorothy Cleal, Karl Heissner, and Kate Anderson, among others.\509\ The version of the draft dated February 24, 1999, contained a bullet point on ``Mail 2 Reconstruction'' that described the problem, as well as the cost to reconstruct the e-mails.\510\ Karl Heissner, who e- mailed his changes that same day, drafted this bullet.\511\ Changes to this draft that were submitted by Dorothy Cleal kept this bullet in place.\512\ The changes submitted by Kate Anderson of OA's Office of General Counsel, however, deleted this bullet entirely.\513\ In an interview with the committee, Anderson confirmed that she had crossed out the item.\514\ As a result, the final version of the briefing book did not include the bullet point on Mail2 reconstruction. --------------------------------------------------------------------------- \509\ See White House document production E 3946 (exhibit 94); id. at E 4382, E 4387, E 4392 (exhibit 132-134). \510\ The bullet in the Feb. 24, 1999, the document reads: ``Due to a technical anomaly (user identifications hand keyed into the E-mail system as all capitals), some White House and OPD e-mail was not captured in ARMS. The data not captured may still exist on server backup tapes taken periodically during the period of the problem. One estimate received for the development of a system to reconstruct uncaptured e-mail is $602,000. The cost estimate for the actual record recovery is expected at completion of the development of the reconstruction system.'' See id. at E 4390, E 4395 (exhibit 133-134). \511\ Id. at E 3946 (exhibit 94). \512\ Id. at E 4387-4391 (exhibit 133). \513\ Id. at E 4392-4396 (exhibit 134). \514\ Interview with Kate Anderson, Assistant General Counsel, Office of Administration, in Washington, DC (May 10, 2000). --------------------------------------------------------------------------- At the May 4, 2000, investigative hearing of this committee, Lindsay testified that he was not aware that deletion of the Mail2 bullet point had taken place.\515\ Congressman Barr then asked Lindsay, ``[w]as the deletion of an accurate description of the Mail2 problem from a memo used to assist you in informing Congress consistent with trying to do your best to resolve the e-mail problem?'' \516\ To this, Lindsay responded: ``The briefing book was a briefing book for me to testify before Congress. I didn't need briefing points on matters that I already knew. I needed briefing points on those matters for which I was unfamiliar or had numerical information, data, personnel changes, things like that.'' \517\ --------------------------------------------------------------------------- \515\ ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 199 (May. 4, 2000) (testimony of Mark Lindsay, Assistant to the President for Management and Administration, the White House). \516\ Id. (questioning by Congressman Barr). \517\ Id. at 199-200 (testimony of Mark Lindsay, Assistant to the President for Management and Administration, the White House). --------------------------------------------------------------------------- Several aspects of the briefing materials undermine Lindsay's explanation. First, the final draft included several bullet points on topics about which Lindsay had knowledge, including the Y2K issue. Second, the deleted bullet on Mail2 included numerical information about the estimated costs of reconstruction. Third, the final draft also included basic information of a non-technical nature such as a bullet point reading, ``Capital Investment Plan (CIP): Includes the essential investments for modernizing the EOP environment to meet the needs of the President, his staff, and the technological needs of the American People.'' \518\ And when pressed in questioning by Congressman Shays about each of the bullet points on the draft, Lindsay backpedaled from his original assertion that he did not need briefing points on matters that he already knew. The following exchange occurred during the May 4, 2000, committee hearing: --------------------------------------------------------------------------- \518\ White House document production E 4388 (exhibit 133). Mr. Shays. Are you telling me that you didn't know about Method ITT, that you didn't know about IS&T leadership, and therefore you needed that in there? You didn't know about mission critical system highlights? You didn't know about all these other things and these need to be in there but Mail2 problem, no, you knew about that so that didn't need to be in there. Is that --------------------------------------------------------------------------- what you're saying? Mr. Lindsay. No, I'm not saying that. Mr. Shays. OK. So why don't you give me another story then. Mr. Lindsay. The briefing book, obviously I used the briefing book differently than you use your briefing book. I was using it to address not only those issues that were important but those issues where I needed to have cues, either verbal cues or information cues, for me to provide testimony and to respond to the questions which were most likely to come up at the hearing. Y2K issues were issues that I was informed by the members of the Committee were certainly going to be issues that were going to come up at the hearing. Therefore, I would go into greater detail in my briefing book for what information was included. Mr. Shays. So the real answer then is since we didn't know about the Mail2 problem you weren't going to be asked about it, no point in having it in your book? Mr. Lindsay. No, sir. Mr. Shays. Did we know about the problem? Mr. Lindsay. I don't know, sir. Mr. Shays. Why would we know about the problem? You guys didn't tell anybody.\519\ --------------------------------------------------------------------------- \519\ ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 207-208 (May 4, 2000). The committee finds it implausible that Kate Anderson would delete only the draft bullet point relating to Mail2 reconstruction if, as claimed, the purpose of such edits was to eliminate information with which Lindsay was already familiar, or that was technical or related to personnel. Therefore, it appears that the point was eliminated because a clear decision had been made to refrain from raising the issue. Lindsay and Anderson also made statements to the committee explaining that the bullet on Mail2 reconstruction was deleted because it was not an issue likely to come up at the 1999 appropriations hearing.\520\ This explanation is disingenuous at best, and begs the question of how the appropriations subcommittee could ask questions about a problem of which it had never been informed. Such statements assume the ability of appropriators to divine technical problems with the ARMS system. --------------------------------------------------------------------------- \520\ Interview with Kate Anderson, Associate Counsel, Office of Administration, in Washington, DC (May 10, 2000). --------------------------------------------------------------------------- A strange and contradictory explanation of the deleted bullet point offered by Anderson is that Mail2 reconstruction was not seen as relevant.\521\ Anderson stated in an interview that Mail2 was not using 1999 funds that had been appropriated, and it was not a program for which OA would be seeking funds.\522\ She further stated that she deleted the bullet point because she ``didn't think it was relevant.'' \523\ Despite making such a critical decision about whether to bring the Mail2 problem to the attention of Congress, Anderson stated that she could not recall whether she spoke to anyone as to whether she should take out the bullet.\524\ Nor could she recall whether she talked to anyone about the Mail2 bullet.\525\ Assertions by Anderson that Mail2 reconstruction was irrelevant to the appropriations hearing are at odds with Lindsay's statement that his ``first belief was to do whatever was necessary to fix the computer problem.'' \526\ Since obtaining sufficient funding was necessary to reconstruct and search the missing e-mail, informing appropriators would have been the natural course of action for anyone legitimately interested in seeking a solution. --------------------------------------------------------------------------- \521\ Id. \522\ Id. \523\ Id. \524\ Id. \525\ Id. The committee also finds Anderson's lack of recollection on this and other matters troubling. \526\ ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 198 (Mar. 23, 2000) (testimony of Mark Lindsay, Assistant to the President for Management and Administration, the White House). --------------------------------------------------------------------------- Another strange and contradictory explanation for not seeking funding was offered by OA Director Michael Lyle. He stated that OA did not inform Congress of the e-mail problems before March 2000, because ``the scope and magnitude of solving the problem was difficult to get your mind around. When you go to appropriators, they ask a lot of questions.'' \527\ First, this statement is contradicted by the summary provided by the Office of Administration to John Podesta in the original memorandum of June 19, 1998.\528\ The Podesta memo shows that the OA had a handle on the essence of the ARMS problem associated with the White House's Mail2 server, and that the problem resulted in a failure to capture a universe of records potentially responsive to outstanding subpoenas. Lyle's explanation is further contradicted by Mark Lindsay's initials on a June 18, 1998, document detailing the scope of the problem.\529\ Finally, Lyle's statement is contradicted by Lindsay's assertion that he knew the Mail2 issue so well that he did not need it to have it inserted into his briefing book. --------------------------------------------------------------------------- \527\ Interview with Michael Lyle, Director, Office of Administration, in Washington, DC (Apr. 27, 2000). \528\ White House document production E 3373 (exhibit 3). \529\ Id. at E 3462 (exhibit 50). --------------------------------------------------------------------------- The White House has also offered the Y2K issue as a reason for not requesting funds. While this issue is handled in more detail below, it is important to note here that Michael Lyle explained that the removal of the Mail2 bullet was related to Y2K. Lyle testified that the reference was left out by his staff ``[b]ecause the request for appropriations was not going to be requesting funds for the e-mail2 reconstruction . . . because a decision was made that the project had to be deferred in view of the Y2K crisis.'' \530\ Even assuming that such a decision about the relative priority of Mail2 and Y2K properly rested with the administration alone, that does not excuse the failure to inform the appropriators--or this committee, the Justice Department or various independent counsels--of the fact of such a decision. Of course, determinations about relative funding priorities do not rest solely, or even primarily, with the administration, but rather with Congress, the branch Constitutionally charged with making such decisions. At the end of the day, OA Director Michael Lyle's rationale for not raising the e-mail problem with Congress--``when you go to appropriators, they ask a lot of questions''--speaks volumes. His words are also consistent with the way senior White House staff handled the e-mail problem from the time Deputy Chief of Staff Podesta, White House Counsel Ruff, Assistant to the President Apuzzo, and OA General Counsel Lindsay were first told of the e-mail problems. --------------------------------------------------------------------------- \530\ ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 117 (May 3, 2000). --------------------------------------------------------------------------- Based on the evidence surrounding the deletion of the Mail2 bullet point, the subsequent self-serving statements by Lindsay, Anderson and Lyle, and the failure over nearly 2 years to secure remedial funding, the committee believes that Mark Lindsay and others within OA affirmatively decided not to inform congressional appropriators of the e-mail problems. The committee further believes that the decision not to seek appropriations is consistent with the pattern of secrecy and obstruction used by senior White House personnel in handling the various e-mail problems. c. Confusion in OA Over the Use of Armstrong Funds for Mail2 Reconstruction Soon after the March 1999, appropriations hearing, the issue of the use of Armstrong funding to reconstruct the unrecorded e-mail was discussed among OA management and staff.\531\ In March 1999, Budget Analyst Joe Kouba prepared a document to be used to brief Virginia Apuzzo on the Armstrong account.\532\ Kouba solicited the information that should be included in the briefing from Heissner, Doering, and Barry.\533\ The original draft included a bullet on Mail2 reconstruction, but the bullet was eventually deleted as a result of a decision made by Michael Lyle. As a result, Apuzzo was never briefed on this funding requirement. --------------------------------------------------------------------------- \531\ Interview with Michael Lyle, Director, Office of Administration, in Washington, DC (Apr. 27, 2000). See n.48, above (describing the Armstrong decision). \532\ Interview with Joseph Kouba, Financial Management Division Budget Analyst, Office of Administration, in Washington, DC (May 12, 2000). \533\ Id. --------------------------------------------------------------------------- The series of e-mails surrounding the discussion of the briefing bullets are instructive. On March 18, 1999, Joe Kouba sent an e-mail on ``Armstrong Talking Points for 3/19'' to Kate Anderson, Dotty Cleal, Karl Heissner, Tony Barry, Christina VanFossan, Nell Doering, and Michael Lyle. The final bullet point on the e-mail stated ``[t]he General Counsel has determined that Armstrong funding can be used for the MAIL 2 reconstruction project. IST is implementing the first steps of this project.'' \534\ In her response to this e-mail, Kate Anderson wrote, ``Joe: See changes below. As you will note, I deleted the last bullet until I confirm with Mike.'' \535\ Kouba next forwarded this response to the recipients of the original e-mail, stating, ``[l]ooks like MAIL 2 reconstruction is back on hold until some additional confirmation is received.'' \536\ --------------------------------------------------------------------------- \534\ White House document production E 3845 (exhibit 98). \535\ Id. at E 3863 (exhibit 96). \536\ Id. --------------------------------------------------------------------------- The next day, Michael Lyle sent an e-mail to Joe Kouba stating, ``Joe--please correct the budget materials re OA by removing the bullet point relating to Mail 2 Reconstruction. Thanks--Mike.'' \537\ Finally, on March 22, 1999, Dorothy Cleal sent an e-mail to Christina VanFossan asking, ``[d]o we need to confer on this? Should we push Mike to get resolution?'' \538\ --------------------------------------------------------------------------- \537\ Id. at E 3911 (exhibit 84). \538\ Id. at E 3863 (exhibit 96). --------------------------------------------------------------------------- Michael Lyle told the committee that he had the bullet deleted from the Apuzzo briefing materials because it was ``plain out [sic], flat out wrong.'' \539\ In a separate interview, committee counsel asked Kouba why he would include a bullet that was so obviously wrong. Kouba assumes he may have asked someone in the legal office, likely Anderson, and she told him to include the bullet. Kouba stated, ``I don't make stuff up.'' \540\ --------------------------------------------------------------------------- \539\ Interview with Michael Lyle, Director, Office of Administration, in Washington, DC (Apr. 27, 2000). \540\ Interview with Joseph Kouba, Financial Management Division Budget Analyst, Office of Administration, in Washington, DC (May 12, 2000). --------------------------------------------------------------------------- The committee asked Anderson about the legal determination that was made regarding the use of Armstrong funds for reconstruction. She told the committee that she was probably asked to analyze the funding issue by Lyle.\541\ According to Anderson, she eventually concluded that the Armstrong funds were unavailable for reconstruction because ``virtually, almost all of [the records affected] were Presidential records'' and ``the account is specific and goes to compliance with the court's order.'' \542\ Anderson further stated, ``[a]ctions to maintain compliance with Armstrong can't be funded by the Armstrong account.'' \543\ --------------------------------------------------------------------------- \541\ Interview with Katherine Anderson, Associate General Counsel, Office of Administration, in Washington, DC (May 10, 2000). \542\ Id. \543\ Id. --------------------------------------------------------------------------- However, the Office of Administration eventually asked the appropriations subcommittee to release $1.7 million in unobligated Armstrong funds.\544\ The fact that the request was not made until March 2000 indicates bad faith on the part of OA. By determining that they could not legally use Armstrong funds for reconstruction, and at the same time waiting for more than a year to ask Congress for permission to use the funds for reconstruction, OA was making the jobs of IS&T staff and the Northrop Grumman contractors impossible. Reconstruction of the unrecorded e-mails was never allowed to get off the ground because of OA management's failure to secure funding from any of the possible sources. --------------------------------------------------------------------------- \544\ Letter from the Honorable Jim Kolbe, chairman, Subcommittee on the Treasury, Postal Service, and General Government Appropriations to Mark Lindsay, Assistant to the President for Management and Administration, the White House (Apr. 27, 2000) (exhibit 145). --------------------------------------------------------------------------- In sum, the committee believes that the sheer number of ignored inquiries for technical direction, contractual direction and funding assistance suggests that the lack of leadership by OA management is not simply attributable to incompetence, or to a series of ``disconnects'' as the White House has described the situation. Rather, it appears to the committee that the failure to give direction was an intentional decision on the part of OA management. 3. The White House Used Y2K as a Pretext to Avoid Solving the Mail2 Problem Many of the members of OA management have stated numerous times to the committee that the reason the unrecorded e-mails were not reconstructed was the primacy of the Y2K issue. Mark Lindsay explained to the committee that once ``the bleeding'' was stopped on Mail2, he and his staff focused on the Y2K problem to the exclusion of e-mail reconstruction.\545\ As he testified on May 4, 2000: ``when we were able to resolve the Mail2 problem in terms of solving the glitch, the first priority that I had was addressing the Y2K problem.'' \546\ Michael Lyle testified at the previous hearing, ``[w]ith respect to the appropriators in 1999, during our Fiscal Year 2000 appropriations hearing, the e-mail2 [sic] project was one of those projects . . . that we had to set aside for Y2K as our focus and our number one priority.'' \547\ The committee does not dispute the importance of making the White House and EOP computer systems Y2K-compliant. But the committee cannot accept the assertion that Y2K issues consumed all other responsibilities. At a minimum, the White House was obliged to inform Congress that its prioritization of Y2K matters meant that it would not attend to the e-mail problems and that it would be unable to comply fully with committee subpoenas. --------------------------------------------------------------------------- \545\ ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 154-155 (May 4, 2000) (testimony of Mark Lindsay, Assistant to the President for Management and Administration, the White House). \546\ Id. at 155. \547\ Id. at 69 (May 3, 2000) (testimony of Michael Lyle, Director, Office of Administration). --------------------------------------------------------------------------- i. Mail2 Reconstruction and Y2K Were Not Mutually Exclusive As even a cursory review of the briefing materials for Lindsay's March 1999 appropriations testimony indicates, the Y2K issue was not the only issue for which OA staff prepared Lindsay to testify. The materials included bulleted information on OMB migration of budget applications, a new enterprise server, the disaster recovery plan, and the reconstruction of pre-1994 e-mails pursuant to the Armstrong litigation.\548\ This last item, the continuing reconstruction of old e-mails, casts serious doubt on Lindsay's and Lyle's statements about reconstructing e-mail from the Mail2 server. While the reconstruction of pre-1994 e-mails was required by the Armstrong decision, the fact that the pre-1994 reconstruction was ongoing during the Y2K work shows that other serious work could proceed simultaneously with Y2K preparations. --------------------------------------------------------------------------- \548\ White House document production E 4382 (exhibit 132). --------------------------------------------------------------------------- ii. Mission Critical Systems Mark Lindsay also testified that the Office of Administration did not consider the Mail2 problem to be ``mission critical.'' \549\ At first glance, this statement appears to be accurate. This designation of a ``mission critical system,'' or ``C1,'' was given only to the project of making the computer systems Y2K compliant.\550\ All other projects were called ``mission support systems,'' or ``C2'' through ``C5,'' and therefore not as high of a priority.\551\ The Mail2 reconstruction project was given a rating of ``C2,'' the second most important rating.\552\ --------------------------------------------------------------------------- \549\ ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 359-360 (May 4, 2000) (testimony of Mark Lindsay, Assistant to the President for Management and Administration, the White House). \550\ Interview with Dorothy Cleal, former IS&T Director, Office of Administration, in Washington, DC (May 15, 2000). \551\ The ``C1'' designation comes from the White House's mission- criticality rating system that has a range of ``C1'' to ``C5,'' where ``C1'' is ``most critical'' and ``C5'' is ``non-mission-critical.'' Mail2 reconstruction was rated as a ``C2.'' See Northrop Grumman document production NGL 00418 (exhibit 163). \552\ Id. --------------------------------------------------------------------------- Dorothy Cleal, a White House employee who had significant experience in mission-criticality determinations, characterized a ``C2'' rating as ``up there'' and ``one that we needed not to ignore.'' \553\ So, while Y2K compliance might have been the only project designated ``mission critical,'' it does not follow that other projects could be ignored. Again, at a minimum, it was highly improper--given the White House's legal obligations--for information about OA's priorities to be kept from Congress. --------------------------------------------------------------------------- \553\ Interview with Dorothy Cleal, former IS&T Director, Office of Administration, in Washington, DC (May 15, 2000). --------------------------------------------------------------------------- The White House further claims that the mission critical Y2K project required the entire staff of OA to focus on Y2K. As Michael Lyle testified before the committee on May 3, 2000: ``Our No. 1 purpose was ensuring Y2K compliance, and as I said, this was a huge undertaking. It was drawing every American personnel resource we had available in the IT, information technology, area. All of our staff was working very, very hard on that project in one form or another[.]'' \554\ Despite this testimony, OA staff actually spent significant time working on other issues that cannot reasonably be deemed mission critical. For example, projects undertaken by OA staff during the Y2K crunch included holiday card applications and the installation of 100 new Palm Pilots for White House Office users.\555\ In fact, the Palm Pilot installation was tasked in December 1999, immediately before the Y2K deadline.\556\ OA's time was also consumed by problems created by the White House itself, such as, firewall security issues stemming from downloading massive amounts of pornography.\557\ --------------------------------------------------------------------------- \554\ ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 56 (May 3, 2000) (testimony of Michael Lyle, Director, Office of Administration). \555\ See, e.g., Northrop Grumman document production NGL 00115 (exhibit 80); White House document production E 3928 (exhibit 111). \556\ Id. \557\ See Deb Riechmann, ``White House Battles Employee Porn,'' Associated Press (Aug. 10, 2000); Paul Sperry, ``Web-porn Scandal Rocks White House,'' WorldNetDaily (Aug. 9, 2000) <http:// www.worldnetdaily.com/bluesky__sperry__news/ 20000809__xnspy__webporn__sc.shtml>. --------------------------------------------------------------------------- iii. The White House Had $4.8 Million in Leftover, Unobligated Y2K Funds Another factor that casts doubt on the White House claim that Y2K was taking up all of the resources of the Office of Administration is that $4.8 million in funds appropriated for Y2K were never used.\558\ In fact, in his April 27, 2000, response to Mark Lindsay's belated request for Mail2 funding, Congressman Kolbe stated, ``[t]he [Appropriations] Committee believes that the most critical tasks associated with tape reconstruction, such as tape restoration and IV&V, can be accomplished within these balances. The Committee directs that costs associated with these tasks be absorbed from these unobligated balances.'' \559\ If, as Mark Lindsay testified, Y2K took up resources to the point where the e-mail restoration project fell by the wayside, it seems odd that such a significant amount of Y2K funding would not be used. Ironically, it is the unobligated Y2K funding which the appropriators are now directing be used for Mail2 reconstruction. These unspent Y2K moneys amount to nearly 10 times the $600,000 that OA management balked at spending to begin remedying the Mail2 problem when it first arose in 1998. --------------------------------------------------------------------------- \558\ Letter from the Honorable Jim Kolbe, chairman, Subcommittee on the Treasury, Postal Service, and General Government Appropriations to Mark Lindsay, Assistant to the President for Management and Administration, the White House (Apr. 27, 2000) (exhibit 145). \559\ Id. at 3. --------------------------------------------------------------------------- When shown Congressman Kolbe's letter to Mark Lindsay's former boss, Ada Posey, said she was puzzled by the $4.8 million left over from the Y2K effort, and the fact that Lindsay did not inform the appropriators about the problem.\560\ Posey stated that she was ``as perplexed as anyone that Mr. Kolbe and his staff were not informed [of the Mail2 problem].'' \561\ She said that the reason she hired Lindsay was to ``have the kind of relationship with the Congress that we did not have. I thought that staff knew everything we did with IT. I throw up my hands as to why they did not know about Mail2--for two more hearings.'' \562\ --------------------------------------------------------------------------- \560\ Interview with Ada Posey, former Director, Office of Administration, in Washington, DC (May 18, 2000). \561\ Id. \562\ Id. --------------------------------------------------------------------------- Posey also said, ``I would have made sure that they were aware that there was a lingering $600,000 question. I would have covered myself to make sure that we could fix it with other funding. Oh, yeah--I would have attempted to share.'' \563\ Apparently, the rest of OA management did not share this philosophy. --------------------------------------------------------------------------- \563\ Id. --------------------------------------------------------------------------- The Y2K crisis did not excuse the failure of the White House to meet its basic legal requirement to provide the Congress, courts, and independent counsels all materials that had been lawfully subpoenaed. Even if it did, the White House would still have an obligation to inform the requestors that it was unable to comply fully with subpoenas due to the pressures of the Y2K crisis. No such disclosure was made until after the fact, when the committee had already scheduled its hearings. The committee believes that the White House has put forward the Y2K issue as a pretext for its failure to reconstruct the missing e-mails, as well as its failure to inform appropriators and document requestors of the Mail2 problem. There is little doubt that one of the reasons senior White House staff did not inform Congress about e-mail problems is the knowledge that the White House's failure to comply with subpoenas would draw negative publicity and that Congress would have provided funding for a cure, which would have eliminated all self- serving pretexts and therefore ensured that document searches were completed. The failure to notify Congress indicates that senior staff affirmatively covered up the problem. Consequently, it is difficult to believe any of their after- the-fact rationalizations. 4. Additional Appropriations Issues Mark Lindsay, Michael Lyle and others have also attempted to shift blame for the Mail2 problem to congressional appropriators for ``fencing'' (i.e. setting aside) funds for the information technology investment plan and systems architecture. Again, the evidence does not support such assertions. Ada Posey explained that she did not believe she ever associated the Mail2 problems with fenced funds.\564\ It should also be noted that in fiscal year 1997, the fiscal year that the White House said was problematic, the Treasury, Postal Service, and General Government Appropriations Subcommittee appropriated all of the $26,100,000 requested by OA.\565\ In fact, for fiscal year 1996, fiscal year 1997, fiscal year 1998, fiscal year 1999 and fiscal year 2000, OA requested $169,231,000 and received $186,278,000 from Congress.\566\ In other words, the Office of Administration received $17,047,000 more than requested over the past 5 fiscal years. --------------------------------------------------------------------------- \564\ Interview with Ada Posey, former Director, Office of Administration, in Washington, DC (May 18, 2000). \565\ ``Treasury, Postal Service, and General Government Subcommittee on Appropriations--Appropriation History (1986-- Present),'' 106th Cong. 44 (1999--with 2000 update). \566\ Id. $29,791,000 of these funds came from Y2K transfers requested by Office of Management and Budget. --------------------------------------------------------------------------- Moreover, as Congressman Kolbe states in his April 27, 2000, letter: ``[i]n reviewing the chronology of events regarding the e-mail glitch, it is clear that the technical error caused by the contractor occurred at least three months prior to any funds being fenced.'' \567\ Congressman Kolbe further states: --------------------------------------------------------------------------- \567\ Letter from the Honorable Jim Kolbe, chairman, Subcommittee on the Treasury, Postal Service, and General Government Appropriations to Mark Lindsay, Assistant to the President for Management and Administration, the White House 2 (Apr. 27, 2000) (exhibit 145). During testimony before the Committee on March 23, 2000, the Director of the Office of Administration indicated that, at least in part, the computer glitch was caused and exacerbated by the fiscal year 1997 ``fenced'' appropriations. The Committee is disappointed to learn that the White House is attempting to use the appropriations process as an excuse for poor internal oversight and management of EOP operations.\568\ --------------------------------------------------------------------------- \568\ Id. The attempt by the White House to shift the blame for the Mail2 failure to congressional appropriators is therefore disingenuous and ill-founded. Only if Congress had been fully informed of the e-mail problems and then denied funding requests to fix them would the White House's argument make any sense. The use of such spurious arguments casts additional doubt on the honesty of those who have made them. In his April 27, 2000, letter, Congressman Kolbe also makes clear his concern with the failure of OA to inform appropriators of the Mail2 problem. He writes: ``[f]inally, the Committee is extremely concerned that it took nearly two years for the White House to notify the Committee of this critical problem and the potential implications for additional moneys to both solve the problem and reconstruct the e-mails.'' \569\ This statement summarizes the dismay shown by Congressman Kolbe toward Michael Lyle at the appropriations hearing of March 23, 2000, when Lyle became the first White House official to describe the Mail2 problem to the subcommittee.\570\ In sum, absent notification to the Appropriations Committee, there can be no plausible argument that Congress caused or exacerbated the e-mail problems. The attempt by the White House to make such an argument leads to this committee's legitimate concerns that other White House representations are also false. --------------------------------------------------------------------------- \569\ Id. Testifying before Judge Lamberth during the e-mail evidentiary hearings in the Alexander v. FBI civil suit, Mark Lindsay described portions of Congressman Kolbe's Apr. 27, 2000, letter as complimentary. Lindsay's testimony clearly overstated any positive aspect of Congressman Kolbe's letter. The letter has a critical tone throughout, and takes OA to task for its false representations. The only positive statement in the letter reads, ``[f]inally, the Committee is pleased to learn that the Armstrong Resolution Account continues to have an unobligated balance of $1.7 million.'' Id. The committee therefore finds it troubling that Mark Lindsay would claim in Federal court that the Apr. 27, 2000, letter in any way complimented him. \570\ See ``Treasury, Postal Service, and General Government Appropriations for Fiscal Year 2001: Hearings on the Executive Office of the President: Office of Administration,'' 106th Cong. (2000). --------------------------------------------------------------------------- IV. The White House has Misled Congress and the Public About the E-mail Problem A. The White House Response According to the White House, the entire e-mail matter, including the failure to notify Congress and other investigating authorities, resulted from a ``disconnect'' between the White House Counsel, the Office of Administration Management, and the Northrop Grumman contractors about the nature and scope of the problem.\571\ Even if that were true, it would not excuse the way the White House has continued to deal with this problem after it became well known publicly. Rather than admitting the mistake and its magnitude, the White House has continued to minimize its significance, ignore its consequences, and mislead the public. Rather than candidly cooperating with the committee's investigation, this administration has stonewalled, relying on obfuscation instead of honesty. --------------------------------------------------------------------------- \571\ See, e.g., ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 137 (Mar. 30, 2000) (testimony of Beth Nolan, Counsel to the President, the White House). --------------------------------------------------------------------------- 1. The White House Made False and Misleading Statements to the Press The first press reports of the e-mail problem came in a December 1998 Insight magazine article. That article described the scope of the problem accurately, though not in detail: ``there were problems with a server in a West Wing computer system, and engineers from a contractor discovered a blockage caused by about 100,000 e-mails, many of which may come under subpoenas issued by Capitol Hill panels and independent counsel Ken Starr.'' \572\ Later in the article, White House spokesman Barry Toiv is said to have confirmed the discovery and review of the problem.\573\ However, he also claimed that the e-mails ``appear to duplicate some already turned over to requesters like Starr.'' \574\ When the committee interviewed Toiv, he said that the basis of his statement was a representation made to him by someone in the White House Counsel's Office, possibly Deputy Counsel Cheryl Mills.\575\ In any event, Toiv's comments had the effect of providing false assurances to the public that the e-mail problems had been solved. --------------------------------------------------------------------------- \572\ Paul Rodriguez, ``Looking for Information in All the Wrong Places,'' Insight on the News, Dec. 28, 1998, at 6. \573\ Id. \574\ Id. \575\ Interview with Barry Toiv, former Deputy Press Secretary, the White House, in Washington, DC (Apr. 2, 2000). Although Toiv could not recall with certainty who had told him, Special Associate White House Counsel Sally Paxton told committee staff that Toiv called her in December 1998 to talk about an inquiry from a reporter. Paxton told him that she did not have enough information and suggested that he speak to Cheryl Mills. Asked why she directed him to Mills, Paxton said that it was her impression that Mark Lindsay had talked to Mills and White House Counsel Charles Ruff. Interview with Sally Paxton, former Special Associate Counsel to the President, the White House (June 22, 2000). --------------------------------------------------------------------------- Following the initial coverage by Insight, the next story about the e-mail problem did not appear until February 2000, when Sheryl Hall, a former White House computer manager, filed an affidavit in the Alexander v. FBI litigation. The details of her affidavit were reported in the Washington Times on February 15, 2000.\576\ In that article, White House spokesman James Kennedy was quoted as saying that administration officials had made ``a good faith effort to respond in a timely fashion to all requests for information'' under subpoena.\577\ As the committee's investigation and report demonstrate, this statement was false. --------------------------------------------------------------------------- \576\ Jerry Seper and Andrew Cain, ``White House Accused of Cover- up; Ex-worker Tells of Hidden E-mails,'' the Washington Times, Feb. 15, 2000, at A1. \577\ Id. --------------------------------------------------------------------------- The day of the Washington Times story, President Clinton attended a meeting about security on the World Wide Web. There, he was asked questions about the e-mail matter and responded with the following statement: President Clinton: (Laughs.) No, I believe that we have complied with every request, and there have been thousands.\578\ (Laughter.) If the American people knew how much of their money we'd have to spend complying with requests for . . . e-mails, they might be quite amazed, but we certainly have done our best to do that. There has never been an intentional effort to do that, and I think that we are in full compliance. I believe we are. That's what Mr. Podesta told me right before we came out.\579\ --------------------------------------------------------------------------- \578\ Apparently the President is laboring under a similar misapprehension as White House Spokesman Joe Lockhart. Mr. Lockhart has repeatedly stated that the committee issued 700 subpoenas. The President said thousands. The actual number of document subpoenas to the White House from this committee is 31. See appendix I. \579\ President Clinton, ``Remarks at White House Photo Opportunity,'' Washington, DC (Feb. 15, 2000). See also Jerry Seper, ``Three Investigations Begin into White House E-mails; Clinton Believes Administration Complied with all Requests,'' the Washington Times, Feb. 16, 2000, at A1. When committee staff interviewed Podesta and asked him about this statement, he responded by explaining his recollection of preparing the President for questions that morning.\580\ He said that White House spokesman Joe Lockhart had been briefed by the White House Counsel's Office and was told they had made a good faith effort to comply.\581\ Mr. Lockhart relayed that to the President.\582\ Podesta separately told the President that they had turned over thousands of pages of e-mails to the OIC and various committees.\583\ Podesta speculated that the President confused the two statements from himself and Lockhart.\584\ --------------------------------------------------------------------------- \580\ Interview with John Podesta, Chief of Staff, the White House, in Washington, DC (May 30, 2000). \581\ Id. \582\ Id. \583\ Id. \584\ Id. --------------------------------------------------------------------------- However, the Mail2 and other similar computer errors had prevented the White House from searching hundreds of thousands of incoming e-mail messages for responsive documents. Those errors prevented the White House from being in full compliance with virtually every document request from any investigative authority made during the affected periods. Podesta had been notified of the Mail2 error in July 1998, as had the Counsel's Office.\585\ Yet, they allowed the President to claim falsely that the White House was in full compliance with all document requests. There is no evidence that either Podesta or the Counsel's Office attempted to correct the public record regarding the President's misleading statements. --------------------------------------------------------------------------- \585\ White House document production E 3373-3374 (exhibit 3). --------------------------------------------------------------------------- When asked by committee staff whether the President's statement was accurate that the White House had actually complied with all requests, Podesta's lawyer objected, and stated that it was not Podesta's judgment to make.\586\ Podesta then said that ``the only thing fair to say is that there is a universe of documents, some backup tapes, that have not been searched.'' \587\ --------------------------------------------------------------------------- \586\ Interview with John Podesta, Chief of Staff, the White House, in Washington, DC (May 30, 2000). \587\ Id. --------------------------------------------------------------------------- The White House's misleading statements continued into the summer 2000 as new revelations surfaced, detailed in section II.C and section III.D.3 of this report, that e-mail in the Office of the Vice President had neither been archived in ARMS, nor preserved on backup tapes. Another configuration error had prevented the OVP backup system from functioning properly. The error went undetected for approximately 1 year. Once again, the administration attempted to mislead the public by minimizing the significance of the problem. According to the Washington Post, ``White House spokesman Jim Kennedy said some of the Gore Office's e-mail in 1998-1999 would have been saved if it had been forwarded to anyone in the White House, which had an automatic archival system and its own back-up tapes.'' \588\ The White House's statement about the OVP problem ignores the cumulative effect of the various e-mail errors. In order for the White House archival system, ARMS, to have preserved some OVP e-mail forwarded to White House users, it would have to have been functioning properly. The Mail2 and D-user errors prevented that from happening. Therefore, the assertion that e- mail forwarded to any White House Office user from the OVP would be preserved in ARMS would be false. No incoming e-mails to White House Office users were captured in ARMS from late 1996 until November 1998.\589\ No incoming e-mail to any EOP user with a first name beginning with ``D'' was captured in ARMS from October 1998 to June 1999.\590\ Both of these errors occurred during the period in which OVP e-mail was not being properly backed-up to tape or archived in ARMS.\591\ --------------------------------------------------------------------------- \588\ George Lardner, Jr., ``White House Reports Gore's E-mail for a Year Irretrievably Lost,'' the Washington Post, Jun. 9, 2000, at A07. \589\ Letter from Beth Nolan, Counsel to the President, the White House, to the Honorable Dan Burton, chairman, Committee on Government Reform (Mar. 17, 2000) (within appendix I). OVP e-mail was technically external to the White House Office. Since the OVP was not being ARMS- managed, e-mail created by OVP users would not have been archived when sent, as would e-mail created by White House Office users. Because of the Mail2 error, it would also not have been archived when received by a White House Office user. Interview with John Spriggs, senior engineer, Northrop Grumman (Mar. 7, 2000). \590\ Letter from Beth Nolan, Counsel to the President, the White House, to the Honorable Dan Burton, chairman, Committee on Government Reform (Mar. 17, 2000) (within appendix I). \591\ Letter from Steven F. Reich, Senior Associate Counsel to the President, the White House, to James C. Wilson, chief counsel, Committee on Government Reform 4 (June 7, 2000) (within appendix I). --------------------------------------------------------------------------- As recently as August 18, 2000, the White House was continuing to release misleading statements regarding the e- mail investigation. In a Washington Post article published on that date, White House spokesman Jake Seiwert was quoted as saying, ``I have no reason to think there's anything that's not on either backup tapes or the electronic archives. We have searched the entire e-mail system to be as responsive as possible.'' \592\ Both sentences are misleading and the second is demonstrably false. If Seiwert did not know as much, he should have. At the time Seiwert made his statement, the undisputed testimony of several witnesses, both in court and at congressional hearings, had established that approximately 6 months' worth of Mail2 backup tapes containing data from the period affected by the error were inadvertently overwritten.\593\ Therefore, incoming e-mail that was not captured in ARMS during that time can never be retrieved, and in fact exists on neither ``backup tapes'' nor ``the electronic archive.'' The second sentence is also absolutely and inexcusably false. Anyone even remotely familiar with the testimonial and documentary evidence in the e-mail investigation knows full well that the White House has not ``searched the entire e-mail system to be as responsive as possible.'' The White House has readily admitted elsewhere that it has not searched the entire system and is currently spending millions of dollars on a tape reconstruction effort in order to do so.\594\ Mr. Seiwert's statement became an issue bearing on Mark Lindsay's credibility recently when it arose in a related proceeding in Federal district court before the Honorable Royce C. Lamberth. Lindsay was testifying on the e-mail matter and was asked about the truthfulness of this statement: --------------------------------------------------------------------------- \592\ Neely Tucker, ``E-mail Searches Skip Private Clinton, Gore Accounts,'' the Washington Post, Aug. 18, 2000, at A09. \593\ See, e.g., interview with Kathleen Gallant, former IS&T Director, Office of Administration, in Chantilly, VA (May 17, 2000); ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 147 (May 4, 2000) (testimony of Karl Heissner, IS&T Systems Integration and Development Branch Chief, Office of Administration). \594\ Letter from Beth Nolan, Counsel to the President, the White House, to the Honorable Dan Burton, chairman, Committee on Government Reform (Mar. 17, 2000) (within appendix I). Question: It then states, quote, quoting Mr. Seiwert, the Washington Post, ``We have searched the entire e- mail system to be as responsive as possible.'' That's --------------------------------------------------------------------------- not true as of August 18, 2000, is it? Lindsay: I believe it is true . . . because it's not possible to search those e-mails at this particular moment, so his statement as far as I can tell is exactly correct.\595\ --------------------------------------------------------------------------- \595\ Transcript of Evidentiary Hearing at 87, Alexander v. FBI (D.D.C. Aug. 23, 2000) (CA 96-2123). That Lindsay adopted this statement as true while under oath in Federal court speaks volumes about his lack of credibility. This point was obviously not lost on Judge --------------------------------------------------------------------------- Lamberth: The Court. Wait. I can't let that go by. I mean, that's beyond spin to say it's impossible and therefore it's possible. I don't understand how you think that can be true? You think that sentence is true? Lindsay. That it's either on archives or backup tapes? The Court. No, we have searched the entire e-mail system to be as responsive as possible. Now, you know that's not true. You know there are hundreds of backup tapes that haven't been searched, so how can that sentence be true? Lindsay. To be as responsive as possible, taking into account the fact that we haven't looked at the backup tapes because we can't. The Court. He didn't say that did he? Lindsay. No. No. The Court. How could that possibly be true if you don't say but we have hundreds that we haven't searched? That can't be a true statement, can it? Lindsay. I guess it's because I know that the backup tapes can't be, that's why I answered the way I did. The Court. You happen to know it? Lindsay. I happen to know that. The Court. He sure didn't say it in this statement. Lindsay. No, he did not. The Court. So it's not true is it? Unless he added your little caveat, this is not true? Lindsay. Maybe it's because I'm assuming that people knew that, so I would understand. The Court. I'm sorry. I can't let things like that go by.\596\ --------------------------------------------------------------------------- \596\ Id. Despite the persistent questioning, in the end, Lindsay never did admit the obvious. While the falsity of one particular statement from the White House Press Office may seem ultimately insignificant, it is nevertheless instructive. This exchange illustrates not only the lack of candor in this administration with the press, but also the lengths to which Mark Lindsay will go to avoid the truth. 2. The White House Made Specious Arguments to the Committee Following the public disclosure of the e-mail problems, the White House attempted to minimize its significance to the committee as well as to the press. In letters and congressional testimony, White House Officials argued in the face of overwhelming evidence to the contrary that the Mail2, D-user, and OVP problems did not hinder the administration's previous attempts to comply with congressional and other subpoenas. The first official response to the committee's inquiries on the e-mail matter came from the White House Counsel's Office on March 17, 2000.\597\ In that response, White House Counsel Beth Nolan attempted to minimize the scope and significance of the problems while exaggerating the realm of what was unknown. For example, Nolan claimed not to know how many e-mails were unrecorded. ``OA and IS&T personnel understand that no one has estimated the number of e-mails that were unrecorded. If such an estimate was made, it was not provided to the EOP.'' \598\ --------------------------------------------------------------------------- \597\ Letter from Beth Nolan, Counsel to the President, the White House, to the Honorable Dan Burton, chairman, Committee on Government Reform (Mar. 17, 2000) (within appendix I). \598\ Id. at 6. --------------------------------------------------------------------------- In reality, both IS&T personnel and OA management had been notified 2 years previously of an estimate of the number of e- mails unrecorded as of June 18, 1998. Kathleen Gallant, former Director of IS&T, said that Robert Haas had told her that ``hundreds of thousands'' of e-mails \599\ were involved and that she had seen the audit report he prepared.\600\ That audit report was first produced to the committee by Northrop Grumman Corp. on March 20, 2000, 3 days after Nolan's initial letter to the committee. The following day, Associate White House Counsel Dimitri Nionakis produced a second copy of the audit report to the committee and wrote in his cover letter, ``I am informed that OA and IS&T personnel were previously unaware that this document existed or that anyone had estimated the number of unrecorded e-mails.'' \601\ --------------------------------------------------------------------------- \599\ Interview with Kathleen Gallant, former IS&T Director, Office of Administration, in Chantilly, VA (May 17, 2000). \600\ See Northrop Grumman document production NGL 00291-00365 (exhibit 62). \601\ Letter from Dimitri Nionakis, Associate Counsel to the President, the White House, to the Honorable Dan Burton, chairman, Committee on Government Reform 1 (Mar. 21, 2000) (within appendix I). --------------------------------------------------------------------------- In fact, Kathleen Gallant reported this important information about the scope and significance of the problem to her immediate superior, Paulette Cichon, Deputy OA Director. Cichon confirmed to committee staff that she had heard from Kathleen Gallant that it was a large number and had once heard that it was more than 100,000.\602\ While she was unsure whether she had heard the 100,000 figure from Gallant or someone else, she believed she had heard the figure.\603\ --------------------------------------------------------------------------- \602\ Interview with Paulette Cichon, former Deputy Director, Office of Administration, in Washington, DC (Apr. 18, 2000). \603\ Id. --------------------------------------------------------------------------- So despite the representations made by Nolan and Nionakis in their letters to the committee, both OA management and IS&T personnel knew of at least a rough estimate of the number of e- mails unrecorded as of June 18, 1998. Gallant, the Director of IS&T, told committee staff that she actually saw the document that Nionakis claimed no one in IS&T knew existed.\604\ Although Robert Haas said that he never totaled the exact number of unrecorded e-mails listed on his audit, he accurately estimated the number as being greater than 100,000.\605\ Furthermore, another OA manager, Laura Callahan, was present at a meeting Kathleen Gallant had with Betty Lambuth, Paulette Cichon, and possibly Mark Lindsay.\606\ At that meeting, Lambuth said that ``several hundred thousand e-mail and over 400 users'' were affected.\607\ While Gallant was certain Callahan was in the room when Lambuth said that, she could not recall definitively that Lindsay was.\608\ However, Gallant said she believes that Lindsay probably knew about the Haas audit because she knew Callahan was reporting information about the problem to him.\609\ --------------------------------------------------------------------------- \604\ Interview with Kathleen Gallant, former IS&T Director, Office of Administration, in Chantilly, VA (July 20, 2000). \605\ Interview with Robert Haas, Lotus Notes administrator, Northrop Grumman, in Washington, DC (Mar. 7, 2000). \606\ Interview with Kathleen Gallant, former IS&T Director, Office of Administration, in Chantilly, VA (July 20, 2000). \607\ Id. \608\ Id. \609\ Id. --------------------------------------------------------------------------- Nolan's March 17, 2000, letter to the committee also asserted that ``[c]urrently, I am informed that there is no way to make this calculation [of the number of unrecorded e-mails] unless the backup tapes are reconstructed.'' \610\ This statement is an example of how the White House emphasized what it could not know in order to draw attention away from what it actually did know. In other words, rather than replying to the charge that officials in OA and the White House Counsel's Office should have understood the magnitude of the e-mail problem, they merely repeated the true, but irrelevant, fact that the precise number is unknowable. The following exchange during Mark Lindsay's testimony demonstrates this technique: --------------------------------------------------------------------------- \610\ Letter from Beth Nolan, Counsel to the President, the White House, to the Honorable Dan Burton, chairman, Committee on Government Reform 6 (Mar. 17, 2000) (within appendix I). Mr. Barr. You knew that there was a serious problem and you knew that there was a high likelihood that information that was under subpoena by the independent counsel and by at least one committee of the Congress --------------------------------------------------------------------------- was very likely incomplete. Mr. Lindsay. I did not know that, sir. Mr. Barr. Yes you--you couldn't have helped but have known it because of the nature of this specific problem brought to your attention because of these gaps---- Mr. Lindsay. Sir, my---- Mr. Barr [continuing]. In this system because of the Mail2 problems. Mr. Lindsay. My staff has been unable to this day to tell me the exact number of e-mails that weren't included. Mr. Barr. You don't have to know---- Mr. Lindsay. They have been unable to---- Mr. Barr [continuing]. The exact number of e-mails included. There you go again. See? Talking about, you know, something very precise. We're asking a general concern here and a general matter related to a very specific problem. Mr. Lindsay. Yes, sir.\611\ --------------------------------------------------------------------------- \611\ ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 331-332 (Mar. 23, 2000) (testimony of Mark Lindsay, Assistant to the President for Management and Administration, the White House). While it is true that the exact number of messages unrecorded will not be known until the reconstruction project is complete, Haas' audit provides a basis for understanding the broad extent of the problem.\612\ That the precise number is unknown does not mean the general dimensions are a complete mystery. --------------------------------------------------------------------------- \612\ Northrop Grumman document production NGL 00291-00365 (exhibit 62). --------------------------------------------------------------------------- Committee staff tallied the number of e-mails listed in the unrecorded column for all affected users listed on the Haas audit, and the numbers totaled 246,083.\613\ As White House officials are quick to note, this number is not a precise calculation of the total number of e-mails unrecorded due to the various e-mail problems. Rather, it provides a general notion of how many e-mails went unrecorded due to the Mail2 issue, which was just one of the e-mail problems confronting the White House. --------------------------------------------------------------------------- \613\ Id. --------------------------------------------------------------------------- Several considerations tend to suggest that the actual total is likely to be higher, while others tend to suggest that the actual number may be lower. For example, many of those 246,083 e-mails may have been transferred to ARMS by virtue of being forwarded to a user on an EOP server other than Mail2. A number of them may have been archived by virtue of being replied to ``with history.'' \614\ To reply with history means that the outgoing reply contains a copy of the original message. Since outgoing e-mail from White House users on Mail2 was captured, a reply with history would cause the original to be archived. --------------------------------------------------------------------------- \614\ See ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 79 (Mar. 23, 2000) (testimony of Daniel A. ``Tony'' Barry, Computer Specialist, Office of Administration). On the issue of replying with history, it is unclear whether users in the EOP had a uniform default setting which would guarantee that all messages included history or a default setting which would guarantee that no messages ever included history. It is likely that different users had different configurations. Even if the default were to always include history, not all incoming messages would have been replied to. More probably, the practice would be not to reply with history because it creates long conversational chains that substantially increase the size of the messages. In an environment plagued with disk space problems, such as the EOP, replying with history would only have exacerbated them. See, e.g., White House document production E 0542 (exhibit 16). --------------------------------------------------------------------------- However, other considerations tend to suggest the total number of unrecorded e-mail may be much higher than 246,083. Most important is that the unrecorded e-mails in that total are merely a snapshot of the server on June 18, 1998. The Mail2 problem alone continued for another 5 months, at a time when the volume of e-mail at the White House was increasing exponentially, due in part to the Lewinsky scandal.\615\ In addition, Haas' audit fails to address the D-user problem, which had not yet begun, and the OVP problem, which involved a separate server entirely. Additionally, any e-mail deleted by a user prior to June 19, 1998--a practice encouraged by the White House--would also not be reflected in the audit. The White House routinely sent out e-mail to all EOP users asking them to delete e-mail in order to preserve server space and prevent system crashes.\616\ --------------------------------------------------------------------------- \615\ Interview with Paulette Cichon, former Deputy Director, Office of Administration, in Washington, DC (Apr. 18, 2000). \616\ See, e.g., White House document production E 0542 (exhibit 16). --------------------------------------------------------------------------- Taken together, all of these factors suggest that the total number of unrecorded e-mails is at least as likely to be higher than 246,083 as it is to be lower. One can engage in disputes over minutiae, as illustrated above, and argue that the number is likely to be much higher. It is clear, however, that the White House steadfastly refused to acknowledge the general dimension of the problems, and insisted on quibbling rather than coming clean about the impact of these problems on subpoena compliance. For example, the Counsel to the President attempted to minimize the impact on subpoena compliance by reminding the committee that ``EOP staff are instructed to search their files, including computer records, for responsive information. Thus any incoming e-mails still on an individual's server space at the time a search was conducted should have been captured by individual user searches.'' \617\ Reliance on such manual searches by individuals is, however, woefully inadequate for many reasons. Indeed, when former Counsel to the President Charles Ruff was asked how he conducted searches of his own e- mail, he was at a complete loss. Were the committee to take the time to interview every White House employee, there is little doubt that most would not have the skills to conduct thorough searches of their own computers. --------------------------------------------------------------------------- \617\ Letter from Beth Nolan, Counsel to the President, the White House, to the Honorable Dan Burton, chairman, Committee on Government Reform 7 (Mar. 17, 2000) (within appendix I). --------------------------------------------------------------------------- In addition, many of the individuals relied upon to search their e-mail server space for responsive messages are the very individuals who are the subject of congressional investigation. The incentive to conduct a thorough search or produce incriminating, responsive records would be somewhat less than compelling. Second, any e-mail deleted before the date of the search would only be available through searches of ARMS or the backup tapes. This is an especially important consideration given that the White House routinely encouraged users to delete e-mail to conserve server space.\618\ Third, the following testimony from Robert Haas, contradicts Nolan's assertion that EOP users were instructed to search their own server space for responsive e-mail: --------------------------------------------------------------------------- \618\ See, e.g., White House document production E 0542 (exhibit 16). Mr. Waxman. Now, the fact that these e-mails were not in the ARMS system doesn't necessarily mean they weren't turned over to the independent counsel, Ken Starr. When the White House responds to a document request, they do more than simply search the ARMS. They also ask the relevant individuals to search their own e-mail accounts. These individual searches could have turned up the same e-mails that Mr. Haas found. Mr. Haas, do you know whether the Monica Lewinsky e-mails that you found were new e-mails that had not been --------------------------------------------------------------------------- previously turned over to the independent counsel? Mr. Haas. I do not know that, but I can state that, with having worked at the agency for 9 years and having received those requests for documents over many years, we were instructed we did not have to search our own mail files. Be advised, the mail files are not on your local hard drive. You are reaching across the network and looking into the server. That's why the ARMS process had to be created to take care of the things that you really couldn't do. The search criteria ability within Lotus Notes at our current site is minimal for finding a group of documents.\619\ --------------------------------------------------------------------------- \619\ ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 83-84 (Mar. 23, 2000) (testimony of Robert Haas, Lotus Notes administrator, Northrop Grumman) (emphasis added). In light of these facts, reliance on individuals' manual searches to capture all responsive documents is wholly inadequate. The White House has essentially conceded as much by its actions. At the very moment that it was misleading the public and minimizing the impact of the problems on subpoena compliance, it was beginning a multi-million dollar tape reconstruction process. In late September of this year, the committee finally received the first results of that process. The White House produced a small collection of newly reconstructed e-mails that proved beyond any doubt that reliance on manual searches was inadequate. The new e-mails were responsive to committee subpoenas issued over 3 years ago and were relevant to Vice President Gore's fundraising activities.\620\ The evidence suggests that the White House understood the size and impact of the e-mail problems 2 years ago. Regardless of whether it did then, it certainly does now. --------------------------------------------------------------------------- \620\ See, e.g., White House document production E 8701, E 8755, E 8787, E 8807, E 8843, E 8862 (exhibits 193-198). --------------------------------------------------------------------------- B. The White House's Attempts to Impede the Investigation Throughout the course of the committee's investigation of the e-mail matter, the White House Counsel's Office has used a number of questionable tactics that appear to have no purpose other than to impede the investigation. As discussed in section I of this report, the delay tactics used by this administration are not unique to the e-mail investigation. Although this committee and others have often taken up such problems of delay with the White House, the pattern unfortunately has continued throughout the course of the e-mail scandal. 1. Document Production Practices a. Timing As has been the past pattern of practice with this White House, documents were produced to the committee well after the deadline set in the subpoena. This practice appears to be consistent with the `` `foot-dragging, f - - k-you attitude' towards subpoenas'' embraced by former White House Deputy Chief of Staff Harold Ickes.\621\ For example, the committee set a March 16, 2000, deadline for production in the original subpoena concerning the e-mail matter.\622\ The White House produced the first batch of documents to the committee on March 21, 2000.\623\ Of greater concern though, is the fact that the White House has still not certified that it has completed production of all responsive documents, some 6 months after the original deadline. --------------------------------------------------------------------------- \621\ Susan Schmidt & Michael Weisskopf, ``Truth at Any Cost'' 15 (2000). \622\ Committee on Government Reform subpoena, Mar. 9, 2000 (within appendix II). \623\ Letter from Dimitri J. Nionakis, Associate Counsel to the President, the White House, to James C. Wilson, chief counsel, Committee on Government Reform (Mar. 21, 2000) (within appendix I). --------------------------------------------------------------------------- The White House also has continued the pattern of producing documents immediately before or after a scheduled hearing. In many cases, the timing made it difficult or even impossible to ask all appropriate questions of the witnesses appearing before the committee. For example, the original White House production in the e-mail matter was sent in the evening, 2 days before the committee's first scheduled hearing of March 23, 2000.\624\ This forced an expedited review of 3,396 pages of documents in less than 36 hours. By placing the committee in this difficult position, the White House made the hearing process less efficient. The timing of the White House's production therefore unnecessarily lengthened the investigation. --------------------------------------------------------------------------- \624\ Id. --------------------------------------------------------------------------- After the committee had held its second hearing on March 30, 2000, the White House made the second significant production of documents. On April 3, 2000, and April 7, 2000, the White House produced another 611 pages.\625\ Although the committee had made it clear that the White House should produce documents on a rolling basis, the timing of such significant productions raises an inference of further delay tactics. By sending the materials to the committee immediately after two public hearings had already been held, the White House made it difficult for the committee to ask questions about the documents in a timely manner. --------------------------------------------------------------------------- \625\ Letter from Dimitri J. Nionakis, Associate Counsel to the President, the White House, to James C. Wilson, chief counsel, Committee on Government Reform (Apr. 3, 2000) (within appendix I). See also letter from Dimitri J. Nionakis, Associate Counsel to the President, the White House, to James C. Wilson, chief counsel, Committee on Government Reform (Apr. 7, 2000) (within appendix I). --------------------------------------------------------------------------- Another example of suspicious timing in White House productions came on April 28, 2000.\626\ This batch included the briefing materials for Mark Lindsay's March 1999 appropriations testimony.\627\ The documents produced indicated that Kate Anderson deleted a bullet point that gave Lindsay information about the Mail2 problem.\628\ At the time, the committee staff had already interviewed Anderson. The committee was therefore forced to call in Anderson for a second interview after the next set of hearings on May 3 and May 4, 2000. As a result, Anderson's statements on the deleted Mail2 bullet point could not be used in questioning of Mark Lindsay and Michael Lyle at the hearings. --------------------------------------------------------------------------- \626\ Letter from Dimitri J. Nionakis, Associate Counsel to the President, the White House, to James C. Wilson, chief counsel, Committee on Government Reform (Apr. 28, 2000) (within appendix I). \627\ White House document production E 4392-4396 (exhibit 134). For a detailed description of the events surrounding this document, see section III. E.2.b, above. \628\ White House document production E 4392-4396 (exhibit 134). --------------------------------------------------------------------------- The White House also produced significant documents related to Dorothy Cleal on June 23, 2000, more than a month after her interview with committee staff and nearly 3 months after the deadline on the subpoena that required their production.\629\ Thus, these documents were not available for use in questioning Dorothy Cleal during her interview with committee staff. Moreover, these documents, which are related to the Mail2 and D-user problems, were buried in the middle of a production apparently related only to OVP problems. --------------------------------------------------------------------------- \629\ Id. at E 6410-6411 (exhibit 203). These documents include a handwritten note from Dorothy Cleal to Kate Anderson asking for ``any feedback you may have before I forward to Mike Lyle for his review/ signature.'' Id. The attached memorandum includes a bullet point reading, ``Backup tapes containing previous e-mail problems (MAIL2 Server problem detected in November 1998 and the letter ``D'' problem) have been set-aside pending a Office [sic] of the General Counsel (OGC) decision on whether or not reconstruction will be necessary.'' Id. --------------------------------------------------------------------------- Because of these dilatory tactics, the White House has unnecessarily prolonged this investigation. But for the White House impeding its efforts with such production practices, the committee could have completed its work much sooner. b. The White House Made Unreasonably Narrow Interpretations of Subpoena Language Another tactic employed by the White House that impeded the investigation was the disingenuously narrow interpretation given to committee subpoenas. One example of this tactic occurred during the course of the investigation of the Mail2 problem, during which the committee learned of an additional problem with servers in the Office of the Vice President (OVP). In interviews and document review, it became apparent to committee investigators that significant documents relating to problems with OVP e-mail had not been produced. An interview of Dorothy Cleal on May 15, 2000, revealed the existence of a memorandum that was sent to the Vice President describing problems with OVP e-mail.\630\ These documents had never been produced to the committee. As a result, the committee sent a letter to the White House on May 16, 2000, requesting that the White House Counsel's Office determine if all responsive records relating to the OVP's e-mail problem had been produced to the committee.\631\ --------------------------------------------------------------------------- \630\ Interview with Dorothy Cleal, former IS&T Director, Office of Administration, in Washington, DC (May 15, 2000). \631\ Letter from James C. Wilson, chief counsel, Committee on Government Reform, to Beth Nolan, Counsel to the President, the White House (May 16, 2000) (within appendix I). --------------------------------------------------------------------------- In response, on May 18, 2000, Senior Associate Counsel to the President Steven Reich sent a letter to the committee stating that ``because the OVP issue is distinct from the Mail2 and Letter D problems, I cannot say that our directive to White House staff, which tracked the language of your subpoena, required the production of the broad category of OVP-related documents you have asked about.'' \632\ The committee's original March 9, 2000, subpoena, however, had called for ``all records relating to the discovery, diagnosis, planned, implemented, or partially implemented solutions to problems associated with the Automatic Records Management System (ARMS) process and the failure to collect e-mail messages (also known as ``Project X'' or ``Mail2 reconstruction project'') from Executive Office of the President (EOP) mail servers[.]'' \633\ Since the subpoena contemplated EOP mail servers, and the OVP is a part of the EOP, all problems with the OVP server should have been included in directives to staff from the White House Counsel's Office pursuant to the original subpoena. --------------------------------------------------------------------------- \632\ Letter from Steven F. Reich, Senior Associate Counsel to the President, the White House, to James C. Wilson, chief counsel, Committee on Government Reform (May 18, 2000) (within appendix I). \633\ Committee on Government Reform subpoena, Mar. 9, 2000 (appendix I). --------------------------------------------------------------------------- The failure to send out a directive that would capture all responsive OVP documents is even more troubling in light of the committee's requests for a full explanation of the OVP e-mail problem in earlier correspondence and in public hearings. For example, in a March 19, 2000, letter to White House Counsel Beth Nolan, Chairman Burton wrote: You state in your letter that ``e-mails on the server of the Office of the Vice President (OVP) have not been fully managed by ARMS.'' I am interested in a full explanation of this problem and I would also like to know when the Department of Justice, Congress and the Offices of Independent Counsel were notified of the problem.\634\ --------------------------------------------------------------------------- \634\ Letter from the Honorable Dan Burton, chairman, Committee on Government Reform, to Beth Nolan, Counsel to the President, the White House (May 16, 2000) (within appendix I). In addition, the OVP problem was discussed several times during Beth Nolan's appearances before the committee. In fact, Congressman Steven LaTourette specifically asked Ms. Nolan to determine how many e-mails from the OVP had been turned over to investigators.\635\ --------------------------------------------------------------------------- \635\ ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 128-129 (Mar. 30, 2000) (questions from Congressman Steven LaTourette). --------------------------------------------------------------------------- Because of the committee's persistence regarding responsive OVP documents, the White House eventually made a startling admission about the OVP server. On June 7, 2000, Steven Reich sent a letter accompanying a large production of documents related to the OVP e-mail problems. He wrote, ``your May 16, 2000, letter regarding non-records managed e-mail has led us to discover that a technical configuration error apparently prevented e-mail on the OVP server from being backed-up from the end of March 1998 through early April 1999.'' \636\ In other words, if the committee had not followed-up on the OVP problems specifically described by Dorothy Cleal, the White House most likely would never have disclosed the existence of another serious flaw in its records management process. The White House Counsel's Office likely would have relied on an overly narrow reading of the committee's subpoena to avoid disclosing this critical fact. The committee finds such impediments to its investigation unacceptable. --------------------------------------------------------------------------- \636\ Letter from Steven F. Reich, Senior Associate Counsel to the President, the White House, to James C. Wilson, chief counsel, Committee on Government Reform 4 (June 7, 2000) (within appendix I). --------------------------------------------------------------------------- 2. Specious Claims That Documents Were ``Subject to Privilege'' Another delaying tactic employed by the White House during this investigation was the assertion of various privileges over certain documents. In an April 28, 2000, document production, the White House claimed in a letter written by Associate Counsel to the President Dimitri Nionakis that several documents were ``subject to privilege.'' \637\ The White House Counsel's Office did not make clear, however, what specific privilege the White House was asserting. The accompanying privilege log was incomplete and vague. The log was marked as a draft, was cut off midway through the description of the seventh document, and listed the basis for privilege on six of the seven documents as Executive privilege, attorney-client privilege, and attorney-work product.\638\ --------------------------------------------------------------------------- \637\ Letter from Dimitri J. Nionakis, Associate Counsel to the President, the White House, to James C. Wilson, chief counsel, Committee on Government Reform 1 (Apr. 28, 2000) (within appendix I). \638\ White House privilege log (exhibit 156). --------------------------------------------------------------------------- In response to these vague claims, Chairman Burton responded with a letter sent to Nionakis. As the May 1, 2000, letter states: I note with a great deal of skepticism that you have withheld documents, but have not claimed a specific privilege. As in previous years, when the White House Counsel's Office has attempted to stall by claiming invalid privileges, you have identified documents that are ``subject to privilege.'' This meaningless legal mumbo-jumbo is obviously a transparent ploy to provoke wasteful and time-consuming squabbles over documents.\639\ --------------------------------------------------------------------------- \639\ Letter from the Honorable Dan Burton, chairman, Committee on Government Reform, to Dimitri Nionakis, Associate Counsel to the President, the White House 1 (May 1, 2000) (within appendix I). The very next day, the White House reacted to the committee's May 1, 2000, letter by informing the committee that it would cease its assertion of privilege and would produce the documents.\640\ It is the view of the committee that the White House so quickly abandoned its privilege claims because the claims were without merit and could only have been intended to drag out the investigation. --------------------------------------------------------------------------- \640\ Letter from Beth Nolan, Counsel to the President, the White House, the Honorable Dan Burton, chairman, Committee on Government Reform 2 (May 2, 2000) (within appendix I). --------------------------------------------------------------------------- 3. The White House Asserted That the E-mails Used in Its Test Search Were Unrelated to the Committee's Investigation In addition to the specious privilege claims, the White House Counsel's Office also asserted the claim that the e-mails which were gathered by the Office of Administration to conduct the test search were unrelated to the Mail2 error and therefore were not relevant to the committee's inquiry.\641\ Using this argument, the White House initially failed to produce the Lewinsky e-mails to the committee. However, as discussed above in detail in section III.C, the Lewinsky-related documents were used by the White House Counsel's Office for a comparison test to determine if all responsive e-mails had been produced to document requestors. The relevance of such documents to the e- mail investigation should have been obvious to the White House Counsel's Office. Nevertheless, the White House again used dubious reasoning in its attempt to place a roadblock in the committee's investigation. --------------------------------------------------------------------------- \641\ See letter from Dimitri J. Nionakis, Associate Counsel to the President, the White House, to James C. Wilson, chief counsel, Committee on Government Reform 1 (Apr. 28, 2000) (within appendix I). --------------------------------------------------------------------------- The Chairman responded to the White House's withholding of documents by stating in a May 1, 2000, letter: Although it is absolutely true that we are not investigating the subject matter of these e-mails, they are of great significance to our investigation, and they are certainly covered by the Committee subpoena. The e-mails are important because numerous witnesses have told us that after the e-mail problem was discovered, a test was conducted. The results of this test were interpreted by the White House Counsel's Office to stand for the proposition that the White House Counsel did not need to do anything further, where the Mail2 problem was concerned, to comply with congressional document requests. Obviously, whether the test was thorough enough for the White House to have reached the conclusion that it did in fact reach is of paramount importance to the investigation.\642\ --------------------------------------------------------------------------- \642\ Letter from James C. Wilson, chief counsel, Committee on Government Reform, to Dimitri Nionakis, Associate Counsel to the President, the White House 1-2 (May 1, 2000) (within appendix I). After receiving this letter, the White House quickly backed down from its refusal to produce the Lewinsky e-mails used in the comparison test. As with the vague claims of privilege, the committee believes the withholding of the Lewinsky e-mails was without merit and could only have been intended to impede the investigation. Notwithstanding efforts to keep the ``test'' e-mails from Congress, it now appears that even the testimony that the two batches of e-mail are identical may be subject to question. As explained above, one would expect that the two batches would have been identical because they both came from the same source. Even so, Michelle Peterson submitted an affidavit to Federal court on September 28, 2000, explaining that ``during the course of my testimony to the Grand Jury, it appeared from the documents shown to me that I may have been mistaken with respect to one or possibly two e-mails.'' \643\ It is important to note that the White House, and its lawyers at the Department of Justice, neglected to notify this committee of Peterson's recently-filed affidavit. --------------------------------------------------------------------------- \643\ Third declaration of Michelle Peterson at para.6, Alexander v. FBI (D.D.C. Sept. 27, 2000) (CA 96-2123). --------------------------------------------------------------------------- 4. White House Witnesses Refuse to Cooperate a. Associate White House Counsel Dimitri Nionakis On May 2, 2000, the committee informed the White House that Associate White House Counsel Dimitri Nionakis would be subpoenaed to testify before the committee on May 4, 2000.\644\ White House Counsel Beth Nolan responded to the letter by facsimile, stating, ``[i]f the Committee has questions about how this office has responded to various Committee subpoenas, those questions should be addressed to me and not to members of the Counsel Office's staff.'' \645\ Nolan sent a similar, more detailed letter by facsimile the next day.\646\ The committee determined, however, that since the specious claims of privilege and the withholding of the Lewinsky e-mails had been represented to the committee by Nionakis, his testimony before the committee would be critical to determining the White House rationale for those decisions. The committee therefore attempted to serve Nionakis with a subpoena. --------------------------------------------------------------------------- \644\ See letter from James C. Wilson, chief counsel, Committee on Government Reform, to Beth Nolan, Counsel to the President, the White House (May 2, 2000) (within appendix I). \645\ Letter from Beth Nolan, Counsel to the President, the White House, to James C. Wilson, chief counsel, Committee on Government Reform 1 (May 2, 2000) (within appendix I). \646\ See letter from Beth Nolan, Counsel to the President, the White House, to the Honorable Dan Burton, chairman, Committee on Government Reform (May 3, 2000) (within appendix I). --------------------------------------------------------------------------- Committee staff left a voice-mail for Nionakis on the evening of May 2, 2000, to let him know he would be subpoenaed to testify.\647\ The following morning, staff called the White House Counsel's Office at 9:15 a.m., but could not reach Nionakis either through the general line or his direct number, and therefore left him another voice-mail.\648\ A few minutes later, committee staff called the U.S. Marshals Service to arrange service with the White House.\649\ The Marshals Service began their attempt to reach Nionakis at 12 noon.\650\ The Marshals Service was also unsuccessful in reaching Nionakis. They left messages on voice-mail, with his secretary, and on his pager.\651\ Committee staff also continued to follow up with several calls throughout the day.\652\ The committee made its final attempt to reach Mr. Nionakis by phone at 8:25 p.m., on May 3, 2000. Staff in the White House Counsel's Office said that they did not know where Nionakis was and had not seen him all day.\653\ The committee therefore had no alternative but to attempt to serve Nionakis at his home. Even this effort proved futile, as Nionakis appeared to be avoiding even his own home. --------------------------------------------------------------------------- \647\ See Memorandum from Maria Pia Tamburri to Jim Wilson and David Kass (May 3, 2000) (on file with the committee). \648\ See id. \649\ See id. \650\ See id. \651\ See id. \652\ See id. \653\ See id. --------------------------------------------------------------------------- On the evening of May 3, 2000, the Chief Counsel to the committee called White House Counsel Beth Nolan to discuss the service of Nionakis. Nolan stated her belief that White House line attorneys should not be subpoenaed to testify before Congress. But when Nolan was asked if Nionakis was refusing to accept service, Nolan responded that she ``can't speak to what he would do'' if presented with a subpoena.\654\ Asked if she instructed him not to accept service, Nolan said ``I won't answer that.'' \655\ Asked if Nionakis was at work that day, Nolan also said ``I won't answer that.'' \656\ --------------------------------------------------------------------------- \654\ Notes from telephone conversation with Beth Nolan, Counsel to the President, the White House (May 3, 2000). \655\ Id. \656\ Id. The White House finally came to an agreement with the committee on the morning of the May 4, 2000, hearing. Nionakis was made available to testify on the condition that Beth Nolan appear with him. --------------------------------------------------------------------------- The committee understands that, whenever possible, the Counsel to the President should be called upon to answer questions about the White House Counsel's Office. However, when the Associate Counsel to the President is asserting specious claims and withholding documents, the committee believes it is appropriate to subpoena the very person who signs their name to the letter that informs the committee of such decisions. But even if the White House disagrees with this analysis, it does not excuse the attempts by Dimitri Nionakis to avoid service of process, nor the refusal of Nolan to answer simple questions about the ability of her staff to be served. The decision by a White House lawyer to hide from the U.S. Marshals Service provides a fair insight into how this White House Counsel's Office discharges its responsibilities to the American people. The committee believes that this episode was yet another attempt by the White House to impede the committee's investigation, as well as the exercise of its oversight jurisdiction. b. Cheryl Mills' Refusal to Cooperate With the Committee For the reasons more fully discussed above,\657\ Cheryl Mills has been a central figure in the investigation into the White House's e-mail problems and subsequent failure to produce subpoenaed documents.\658\ The following points, however, should be kept in mind. --------------------------------------------------------------------------- \657\ See section III.C, above. \658\ Mills' record regarding document production and cooperating with pending congressional investigations is far from illustrious. For example, on Oct. 30, 1998, the committee found that Mills lied to the committee and obstructed its investigation by withholding relevant documents. See ``Investigation of the Conversion of the $1.7 Million Centralized White House Computer System, Known as the White House Database, and Related Matters,'' House Committee on Government Reform and Oversight, H. Rept. No. 105-828, at 3, 49-57 (1998). Those documents showed the President's and the First Lady's involvement in the misuse of the White House's database, also known as (WhoDB), for political purposes. Id. The documents also showed that White House staff were used to create political databases. Id. The committee referred Mills to the Justice Department for obstruction of justice and perjury. About a year after the committee submitted its referral and considerable evidence supporting its referral, the Justice Department declined to prosecute Mills. Also, regarding the Lewinsky matter, a recent book authored by the Washington Post reporters who followed the story, recounts that Mills argued that President Clinton should invoke executive privilege regarding sessions during which he coached Betty Currie regarding her upcoming testimony. See Susan Schmidt & Michael Weisskopf, ``Truth at Any Cost'' 71-72 (2000). Finally, in the context of the Filegate civil suit, Alexander v. FBI (D.D.C. July 7, 2000) (CA No. 96-2123), Sonya Stewart, a former civil servant at the Commerce Department, testified as to having knowledge that Mills, as Deputy Counsel to the President, advised Commerce officials to withhold certain documents responsive to information requests. See declaration of Sonya Stewart at para.7, Alexander v. FBI (D.D.C. July 7, 2000) (CA No. 96-2123) (exhibit 191). Stewart specified that ``[d]uring the time period at issue, many of the same documents were being sought by several entities, including . . . congressional committees, grand juries, and others.'' Id. She also stated that ``these interactions with Ms. Mills, as well as other practices, delayed and corrupted the Commerce Department's response to . . . [particular information requests].'' Id. See also letter from the Honorable Dan Burton, chairman, Committee on Government Reform, to Janet Reno, Attorney General of the United States (June 28, 2000) (within appendix I) (noting Mills' materality in this e-mail investigation). <bullet> Charles Ruff, former Counsel to the President, explained the Mail2 problem to Mills in 1998 after he first --------------------------------------------------------------------------- learned about it. <bullet> Thereafter, Mills assisted Ruff in determining whether the problem had affected the White House's subpoena compliance capability. <bullet> Ultimately, Mills' report to Ruff induced him to take no further action regarding the e-mail problem. <bullet> When Ruff originally explained the problem to Mills, she knew that Ruff would rely on her assistance as a basis for concluding whether the problem affected the White House's subpoena compliance capability. <bullet> When Mills testified to the committee, she was chronically unable to recall critical details associated with how that conclusion was obtained. For example, she could not recall who devised the test search, what were the search's parameters and what proposition the search was intended to support. <bullet> Accordingly, by incompetence or design, the search gave the White House false and unwarranted assurances that the Mail2 problem did not affect subpoena compliance. Mills' purported failure to understand fully the actual scope of the problem prevented a number of investigative bodies, including Congress, DOJ and the independent counsels, from receiving subpoenaed e-mails. The totality of evidence uncovered to date, however, makes it unlikely that incompetence was responsible for Mills' representations to White House Counsel Ruff. Documentary evidence also indicates that Mills was a central figure in the OVP e-mail problem. In 1999, Dorothy Cleal, former Director for IS&T, sent an e-mail to Mark Lindsay, former Director of OA, in which she stated that ``[t]he OVP memorandum regarding the Vice President's computer problems has been cleared with Cheryl Mills' office. It now needs to go to the OVP General Counsel. Mike Lyle is successfully working this issue.'' \659\ Mills was also included in a distribution list in e-mail circulated among senior OVP and White House Office staff.\660\ Those e-mails discussed records management of the OVP's e-mail and ultimately culminated in a decision not to have the OVP interact with the White House's ARMS system. Interacting with ARMS would have enabled the OVP to text search its e-mail when responding to outstanding subpoenas. --------------------------------------------------------------------------- \659\ See White House document production E 6388-6389 (exhibit 182). \660\ See id. at E 5311-5313 (exhibit 176); id. at E 8129 (exhibit 177); id. at E 8128 (exhibit 178); id. at E 5302 (exhibit 179); id. at E 5303 (exhibit 180); id. at E 5306 (exhibit 181); and id. at E 5306 (exhibit 181). It is noteworthy that the White House produced these documents only after Mills' May 4, 2000, appearance before the committee. --------------------------------------------------------------------------- Despite her central role in the Mail2 investigation, Mills refused to cooperate with the committee. After ignoring three phone calls and two letters from the committee for 10 days, Mills declined to be interviewed.\661\ Consequently, the Chairman notified Mills by letter that she would receive a subpoena to appear at a hearing on May 4, 2000.\662\ The day after the committee notified Mills of her scheduled appearance, she advised the committee that she was unable to attend because of ``long-standing commitments.'' \663\ Accordingly, the committee subpoenaed Mills to appear. Only after the committee issued the subpoena did Mills offer alternative dates for her attendance.\664\ By this point, the hearing was scheduled and Mills' belated offer was rejected. After some initial difficulties,\665\ Mills accepted service of the subpoena from the U.S. Marshals Service \666\ and on May 4, 2000, she testified before the committee about her involvement in the mismanagement of subpoenaed e-mails. As discussed above, she was less than forthcoming in her testimony. --------------------------------------------------------------------------- \661\ See letter from David A. Kass, deputy counsel and parliamentarian, Committee on Government Reform, to Cheryl Mills, former Deputy Counsel to the President, the White House (Apr. 18, 2000) (within appendix I); letter from the Honorable Dan Burton, chairman, Committee on Government Reform, to Cheryl Mills, former Deputy Counsel to the President, the White House (Apr. 24, 2000) within appendix I); letter from Cheryl Mills, former Deputy Counsel to the President, the White House, to David A. Kass, deputy counsel and parliamentarian, Committee on Government Reform (Apr. 25, 2000) (within appendix I). \662\ Letter from the Honorable Dan Burton, chairman, Committee on Government Reform, to Cheryl Mills, former Deputy Counsel to the President, the White House (Apr. 25, 2000) (within appendix I). \663\ Letter from Cheryl Mills, former Deputy Counsel to the President, the White House, to David A. Kass, deputy counsel and parliamentarian, Committee on Government Reform (Apr. 26, 2000) (within appendix I). See also letter from the Honorable Dan Burton, chairman, Committee on Government Reform, to Cheryl Mills, former Deputy Counsel to the President, the White House (Apr. 26, 2000) (within appendix I) (replying). \664\ Letter from Cheryl Mills, former Deputy Counsel to the President, the White House, to the Honorable Dan Burton, chairman, Committee on Government Reform (May 1, 2000) (within appendix I). \665\ See letter from the Honorable Dan Burton, chairman, Committee on Government Reform, to Cheryl Mills, former Deputy Counsel to the President, the White House (Apr. 27, 2000) (within appendix I). \666\ Letter from the Honorable Dan Burton, chairman, Committee on Government Reform, to Cheryl Mills, former Deputy Counsel to the President, the White House (May 1, 2000) (within appendix I). --------------------------------------------------------------------------- In conclusion, several attempts were made to impede this committee's investigation. As discussed above, the White House Counsel's Office engaged in egregious document production practices and attempted to withhold the production of various salient documents by baselessly asserting that they were either ``subject to privilege'' or irrelevant to the committee's investigation. Additionally, an Associate White House Counsel attempted to dodge service of a subpoena and a former Deputy White House Counsel refused to be interviewed by the committee, which required the committee to subpoena her attendance at a public hearing. Such conduct bespeaks the relationship this White House has chosen to maintain with Congress and reflects its chronic failure or refusal to appreciate the legitimate exercise of this committee's oversight jurisdiction. C. the white house's gamesmanship with the production of the missing e- mails 1. The White House's Failure to Reconstruct the Missing E-mails in a Timely Manner and to Update the Committee Properly By resolving the D-user problem in April 1999, the White House was finally able to ``stop the bleeding,'' which enabled ARMS to capture Mail2 e-mail prospectively. However, the committee cannot complete its oversight responsibilities regarding its outstanding investigations until the White House produces all information previously required by its subpoenas. Therefore, the remaining phase required to address the problem involves reconstructing the missing e-mail from the White House's backup tapes as well as searching and producing them in response to outstanding congressional subpoenas. On March 30, 2000, White House Counsel Beth Nolan gave the committee a preliminary estimate that ``the requisite equipment and other resources for the [reconstruction] project will be in place, tested, and ready to go in approximately 70 days.'' \667\ She also noted that ``[the White House] anticipate[s] conducting the restoration in batches so that [it] can have a rolling production. The contractor estimates that this part of the project will be completed in about 170 days from the beginning of the project. In other words, . . . if these initial estimates hold up, we could have the back-up tapes searched within 6 months.'' \668\ Nolan promised that, as she learned more information, she would keep the committee informed.\669\ As it turned out, the White House failed to live up to either of its assurances. As is clear from the discussion below, the White House's assurances to the committee that e- mail would be produced in a timely fashion and that it would keep the committee informed of key developments was simply a component of the White House's attempt to respond publicly to the embarrassment of having failed to search for all relevant e-mails. --------------------------------------------------------------------------- \667\ ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 25-26 (Mar. 30, 2000) (testimony of Counsel to the President Beth Nolan). \668\ Id. \669\ See, e.g., letter from Beth Nolan, Counsel to the President, the White House, to the Honorable Dan Burton, chairman, Committee on Government Reform (Mar. 17, 2000) (within appendix I). See also letter from Counsel to the President Beth Nolan to the Honorable Dan Burton, chairman, Committee on Government Reform (Aug. 7, 2000) (within appendix I) (``We have aimed to ensure that the Committee is kept abreast of key developments.''). --------------------------------------------------------------------------- As the committee's investigation into the White House's e- mail problems was proceeding earlier this year, the White House was also defending a civil law suit in Alexander v. FBI.\670\ In that case, the White House was required to produce e-mails responsive to discovery requests. By April 27, 2000, little progress was being made in the reconstruction of Alexander- related e-mails. Therefore, the court explicitly cautioned the EOP, a defendant in that case, that it would not accept a proposal from the White House that the 170-day timeline run from April 27th.\671\ In other words, the court wanted a timely production of the subpoenaed e-mails. As late as May 4, 2000, the EOP indicated to the committee: --------------------------------------------------------------------------- \670\ Civil Action No. 96-2123 (D.D.C.). In that case, Reagan and Bush White House employees sued, among others, the EOP for the wrongful accessing of their FBI files by various Clinton administration officials. Like Congress, the Justice Department and the Office of the Independent Counsel, the plaintiffs in Alexander had served subpoenas on the White House which, like those of Congress and various law enforcement bodies, called for the production of e-mails which were discovered to have been affected by the White House's e-mail problems. \671\ Transcript of Motions Hearing at 33, Alexander v. FBI (D.D.C. Apr. 27, 2000) (CA 96-2123) (``[I]n connection with the [EOP's] response [to plaintiffs' motion regarding the search of Mail2 e-mail], I will say to [the EOP] up front that I will not accept a response that it will take 170 days. So, I'll tell you up front you can start working on what other way there is to produce it in a shorter period.''). [T]he reconstruction project is scheduled to be completed by Thanksgiving. That does not mean, however, that the reconstructed e-mails will not be produced until Thanksgiving. Document production will begin long before then. All that it means is that the final stages of the e-mail project which involve putting the reconstructed e-mails into ARMS for archival purposes will be completed then. The actual reconstruction of the e-mails, the placing of those e-mails into a searchable database and the production of e-mails to our committee will begin well before that date and well before the election.\672\ --------------------------------------------------------------------------- \672\ ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 99 (May 4, 2000) (testimony of Mark Lindsay, Assistant to the President for Management and Administration, the White House) (concession obtained by Ranking Minority Member Waxman). Apparently, at some point during May 2000, the White House's production timetable changed dramatically. On June 6, 2000, the EOP filed with the Alexander court a 41-page pleading, which was intended to notify the court that not only was Nolan's original 170-day estimate no longer accurate but also that the White House could no longer reasonably estimate when the e-mail would be reconstructed at all.\673\ The only estimate that the EOP could then provide was that the White House hoped to have completed testing of the copying system and be ready to begin copying by mid-to-late June 2000.\674\ Not until almost a month after the filing, when it became clear that the White House could not adhere to even this deadline, did the White House Counsel's Office send the committee a copy of the original June 6, 2000, pleading.\675\ This was the first and only notice that the committee received that Nolan's preliminary estimate was inoperative. --------------------------------------------------------------------------- \673\ EOP's response to plaintiffs' supplemental brief regarding non-records managed e-mail and other computer documents, at 15, Alexander v. FBI (D.D.C. June 6, 2000) (CA No. 96-2123) (citing declaration of Gregory A. Ekberg, project manager with Vistronix, Inc., at para. 12 (June 2, 2000)). \674\ Id. \675\ Letter from Edward R. McNicholas, Associate Counsel to the President, the White House, to James C. Wilson, chief counsel, Committee on Government Reform, and Ken Ballen, minority chief investigative counsel, Committee on Government Reform (June 29, 2000) (within appendix I) (pleading not attached). --------------------------------------------------------------------------- The failure of EOP's pleading, drafted and filed by the Justice Department, to notify the Alexander court that Nolan's preliminary estimate was no longer operative was a matter of considerable concern to the court during an evidentiary hearing on July 17, 2000, as the following exchange illustrates: The Court. And when [Ms. Nolan's] estimate changed, she never advised either Congress or this Court. The Justice Dept. Well, we advised the Court through Mr. Ekberg's declaration, Your Honor. The Court. That all bets were off and you couldn't give any estimate. The Justice Dept. Well, we---- The Court. That's what he said. The Justice Dept. At that point--at that point, yes, because we were---- The Court. And Mr. Misich wouldn't estimate anything in his affidavit. The Justice Dept. At that point we had the RAIDirector. We were still looking at IM drive. I believe, although I'd have to check the record, people were looking into finding a substitute for IM drive---- The Court. So as of June 2nd, I should have understood that all bets were off, 170 days was out the window, and there's no time frame ever to be figured out till I had a hearing and started figuring it out? The Justice Dept. Well, Your Honor, we tried to communicate through Mr. Ekberg's declaration that at that moment . . . nobody could tell this Court, in all good faith, when the e-mails were going to be ready in a searchable database[.] The Court. But you didn't say anything about the 170 days was out the window and you knew it couldn't be met. That was left out. The Justice Dept. Your Honor, it was not our intention to omit that. We stated--we thought very---- The Court. You did omit it. The Justice Dept. We thought we stated very clearly in Mr. Ekberg's declaration that it was not possible at that time to estimate the completion of the copying process. The Court. But it was possible at that time to tell me that all of your prior estimates were based on faulty information; that LINUX wouldn't work. You didn't tell me that, did you, on June 2nd. The Justice Dept. Your Honor, we did not attempt, in the time available to us, to go into excruciating levels of technical detail. The Court. I'm sure you didn't. The Justice Dept. But it was not a conscious omission, Your Honor---- The Court. How can you say that? . . . You decided to leave it out of what you told me. The Justice Dept. We decided, Your Honor, to describe the process that we were undergoing in general terms and to give the Court our best estimate of what we could do in order to make searchable e-mails available. The Court. And not to admit that your prior estimate had turned out to be totally invalid because all of the information that it was based on was invalid. But you weren't going to admit that until it was drug out of you at this hearing? The Justice Dept. Your Honor, we thought we had admitted that in Mr. Ekberg's declaration. If we were-- if we were inarticulate in describing the situation in Mr. Ekberg's declaration, we apologize to the Court.\676\ --------------------------------------------------------------------------- \676\ See Transcript of Evidentiary Hearing, at 126-128, Alexander v. FBI (D.D.C. July 17, 2000) (CA No. 96-2123). In finding the EOP's explanation for not having copied a single tape while dealing with its technical difficulties ``preposterous,'' the court ordered emergency evidentiary hearings to determine the most expeditious way to restore and search the Mail2 e-mail.\677\ At those hearings, the committee was surprised to learn the following: --------------------------------------------------------------------------- \677\ Memorandum decision, Alexander v. FBI, at 19 (D.D.C. July 10, 2000) (CA No. 96-2123) (describing explanation ``preposterous'' and stating, ``The EOP . . . [has not] provided the court with any explanation of why it did not [at least begin copying the backup tapes]. Instead, after twenty weeks, the EOP has not made one concrete step towards producing any of the [Mail2 e-mail], and cannot give the court any estimate of when it might do so.''); order, Alexander v. FBI (D.D.C. July 10, 2000) (CA No. 96-2123). <bullet> Gregory Ekberg, the project manager with Vistronix, Inc., which was hired to independently validate and verify the e-mail reconstruction project, was never told of the court's April 27, 2000, ruling that the court would not accept a proposal from the White House providing that Nolan's 170-day timetable run from April 27, 2000.\678\ --------------------------------------------------------------------------- \678\ Transcript of Evidentiary Hearing at 91-92, Alexander v. FBI, (D.D.C. July 14, 2000) (CA No. 96-2123) (under examination by Judge Lamberth). <bullet> In fact, when Ekberg was put on the project on May 24, 2000, he was given a goal to complete just the copying process alone by the end of the year.\679\ This generous deadline was in direct conflict with the court's order, as described above. --------------------------------------------------------------------------- \679\ Id. at 91-93. <bullet> Michael R. Sullivan, Deputy Associate Director of General Services Division for the Office of Administration, testified the Office of Administration knew that the contractor that it hired to reconstruct the e-mails was incapable of completing the project until after the November 2000 elections.\680\ --------------------------------------------------------------------------- \680\ Id. at 77-79 (July 17, 2000). On July 26, 2000, and August 17, 2000, the committee specifically brought what it learned at those Alexander hearings to the attention of the White House Counsel's Office.\681\ Unfortunately, the White House failed to refute or otherwise clarify the foregoing troubling testimony.\682\ From its failure to do so, the committee can only infer that the testimony is true and accurate and that there is, in fact, no legitimate explanation for the additional delay. --------------------------------------------------------------------------- \681\ Letter from the Honorable Dan Burton, chairman, Committee on Government Reform, to Beth Nolan, Counsel to the President, the White House (July 26, 2000) (within appendix I); letter from the Honorable Dan Burton, chairman, Committee on Government Reform, to Beth Nolan, Counsel to the President, the White House (Aug. 17, 2000) (within appendix I). \682\ Letter from Beth Nolan, Counsel to the President, the White House, to the Honorable Dan Burton, chairman, Committee on Government Reform (Aug. 7, 2000) (within appendix I). --------------------------------------------------------------------------- On the afternoon of Friday, September 22, 2000,\683\ the White House produced to the committee a batch of e-mails that had apparently been restored from White House backup tapes. The e-mails were produced to the committee late on a Friday, despite the fact that the White House had the e-mail messages since Monday September 17. The timing of this production strongly suggests that the White House was trying to minimize the public impact of the release of the e-mails. As discussed throughout the report, that batch contained e-mails highly relevant to the committee's campaign finance investigation. On September 25, 2000, the committee asked White House Counsel Beth Nolan to explain the context of the September 22nd production.\684\ She replied, ``the e-mail that was produced to the committee was reconstructed by the Department of Justice Campaign Financing Task Force and the Office of Independent Counsel Robert Ray.'' \685\ She continued, ``[p]ursuant to [an] authorized agreement, the review [of e-mail] is conducted electronically on a computer screen, with a team of FBI Agents and lawyers from the DOJ and OIC involved and EOP lawyers present.'' \686\ Nolan's response raises the following questions. What are the terms of that ``agreement?'' What precisely is the nature of the EOP's ``involvement'' in the review of those e-mails? And, what is being contemplated as the EOP's involvement in the future with respect to reviewing the restored e-mail? Certainly, the EOP, as a civil defendant in Alexander, is entitled to review documents before producing them to the plaintiffs in that case pursuant to their discovery requests. But, the EOP is also purportedly the subject of a Justice Department criminal investigation in the e-mail matter. To the extent that the FBI has already taken possession of the backup tapes, it is highly troubling that the Justice Department would allow the subject of a criminal investigation to participate in any way in reviewing evidence for responsiveness. This underscores the peculiar but clear conflict of interest inherent in the Justice Department's simultaneous criminal investigation of the e-mail matter and representation of the EOP in the Alexander civil litigation. It also highlights the need for the appointment of a special counsel to investigate the e-mail matter.\687\ --------------------------------------------------------------------------- \683\ In addition to the White House's document production practices discussed above in section IV.B.1, the White House regularly produced documents to the committee and the Associated Press on Fridays at the close of business. This appears to have been done to minimize media coverage. \684\ See letter from the Honorable Dan Burton, chairman, Committee on Government Reform, to Beth Nolan, Counsel to the President, the White House 1-2 (Sept. 25, 2000) (within appendix I). \685\ Letter from Beth Nolan, Counsel to the President, the White House, to the Honorable Dan Burton, chairman, Committee on Government Reform (Sept. 26, 2000) (within appendix I). \686\ Id. at 2. \687\ See section V.A, below (discussing Attorney General's refusal to appoint a special counsel). --------------------------------------------------------------------------- The committee is also concerned that, as of the submission of this report, the White House has no plans to produce the missing e-mail responsive to congressional subpoenas to Congress after the new administration moves into the White House. On September 14, 2000, committee staff met with Associate White House Counsel Lisa Klem and OA General Counsel Michael Bartosz. At that meeting, they were asked whether the administration had any plans in place for production of the missing e-mail after it leaves the White House. Klem's response was less than helpful. She merely stated that the White House was ``committed to satisfying its obligations under [the Committee's] subpoena[s]'' and that if it became clear that there would be a problem ``as we bump up against January 20th, we'll address it then.'' \688\ When asked whether she could be realistically optimistic that all the missing e-mails would be produced before the transition to a new administration, Klem simply said that she did not have an answer as to what arrangements were being made.\689\ In response to the committee's concern about the absence of a transition plan, Beth Nolan simply responded that a meeting with National Archiving and Records Administration (NARA) had been scheduled and that she would provide the committee with a status update.\690\ --------------------------------------------------------------------------- \688\ Notes of meeting with Lisa Klem, Associate Counsel to the President, the White House, and Michael Bartosz, general counsel to the Office of Administration, in Washington, DC (Sept. 14, 2000). \689\ Id. \690\ Letter from Beth Nolan, Counsel to the President, the White House, to the Honorable Dan Burton, chairman, Committee on Government Reform 5 (Sept. 26, 2000) (within appendix I). --------------------------------------------------------------------------- By its own admission, the White House will not be able to produce all e-mail to the committee responsive to its subpoenas until well after the November 2000 elections and likely into 2001. The White House's failure to reconstruct the Mail2 e- mails or be candid about the process reflects its behavior throughout the e-mail investigation. The foregoing illustrates the relationship this White House has chosen to maintain with Congress and its chronic failure to recognize the legitimate exercise of Congress' oversight jurisdiction. 2. The Burgeoning Cost of Reconstruction and the White House's Failure to Update the Committee Unsurprisingly, the White House has been just as evasive about the cost of reconstructing the unrecorded e-mails as it has been with the reconstruction timetable. On October 13, 1998, about 10 months after recognizing an anomaly in how ARMS interacted with the e-mail system and about 4 months after the contractors initially found the problem, Tony Barry estimated the cost of recovering the e-mail and placed into ARMS at $250,000.\691\ On December 1998, almost a year after Barry first recognized the anomaly and 7 months after the contractors' discovery, the Office of Administration estimated the cost of addressing the problem at about $600,000.\692\ However, by late December, the cost, including the cost of reconstruction, increased to $1 million.\693\ --------------------------------------------------------------------------- \691\ White House document production E 4076-4077 (exhibit 115). \692\ This estimate was based on a ``rough order of magnitude'' (ROM) prepared by Northrop Grumman. This ROM calculated the cost of preparing a feasibility study determining how the Mail2 problem should be remedied. See, e.g., Northrop Grumman document production NGL 00268 (exhibit 72) (describing the ROM for Mail2 reconstruction is $602,492); White House document production E 4050 (exhibit 122) (same). \693\ See, e.g., id. at E3357 (exhibit 32) (matrix describing increase in cost estimate for Mail2 reconstruction from $650,000 for fiscal year 1999 to $1 million for fiscal year 2000); id. at E 3333 (exhibit 147) (same). See also interview of Joseph Kouba, Budget Analyst, Financial Management Division, Office of Administration, in Washington, DC (May 12, 2000) (stating that he drafted exhibit 147, work-up of Armstrong Resolution Account, and indicating that he used exhibit 32 as basis for that work-up). --------------------------------------------------------------------------- In the interim between December 1998 and when the White House first disclosed the problem to this committee, the White House made no effort to obtain appropriations for the reconstruction of unrecorded e-mail.\694\ On March 17, 2000, when the White House finally informed Congress of the problems, the White House preliminarily estimated the cost for reconstruction at $1.8 to $3 million.\695\ After the White House awarded the contract for the reconstruction project to ECS Technology, Inc., the estimate was revised to $8-$10 million.\696\ --------------------------------------------------------------------------- \694\ See section III.E, above. \695\ Letter from Beth Nolan, Counsel to President, the White House, to the Honorable Dan Burton, chairman, Committee on Government Reform (Mar. 17, 2000) (within appendix I). \696\ ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 169 (May 3, 2000). --------------------------------------------------------------------------- However, on May 2, 2000, Congressman Kolbe, Chairman of the Subcommittee on Treasury, Postal Service and General Government, forwarded to the committee a copy of a letter he sent to Mark Lindsay on April 27, 2000.\697\ Congressman Kolbe's Subcommittee appropriates funds for OA. As discussed above in section III.E, in that letter, Congressman Kolbe expressed extreme concern about the revised estimate and rejected Lindsay's request for authorization to fund the reconstruction project with funds from the Armstrong Resolution Account.\698\ Nonetheless, Congressman Kolbe authorized the release of $4.8 million in unobligated funds originally appropriated for the Y2K conversion effort.\699\ But, on May 25, 2000, Congressman Kolbe wrote another letter to Lindsay in which he expressed extreme concern about the escalating cost of the reconstruction project.\700\ In particular, he noted that, based on informal conversations Lindsay had with his staff, the cost of reconstruction might require an additional $5 to $30 million.\701\ Why the White House has failed to inform this committee of this key development when it apparently felt that the development was ripe enough to bring it to Congressman Kolbe's attention, is a matter of considerable interest to the committee. --------------------------------------------------------------------------- \697\ Letter from the Honorable Jim Kolbe, chairman, Subcommittee on Treasury, Postal Service, and General Government to the Honorable Dan Burton, chairman, Committee on Government Reform (May 2, 2000) (within appendix I) (letter to Lindsay attached). \698\ Letter from the Honorable Jim Kolbe, chairman, Subcommittee on Treasury, Postal Service, and General Government to Mark Lindsay, Assistant to the President for Management and Administration, the White House (Apr. 27, 2000) (exhibit 145). \699\ Id. \700\ Letter from the Honorable Jim Kolbe, chairman, Subcommittee on Treasury, Postal Service, and General Government to the Honorable Dan Burton, chairman, Committee on Government Reform (May 25, 2000) (exhibit 171). \701\ Id. --------------------------------------------------------------------------- Not until the committee raised its concern regarding the burgeoning cost of the reconstruction project did the White House divulge to the committee the possibility that it might cost an additional $5 to $30 million.\702\ Ultimately, the White House explained that the high end of that range was cited in anticipation of potential forensic requirements from law enforcement agencies which would have required the hiring of an outside contractor.\703\ The White House also stated that an agreement had been reached with law enforcement agencies regarding the reconstruction process that ``is expected to require funding within the existing appropriation level.'' \704\ --------------------------------------------------------------------------- \702\ See notes of meeting with Lisa Klem, Associate Counsel to the President, the White House, and Michael Bartosz, Special Counsel to the Office of Administration, in Washington, DC (Sept. 14, 2000). \703\ Letter from Michael Bartosz, general counsel, the Office of Administration, to James C. Wilson, chief counsel, Committee on Government Reform (Sept. 29, 2000). \704\ Id. --------------------------------------------------------------------------- On September 29, 2000, the White House informed the committee that it obtained approval from House and Senate appropriators for $13.2 million in total funding for the reconstruction project.\705\ These funds include $8.4 million in supplemental funding appropriated in June 2000 and $4.8 million in existing funding which remained in an account originally earmarked for the White House's Y2K plan.\706\ In the context of the reconstruction project's burgeoning costs, the committee asked the General Accounting Office (GAO) to consider the extent to which the White House's mismanagement of its e-mail problems caused the exponential increase in the cost of reconstructing the unrecorded e-mails.\707\ --------------------------------------------------------------------------- \705\ Id. \706\ Id. \707\ See letter from the Honorable Dan Burton, chairman, Committee on Government Reform, to the Honorable David Walker, Comptroller General, General Accounting Office (May 25, 2000) (within appendix I) (request letter); letter from the Jack L. Brock, Director, Government- wide and Defense Information Systems Issues, General Accounting Office, to the Honorable Dan Burton, chairman, Committee on Government Reform (July 17, 2000) (within appendix I) (acceptance letter). --------------------------------------------------------------------------- V. Concerns Regarding the Joint E-mail Investigation Undertaken by Department of Justice and the Office of Independent Counsel Over the last 7 months, the committee has been deeply concerned about the Justice Department's failure to pursue vigorously allegations of obstruction that are central to the White House e-mail matter. The clear indication that the White House had failed to comply with several committee subpoenas and threatened career employees into silence led the committee to conduct a thorough investigation. Judge Royce C. Lamberth, the Federal judge hearing the Alexander v. FBI suit has also aggressively questioned witnesses about the White House's failure to review hundreds of thousands of e-mails and produce evidence in that case. By contrast, the Justice Department has been strangely passive. Its investigation into the campaign fundraising scandals stemming from the 1996 elections was also potentially obstructed by the White House's failure to comply with subpoenas. However, despite announcing that it would commence an investigation once it was clear that the Committee on Government Reform was doing so, the Justice Department has interviewed few witnesses and shown little demonstrable progress. So deep are the Justice Department's conflicts in this matter that Chairman Burton asked the Attorney General to appoint a special counsel. This request went unheeded. The White House e-mail problem became nationally prominent when it was reported on the front page of the Washington Times on February 15, 2000.\708\ On March 7, 2000, during interviews with Northrop Grumman employees, the committee learned that the Department of Justice had made no effort to contact the individuals who managed the White House e-mails.\709\ On March 8, 2000, Chairman Burton wrote to Attorney General Reno. In this letter, he indicated that the Department of Justice had neither made any effort to contact individuals who manage White House e-mails, nor had it pushed the White House for a review of pertinent information, despite the fact that the missing e- mail matter had been reported in the press.\710\ Chairman Burton also informed Attorney General Reno that, because of the e-mail problem, a potentially large category of documents relevant to the Department of Justice's own campaign finance investigation had not been reviewed.\711\ Since the Department of Justice's failure to obtain documents created the appearance that the Department had no intention of pursuing a vigorous investigation of the White House, Chairman Burton requested that Attorney General Reno inform this committee of the steps she was going to take to address the White House's failure to provide the Justice Department with critical information.\712\ --------------------------------------------------------------------------- \708\ Jerry Seper, ``White House Accused of Cover-up,'' the Washington Times, Feb. 15, 2000, at A1. The missing White House e-mail problem was discussed previously in two articles by Paul Rodriguez in Insight on the News magazine. See Paul M. Rodriguez, ``Looking for Information in All the Wrong Places,'' Insight on the News, Dec. 28, 1998, at 8; Paul M. Rodriguez, ``Honey Pot of Info Causes a Swarm,'' Insight on the News, Jan. 11-18, 1999 at 6. \709\ Letter from the Honorable Dan Burton, chairman, Committee on Government Reform, to the Honorable Janet Reno, Attorney General (Mar. 8, 2000) (within appendix I). \710\ Id. \711\ Id. \712\ Id. --------------------------------------------------------------------------- On March 21, 2000, having received no response to the previous letter, Chairman Burton again wrote to Attorney General Reno about the e-mail problem. In this letter, the Chairman called the Department of Justice's attention to the fact it was working on both sides of the same case. Lawyers in the Justice Department's Civil Division were defending the White House in the Alexander v. FBI civil lawsuit. Their actions helped conceal the fact that the White House had failed to review a large quantity of potential evidence needed by prosecutors in the Justice Department's own Campaign Financing Task Force. As Chairman Burton stated: Currently, the Justice Department is representing the Executive Office of the President (``EOP'') in civil suits brought in the ``Filegate'' \713\ case. In recent pleadings, plaintiffs have alleged suppression of evidence and threatening of witnesses concerning mismanaged White House e-mail records that may touch on Filegate matters affecting their case. Rather than responding to the Plaintiffs' allegations with concern, or even withdrawing from the case, the Justice Department lawyers have responded like seasoned defense counsel: they disparaged the plaintiffs' claims; they said that this was old news; and they claimed that it would be impossible to produce the e-mails.\714\ --------------------------------------------------------------------------- \713\ Alexander v. FBI is commonly referred to as ``Filegate.'' \714\ Letter from the Honorable Dan Burton, chairman, Committee on Government Reform, to the Honorable Janet Reno, Attorney General 1 (Mar. 21, 2000) (within appendix I). Chairman Burton believed that this representation created a --------------------------------------------------------------------------- clear conflict of interest: The Justice Department is supposed to be conducting a thorough criminal investigation of allegations of illegal fundraising in the 1996 elections, including allegations about White House involvement in the scandal. Just last week, you stated that ``the investigation continues, and we will continue to pursue every lead.'' Yet, the Justice Department's filing in the Filegate case makes it clear that you are not making any effort to follow this lead. In fact, the Justice Department is disparaging these claims, and is assisting the White House in its efforts to keep these records from being produced to the Justice Department or any other investigative body.\715\ --------------------------------------------------------------------------- \715\ Id. at 2. For example, in a memorandum filed in the Alexander case on March 6, 2000, the Department of Justice, serving as counsel for the White House, characterized the plaintiff's allegations as ``offensive.'' \716\ Then it stated that the ``technical failure [to produce the e-mails] is a long standing matter of public record that has been confirmed by the White House itself.'' \717\ The principal reason this statement is problematic is that the White House failed to confirm the existence of the problem to Congress, the Justice Department Campaign Financing Task Force, independent counsels. Such examples of conflict of interest led Chairman Burton to conclude his March 21, 2000, letter by stating that it was ``inconceivable that the Justice Department can on the one hand help the White House avoid production of the missing e-mails, and on the other hand, aggressively pursue the e-mails in the campaign fundraising investigation.'' \718\ Indeed, it currently appears that Attorney General Reno has more of her staff defending the White House than investigating the White House. There is not even an effort to effect an appearance of impartiality. --------------------------------------------------------------------------- \716\ See Executive Office of the President's Memorandum in Opposition to Plaintiff's Requests to Restrict Disclosure of the First and Second Supplements to Plaintiff's Motion for Evidentiary Hearing, and in Support of Cross-motion for Expedited Consideration Transcript of Motions Hearing at 1, Alexander v. FBI (D.D.C. Mar. 6, 2000) (CA 96- 2123). \717\ Id. at 6. \718\ Letter from the Honorable Dan Burton, chairman, Committee on Government Reform, to the Honorable Janet Reno, Attorney General 1 (Mar. 21, 2000) (within appendix I). --------------------------------------------------------------------------- On March 23, 2000, the committee held its first hearing on the White House e-mail problem. That very same day, despite the committee's concern about Department of Justice's dual role, the Department announced in an Alexander court filing that it too had commenced a criminal investigation of the White House e-mail problem.\719\ As a result, the committee was left with no choice but to call for Attorney General Reno to appointment a special counsel. The Chairman did so on March 27, 2000.\720\ Chairman Burton indicated to Attorney General Reno that: --------------------------------------------------------------------------- \719\ The Department of Justice's e-mail investigation would be conducted by its Campaign Financing Task Force. \720\ Letter from the Honorable Dan Burton, chairman, Committee on Government Reform, to the Honorable Janet Reno, Attorney General 2 (Mar. 27, 2000) (within appendix I). The issue is relatively simple: either White House lawyers made a good faith attempt to do what they were required to do by law, or they did not. It is my belief that your Justice Department cannot be relied upon to get to the bottom of this matter because of the conflict within the Justice Department and because of your own demonstrated lack of enthusiasm when it comes to investigating the White House, the President, the Vice President, and your political party.\721\ --------------------------------------------------------------------------- \721\ Id. at 7. The committee believes it is important that the Department of Justice remove itself entirely from this investigation and appoint an outside counsel. ``The individual chosen should be completely independent, should have no current ties to the Justice Department, and should be seen by the American people as fair and impartial.'' Letter from the Honorable Dan Burton, chairman, Committee on Government Reform, to the Honorable Janet Reno, Attorney General 2 (Mar. 27, 2000) (within appendix I). Three days later, on March 30, 2000, Chairman Burton again stressed the serious need for the appointment of a special counsel to Attorney General Reno. ``The Justice Department cannot investigate these allegations against itself. To attempt to do so would cripple the investigation, and continue to erode the little remaining trust that the Congress and the public have in you and the Department of Justice.'' \722\ --------------------------------------------------------------------------- \722\ Letter from the Honorable Dan Burton, chairman, Committee on Government Reform, to the Honorable Janet Reno, Attorney General 5 (Mar. 30, 2000) (within appendix I). --------------------------------------------------------------------------- Even though news reports indicated it was unlikely that Attorney General Reno would appoint a special counsel,\723\ on March 28, 2000, Justice Department Spokesman Myron Marlin stated that the Department was ``considering'' whether or not ``yet another outside investigator [was] truly necessary.'' \724\ The tone of Marlin's comment made it quite clear that the Justice Department had made up its mind even as Department lawyers continued to maintain that the request was still under consideration. --------------------------------------------------------------------------- \723\ Joe Matthews, ``Burton Seeks Special Counsel in E-mail Probe,'' the Wall Street Journal, Mar. 28, 2000, at A6. \724\ Philip Shenon, ``Republican Lawmaker Seeks Special Counsel in E-mail Feud,'' the New York Times, Mar. 28, 2000, at A18 (emphasis added). --------------------------------------------------------------------------- At the same time, the White House had no qualms about making known to both the American public and the Department of Justice its dismissive views regarding the committee's request for a special counsel. Joe Lockhart, White House Press Secretary, stated the following: I think the Justice Department will have to make that decision. I will only remind people that, you know, Dan Burton asking for an outside counsel or a special counsel is like the sun coming up in the morning. It happens, you know, once a week or once a month and you all will have to remember, all of the pressing issues that he called for outside counsels on and what came of them.\725\ --------------------------------------------------------------------------- \725\ Joseph Lockhart, Assistant to the President and Press Secretary, White House press conference, Washington, DC (Mar. 28, 2000). This is not the first time Lockhart has made inaccurate comments to the press that were intended to harm the reputation of Chairman Burton and the integrity of this committee's investigations. For example, as the committee began the investigation of President Clinton's grant of clemency to FALN members, Lockhart, at a Sept. 16, 1999, White House press briefing, stated: We're now hearing and getting subpoenas from a committee chairman who--I don't really know what legislative accomplishments he's had in his tenure as chairman. But I can tell you that we've gotten something like 700 subpoenas from him[.] This is about trying to pursue a political --------------------------------------------------------------------------- agenda, and it's about politics here. The committee immediately responded to Lockhart's inaccurate statement. ``[The Committee] has issued a total of 26 subpoenas to the White House and White House officials since Congressman Burton became Chairman in January 1997.'' Letter from Kevin Binger, staff director, Committee on Government Reform, to Joseph Lockhart, Assistant to the President and Press Secretary (Sept. 17, 1999) (the current total of document subpoenas issued to the White House is 31) (exhibit 169). White House spokesman Jim Kennedy reiterated Lockhart's flippant and diversionary attitude toward this committee's desire for legitimate, untainted investigations: ``wind has to blow, rain has to fall, and Dan Burton has to call for special counsels.'' \726\ Notwithstanding this overblown rhetoric, Chairman Burton has asked for the appointment of an independent or special counsel only twice: the campaign finance investigation and the White House e-mail investigation. --------------------------------------------------------------------------- \726\ Philip Shenon, ``Republican Lawmaker Seeks Special Counsel in E-mail Feud,'' the New York Times, Mar. 28, 2000, at A18. --------------------------------------------------------------------------- a. the attorney general's refusal to appoint a special counsel On April 12, 2000, the Department of Justice replied to the committee's March 8, March 21, March 27, and March 30, 2000, letters. Regarding the committee's concern about a conflict of interest in the e-mail matter, Assistant Attorney General Robert Raben provided the following explanation: The Department often represents the interests of a governmental entity in civil litigation where an issue presented in that civil case touches upon a pending criminal investigation. If an aspect of an ongoing civil case threatens to duplicate or interfere with the conduct of an ongoing criminal investigation, the Department often seeks to stay that part of the civil case that might duplicate or interfere with the progress of the criminal investigation. That is precisely the relief the Department sought in the Alexander case, in which the Department asserted that the lawyers in the Civil Division, who had been looking into the email [sic] issue, should not proceed with that investigation because it could duplicate or compromise the investigation by the Task Force and the Office of Independent Counsel.\727\ --------------------------------------------------------------------------- \727\ Letter from Robert Raben, Assistant Attorney General, to the Honorable Dan Burton, chairman, Committee on Government Reform 1-2 (Apr. 12, 2000) (within appendix I). Raben's explanation failed to relieve the committee of its concern that the Department of Justice would be operating under a conflict of interest when investigating the e-mail matter. First, the Department of Justice's Civil Division representation of the White House in the Alexander case does not simply ``touch upon'' the Campaign Financing Task Force's criminal investigation into the e-mail problem. Instead, the Department of Justice is defending its client's actions in one case, while conducting a criminal investigation into the exact same conduct in the other. As the committee pointed out in its March 27, 2000, letter, even Robert J. Conrad, Jr., the Chief of the Department of Justice Campaign Financing Task Force noted the conflict of interest. Conrad, in a March 22, 2000, declaration to the U.S. District Court for the District of Columbia stated that ``continued inquiry into this matter by the Civil Division . . . would interfere with and potentially compromise the Task Force's own investigation of the pending allegations.'' \728\ It is unfortunate that Attorney General Reno did not heed Conrad's warning. Second, the Department of Justice's explanation for why it can investigate and defend the same conduct is premised upon receiving a stay in the Alexander case. The Department of Justice has received no such stay. Instead, both cases are moving forward and the conflict of interest remains. --------------------------------------------------------------------------- \728\ Declaration of Robert J. Conrad, Chief, Campaign Financing Task Force, Department of Justice, at para. 7, Alexander v. FBI (D.D.C. Mar 22, 2000, amend. Mar. 23, 2000) (CA 96-2123) (exhibit 184). Chairman Burton called Attorney General Reno's attention to Conrad's position in a Mar. 27, 2000, letter. Letter from the Honorable Dan Burton, chairman, Committee on Government Reform, to the Honorable Janet Reno, Attorney General 1 (Mar. 27, 2000) (within appendix I). --------------------------------------------------------------------------- In response to the committee's request for a Special Counsel, on April 12, 2000, Assistant Attorney General Robert Raben indicated that ``the Office of Independent Counsel already [was] investigating the e-mail issue in coordination with the Task Force.'' \729\ Raben indicated, however, that the Department of Justice was ``carefully reviewing whether a second outside counsel should be appointed to investigate this matter.'' \730\ At a May 3, 2000, hearing, Raben was questioned by committee staff: --------------------------------------------------------------------------- \729\ Letter from Robert Raben, Assistant Attorney General, to the Honorable Dan Burton, chairman, Committee on Government Reform 2 (Apr. 12, 2000) (within appendix I). \730\ Id. Counsel. On March 27, which is now, I guess, 5 weeks ago, the Chairman of the Committee made a request to the Department of Justice to appoint a special counsel to investigate the e-mail matter. As of this date, there has been no response to the request, and now that you're here, perhaps you can provide us an official --------------------------------------------------------------------------- response if there is one. Mr. Raben. Yes. The official response is that we continue to work on it, that it's a serious request, and that it's being taken seriously.\731\ --------------------------------------------------------------------------- \731\ ``Missing White House E-mails: Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 194 (May 3, 2000) (statement of Robert Raben, Assistant Attorney General, Department of Justice). On May 6, 2000, the committee learned that Raben's testimony was not accurate. During a committee hearing on that date, committee staff questioned Lee Radek, Chief of the Department of Justice Public Integrity Section, about pending special counsel decisions. Radek is in charge of handling matters that relate to the appointments of special counsels under the Department of Justice regulations, and the following exchange --------------------------------------------------------------------------- occurred: Counsel. Are there any pending decisions that pertain to appointing a special counsel in any campaign finance matter? Mr. Radek. There are none.\732\ --------------------------------------------------------------------------- \732\ ``The Justice Department's Implementation of the Independent Counsel Act,'' hearings before the Committee on Government Reform, 106th Congress 83-84 (June 6, 2000) (testimony of Lee Radek, Chief Public Integrity Section, Department of Justice). Especially after Attorney General Reno's rejection of an independent counsel in the campaign fundraising matter, Mr. Radek's testimony came as no surprise, but as a great disappointment, to this committee. b. tony barry's false statements to the alexander court underscore the justice department's conflict of interest The Justice Department's investigation is flawed on many fronts. Perhaps the most troubling flaw in the Department's handling of the e-mail matter is evidenced by its actions--and subsequent lack of action--regarding the false statements submitted in Federal court by Tony Barry. The involvement of White House and Justice Department lawyers in Barry's June 11, 1998, deposition and July 9, 1999, affidavit should be a focal point of the Department's criminal investigation. However, even though it is the subject of a criminal referral from Congress, the Justice Department apparently is no longer interested in investigating Barry's false affidavit and the counsel he received before signing the affidavit.\733\ The committee believes that the recent decisions in the criminal investigation have let government lawyers off the hook. This underscores the conflict of interest inherent in the Justice Department's e-mail probe. --------------------------------------------------------------------------- \733\ Letter from the Honorable Dan Burton, chairman, Committee on Government Reform, to the Honorable Janet Reno, Department of Justice (Mar. 30, 2000) (within appendix I). --------------------------------------------------------------------------- Not only has the Justice Department failed to investigate fully the role of its own lawyers in the deposition and affidavits of Daniel Barry, it has also failed to cooperate with this committee's investigation. On April 3, 2000, the committee requested interviews with James Gilligan, Elizabeth Shapiro, Julia Fayngold-Covey, Allison Giles, and Ann Weisman.\734\ Rather than making these Civil Division lawyers available for interviews with committee staff, Assistant Attorney General Robert Raben selectively asserted the ``longstanding Department policy that line attorneys and agents not be required to answer questions from Congress about the conduct of Department litigation and investigations.'' \735\ The Department had selectively invoked the ``line attorney policy'' on several earlier occasions to avoid disclosing to the committee information embarrassing to the Justice Department. However, when the Justice Department sought to disclose information that was favorable to the Department, it gladly made line attorneys available. For example, the Department provided line attorneys for congressional questioning in the Rocky Flats investigation, the Waco investigation, and even in one case, provided a line attorney in the campaign fundraising investigation to the Senate.\736\ The selectivity of the Department's invocation of the ``line attorney policy'' suggests that it is eager to keep the committee from fully understanding the role of its attorneys in providing false statements in the Alexander case. --------------------------------------------------------------------------- \734\ Letter from the Honorable Dan Burton, chairman, Committee on Government Reform, to the Honorable Janet Reno, Attorney General, Department of Justice (Apr. 3, 2000) (within appendix I). \735\ Letter from Robert Raben, Assistant Attorney General, Department of Justice, to the Honorable Dan Burton, chairman, Committee on Government Reform (Apr. 12, 2999) (within appendix I). \736\ The Justice Department provided Marie Hagen to this committee for questioning regarding the Waco case. It provided Stephen Mansfield to the Senate Judiciary Committee for questioning regarding the Department's investigation of the Hsi Lai Temple fundraiser. --------------------------------------------------------------------------- 1. Tony Barry Made False Statements in His June 11, 1998, Deposition The July 9, 1999, Barry affidavit (that is the subject of the committee's criminal referral) is not the only submission to Judge Royce Lamberth's court that White House and Justice Department lawyers have had a hand in. Government lawyers also assisted Barry with two earlier declarations for the court in the Alexander v. FBI litigation, as well as with a deposition on June 11, 1998.\737\ Former Special Associate Counsel Sally Paxton worked with Barry on the deposition on behalf of the White House. Justice Department lawyer James Gilligan participated in the actual proceeding on behalf of the government. Barry later faxed edits to his deposition transcript to Julia Fayngold-Covey at the Justice Department.\738\ During the deposition, Barry was asked several questions about e-mails and ARMS. Key sections of Barry's responses in the deposition transcript read as follows: --------------------------------------------------------------------------- \737\ Deposition of Daniel A. Barry, Alexander v. FBI (D.D.C. June 11, 1998) (CA 96-2123). \738\ See White House document production E 4019 (exhibit 114). Q. The e-mail messages from July 14, '94, onward, are they on hard drives now, are they on tapes, are they on --------------------------------------------------------------------------- both, where are they on? A. They currently reside in the ARMS, Automated Records Management System data warehouse.\739\ --------------------------------------------------------------------------- \739\ Deposition of Daniel A. Barry at 145, Alexander v. FBI (D.D.C. June 11, 1998) (CA 96-2123). * * * * * * * Q. If someone did send or receive E-mail on their official account from home, would it be backed up and archived just as if it were sent from within their --------------------------------------------------------------------------- office? A. Yes.\740\ --------------------------------------------------------------------------- \740\ Id. at 274. --------------------------------------------------------------------------- By Mr. Gilligan: Q. Mr. Favish was speaking to you earlier, Mr. Barry, about a situation he posited where somebody working in the White House would send an e-mail from their desk top PC to somebody in Idaho; do you recall that? A. Yes. Q. An e-mail of that kind, would that be stored in the Automated Records Management System? A. Yes it would. Q. How about the reverse, if an e-mail came in [from] Idaho to somebody's desk top PC in the White House, would that also be found stored in the Automated Records Management System? A. If it was directed to their E-mail ID at the EOP, yes, it would be.\741\ --------------------------------------------------------------------------- \741\ Id. at 282-283. As discussed in earlier sections of this report, Tony Barry became fully aware of the failure of the ARMS system immediately after this deposition.\742\ While he may not have known that his statements were false when he was deposed, he certainly did know soon thereafter. Barry was given the opportunity to review the transcript in July 1998.\743\ At least two e-mails from Barry indicate that he reviewed the transcripts in the same week that he was working on the Mail2 problem.\744\ In fact, in his July 10, 1998, e-mail Barry wrote: --------------------------------------------------------------------------- \742\ Interview of Daniel A. Barry, Computer Specialist, Office of Administration, in Washington, DC (Mar. 9, 2000). As discussed above in section II.A.1, Barry may have understood the problem as early as January 1998, well before his deposition. However, it is clear that he fully understood the problem immediately after his deposition in early July 1998, when he returned from vacation. Id. \743\ White House document production E 4021 (exhibit 88). \744\ Id. See also id. at E 4019 (exhibit 114). I spent about 10 hours this week reading and marking up my [deposition] \745\ in the Alexander case. I faxed the pages that needed changing to Julia Feingold [sic] at DOJ and she is to submit the changes for inclusion into the final. I spend [sic] a considerable amount of time this week working on the Mail2 problem.\746\ --------------------------------------------------------------------------- \745\ Although Barry's e-mail actually used the word ``declaration'' rather than ``deposition,'' his testimony and other evidence make it clear that he meant to write ``deposition.'' First, there was no declaration given by Barry in the summer of 1998. Second, Barry testified in Federal court that he was referring to his deposition: ``I frequently get confused between declaration and deposition.'' See Transcript of Evidentiary Hearing at 73-74, Alexander v. FBI (D.D.C. Aug. 17, 2000) (CA 96-2123). \746\ White House document production E 4019 (exhibit 114). Barry knew that incoming e-mail to White House Office users was not being transferred to ARMS at the time he reviewed his deposition transcript. He had the opportunity to correct the record, but he did not. As a result, a deposition containing clearly false testimony became part of the record in the Alexander case. It is further troubling to the committee that Sally Paxton did not take the appropriate steps to ensure that the above deposition statements were corrected. In fact, she stated in an interview with the committee that she did not know for certain if she herself reviewed the deposition transcript.\747\ She also stated that, in general, she told Barry not to change the substance of depositions because it could open him up to being re-deposed.\748\ Asked if she instructed people not to change the substance of a deposition even if they saw a substantive error, Paxton responded: ``If anybody has an issue with anything [in a deposition], I expect them to raise it. But I don't think I ever gave such an instruction.'' \749\ The committee believes Paxton's cavalier attitude toward the deposition process is at least partially responsible for falsities becoming part of the record in the Alexander case. As Barry's attorney, Paxton had an affirmative obligation, independent of Barry, to ensure that the transcript was corrected to reflect the full truth.\750\ --------------------------------------------------------------------------- \747\ Interview of Sally Paxton, former Special Associate Counsel to the President, the White House, in Washington, DC (June 22, 2000). \748\ Id. \749\ Id. \750\ In Alexander, the Justice Department and its client, the Executive of the President (EOP), offered Barry as an expert witness to testify as to how ARMS was used to records manage e-mail. By mid-1998, the Justice Department and Special Associate White House Counsel Sally Paxton likely learned that the White House's burgeoning e-mail problems might have materially affected elements of Barry's deposition testimony such that it was no longer accurate, complete or true. Accordingly, the Justice Department, and possibly Paxton, had an affirmative duty to disclose the new information. In particular, Federal Rule of Civil Procedure 26(e)(1) provides that ``[a] party who . . . responded to a [discovery] request . . . is under a duty to supplement or correct the disclosure or response to include information thereafter acquired . . . in the following circumstances: . . . With respect to [expert witness] testimony . . . the duty extends . . . to information provided through a deposition of the expert.'' Similar obligations might extend to a larger set of government attorneys under the local rules of court and/ or the ethical rules of professional responsibility. --------------------------------------------------------------------------- 2. Tony Barry Made False Statements in His July 9, 1999, Affidavit White House and Justice Department lawyers were also involved in the drafting and preparation of Barry's July 9, 1999, affidavit in the Alexander case.\751\ The affidavit was prepared to provide the court with an explanation of how the White House would conduct the plaintiff's request to search for e-mail relating to the case. Former Associate Counsel Michelle ``Shelly'' Peterson handled this matter for the White House.\752\ It appears that Civil Division attorneys Allison Giles, Jason Baron, and James Gilligan were responsible for the affidavit on behalf of the Justice Department.\753\ In fact, Giles and Barry faxed various iterations of the affidavit back and forth in the week prior to its submission.\754\ --------------------------------------------------------------------------- \751\ Responding to a question on who was responsible for the affidavit, Michelle ``Shelly'' Peterson testified: ``It was the joint responsibility on part of the Justice Department lawyers and me with the understanding that since Tony was signing it, Tony would tell us if there was anything in it that was inaccurate.'' Transcript of Evidentiary Hearing at 222, Alexander v. FBI (D.D.C. Aug. 28, 2000) (CA 96-2123). \752\ Id. \753\ A fax cover sheet from Giles to Barry on July 8, 1999, reads: ``Tony, this should reflect your changes, as well as the changes proposed by Jason [Baron] that I mentioned. I changed the font to match the font I'm using in the brief. I'll see you tomorrow morning at 8:00. Thanks, Allie.'' Id. at 159 (Aug. 17, 2000). According to Jim Wright, Gilligan may have told Barry that he did not have to write ``to the best of my knowledge'' at the bottom of the affidavit because they would defend him if there were any problems. Interview of Jim Wright, Branch Chief for the Data Center and COTR, OA, in Washington, DC (June 8, 2000). \754\ Id. --------------------------------------------------------------------------- Paragraph four of the July 9, 1999, affidavit that was submitted to the court reads: Since July 14, 1994, e-mail within the EOP system administered by the Office of Administration has been archived in the EOP Automated Records Management System (ARMS). With this current system, this e-mail is susceptible to being word-searched for a single character string (e.g. ``FBI'' or ``FBI files'') or a multiple character string (``and'' and ``or'' searches) found on any one line of text.\755\ --------------------------------------------------------------------------- \755\ Affidavit of Daniel A. Barry, Computer Specialist, Office of Administration, at 1-2, Alexander v. FBI (D.D.C. July 9, 1999) (CA 96- 2123) (exhibit 192). Based on this language, this committee sent a criminal referral to Attorney General Reno on March 30, 2000.\756\ As stated in the referral letter, Barry's statement was false and he knew it was false. Barry knew it was false because, ``[a]t the Committee's hearing on March 23, 2000, Barry testified he was informed of the problem in July 1998, and that after that point, he attended technical meetings in the summer of 1998 and discussed in great detail the nature and scope of the problem.'' \757\ Furthermore, as the many e-mail messages he sent to others indicate, he was the person who worked the hardest to convince superiors that something had to be done to archive e-mail and re-do all necessary searches. Indeed, the committee recognizes that before his deposition testimony and affidavit submission, Barry repeatedly sought direction from superiors in order to ensure that the White House would reconstruct the unarchived e-mail. --------------------------------------------------------------------------- \756\ See letter from the Honorable Dan Burton, chairman, Committee on Government Reform, to the Honorable Janet Reno, Attorney General, Department of Justice (Mar. 30, 2000) (within appendix I). \757\ Id. at 3-4. --------------------------------------------------------------------------- Early on in the investigation, the White House attempted to defend paragraph four of the July 9, 1999, affidavit by parsing the words of the statement. Testifying before the committee on March 30, 1999, White House Counsel Beth Nolan stated that the language was accurate because ``e-mail was archived. It turned out that some e-mail was not captured, but e-mail was archived.'' \758\ Nolan went on to say, ``This was not an affidavit saying--from Tony Barry saying we have produced all the e-mail or all e-mail is captured. It was describing the system for a potential e-mail search.'' \759\ This line of defense was later echoed by Barry himself, in an exchange with Judge Lamberth regarding similar language in paragraph 11 of his earlier March 4, 1998, affidavit on the same subject: --------------------------------------------------------------------------- \758\ ``Missing White House E-mails: Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 36 (Mar. 30, 2000) (testimony of Beth Nolan, Counsel to the President, the White House). \759\ Id. at 37. The Witness. It seems to me, Your Honor, that everybody thinks that I said--or that was said in that paragraph was that all e-mail was in ARMS, and I never--it was --------------------------------------------------------------------------- never meant to be that, as far as I was concerned. The Court. You just said e-mail within EOP has been archived weekly. Would that not imply to the ordinary reader that that meant all the e-mail? Why wouldn't that imply that to me as I read that? Why would I think it only meant some e-mail? \760\ --------------------------------------------------------------------------- \760\ Transcript of Evidentiary Hearing at 161, Alexander v. FBI (D.D.C. Aug. 3, 2000) (CA 96-2123). Although Barry explained to Judge Lamberth that he believed he was writing the affidavit in the context of being the expert on the All-in-One system, it was apparent that the Judge would not accept the White House's alternative explanation for the affidavit.\761\ As discussed below, Judge Lamberth eventually heard Mark Lindsay concede that the July 9, 1999, affidavit was false. --------------------------------------------------------------------------- \761\ Id. at 161-62. See also affidavit of Daniel A. ``Tony'' Barry at para. 11, Alexander v. FBI (D.D.C. Mar. 4, 1998) (CA 96-2123) (exhibit 188). --------------------------------------------------------------------------- By counseling Barry through the process of preparing and submitting the false affidavit to the court, Justice Department and White House lawyers were complicit in the fraud perpetrated upon Judge Royce Lamberth's court. Nevertheless, Shelly Peterson testified in court and stated to this committee that the lawyers believed the affidavit to be true. As she testified on August 28, 2000, ``I don't believe--I know for certain that at the time no one at the Justice Department believed there was anything inaccurate in this declaration or that I knew there was anything inaccurate in his declaration.'' \762\ Peterson also stated to this committee, ``[t]here's nothing in [the declaration] that I thought was inaccurate--nothing gave me pause.'' \763\ --------------------------------------------------------------------------- \762\ Transcript of Evidentiary Hearing at 231, Alexander v. FBI (D.D.C. Aug. 28, 2000) (CA 96-2123). \763\ Interview of Michelle Peterson, former Associate Counsel, the White House, in Washington, DC (June 8, 2000). --------------------------------------------------------------------------- The committee finds these statements troubling. White House and Justice Department lawyers worked in close consultation with Tony Barry who had known for over a year that there was a problem with the ARMS system. They had helped him with two previous declarations, as well as the June 11, 1998, deposition. The failure of the government lawyers to make the court aware of the false statements in the July 9, 1999, affidavit was, in the view of the committee, a dereliction of duty. As with Paxton and Fayngold-Covey in the review of the deposition, Peterson, Giles, and the other Justice Department lawyers had an affirmative obligation to present the truth in an affidavit submitted in Federal court. 3. The Justice Department Has Declined to Make Barry a Target in the E- mail Investigation Despite the clearly false statement in the July 9, 1999, affidavit, the clearly false statements in the June 11, 1998 deposition, and the assistance and counsel provided to Barry by the various government lawyers discussed above, the Justice Department recently sent Barry a letter assuring him that he was not a target in the e-mail investigation.\764\ --------------------------------------------------------------------------- \764\ Id. Letter from Alan Gershel, Deputy Assistant Attorney General, Department of Justice, to Steve Ryan, Counsel to Daniel A. ``Tony'' Barry (Aug. 1, 2000) (exhibit 185). The letter states, in pertinent part, that ``Daniel Barrie [sic] . . . is not currently a target of [the e-mail] investigation.'' --------------------------------------------------------------------------- It is a matter of some concern that the adviser to the Attorney General in charge of this investigation was not even able to spell Barry's name correctly.\765\ Far from a simple typographical error, Deputy Assistant Attorney General Alan Gershel repeatedly referred to Mr. ``Barrie.'' \766\ It is difficult to believe that Gershel had reviewed the relevant documents relating to Barry, or understood his significance in the e-mail investigation if he could not even spell his name. It should be noted that Gershel, the primary political supervisor of the Campaign Financing Task Force, took a break from his duties to act as lead counsel in the prosecution of former independent counsel spokesman Charles Bakaly.\767\ As the committee noted in a September 7, 2000, letter to Attorney General Reno: --------------------------------------------------------------------------- \765\ Id. \766\ See id. Not only was Gershel unfamiliar with a possible target in the e-mail investigation, he also demonstrated a disturbing lack of knowledge about a felon convicted by the very Campaign Financing Task Force that he is purportedly supervising. Gershel demonstrated in testimony before the committee that he was unfamiliar with Howard Glicken, who was Vice President Al Gore's top supporter in Florida, a frequent visitor to the White House, and who was convicted of soliciting foreign contributions to the Democratic National Committee. ``Contacts Between Northrop Grumman Corporation and the White House Regarding Missing White House E-mails,'' hearings before the Committee on Government Reform, 106th Cong. 98-99 (Sept. 26, 2000). \767\ See Larry Margasak, ``Trial Ends for Ex-Starr Press Aide,'' Associated Press (July 19, 2000) (describing Gershel's involvement in Bakaly's prosecution). After Mr. Barry was officially determined not to be a target of the [White House e-mail] investigation, Mark Lindsay testified to Judge Lamberth that paragraph four of the July 9, 1999, affidavit Mr. Barry submitted to the court in the Alexander v. FBI case was not true. As you know, the Committee submitted to you a criminal referral on Mr. Barry based on paragraph four of his July 9, 1999, affidavit. The admission by a high- ranking official in the White House that Mr. Barry's affidavit is not true should be of great concern to you. Apparently the ``no target'' letter sent by your Justice Department gave the White House comfort finally to admit what was obvious to me, Judge Lamberth and others. To wit, a White House employee, aided and counseled by the Justice Department lawyers, submitted a false affidavit to a Federal court that concealed the failure of the White House to search for all e-mails responsive to subpoenas.\768\ --------------------------------------------------------------------------- \768\ Letter from the Honorable Dan Burton, chairman, Committee on Government Reform, to the Honorable Janet Reno, Attorney General, Department of Justice 2 (Sept. 7, 2000) (within appendix I). On August 23, 2000, Lindsay made a significant admission regarding the affidavit under direct questioning by Judge --------------------------------------------------------------------------- Lamberth: Q. Okay. Now, paragraph 4 . . . Given what you learned in June 1998 that e-mail was not being archived coming from the outside into the ARMS system, this statement is incorrect? A. I think it's incomplete, yes. Q. And, in fact, if you had written the affidavit, you would have advised this Court that e-mail was not being archived coming in from outside of EOP? A. I don't know what I would have done. I know knowing what I know right now I probably would have put it in there, yes. Q. I turn your attention to---- The Court. Well, you also know that that statement that's in there right now is not true? The Witness: Yes.\769\ --------------------------------------------------------------------------- \769\ Transcript of Motions Hearing at 167-68, Alexander v. FBI (D.D.C. Aug. 23, 2000) (CA 96-2123). The committee appears to be correct in its concerns that the Department of Justice has a significant conflict of interest in the e-mail investigation. The Criminal Division is responsible for investigating the Civil Division for its role in preparing and submitting the June 11, 1998, deposition and the July 9, 1999, Barry affidavit--an affidavit that the White House now admits is false. By letting Tony Barry off the hook, presumably Justice Department lawyers are off the hook as well. As Chairman Burton wrote to Attorney General Reno ``Justice Department lawyers are giving other Justice Department lawyers--who should bear some culpability for the affidavit they helped draft--a clean bill of health. This takes the conflict of interest inherent in the Department's investigation of the e-mail scandal to a new, unprecedented level.'' \770\ The need to avoid such a whitewash is precisely the reason that Chairman Burton requested Attorney General Reno to appoint a Special Counsel in the first place. --------------------------------------------------------------------------- \770\ Letter from the Honorable Dan Burton, chairman, Committee on Government Reform, to the Honorable Janet Reno, Attorney General, Department of Justice 2 (Sept. 7, 2000) (within appendix I). --------------------------------------------------------------------------- c. the department of justice's failure to interview material witnesses in a timely fashion Another example of Department of Justice's substandard investigation was its failure to take the most fundamental step of interviewing key, material witnesses. In a June 28, 2000, letter, Chairman Burton called Attorney General Reno's attention to the fact that, since she was a prosecutor, she should be ``well aware of the importance of moving swiftly to obtain testimony and documents.'' \771\ The Chairman continued, ``[i]f you don't ask questions, and if you don't subpoena documents, you don't get answers to questions.'' \772\ Throughout the summer, the committee's concerns that witnesses were not being interviewed remained. As a result, the committee contacted the witnesses directly to see if the Department of Justice or the Office of Independent Counsel had interviewed them. It came as a great disappointment that as of late August, the following witnesses still had not been interviewed by the Department of Justice: --------------------------------------------------------------------------- \771\ Letter from the Honorable Dan Burton, chairman, Committee on Government Reform, to the Honorable Janet Reno, Attorney General, Department of Justice 2 (June 28, 2000) (within appendix I). \772\ Id. at 5. --------------------------------------------------------------------------- <bullet> Mark Lindsay; <bullet> Michelle Peterson; <bullet> John Podesta; <bullet> Dorothy Cleal; <bullet> Adam Greenstone; <bullet> Joe Kouba; <bullet> Joe Vasta; <bullet> Jim DeWire; <bullet> Christina VanFossan; <bullet> Joseph Lucente; <bullet> Katherine Anderson; <bullet> Cary Havert; <bullet> Howard ``Chip'' Sparks; and <bullet> Michael Lyle.\773\ --------------------------------------------------------------------------- \773\ Specifically, the following witnesses had not been interviewed by the dates noted in parentheses: Mark Lindsay (Aug. 23, 2000), Michelle Peterson (Aug. 28, 2000), John Podesta (Sept. 5, 2000), Dorothy Cleal (Sept. 1, 2000), Adam Greenstone (Aug. 31, 2000), Joe Kouba (Aug. 31, 2000), Joe Vasta (Aug. 30, 2000), Jim DeWire (Aug. 30, 2000), Christina VanFossan (Aug. 30, 2000), Joseph Lucente (Aug. 30, 2000), Katherine Anderson (Aug. 29, 2000), Cary Havert (Sept. 6, 2000), Howard ``Chip'' Sparks (Aug. 30, 2000), Tung Q. ``Eric'' Duong (Sept. 7, 2000), and Michael Lyle (Aug. 29, 2000). On Aug. 30, 2000, Laura Callahan's counsel, Ralph Lotkin, refused to answer the committee's inquiries as to whether or not the Department of Justice or Office of Independent Counsel had interviewed Callahan. On Sept. 6, 2000, Sally Paxton's counsel, Steve McNabb, also refused to answer the committee's inquiries. Nell Doering and Karl Heissner, both represented by John Zwerling, were interviewed by the Department of Justice. On Aug. 29, 2000, however, Mr. Zwerling refused to answer the committee's inquiry as to whether or not the Office of Independent Counsel had interviewed either of his clients. More than 5 months after Attorney General Reno launched the Department's criminal investigation and the committee called for the appointment of a special counsel, major witnesses have not been interviewed. As was pointed out previously to Attorney General Reno in another investigation: ``[i]f you fail to gather evidence, then you will never be able to get to the bottom of matters or project confidence that you have been thorough and fair.'' \774\ --------------------------------------------------------------------------- \774\ Letter from the Honorable Dan Burton, chairman, Committee on Government Reform, to the Honorable Janet Reno, Attorney General, Department of Justice 2 (Dec. 16, 1999) (exhibit 183). --------------------------------------------------------------------------- Additionally, the committee remains concerned about potential failures it does not and may never know about. Because of the secrecy involved with Department of Justice's investigations, it is difficult for this committee, in its oversight capacity, to assess the effectiveness and adequacy of the Department's investigations. Normally, the committee would defer to the strategies of Department of Justice career lawyers in investigations. Unfortunately, with its track record under Attorney General Reno's command, the committee cannot place such confidence in the Department of Justice where investigations of corruption and illegalities in the Clinton- Gore administration are concerned. For example, the committee suspected that the Department of Justice was provided extremely important documents regarding the Vice President's e-mail problems not because of its own independent investigation, but because this committee subpoenaed them and the White House provided identical copies to the Justice Department.\775\ --------------------------------------------------------------------------- \775\ Letter from the Honorable Dan Burton, chairman, Committee on Government Reform, to the Honorable Janet Reno, Attorney General, Department of Justice 3 (June 28, 2000) (within appendix I). --------------------------------------------------------------------------- The committee's concern about Janet Reno's Justice Department conducting an investigation into the White House e- mail problem must be seen against the backdrop of the Department's many failures to pursue a vigorous investigation into the foreign money fundraising scandal that grew out of the 1996 elections. For instance, even though the Reno Justice Department interviewed President Clinton twice, on November 11, 1997, and November 9, 1998, about campaign fundraising illegalities, not once did the Department ask the President a single question about James Riady, John Huang, Charlie Trie, or Mark Middleton, all key figures in the scandal. But for this committee's persistent efforts, the American people would never know that the Department of Justice neglected to ask President Clinton the most fundamental questions about the infusion of foreign money into the our political system. Because of the committee's diligence, the Department of Justice again interviewed President Clinton on April 21, 2000. The committee is deeply troubled that it took 3 years for the Department of Justice to do its job. This failure repeated itself again when the Department neglected to question Vice President Gore in any of his four interviews--November 11, 1997, June 10, 1998, August 8, 1998, and November 11, 1998-- about the Hsi Lai Temple, Maria Hsia, John Huang, or James Riady. As with President Clinton's interview, but for this committee's steadfast persistence to acquire and finally review Vice President Gore's FBI interviews in December 1999, the American people would never know that the Department of Justice failed to ask fundamental investigative questions. Because of the committee's diligence, the Department of Justice again interviewed Vice President Gore on April 18, 2000. As a result of this Department of Justice failure to conduct a proper investigation, Chairman Burton made his displeasure with Attorney General Reno's known in a December 16, 1999, letter: I have expressed the concern on numerous occasions that you and your Department were not able to conduct a thorough and impartial investigation of the President and your own political party. I have also suggested that the inherent conflict in your position creates a perception that justice is not being administered in an impartial fashion. You have appeared before my Committee and told me that, in the campaign finance investigation: ``[W]e are going to follow every lead, wherever it goes[.]'' What am I to think, then, of an investigation that has failed to ask key witnesses any questions about the most important subjects in what has allegedly been one of the largest investigations even undertaken by the Department of Justice? Indeed, you have accepted plea bargains and concluded prosecutions without the slightest concern that potentially important witnesses have not been approached. Two years ago I said that I thought you would have a hard time being vigorous in a case that involves your superior and your political party. Your interviews of the President and the Vice President simply prove that my fears were real.\776\ --------------------------------------------------------------------------- \776\ Letter from the Honorable Dan Burton, chairman, Committee on Government Reform, to the Honorable Janet Reno, Attorney General, Department of Justice 1-2 (Dec. 16, 1999) (exhibit 183). It troubles the committee that this observation applies equally as well to the Department of Justice's e-mail investigation. Because of the Reno Justice Department's failures, the committee must reject Assistant Attorney General Robert Raben's recommendation to this committee that: ``[C]ongressional inquiries into ongoing investigations create the added danger of undermining the credibility of law enforcement by injecting or appearing to inject political considerations into the criminal justice process.'' \777\ While this might normally be true, the committee believes that the exact opposite has happened where the Reno Justice Department is concerned: without congressional oversight, current leadership at the Department of Justice would continue to inject political considerations into the criminal justice system at an even more alarming rate.\778\ Attorney General Reno, through incompetent or politically motivated decisions, has undermined the credibility of law enforcement in this country. As a result, the committee has no choice but to continue to request that the e-mail investigation be put in the hands of an independent investigator. The committee continues to maintain its position, which was stated in the March 27, 2000, letter to Attorney General Reno, that this situation: --------------------------------------------------------------------------- \777\ ``Missing White House E-mails: Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Congress 182-183 (May 3, 2000) (statement of Robert Raben, Assistant Attorney General, Department of Justice). \778\ See letter from the Honorable Dan Burton, chairman, Committee on Government Reform, to the Honorable Janet Reno, Attorney General, Department of Justice 2-6 (Mar. 27, 2000) (within appendix I) for numerous examples of where Attorney General Reno creates the perception that she is unable to do her job and predisposed to provide unfair advantages to political colleagues in matters involving the campaign finance scandal. [C]alls for a real investigation, not platitudes. You were in charge when the Justice Department's Civil Division began to help the White House craft its efforts to hide these e-mails. You were in charge when your lawyers went to bat for the White House instead of against it. The e-mail investigation is, in part, of you, and it would be absurd for you to cling to the fiction that you can investigate yourself.\779\ --------------------------------------------------------------------------- \779\ Letter from the Honorable Dan Burton, chairman, Committee on Government Reform, to the Honorable Janet Reno, Attorney General 4 (Mar. 27, 2000) (within appendix I). Overall, this committee must conclude that the Department of Justice's failure to move swiftly on the e-mail matter, and the failure to follow significant factual developments, can only be seen as an extension of the failures in the campaign finance investigation.\780\ --------------------------------------------------------------------------- \780\ Letter from the Honorable Dan Burton, chairman, Committee on Government Reform, to the Honorable Janet Reno, Attorney General 5 (June 28, 2000) (within appendix I). --------------------------------------------------------------------------- d. the department of justice's failure to devote adequate resources to the e-mail investigation It appears that for at least part of its e-mail investigation, the Justice Department had only one part-time lawyer assigned to its e-mail investigation. If true, this would indicate an abject failure to provide adequate resources to conduct a credible investigation. Treating these serious, largely substantiated allegations of threats and obstruction with such utter disregard would only increase the perception that the Justice Department's investigation is merely a facade--a perception already bolstered by the fact that the Justice Department publicly announced its investigation on the same day this committee held its first hearing on the matter. Thus, the committee sought to ascertain whether, in fact, after the fanfare of its initial press release, the Justice Department had assigned an insufficient number of personnel to handle the case. At a hearing on September 26, 2000, the committee put this question to Deputy Assistant Attorney General Alan Gershel. The question was no surprise, as the committee had provided written questions to Gershel before the hearing to assist him in preparing his answers. Nevertheless, Gershel refused to answer any questions about staffing levels. Gershel testified as follows: Mr. Burton. So let me ask you one more time. How many attorneys have worked on the Justice Department's campaign task force e-mail matter since its inception, do you know? Mr. Gershel. Mr. Chairman, it's been the practice of the Department not to comment specifically on numbers of people assigned or involved with investigations. I can assure you, though, that there have been sufficient resources devoted to this investigation.\781\ --------------------------------------------------------------------------- \781\ ``Contacts Between Northrop Grumman Corporation and the White House Regarding Missing White House E-mails,'' hearings before the Committee on Government Reform, 106th Cong. 40 (Sept. 26, 2000). However, when specifically asked to cite authority for refusing --------------------------------------------------------------------------- to answer the committee's question, Gershel failed to do so: Mr. Horn. I'm curious. Why can't the Department of Justice tell us about the staffing levels for the e- mail investigation? Under what authority do you have not to tell us about the staffing level? Mr. Gershel. Congressman, if you're asking me to give you legal authority for that, for my decision not to comment on that, I cannot give you that. Mr. Horn. Well, whose authority is it? Mr. Gershel. It has been my understanding that it has been the practice of the Department of Justice, not just with this administration but previous administrations, to not comment upon specific staffing levels. There are a number of reasons for that, including, for example, it may suggest an importance or lack of importance with respect to the investigation based simply on how many people are assigned to it.\782\ --------------------------------------------------------------------------- \782\ Id. at 54. Of course, that is precisely the point. Through this question, the committee attempted to ascertain whether the Justice Department undermined its own e-mail investigation. This question goes to the heart of the Department's conflict and is a matter squarely within Congress' obligation under the Constitution to conduct executive branch oversight. Gershel's deliberate refusal to answer such a clearly proper question suggests that it is likely true that the Department had assigned only one part-time attorney to the investigation. Rather than risk the political embarrassment of admitting that its investigation was a charade, the Justice Department simply rejected the committee's legitimate request for information. [The exhibits referred to follow:] <GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>