Special Counsel Sought for Missing White House E-Mails

Public advocacy groups are urging Attorney General Mukasey to open a criminal investigation. 

One of the two primary groups pressuring the White House to reveal the whereabouts of millions of missing Bush administration e-mails asked Attorney General Michael B. Mukasey Feb. 4 to appoint a special counsel to investigate the matter.

In a letter to Mukasey, CREW (Citizens for Responsibility and Ethics in Washington) is seeking a federal investigation into whether the White House violated federal laws by knowingly failing to preserve and restore millions of e-mails. CREW also claims the White House deliberately failed to use an effective and appropriate system for the preservation of federal and presidential electronic records.

"Recently, you decided that the destruction by the CIA of interrogation videotapes justified a criminal inquiry," CREW wrote in the letter to Mukasey. "So too here the facts surrounding the disappearance of over 10 million White House e-mail records justify the initiation of a criminal investigation to determine whether the White House and White House staff violated federal recordkeeping laws and criminal statutes."

The White House is subject to two sets of federal laws governing how it must maintain and preserve its records, the FRA (Federal Records Act) and the PRA (Presidential Records Act). Both require the preservation of all e-mail.

"The importance and historical significance of the missing e-mail, combined with the involvement of White House staff, make it imperative that the public have absolute confidence in whoever investigates this matter -- the exact circumstance for which the special counsel provision was designed," the CREW letter states.

The missing e-mails were first revealed during a congressional investigation into the firing of U.S. attorneys general. While acknowledging the e-mails are missing, the White House initially contended that they are stored on backup tapes.

However, in a Jan. 15 sworn deposition, Theresa Payton, CIO for the Office of Administration, said the White House recycled computer backup tapes containing some of the missing e-mails from the beginning of the Bush administration until 2003. "At this stage, this office does not know if any e-mails were not properly preserved in the archiving process," Payton said in her deposition.

White House Deputy Press Secretary Tony Fratto followed up Payton's deposition at a Jan. 16 press conference by saying, "We have absolutely no reason to believe that any e-mails are missing."

CREW claims the e-mails are missing from between March 2003 and October 2005. In addition, CREW contends that until October 2003, backup tapes allegedly containing some of the e-mails were recycled.

During the time period of the missing e-mails, federal investigators were probing the disclosure of Valerie Plame Wilson's covert identity. The period also covers a timeframe from the start of the Iraq war to the Bush administration's response to Hurricane Katrina.

"It appears that the White House was violating federal recordkeeping laws at the same time top White House officials were under criminal investigation, suggesting that the backup tapes may have been deliberately tampered with or recycled to evade discovery of illegal conduct," CREW wrote in the Mukasey letter. "Therefore, a grand jury investigation into whether anyone at the White House was engaged in evidence tampering or obstruction of justice is appropriate."

CREW originally filed a Freedom of Information Act request with the Office of Administration on March 29, 2007, regarding records of the missing e-mails. When the office refused to turn over the information, CREW sued the White House May 23 for the information. The organization also released a report on the missing e-mails based on information obtained from two confidential sources.

Following up on CREW's information, the National Security Archive also sued the White House on Sept. 5. The National Security Archive and CREW have subsequently consolidated their legal actions against the White House to force disclosure of the missing e-mails.

U.S. Rep. Henry Waxman, D-Calif., said his Committee on Oversight and Government Reform will hold a Feb. 15 hearing on the White House e-mails.