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"Missing" Emails Subpoenaed in CIA Leak Probe

House Failed to Search for Libby's "Missing" Emails Subpoenaed in CIA Leak Probe

Thursday 17 December 2009

by: Jason Leopold, t r u t h o u t | Investigative Report

(Image: Jared Rodriguez / t r u t h o u t; Adapted: twenty_questions, GrungeTextures)

Between late 2005 and January 2006, the Bush administration tried to recover "lost" emails from staffers who worked in the Office of the Vice President (OVP), an effort centered on a critical week - October 1 through October 6, 2003. That same week the Justice Department announced it was investigating the leak that Valerie Plame Wilson was a covert CIA operative.

But one name was missing from the list of 70 individuals whose email accounts White House technicians searched in an attempt to recover and restore missing emails: I. Lewis "Scooter" Libby.

According to documents obtained by government watchdog group Citizens for Responsibility and Ethics in Washington (CREW), it appears that technicians in the Office of Administration did not attempt to recover from Libby's account emails he either sent or received during the week of October 1 to October 6, 2003. That was a week when emails from the Office of the Vice President were missing for entire days in some instances and were unusually low in others.

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It was also during this time that Alberto Gonzales, then White House counsel, enjoined all White House staff members to turn over emails or other documents pertaining to Plame and her husband, former Ambassador Joseph Wilson, who had angered the White House by criticizing Bush's case for invading Iraq. The directive came 12 hours after senior Bush White House officials had been told of the pending Justice Department investigation.

Senior Bush administration officials disclosed Valerie Plame Wilson's identity to several journalists in early summer 2003, leading to its publication in a July 14, 2003, article by the late right-wing columnist Robert Novak.

The search of individual email accounts was conducted after an internal investigation by officials in the Office of Administration concluded that emails from the Office of Vice President Dick Cheney between September 30, 2003 and October 6, 2003 were lost and unrecoverable.

The absence of Libby's name on the list of individuals whose emails technicians were trying to recover from the Office of the Vice President raises questions as to whether the Bush administration fully cooperated with the criminal investigation into the leak probe, lead by Special Prosecutor Patrick Fitzgerald, who had subpoenaed White House emails in January 2004.

In an interview, Anne Weismann, chief counsel of CREW, said she believes the documents show that "for unexplained reasons Scooter Libby's mailbox was not searched while the mailboxes of 70 OVP employees were searched.

"It is simply incomprehensible that Scooter Libby's mailbox was not searched, yet that is what the documents suggest," she said.

Weismann said it's possible that because Libby also held the title of special assistant to the president he may not have been considered "to be a part of the OVP" and therefore his email was not searched.

Messages left for spokespeople in the Obama White House, in an effort to obtain an answer that question, were not returned.

Weismann added that she was "initially told way back when that Fitzgerald's office was briefed in-person by White House Counsel and [Office of Administration officials] and to their relief, [Fitzgerald] didn't press them for details about missing emails."

A spokesman for Fitzgerald, the US attorney for the Northern District of Illinois, did not respond to requests for comment.

Marcy Wheeler, the leading expert on the Plame leak who writes under the name emptywheel, noted in a April 13, 2007 blog post that Fitzgerald "was suspicious about the lack of emails from key participants in Plame's outing early on in the investigation. He asked Libby about it specifically in his March 24 testimony."

Q. You're not big on e-mail I take it?

A. No. Not in this job. I was in my prior job.

Wheeler also noted in a blog post on April 14, 2007, that Jenny Mayfield, who was Libby's personal assistant, signed a certification form on October 7, 2003 in response to a request by the Justice Department four days earlier for any Plame/Wilson-related documents. Mayfield checked off a box that said:

I certify that I performed a reasonable, diligent, and good faith search of all the documents in my possession or control for documents responsive to the Department of Justice Request of October 3, 2003 and found no such documents.

But Mayfield also wrote on the certification form:

I understand that you, David Addington, have done a central email search.

Addington, Cheney’s legal counsel, was among the 70 individuals whose individual e-mail accounts were manually searched by technicians in the Office of Administration.

Wheeler added that Mayfield and Libby, who also signed a similar certification form, "amended their certifications to note that they hadn't done a search for any emails responsive to the subpoena."

Mayfield also wrote on her February 5, 2004 certification in response to a grand jury subpoena that Libby's e-mails were scrutinized through a "centralized search" conducted by the White House.

"...I happen to think that Jenny Mayfield showed a remarkable degree of prescience, somehow guessing that certain emails wouldn't show up in a central server search," Wheeler wrote in a blog post.

Settlement Over Missing Bush Administration E-Mails

Earlier this week, CREW and the historical group the National Security Archive announced that they entered into a settlement with the Obama administration in a long-running lawsuit over the loss of tens of millions of missing Bush administration emails.

Under the terms of the agreement, 94 days of missing emails will be restored, which includes emails from the Office of the Vice President that Fitzgerald subpoenaed that were unaccounted for during the week of September 30 and October 6, 2003. The time frame also coincided with litigation surrounding the release of documents related to Cheney's Energy Task Force meetings.

The emails will be sent to the National Archives and Records Administration. But whether the emails contain answers to lingering questions about the CIA leak will not be known for years, as the documents will not be immediately available to view publicly.

Scott Stanzel, the former White House deputy press secretary, said CREW "distorts the facts" on issues related to the missing emails in general. He also refuted assertions that the settlement agreement will result in 22 million Bush administration emails that were previously missing," claiming "the 22 million number claimed by these liberal groups refers entirely to emails identified and recovered by the Bush Administration prior to January 20, 2009.''

CREW "has consistently tried to create a spooky conspiracy out of standard IT issues," Stanzel said. "Their misleading statements about our work demonstrates their continued anti-Bush agenda, nearly a year after [President Barack Obama] was sworn in.''

Weismann, however, said the 22 million emails were previously unaccounted for and recovered after the Bush administration left office.

Moreover, she said CREW's groundbreaking investigation up until this point "raise[s] very serious questions about the thoroughness and integrity of the Bush White House's response to document requests and subpoenas from Special Counsel Patrick Fitzgerald."

It was Fitzgerald's investigation that led to revelations that the Bush administration had not been archiving emails in accordance with the Presidential Records Act.

The Office of Administration briefed former White House Counsel Harriet Miers in October 2005 about the lost emails. Miers, according to CREW, is said to have waited until January 2006 to informed Fitzgerald and/or his staff about the issue.

In an interview with Truthout in April 2007, Melanie Sloan, executive director of CREW, said it was possible that Miers did not fully inform Fitzgerald about the extent of the White House email problems and as a result the special prosecutor did not obtain all of the evidence he sought from the Bush administration related to the leak probe.

CREW wrote to Fitzgerald two years ago suggesting that he reopen the investigation into the Plame leak in light of the email archival issues and the likelihood that he may not have obtained all the evidence related to White House officials' role in the leak in a timely fashion. But Fitzgerald never responded to CREW's letter.

Still, the Office of Administration attempted to recover missing emails from the Office of Vice President during the week of October 1 to October 6, 2003, according to the documents CREW obtained.

A January 12, 2006, email accompanying the list of individual mailboxes that were searched said, "we have now completed our file search and the file attached reflects our results. Please forward it to the appropriate staff who will be taking the next step."

That's one of the documents that indicates Libby's email account was excluded from the search.

Another January 12, 2006 email describing the restoration projects states:

"I understand that all but one OVP user's mailbox has had the mail from the requested days converted into pst files. This last one had some issues that are being resolved ..."

Libby's email was also excluded from a manual search of individual email accounts in the Office of the Vice President on December 21, 2005, according to another set of documents.

And the failure to turn over evidence Fitzgerald had previously sought may have prompted him to reveal in a January 23, 2006, court filing:

"In an abundance of caution, we advise you that we have learned that not all email of the Office of the Vice President and the Executive Office of the President for certain time periods in 2003 was preserved through the normal archiving process on the White House computer system."

That document was filed during the discovery phase of Libby's perjury and obstruction of justice trial.

The date of Fitzgerald's letter to Libby - January 23, 2006 - is also the same day the results of the Office of Administration's recovery effort was forwarded, via email, to persons unknown. The subject line of the January 23, 2006, email says "OVP Search Data File" and the body of the email states:

Total number of items found was 17,956
Total size of the .pst file(s) created was 1,452, 996
Detail is attached.

From a technical standpoint, David Gewirtz, author of the book "Where Have All the Email Gone?," said the documents in question "do not provide any useful IT-level data, other than the use of 'MS is drafting,'" a reference to Microsoft.

"The only other thing that's interesting is the concept of the PST creator," he said. "PST is an Outlook data file. The idea that there are a bunch of users' mail in a given mail file (and that's not 100% clear - they could be one PST per user) is a little strange from a data-management perspective."

Weisman said she could not speculate about the timing of the Office of Administration's January 23, 2006, email as it relates to Fitzgerald's letter to Libby's defense attorneys sent on the same day, nor does she have insight into the timing of the email search conducted 11 days earlier.

"But I have to assume - and this is an assumption - that Fitzgerald was given information from the process going on in January 2006 that is outlined in some of the emails and that his January 2006 letter is based on that information," she said.

Libby was convicted in early 2007 on four counts of obstruction of justice, perjury and lying to investigators. He was sentenced to 30 months in prison, but President George W. Bush spared the former White House aide any jail time by issuing a commutation.

Last month, the Justice Department released a long-awaited transcript summarizing Cheney's May 8, 2004, interview with Fitzgerald related to the former vice president's role in the leak.

Remarkably, Cheney professed on more than 70 occasions that he could not recall key events related to the leak in which he played a major role, including one in which he personally told Libby, his former chief of staff, that Valerie Plame Wilson worked for the CIA before Novak revealed her identity.


Jason Leopold is the Deputy Managing Editor at Truthout. He is the author of the Los Angeles Times bestseller, News Junkie, a memoir. Visit www.newsjunkiebook.com for a preview.


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