[House Report 106-1023] [From the U.S. Government Publishing Office] Union Calendar No. 593 106th Congress, 2d Session - - - - - - - - - - - - House Report 106-1023 THE FAILURE TO PRODUCE WHITE HOUSE E-MAILS: THREATS, OBSTRUCTION, AND UNANSWERED QUESTIONS __________ EIGHTH REPORT by the COMMITTEE ON GOVERNMENT REFORM together with MINORITY AND ADDITIONAL VIEWS Volume 2 of 2Available via the World Wide Web: http://www.gpo.gov/congress/house http://www.house.gov/reform December 4, 2000.--Committed to the Committee of the Whole House on the State of the Union and ordered to be printed __________ U.S. GOVERNMENT PRINTING OFFICE 67-962 WASHINGTON : 2000 COMMITTEE ON GOVERNMENT REFORM DAN BURTON, Indiana, Chairman BENJAMIN A. GILMAN, New York HENRY A. WAXMAN, California CONSTANCE A. MORELLA, Maryland TOM LANTOS, California CHRISTOPHER SHAYS, Connecticut ROBERT E. WISE, Jr., West Virginia ILEANA ROS-LEHTINEN, Florida MAJOR R. OWENS, New York JOHN M. McHUGH, New York EDOLPHUS TOWNS, New York STEPHEN HORN, California PAUL E. KANJORSKI, Pennsylvania JOHN L. MICA, Florida PATSY T. MINK, Hawaii THOMAS M. DAVIS III, Virginia CAROLYN B. MALONEY, New York DAVID M. McINTOSH, Indiana ELEANOR HOLMES NORTON, District of MARK E. SOUDER, Indiana Columbia JOE SCARBOROUGH, Florida CHAKA FATTAH, Pennsylvania STEVEN C. LaTOURETTE, Ohio ELIJAH E. CUMMINGS, Maryland MARSHALL ``MARK'' SANFORD, South DENNIS J. KUCINICH, Ohio Carolina ROD R. BLAGOJEVICH, Illinois BOB BARR, Georgia DANNY K. DAVIS, Illinois DAN MILLER, Florida JOHN F. TIERNEY, Massachusetts ASA HUTCHINSON, Arkansas JIM TURNER, Texas LEE TERRY, Nebraska THOMAS H. ALLEN, Maine JUDY BIGGERT, Illinois HAROLD E. FORD, Jr., Tennessee GREG WALDEN, Oregon JANICE D. SCHAKOWSKY, Illinois DOUG OSE, California ------ PAUL RYAN, Wisconsin BERNARD SANDERS, Vermont HELEN CHENOWETH-HAGE, Idaho (Independent) DAVID VITTER, Louisiana Kevin Binger, Staff Director James C. Wilson, Chief Counsel David A. Kass, Deputy Counsel and Parliamentarian M. Scott Billingsley, Counsel Pablo E. Carrillo, Counsel Jason A. Foster, Counsel Kimberly A. Reed, Counsel Robert A. Briggs, Chief Clerk Philip M. Schiliro, Minority Staff Director Philip S. Barnett, Minority Chief Counsel Kristin Amerling, Minority Deputy Chief Counsel Paul Weinberger, Minority Counsel LETTER OF TRANSMITTAL ---------- House of Representatives, Washington, DC, December 4, 2000. Hon. J. Dennis Hastert, Speaker of the House of Representatives, Washington, DC. Dear Mr. Speaker: By direction of the Committee on Government Reform, I submit herewith the committee's eighth report to the 106th Congress. Dan Burton, Chairman. C O N T E N T S ---------- Page Table of names................................................... VIII Key dates........................................................ X Findings......................................................... XV I. Why the committee investigated the White House failure to manage e- mail records......................................................1 A. White House document production: a pattern of delay and omission......................................... 3 B. The significance of e-mail records to this committee's investigations........................... 9 II. The e-mail problems explained: a brief summary...................12 A. The Mail2 problem.................................... 14 B. The D-User problem................................... 17 C. The Office of the Vice President problems............ 18 III.The White House concealed the e-mail problems....................20 A. Mark Lindsay and Laura Callahan threatened contract employees............................................ 20 B. The Office of Administration repeatedly informed the White House about the e-mail problem................. 41 C. The White House Counsel failed to address the e-mail problem.............................................. 48 D. Additional problems hampered efforts to repair the e- mail system.......................................... 62 E. Office of Administration management failed to act.... 70 IV. The White House has misled Congress and the public about the e-mail problem..........................................................88 A. The White House response............................. 88 B. The White House's attempts to impede the investigation........................................ 96 C. The White House's gamesmanship with the production of the missing e-mails.................................. 105 V. Concerns regarding the joint e-mail investigation undertaken by Department of Justice and the Office of Independent Counsel.....112 A. The Attorney General's refusal to appoint a special counsel.............................................. 116 B. Tony Barry's false statements to the Alexander court underscore the Justice Department's conflict of interest............................................. 117 C. The Department of Justice's failure to interview material witnesses in a timely fashion............... 124 D. The Department of Justice's failure to devote adequate resources to the e-mail investigation....... 128 Exhibits......................................................... 130 APPENDICES Appendix 1.--Committee correspondence............................ 874 Appendix 2.--Document subpoenas issued to the White House........ 1119 Appendix 3.--Subpoenas to testify issued to the White House...... 1283 VIEWS Minority Views of Hon. Henry A. Waxman, Hon. Tom Lantos, Hon. Major R. Owens, Hon. Edolphus Towns, Hon. Paul E. Kanjorski, Hon. Patsy T. Mink, Hon. Carolyn B. Maloney, Hon. Eleanor Holmes Norton, Hon. Chaka Fattah, Hon. Elijah E. Cummings, Hon. Dennis J. Kucinich, Hon. Rod R. Blagojevich, Hon. Danny K. Davis, Hon. Jim Turner, Hon. Harold E. Ford, Jr., and Hon. Janice D. Schakowsky........................................... 1285 I. Executive summary..............................................1285 A. Background........................................... 1286 B. Allegations.......................................... 1287 C. The majority's version of Events..................... 1293 II. Background.....................................................1294 A. The Automated Records Management System.............. 1295 B. The Mail2 problem.................................... 1297 C. Other e-mail problems................................ 1302 D. Committe knowledge of the e-mail matter.............. 1304 III.Allegations regarding the Mail2 problem........................1305 A. Allegation that e-mails relevant to investigations have not been produced............................... 1305 B. Allegation that Northrop Grumman employees were threatened with jail if they discussed the Mail2 problem.............................................. 1306 C. Allegation that Northrop Grumman employees were told not to tell others about the Mail2 problem........... 1310 1. The OA instructions not to discuss............... 1310 2. The OA instructions regarding Northrop Grumman management....................................... 1313 D. Allegation that the White House concealed information about the Mail2 problem from Congress and various independent counsels................................. 1314 E. Allegation that Earl Silbert told the White House about the alleged threats and problems with subpoena compliance........................................... 1316 F. Allegation that the White House failed to disclose a computer disk containing non-produced Monica Lewinsky e-mails.............................................. 1319 G. Allegation that an OA employee filed a false and misleading affidavit about the Mail2 problem......... 1320 H. Allegation that an OA employee attempted to hide information about the Mail2 problem from Congress.... 1321 I. Allegation that Cheryl Mills was responsible for the failure to disclose the Mail2 problem................ 1322 J. Allegation that the Justice Department has failed to investigate, or to appoint a special counsel to investigate, the e-mail matter....................... 1323 K. Other allegations.................................... 1325 1. Allegation that the White House has delayed reconstruction of the e-mails.................... 1325 2. Allegation that the White House has impeded the committee's investigation........................ 1326 3. Allegation that OA briefing materials are evidence of a conspiracy to hide the Mail2 problem from Congress............................ 1327 4. Allegation that Sidney Blumenthal tried to prevent his e-mails from being archived.......... 1327 IV. Allegations concerning the Office of the Vice President........1328 A. Allegation that the OVP deliberately attempted to circumvent subpoena compliance....................... 1328 B. Allegation that the reconstructed OVP e-mails contain significant information.............................. 1330 C. Allegation that Vice President Gore sought to hide e- mails from investigators............................. 1331 D. Allegation that the Vice President was aware of records management problems in the OVP............... 1332 V. The costs of the investigation and the reconstruction effort...1333 Exhibits......................................................... 1336 Additional views of Hon. Dan Burton.............................. 1460 I. Further evidence that Northrop Grumman employees were threatened into secrecy about the e-mail problem.........................1460 A. Robert Haas told Joseph Vasta about the threats...... 1460 B. Northrop Grumman Director of Contracts Joseph Lucente's letter to the contractor was prompted by the allegations of threats........................... 1461 C. Earl Silbert's law firm has additional documents related to his contacts with the White House and representation of Northrop Grumman................... 1462 D. Telephone message slip confirmed contact between Earl Silbert and Special Counsel to the President Lanny Breuer in December 1998.............................. 1464 E. Earl Silbert was not Northrop Grumman's natural choice for outside counsel on a contracts matter..... 1464 F. Lanny Breuer's recollection of the contact with Earl Silbert.............................................. 1465 G. Lucente confirmed the extraordinary nature of OA Director Ada Posey's ``special task order'' request.. 1465 II. Northrop Grumman's recent failure to cooperate with the investigation.................................................1466 A. Northrop Grumman's specious assertions of privilege.. 1466 B. Northrop Grumman's refusal to waive attorney-client privilege............................................ 1471 C. Northrop Grumman's failure to provide documents in a timely manner........................................ 1473 III. Further evidence of the insufficiency of the test search and the unraveling of the ``disconnect'' defense......................1474 A. The attorney who performed the comparison changed her story................................................ 1474 B. Mark Lindsay failed to act after learning of the comparison results................................... 1476 IV. The Justice Department's questionable handling of the e-mail matter........................................................1477 A. Examples of advocacy in Alexander v. FBI that undermine confidence in the purported criminal investigation........................................ 1477 B. The Attorney General's failure to allocate adequate resources to the e-mail investigation................ 1480 V. The critics of the investigation have utterly failed to address the facts on their merits.....................................1481 A. Response to the minority staff rebuttal.............. 1481 B. Judge Todd Campbell's comments on the report......... 1487 C. Cheryl Mills' opening statement at the committee's March 4, 2000 hearing................................ 1488 Exhibits......................................................... 1491 APPENDICES Appendix 1.--Committee correspondence since September 27, 2000... 1567 Appendix 2.--Detailed chronologies............................... 1635 Appendix 3.--Office of the Vice President documents.............. 1653 Union Calendar No. 593 106th Congress Rept. 106-1023 HOUSE OF REPRESENTATIVES 2d Session Vol. 2 of 2 ====================================================================== THE FAILURE TO PRODUCE WHITE HOUSE E-MAILS: THREATS, OBSTRUCTION, AND UNANSWERED QUESTIONS _______ December 4, 2000.--Committed to the Committee of the Whole House on the State of the Union and ordered to be printed _______ Mr. Burton, from the Committee on Government Reform submitted the following EIGHTH REPORT On October 5, 2000, the Committee on Government Reform approved and adopted a report entitled, ``The Failure to Produce White House E-Mails: Threats, Obstruction, and Unanswered Questions.'' The chairman was directed to transmit a copy to the Speaker of the House.
MINORITY VIEWS OF HON. HENRY A. WAXMAN, HON. TOM LANTOS, HON. MAJOR R. OWENS, HON. EDOLPHUS TOWNS, HON. PAUL E. KANJORSKI, HON. PATSY T. MINK, HON. CAROLYN B. MALONEY, HON. ELEANOR HOLMES NORTON, HON. CHAKA FATTAH, HON. ELIJAH E. CUMMINGS, HON. DENNIS J. KUCINICH, HON. ROD R. BLAGOJEVICH, HON. DANNY K. DAVIS, HON. JIM TURNER, HON. HAROLD E. FORD, Jr., AND HON. JANICE D. SCHAKOWSKY I. Executive Summary This committee has a long history of making unsubstantiated allegations. Many of these allegations are summarized in a report recently released by the ranking minority member, Representative Henry A. Waxman.\1\ The majority has alleged that Deputy White House Counsel Vince Foster was murdered as part of a coverup of the Whitewater land deal, that the White House intentionally maintained an ``enemies list'' of sensitive FBI files, that the IRS targeted the President's enemies for tax audits, that the White House may have been involved in ``selling or giving information to the Chinese in exchange for political contributions,'' and that the White House ``altered'' videotapes of White House coffees to conceal wrongdoing, among numerous other unfounded allegations. --------------------------------------------------------------------------- \1\ Minority Staff Report of the House Committee on Government Reform, ``Unsubstantiated Allegations of Wrongdoing Involving the Clinton Administration'' (October 2000) (attached as exhibit 1). --------------------------------------------------------------------------- One theme in the majority's allegations is that the wrongdoing by the Clinton administration exceeds the wrongdoing exposed in the Watergate scandal. As early as 1997, Representative Burton described his campaign fundraising investigation as follows: ``I think this thing could end up being much bigger than Watergate ever was.''\2\ --------------------------------------------------------------------------- \2\ ``The NewsHour with Jim Lehrer,'' PBS (Feb. 25, 1997). --------------------------------------------------------------------------- The majority's report on e-mails again asserts that the majority has uncovered a scandal bigger than Watergate: The implications of these revelations are profound. When the Nixon White House was forced to admit that there was an eighteen-and-a-half minute gap on a recorded tape, there was a firestorm of criticism. The ``gap'' created by hundreds of thousands of missing e- mails, and by a Vice Presidential staff decision to manage records so they could not be searched, is of no less consequence. If senior White House personnel were aware of these problems, and if they failed to take effective measures to recover the withheld information--or inform those with outstanding document requests--then the e-mail matter can fairly be called the most significant obstruction of Congressional investigations in U.S. history. While the White House's obstruction in Watergate related only to the Watergate break-in, the potential obstruction of justice by the Clinton White House reaches much further. The e-mail problem effects [sic] almost every investigation of the Administration, from campaign finance to Monica Lewinsky.\3\ --------------------------------------------------------------------------- \3\ House Committee on Government Reform, ``The Failure to Produce White House E-Mails: Threats, Obstruction and Unanswered Questions,'' 106th Cong., viii (2000) (emphasis added) (hereinafter ``majority report''). As these views will demonstrate, the committee's e-mail investigation has followed the same pattern as its previous ``scandal'' investigations. Many sensational allegations have been made, but none have been proven. a. background In July 1994, the White House created a central electronic database, called the Automated Records Management System (ARMS), to archive official Presidential and Federal records, including e-mails. ARMS was created to comply with the court decision Armstrong v. Executive Office of the President,\4\ which interpreted the Federal Records Act as requiring the preservation of e-mail messages by parts of the Executive Office of the President.\5\ In June 1998, contractors working for Northrop Grumman discovered a technical problem affecting a White House e-mail server (named ``Mail2'') which prevented incoming e-mail to accounts on that server from being archived in ARMS. The problem, which dated back to August 1996, was fixed prospectively in November 1998. --------------------------------------------------------------------------- \4\ 1 F.3d 1274 (D.C. Cir. 1993). \5\ Testimony of Beth Nolan, House Committee on Government Reform, hearing on ``Missing White House E-Mails: Mismanagement of Subpoenaed Records (continued),'' 85 (Mar. 30, 2000) (stenographic record) (stating that ``ARMS was set up in order for the executive office of the President to comply with the Federal Records Act'') (hereinafter ``March 30 hearing''). The Executive Office of the President (EOP) consists of a group of 11 Federal agencies immediately serving the President. These agencies include the White House Office, where many of the President's closest advisors are located; the Office of Management and Budget; the National Security Council; and the Office of Administration. The White House Office is legally exempt from the Federal Records Act, but was nonetheless included in ARMS. --------------------------------------------------------------------------- The number of e-mails affected by the Mail2 problem is relatively small compared to the total number of e-mails properly recorded in ARMS. The Mail2 problem affected only incoming e-mail sent to 526 accounts on the Mail2 server; the problem did not affect any e-mails sent from those 526 accounts. Furthermore, any incoming e-mails that were replied to or forwarded by the recipient (or that were copied to a nonaffected user) were archived in ARMS.\6\ --------------------------------------------------------------------------- \6\ Statement of Counsel to the President Beth Nolan (Mar. 23, 2000); testimony of Daniel A. ``Tony'' Barry, House Committee on Government Reform, hearing on ``Missing White House E-Mails: Mismanagement of Subpoenaed Records,'' 78-79 (Mar. 23, 2000) (stenographic record) (hereinafter ``Mar. 23 hearing''). --------------------------------------------------------------------------- The Mail2 problem may have had some limited impact on White House document production. Because the White House conducted searches of ARMS to respond to information requests, some of the narrow subset of e-mails affected by the Mail2 problem may not have been supplied to independent counsels and congressional committees investigating the White House. Some of the e-mails affected by the Mail2 problem, however, were likely to have been captured by other search means and given to the investigators.\7\ --------------------------------------------------------------------------- \7\ When the White House counsel's office responds to subpoenas, in addition to searching ARMS it ``instructs individuals within the relevant EOP offices to search for responsive materials. This directive explicitly states that each individual should search computer records as well as hard copies.'' Statement of Counsel to the President Beth Nolan (Mar. 23, 2000) (attached as exhibit 2). Thus, any responsive e- mails that were saved by the sender or recipient should have been produced, regardless of whether or not they were recorded in ARMS. In addition, e-mails that were not retrieved by the White House may have been provided to investigators by other sources that sent e-mails to the White House. These potential sources include Federal agencies and the Democratic National Committee. --------------------------------------------------------------------------- In the course of responding to committee inquiries regarding the Mail2 problem, the White House also discovered information about other e-mail problems, including a problem that prevented incoming e-mail sent between approximately November 1998 and April 1999 to users whose account names began with the letter ``d'' from being archived; a problem that caused a small, random assortment of e-mails from June 1997 to August 1999 not to be archived on the National Security Council's classified computer system; and a problem that prevented e-mails on the server of the Office of the Vice President (OVP) from being fully managed by ARMS. The White House is in the process of reconstructing the e- mails that were not initially searched due to these computer glitches. As of September 29, 2000, the White House had committed or spent approximately $6.9 million on this project, and had expended 39,157 hours of work (34,822 hours by contract employees, 3,795 hours by employees of the Executive Office of the President, and 540 hours by security personnel). Overall, the cost of the project has been estimated at $11.7 million.\8\ --------------------------------------------------------------------------- \8\ Letter from Michael K. Bartosz, general counsel to the Office of Administration, to James C. Wilson, chief counsel (Sept. 29, 2000) (attached as exhibit 3). --------------------------------------------------------------------------- b. allegations The e-mail problems in the White House are highly technical. They do not involve any conscious effort to withhold subpoenaed materials from the committee. Nevertheless, during the course of the committee's investigation, they have spawned a series of inflammatory accusations. The principal allegations and the actual facts uncovered during the investigation are described below:
LAllegation: The missing White House e-mails contain ``information relating to Filegate, concerning the Monica Lewinsky scandal, the sale of Clinton Commerce Department trade mission seats in exchange for campaign contributions, and Vice President Al Gore's involvement in campaign fundraising controversies.'' \9\ If the contents of these e-mails become known, ``there would be different outcomes to these scandals, as the e-mails were incriminating and could cause people to go to jail.'' \10\ --------------------------------------------------------------------------- \9\ Declaration of Betty Lambuth, Alexander v. FBI, No. 96-2123 (Feb. 24, 2000). See also third declaration of Sheryl Hall, Alexander v. FBI, No. 96-2123 (Feb. 19, 2000). \10\ Third declaration of Sheryl Hall, Alexander v. FBI, No. 96- 2123 (Feb. 19, 2000). The Facts: The only witness to view the contents of any of the ``missing'' e-mails was a Northrop Grumman employee, Robert Haas, who had the responsibility of searching for missing e- mails relating to Monica Lewinsky. Mr. Haas found a few Lewinsky-related e-mails that turned out to have been previously provided to Independent Counsel Kenneth Starr.\11\ He testified under oath: ``I never . . . intimated in any way, shape, or form that I knew any content of any e-mails other than the two Monica Lewinsky documents'' and ``[a]t no time did I look at any other documents in any other mail files.'' \12\ --------------------------------------------------------------------------- \11\ A member of the Office of White House Counsel, Michelle Peterson, compared the e-mails retrieved by Mr. Haas with previously produced e-mails and determined that they were duplicative. Interview of Michelle Peterson by majority and minority staff, House Committee on Government Reform (June 8, 2000). Ms. Peterson recently filed a declaration indicating that she may have overlooked two nonsubstantive differences between the Haas e-mails and previously produced e-mails. Ms. Peterson stated that the Office of Independent Counsel Robert Ray showed her an e-mail allegedly retrieved by Mr. Haas which was substantively identical to an e-mail that had previously been produced ``but had a different time and a different spelling of the e-mail addressee.'' Third declaration of Michelle Peterson at para. 7, Alexander v. FBI, No. 96-2123 (Sept. 27, 2000). Ms. Peterson also was shown an e-mail allegedly retrieved by Mr. Haas which was identical to an already-produced e-mail but which contained a ``cc'' list that the earlier e-mail lacked. Id. at para. 8. Ms. Peterson reaffirmed that she believed at the time that all of the e-mails retrieved by Mr. Haas had been produced, but allowed that she may have overlooked the two technical differences discussed above (although she could not confirm this fact herself, as she did not have access to any of the sets of e- mails produced or retrieved by the White House). Id. at para. 9. \12\ Testimony of Robert Haas, March 23 hearing at 89, 61. LAllegation: Recently retrieved e-mails produced by the White House ``are highly relevant to the committee's investigation of campaign finance matters;'' the information in these e-mails is ``important for evaluating whether the Vice President committed perjury'' and ``shows that it is impossible to come to a final conclusion about underlying campaign finance matters without a complete review of all the previously withheld information.'' \13\ --------------------------------------------------------------------------- \13\ Majority report at viii-x. The Facts: So far, between 180,000 and 200,000 e-mails have been reconstructed and reviewed, and any responsive e-mails have been produced to the Office of Independent Counsel Robert Ray or the Justice Department's campaign finance task force. Only 56 of the e-mails produced to the Independent Counsel or the task force were responsive to this committee's subpoenas, and several of those had already been produced in similar form (e.g., with a different recipient or sender). None of these 56 e-mails provided significant new evidence. The majority cites as significant new information one e- mail between two Vice Presidential staffers that refers to ``FR coffees'' at the White House, which the majority asserts is evidence that the coffees were used for fundraising purposes.\14\ It is not clear whether the term ``FR'' refers to ``fundraising'' or ``finance-related.'' Even if the term ``FR'' is construed to refer to fundraising, however, the e-mail does not add new evidence. Other internal communications in the Vice President's office have described these coffees as ``fundraising'' events.\15\ Even the Vice President has repeatedly said that attendees at White House coffees would likely be solicited for contributions later on.\16\ --------------------------------------------------------------------------- \14\ E-mail from Karen Skelton to Ellen L. Ochs (Apr. 23, 1996) (E 8862) (discussed in majority report at x). \15\ See, e.g., Senate Committee on Governmental Affairs, ``Investigation of Illegal or Improper Activities in Connection with 1996 Federal Election Campaigns,'' 105th Cong., 2d sess., vol. 1, 196 (March 1998) (stating that ``[a] number of White House and DNC documents underline the importance of the coffees as fundraising events'' and citing to documents). \16\ The Vice President told investigators that the coffees ``allowed the President to spend time with influential people who wanted to talk about policy, who would at some later time possibly be asked to financially support the DNC.'' He further stated that ``[i]t was contemplated at the time when they were set up that some or many of those who participated in those sessions would later on be likely to contribute.'' Interview of Vice President Gore with Robert J. Conrad, Jr., Head of the Department of Justice Campaign Financing Task Force (Apr. 18, 2000). --------------------------------------------------------------------------- Another e-mail relied upon by the majority is an e-mail from a scheduler that refers to a fundraising event in Los Angeles and lists an event at the Hsi Lai Buddhist Temple.\17\ This e-mail is a draft schedule and it is incomplete and inaccurate in several places.\18\ It adds little to what is already known about the Hsi Lai Temple event. Internal communications in which the Vice President's staff apparently used the term ``fundraiser'' to describe the Hsi Lai Temple event were produced and investigated long ago.\19\ Three years ago, the Senate Governmental Affairs Committee talked with the Vice President's scheduling staff about such internal communications and thoroughly explored whether staff viewed the event as a fundraiser and how the Vice President was briefed about the event.\20\ The newly reconstructed e-mails contain no e-mail either to or from the Vice President regarding the Temple event. --------------------------------------------------------------------------- \17\ E-mail from Jackie A. Dycke to R. Martinez (Apr. 9, 1996) (E 8747-54) (discussed in majority report at x). \18\ For example, the document indicates that the Vice President will attend a DNC reception at the Hsi Lai Temple both in Los Angeles and San Jose. Id. \19\ E.g., document labeled ``Current Schedule for April 29'' (EOP 056497) (referring to a ``DNC luncheon in LA/Hacienda Heights'') (attached as exhibit 4); e-mail from Jackie A. Dycke to R. Martinez (Apr. 10, 1996) (EOP 053292) (noting that ``the VP is going to San Jose and LA for DNC fundraising events on April 29'') (attached as exhibit 5). \20\ Senate Committee on Governmental Affairs, ``Investigation of Illegal or Improper Activities in Connection with 1996 Federal Election Campaigns,'' 105th Cong., 2d sess., vol. 2, 1793-94, vol. 4, 4818-31 (March 1998). The Vice President's staff testified that they were sloppy in their use of the term ``fundraiser.'' Id. at 4822-26. LAllegation: ``As a result of the White House cover- up, information was kept from this committee.'' \21\ There was ``in effect, a purposeful effort to keep documents from Congress, the Department of Justice, and various Independent Counsels.'' \22\ --------------------------------------------------------------------------- \21\ Statement of Representative Dan Burton, House Committee on Government Reform, hearing on ``Contacts Between Northrop Grumman Corporation and the White House Regarding Missing White House E- Mails,'' 8 (Sept. 26, 2000) (hereinafter ``Sept. 26 hearing''). \22\ Letter from Representative Dan Burton to Counsel to the President Beth Nolan (Mar. 8, 2000). The Facts: The evidence shows that at the time the Mail2 problem was first discovered, the Office of Administration (OA) employees responsible for managing the e-mail system did not want any public discussion of the problem until the scope of the problem was identified and senior White House officials could be informed. This was an appropriate response given that the problem was discovered around June 1998, when the White House was the subject of intense media scrutiny generated by Independent Counsel Ken Starr's investigation of the Monica Lewinsky affair. There is no evidence, however, that the White House deliberately kept any e-mails from Federal or congressional investigators. In fact, in 1997 the White House provided approximately 7,700 pages of e-mails to this committee on campaign finance matters alone,\23\ many of which the majority has cited in its investigation.\24\ --------------------------------------------------------------------------- \23\ Statement of Counsel to the President Beth Nolan (Mar. 23, 2000). \24\ For example, the White House produced an e-mail to this committee from the National Security Council describing Democratic fundraiser Johnny Chung as a ``hustler'' and expressing concern over Mr. Chung's efforts to bring Chinese businessmen into the White House. That e-mail was referred to repeatedly during the committee's two hearings on Mr. Chung, and received extensive coverage in the press. See, e.g, ``An Investigative Report: What Clinton Knew--How a Push for New Fund-Raising Led to Foreign Access, Bad Money and Questionable Ties,'' Los Angeles Times (Dec. 21, 1997); ``Democratic Donor Chung Invokes 5th Amendment; House Members Informally Interview Businessman,'' Washington Post (Nov. 15, 1997); ``Donors Allege Laundered Contributions to Clinton-Gore Campaign,'' Associated Press (Nov. 11, 1997). --------------------------------------------------------------------------- The OA employees who were first informed of the e-mail problem promptly brought the problem to the attention of the White House Deputy Chief of Staff and the Office of White House Counsel.\25\ The counsel's office then directed that a ``test'' be performed to determine whether the e-mail problem had affected the production of documents to Independent Counsel Starr.\26\ This test turned up no new documents, leading the counsel's office to believe that the e-mail problem did not affect document production.\27\ Although it now appears that this belief was mistaken, there is no evidence that White House counsel acted in bad faith. --------------------------------------------------------------------------- \25\ Testimony of Mark Lindsay, March 23 hearing at 246. \26\ Statement of Counsel to the President Beth Nolan (Mar. 23, 2000); testimony of Robert Haas, March 23 hearing at 60, 80-81; testimony of Mark Lindsay, March 23 hearing at 247. \27\ Statement of Counsel to the President Beth Nolan (Mar. 23, 2000). --------------------------------------------------------------------------- After White House counsel became aware of the significance of the e-mails problems in 2000, the White House began the process of restoring backup tapes of the affected e-mails.\28\ On September 14, 2000, White House counsel informed committee staff that the reconstruction effort had reached the stage where the White House could search and produce batches of e- mails on an expedited basis and offered to conduct searches specified by the committee.\29\ The White House repeated the offer on October 4.\30\ To date, the majority has failed to take the White House up on its offer. --------------------------------------------------------------------------- \28\ Id.; testimony of Counsel to the President Beth Nolan, March 30 hearing at 25-26. According to Ms. Nolan, steps in the reconstruction process included selecting and contracting with a private entity with the appropriate technical expertise and resources, putting in place and testing the requisite equipment, and engaging a separate private contractor for independent validation and verification. Testimony of Counsel to the President Beth Nolan, March 30 hearing at 25-26. \29\ See letter from Counsel to the President Beth Nolan to Representative Dan Burton (Sept. 26, 2000) (attached as exhibit 6). According to the White House, with about 3 weeks of computer staff time, it would be able to conduct targeted searches using 100 backup tapes, 70 e-mail accounts, and 70 search terms. Id. \30\ Letter from Associate Counsel to the President Lisa Klem to Chief Counsel James C. Wilson (Oct. 4, 2000) (attached as exhibit 7). LAllegation: ``[E]vidence suggests that contracted staffers were personally threatened with repercussions and even jail should they mention the very existence of the server problem to anyone, even their bosses. This occurred while these e-mails were under subpoenae. This is inexcusable. This is criminal. If this is not obstruction of justice, I don't know what is.'' \31\ --------------------------------------------------------------------------- \31\ Statement of Representative Helen Chenoweth-Hage, March 23 hearing. The Facts: The evidence regarding alleged jail threats is inconclusive and contradictory. In total, eight individuals were present at meetings when the alleged threats were made. Of these eight individuals, two deny making any jail threats; \32\ three have no recollection of any jail threats; \33\ one recalls a jail threat being made in response to a ``flippant'' question; \34\ and one recalls the word ``jail'' being mentioned but cannot remember who said it.\35\ Moreover, the individuals who allegedly made the jail threats, Mark Lindsay and Laura Callahan, were not even White House employees; both worked in the Office of Administration, which provides support services to the White House, and Mrs. Callahan is a career civil servant.\36\ There is no evidence that White House officials had any knowledge of--or participated in--any threats. --------------------------------------------------------------------------- \32\ Testimony of Laura Callahan, March 23 hearing at 216, 226-27; testimony of Mark Lindsay, March 23 hearing at 199. \33\ Testimony of Yiman Salim, March 23 hearing at 21; testimony of John Spriggs, March 23 hearing at 47; statement of Paulette Cichon (Mar. 29, 2000) (attached as exhibit 8). \34\ Testimony of Robert Haas, March 23 hearing at 32. \35\ Testimony of Sandra Golas, March 23 hearing at 45. \36\ Testimony of Laura Callahan, March 23 hearing at 206. LAllegation: Earl Silbert, a ``high-priced Washington fixer,'' was hired by Northrop Grumman and told ``about possible law breaking and threats to his client's employees.'' \37\ Evidence of contacts between Mr. Silbert and the White House ``may dramatically undermine White House claims of a `disconnect' that prevented them from understanding the e-mail problem.'' \38\ --------------------------------------------------------------------------- \37\ Statement of Representative Dan Burton (Sept. 26, 2000). \38\ Memorandum from Representative Dan Burton to members of the Government Reform Committee (Sept. 21, 2000). The Facts: This allegation is wholly speculative. Mr. Silbert's two brief phone calls with White House counsel may have involved nothing more than contractual disputes then being discussed by Northrop Grumman and the White House.\39\ There is no evidence that Mr. Silbert was aware of or communicated information about threats or subpoena compliance. These issues were peripheral, if not irrelevant, to the contractual matter at stake. --------------------------------------------------------------------------- \39\ There was a difference of opinion between Northrop Grumman and the White House over whether work on the e-mail problem was within the scope of the company's contract. Testimony of Mark Lindsay, March 23 hearing at 261-63. See also letter from Joseph F. Lucente, director, contracts and subcontracts, Northrop Grumman, to Dale Helms, Executive Office of the President (Sept. 14, 1998) (NGL 00503) (stating that ``the level of effort required to remedy the [e-mail] dysfunction will substantially exceed the scope of work contemplated under the referenced contract'') (attached as exhibit 9). LAllegation: The Vice President's office ``took affirmative steps to keep from storing its e-mail records in the only system that would permit full and accurate subpoena compliance.'' \40\ A counsel to the Vice President ``personally decided that the Vice President would not store his records in a way that would permit compliance with document requests'' and there ``can be little doubt that the Vice President's advisors knew that their actions would permit his office to operate in a manner that would make it less susceptible to oversight.'' \41\ --------------------------------------------------------------------------- \40\ Majority report at viii. \41\ Id. at xviii. The Facts: In 1994, the Office of the Vice President opted not to archive its e-mails electronically via ARMS. There is no evidence whatsoever that this decision was seen, or could have been seen, as affecting subpoena compliance. At the time, ARMS was intended to be strictly a way of archiving electronic records for posterity, not a tool for subpoena compliance. The Office of the Vice President, which was under no legal or ethical obligation to archive its e-mail electronically, opted not to use ARMS because of apparent technical concerns about connecting the OVP computer system to ARMS.\42\ Instead of using ARMS, the office preserved its records by instructing personnel to print out and save work-related e-mails, and by regularly backing up the system and saving the backup tapes.\43\ --------------------------------------------------------------------------- \42\ Interview of Michael Gill by majority and minority staff, House Committee on Government Reform (July 24, 2000). According to Mr. Gill, who handled information technology matters in the OVP, in order for the OVP to connect to ARMS, it would have had to take a giant technological step backwards by converting its windows-based e-mail system to a character-based system which Mr. Gill considered to be less user-friendly. Id. \43\ Interview of Michael Gill by majority and minority staff, House Committee on Government Reform (July 24, 2000); interview of Hon. Todd Campbell by majority and minority staff, House Committee on Government Reform (Aug. 18, 2000). LAllegation: ``[A] White House employee, aided and counseled by Justice Department lawyers, submitted a false affidavit to a Federal court that concealed the failure of the White House to search for all e-mails responsive to subpoenas.'' \44\ The affidavit contains an assertion about ARMS that is ``utterly false.'' \45\ --------------------------------------------------------------------------- \44\ Letter from Representative Dan Burton to Attorney General Janet Reno (Sept. 7, 2000). \45\ Letter from Representative Dan Burton to Attorney General Janet Reno (Mar. 30, 2000). The Facts: The affidavit was filed in 1999 by a career civil servant, Daniel A. ``Tony'' Barry, as part of the government's efforts to convince a judge hearing a civil lawsuit that ARMS searches were not necessary for discovery purposes. In the course of describing the cost and difficulty of conducting e-mail searches, the affidavit states: ``Since July 14, 1994, e-mail within the EOP system administered by the Office of Administration has been archived in the EOP Automated Records Management System (ARMS).'' \46\ Read in context, the affidavit was simply and accurately attempting to describe the basic function of ARMS--namely, that it archives e-mail and that it has been in effect since July 14, 1994. --------------------------------------------------------------------------- \46\ Declaration of Daniel A. Barry, Alexander v. FBI, No. 96-2123 (July 9, 1999), para. 4. Allegation: An e-mail written by a mid-level OA employee ``concludes by saying, `Let sleeping dogs lie.' I think translated that means let's keep a lid on this, and don't let Congress and the independent counsels know about it.'' \47\ This e-mail ``would be considered evidence of obstruction of justice.'' \48\ --------------------------------------------------------------------------- \47\ Statement of Representative Dan Burton, House Committee on Government Reform, hearing on ``Missing White House E-Mails: Mismanagement of Subpoenaed Records--Day Three,'' 13 (May 3, 2000) (stenographic record) (hereinafter ``May 3 hearing''). \48\ Statement of Representative Bob Barr, May 3 hearing at 35. The Facts: The employee who wrote the e-mail in question is Karl Heissner, a 25-year career civil servant. He testified that his e-mail memo addressed two separate and unrelated issues.\49\ One part of the e-mail is entitled ``Mail2 Reconstruction,'' and it provides a summary of the Mail2 problem, its discovery, and subsequent efforts to fix it. The other part of the e-mail, entitled, ``Information Requests,'' discusses the number of information requests received by the White House. Mr. Heissner testified that his reference to letting ``sleeping dogs lie'' referred to the declining number of information requests received by the White House, and that it had nothing to do with the Mail2 problem.\50\ --------------------------------------------------------------------------- \49\ Testimony of Karl Heissner, May 3 hearing at 49-50. \50\ Id. at 50-51. Allegation: ``The White House has in its possession a previously undisclosed computer disk with e-mails by former intern Monica Lewinsky'' that were sought ``by a Federal grand jury and three congressional committees, but never turned over.'' \51\ --------------------------------------------------------------------------- \51\ ``White House Has Disk With Lewinsky E-Mail,'' Washington Times (Mar. 29, 2000). The Facts: The computer disk was a copy of a file belonging to a computer contractor. It did not contain any previously undisclosed e-mail. The Lewinsky-related e-mail on the disk had been examined and determined to be duplicative of material that had already been produced.\52\ --------------------------------------------------------------------------- \52\ Testimony of Beth Nolan, March 30 hearing at 26; see also supra note 11. Allegation: The Justice Department ``took no steps to determine whether reports about the e-mail problem were true.'' \53\ ``The only answer is to appoint a Special Counsel to do the job.'' \54\ --------------------------------------------------------------------------- \53\ Letter from Representative Dan Burton to Judge Royce C. Lamberth (Mar. 29, 2000). \54\ Statement of Representative Dan Burton, March 30 hearing at 14. The Facts: The e-mail matter is already being investigated by Independent Counsel Robert Ray, who is working in coordination with the Justice Department.\55\ The independent counsel's investigation is focused on examining e-mail glitches as they relate to the production of documents to his office, which means that all of the issues explored by the committee-- including allegations of threats and a cover-up--are relevant to his inquiry. There is no evidence that the Department has hindered Mr. Ray's investigation. Nor is there any evidence that the Department's investigation is less complete than that of Mr. Ray or that the Department has failed to consult with Mr. Ray before making any investigative decisions. --------------------------------------------------------------------------- \55\ Testimony of Alan Gershel, Sept. 26 hearing at 35, 48. --------------------------------------------------------------------------- c. the majority's version of events The majority has woven a tale of massive coverup and subterfuge conducted to prevent investigators from learning about White House e-mail glitches. Under the majority's theory, numerous individuals, from computer specialists, to administrators, to White House lawyers, to individuals outside the White House, have either been dishonest with the committee about the e-mails matter or have purposely attempted to impede the work of investigators. The individuals implicated by the majority include: Charles F.C. Ruff, currently a member of the law firm Covington & Burling. Mr. Ruff's public service spans three decades. He has served as Counsel to the President; Corporation Counsel, District of Columbia; U.S. Attorney, District of Columbia; Special Prosecutor, Watergate Special Prosecution Force; Principal Associate Deputy Attorney General; Acting Deputy Attorney General; and Deputy Inspector General, Department of Health, Education and Welfare; Beth Nolan, currently Counsel to the President. Ms. Nolan previously served as Deputy Assistant Attorney General in the Office of Legal Counsel at the Department of Justice, and as an Attorney-Advisor in the Office of Legal Counsel. She also was a law professor at George Washington University from 1985- 1997, where she taught courses in constitutional law, legal ethics, government ethics, and government lawyering; Todd Campbell, a Federal judge in Tennessee since 1996. Judge Campbell's public service includes 2 years as legal counsel for Vice President Gore; Earl J. Silbert, currently a member of the law firm Piper Marbury Rudnick & Wolfe. Mr. Silbert has a long history of public service, including work as Assistant U.S. Attorney at the Department of Justice, and Principal Assistant U.S. Attorney and then U.S. Attorney for the District of Columbia; Mark Lindsay, currently Assistant to the President for Management and Administration. Mark Lindsay's public service includes serving as Deputy Assistant to the President for Management and Administration, Director of the Office of Administration, General Counsel for the Office of Administration, and senior counsel to Representative Louis Stokes; Cheryl Mills, currently senior vice president for corporate policy and public programming at Oxygen Media. Ms. Mills's public service includes nearly 7 years in the Office of White House Counsel, first as Associate Counsel and later as Deputy Counsel; Laura Callahan, currently special assistant for information technology at the Department of Labor. Mrs. Callahan is a career Federal civil servant whose service dates back to 1984, and she is also a registered Republican; Karl Heissner, currently a computer specialist at the Office of Administration. Mr. Heissner is a career Federal civil servant who served as a computer specialist during the Ford, Carter, Reagan, Bush, and Clinton administrations; and Daniel A. ``Tony'' Barry, currently Deputy Data Center Manager/Electronic Records Manager at the Office of Administration. Mr. Barry has worked as a computer specialist in the Office of Administration in both the Bush and Clinton administrations. As support for their allegations involving these individuals, the majority relies heavily on speculation, presents evidence selectively, cites authority which does not support the proposition stated, disregards sworn testimony of White House officials and career civil servants, and interprets gaps in the evidence as opposed to objectively analyzing the evidence before the committee. The majority's theories are based on the premise that all of the individuals implicated cast their integrity aside to conceal a subset of e-mails whose content was entirely unknown to them. This premise is wholly implausible and amounts to a smear on the reputations of many distinguished individuals. In sum, the majority's comparison of the e-mails matter to Watergate is ludicrous. The committee has received no information that any White House official or Office of Administration employee intentionally created the e-mail problems, made any attempt to impede investigation of the problems, or had any knowledge of the content of e-mails that may not have been captured. II. Background The committee has devoted considerable resources to investigating the e-mail matter. The committee has held 5 days of hearings on this topic--on March 23, March 30, May 3, May 4, and September 26--at which it received testimony from 17 people (3 of whom each testified twice).\56\ Committee staff also privately interviewed 36 people in connection with the e-mail investigation, and the committee has requested and received 10,676 pages of documents. --------------------------------------------------------------------------- \56\ Those three people are Mark Lindsay, Beth Nolan, and Robert Raben. --------------------------------------------------------------------------- The following discussion summarizes what the committee learned about the origin and nature of the White House e-mail problems during the investigation. a. the automated records management system Beginning in 1950, Congress has passed several statutes regulating the process by which Federal agencies and the White House create, manage, and maintain official records. These recordkeeping laws distinguish between Federal and Presidential records. The Federal Records Act \57\ (FRA) covers: --------------------------------------------------------------------------- \57\ This report follows the convention of collectively referring to the statutory regime governing Federal records as the ``Federal Records Act.'' --------------------------------------------------------------------------- documentary materials, regardless of physical form or characteristics, made or received by an agency of the United States Government under Federal law or in connection with the transaction of public business and preserved or appropriate for preservation by that agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the Government or because of the informational value of data in them.\58\ --------------------------------------------------------------------------- \58\ 44 U.S.C. Sec. 3301. --------------------------------------------------------------------------- Under the FRA, agency heads are required to ``establish and maintain an active, continuing program for the economical and efficient management of the records of the agency.'' \59\ In addition, the Archivist of the United States is required to ``establish standards for the selective retention of records of continuing value, and assist Federal agencies in applying the standards to records in their custody.'' \60\ --------------------------------------------------------------------------- \59\ 44 U.S.C. Sec. 3102. \60\ 44 U.S.C. Sec. 2905. --------------------------------------------------------------------------- Presidential records are regulated under the Presidential Records Act (PRA).\61\ They are defined as: --------------------------------------------------------------------------- \61\ Public Law No. 95-591, 92 Stat. 2523 (1978). --------------------------------------------------------------------------- documentary materials, or any reasonably segregable portion thereof, created or received by the President, his immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise and assist the President, in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.\62\ --------------------------------------------------------------------------- \62\ 44 U.S.C. Sec. 2201. --------------------------------------------------------------------------- While Federal records are regulated by a ``strict document management regime . . . the PRA `accords the President virtually complete control over his records during his term of office.' '' \63\ The PRA stipulates that, once the President leaves office, responsibility for the custody and control over that President's official records is assigned to the Archivist of the United States,\64\ but even then the President may still designate a period of up to 12 years during which access to his Presidential records is restricted.\65\ --------------------------------------------------------------------------- \63\ Armstrong v. Executive Office of the President, 1 F.3d at 1290-91 (citation omitted). \64\ 44 U.S.C. Sec. 2203(f)(1). \65\ 44 U.S.C. Sec. 2204(a). --------------------------------------------------------------------------- In January 1989, in the waning days of the Reagan administration, several researchers and nonprofit organizations filed a lawsuit seeking to prevent the destruction of electronic data stored on the computer systems of the Executive Office of the President (EOP) and the National Security Council (NSC). The suit sought a declaration that such data were Federal and Presidential records and thus subject to the statutory provisions cited above. On August 13, 1993, the D.C. Circuit Court of Appeals issued a decision in the case, Armstrong v. Executive Office of the President, which affirmed that the FRA applies to electronic mail (e-mail) and that existing EOP guidelines for managing e-mail--which required employees to print and save hard copies of e-mails--were not in compliance with FRA requirements.\66\ --------------------------------------------------------------------------- \66\ The decision explained that ``important information present in the e-mail system, such as who sent a document, who received it, and when that person received it, will not always appear on the computer screen and so will not be preserved on the paper print-out.'' 1 F.3d at 1284. --------------------------------------------------------------------------- Following the Armstrong decision, the White House authorized the creation of a database known as the Automated Records Management System (ARMS) to manage electronic records.\67\ While the Armstrong decision applied only to Federal records, the White House opted to use ARMS to manage both Federal and Presidential records generated within the EOP. All internally generated e-mails--meaning e-mails sent from ARMS-managed accounts within the EOP--would be automatically copied and sent to ARMS at the time they were sent.\68\ In addition, software was written that would regularly scan user accounts on the EOP's computer servers for incoming e-mail, which would then be copied and archived in ARMS.\69\ --------------------------------------------------------------------------- \67\ Letter from Counsel to the President Beth Nolan to Representative Dan Burton (Mar. 17, 2000) (attached as exhibit 10). \68\ Id. \69\ Id. --------------------------------------------------------------------------- ARMS went into operation in July 1994.\70\ In order to comply with Armstrong, the White House also launched a reconstruction effort to ensure that e-mails dating from before July 1994 back to the beginning of the Clinton administration were entered into the new system. That reconstruction effort was completed in 1999.\71\ --------------------------------------------------------------------------- \70\ Id. \71\ Id. --------------------------------------------------------------------------- Responsibility for the pre-1994 reconstruction effort, and for general maintenance of ARMS, lay with the Office of Administration (OA), which provides administrative support services, including data processing and records maintenance, to all units within the EOP. OA is headed by a Presidentially appointed director and has approximately 180 staff, the vast majority of whom are career civil servants. In order to assist OA with its responsibilities, the EOP has contracted with private companies. Prior to 1997, the EOP had a contract with PRC Inc., a wholly owned subsidiary of Litton PRC, to provide information technology (IT) services. Upon the contract's expiration in late 1997, a new contract was signed with Northrop Grumman, and Northrop Grumman's contract and subcontract employees continue to provide onsite assistance to OA personnel. While ARMS was originally designed to comply with the Armstrong decision, the White House later opted to use ARMS's word-search capabilities to assist it in responding to subpoenas and other information requests. Upon receipt of a request for documents, the White House Counsel's office will instruct individuals within the relevant EOP offices to search for responsive materials, including computer records.\72\ In addition, the White House will instruct OA personnel to do a computerized search of ARMS.\73\ While it is not clear when the White House first used ARMS to respond to information requests, a letter sent by then-Counsel to the President Charles F.C. Ruff to Representative Burton in September 1997 indicates that the White House informed this committee in the spring of 1997 that White House e-mails were stored in a central archive which was capable of being searched (albeit by a costly and time- consuming procedure).\74\ --------------------------------------------------------------------------- \72\ Id. \73\ Id. \74\ Letter from then-Counsel to the President Charles F.C. Ruff to Representative Dan Burton (Sept. 11, 1997) (attached as exhibit 11). --------------------------------------------------------------------------- b. the mail2 problem Daniel A. ``Tony'' Barry, an OA computer specialist who is responsible for the overall system administration of ARMS, was performing an ARMS search in January 1998 for documents relating to Monica Lewinsky when he found what appeared to be a gap in the e-mail correspondence between Ms. Lewinsky and Ashley Raines. As Mr. Barry explained to the Committee, ``I discovered what looked like conversational e-mail between two people and I only saw one side of the conversation.'' \75\ Mr. Barry enlisted the help of a Northrop Grumman contract employee named John Spriggs but the two men were unable to figure out the cause of the problem. Mr. Barry then filed a report with his superior, Jim Wright, describing the incident. In this report, Mr. Barry noted that he could not determine if the incident reflected a systemic problem or a one-time problem.\76\ This was apparently not the first time that problems with ARMS had been discovered; testimony from several government employees indicated that e-mail-related problems were not uncommon.\77\ --------------------------------------------------------------------------- \75\ Testimony of Daniel A. Barry, March 23 hearing at 103. \76\ Undated, type-written notes (E 2496). While this document contains no indication on its face as to its author or recipient, OA Counsel John H. Young identified it as Mr. Barry's anomaly report for the committee. Testimony of John H. Young, March 23 hearing at 190. The majority report states that Mr. Barry hand-delivered the report to Mr. Wright, contrary to his ``general practice'' of e-mailing weekly reports. Majority report at 16. The majority also states that Mr. Barry did not refer to the names of the account users in his incident report, contrary to his ``general practice.'' Majority report at 16-17. These assertions about Mr. Barry's ``general practice'' are not substantiated, however. Moreover, their significance is questionable, even if they were accurate. \77\ Mr. Barry testified that ``there have been problems in the past with the [Lotus] Notes [e-mail network]-ARMS interface.'' Testimony of Daniel A. Barry, March 23 hearing at 110. OA employee Laura Callahan told the committee that ``[w]e've had numerous problems with the e-mail system. It was very poorly designed and very poorly constructed by a contractor prior to Northrop Grumman. So, as a result, anomalies were fairly common.'' Testimony of Laura Callahan, March 23 hearing at 212-13. Assistant to the President for Management and Administration Mark Lindsay testified that ``I had potential problems with computer systems and with e-mail issues frequently. We had an antiquated system that we are working very diligently to make improvements on.'' Testimony of Mark Lindsay, House Committee on Government Reform, hearing on ``Missing White House E-Mails: Mismanagement of Subpoenaed Records--Day Four,'' 108 (May 4, 2000) (stenographic record) (hereinafter ``May 4 hearing''). --------------------------------------------------------------------------- It was several more months before OA and Northrop Grumman personnel were able to identify the cause of the problem noted by Mr. Barry. Around June 1998, two systems administrators at the EOP under contract to Northrop Grumman--Yiman Salim and Robert Haas--discovered a problem which was preventing some incoming e-mails from being properly processed by ARMS.\78\ According to Ms. Salim, ``[i]t was a very technical typographical-type error committed by a prior contractor before Northrop Grumman.'' \79\ Mr. Haas and Ms. Salim immediately notified their direct supervisor, Betty Lambuth, about the problem, which they continued to investigate. --------------------------------------------------------------------------- \78\ There is some disagreement about when exactly this occurred. Mr. Haas and Ms. Salim are in general agreement on the date. He testified that it was June 12. Testimony of Robert Haas at March 23 hearing. Ms. Salim testified that it was a ``few days'' prior to June 15. Testimony of Yiman Salim, March 23 hearing at 20. According to Northrop Grumman employee Betty Lambuth, however, the problem was discovered in May 1998, while Counsel to the President Beth Nolan suggested that it was discovered in May or June. Testimony of Betty Lambuth at March 23 hearing; statement of Counsel to the President Beth Nolan (Mar. 23, 2000). \79\ Testimony of Yiman Salim, March 23 hearing at 19. --------------------------------------------------------------------------- In the days that followed, it was determined that the problem was specific only to one computer server, created in August 1996, and that it affected only e-mails sent from outside the EOP. Ms. Salim explained that the problem began: when the contractors prior to Northrop Grumman built a new e-mail server called ``Mail2.'' When the contractors [sic] personnel named the Mail2 server, they used an upper-case ``M'' and lower-case letters for the rest of the name. Following its creation, however, the individual name accounts on the Mail2 server were assigned the name ``MAIL2'' using all capital letters. When the case-sensitive ARMS scanner process ran on the Mail2 server to perform its comparison of the names, the comparison failed, since the names did not appear in the exact same case; therefore, none of those accounts from Mail2 were scanned. . . . [A]s a result, inbound e-mails were not records managed. Outbound e-mails were automatically records managed without the need for such scanning. That is why outbound White House e-mails were not affected by this error.\80\ --------------------------------------------------------------------------- \80\ Id. at 20. As Ms. Salim and the others working on the Mail2 problem learned, the problem affected a relatively small subset of EOP e-mails.\81\ The problem only affected incoming e-mails sent to 526 individuals with accounts on the Mail2 server, 464 of whom worked in the White House.\82\ The total number of affected users, 526, represents less than one-third of the number of employees in the entire EOP.\83\ Furthermore, e-mails that were copied to non-affected employees would have been archived in ARMS,\84\ as would e-mails which the recipient responded to ``with history'' or forwarded.\85\ --------------------------------------------------------------------------- \81\ Mr. Barry, OA's ARMS expert, testified that the number of documents being archived in ARMS did not appear to increase after the Mail2 problem was fixed in November 1998, thus suggesting that the problem was not as serious he had thought. According to Mr. Barry, ``[W]hen I went back and looked at the growth numbers between November 1998 and December 1998, which would be the significant ones in this case, I saw nothing other than what I would normally expect in the growth between one month and the other, given the trend line that we have in place.'' Testimony of Daniel A. Barry, March 23 hearing at 105. \82\ Letter from Counsel to the President Beth Nolan to Representative Dan Burton (Mar. 17, 2000). Of the remaining Mail2 accounts, 58 belonged to employees of the Office of Policy Development--which is also located in the EOP--and 4 belonged to OA employees. \83\ Currently, there are approximately 1,650 EOP employees. Since this number does not include detailees, and does not account for turnover, the proportion of EOP e-mail accounts affected by the Mail2 problem can be expected to be even lower than one-third. Some of the affected accounts apparently dated back to the creation of the Mail2 server in August 1996; in other cases, as new EOP employees were hired they may have been assigned to the Mail2 server and, depending on whether or not the name of the server was written in the correct case, their incoming e-mails may or may not have been sent to ARMS. \84\ Mr. Barry's testimony confirmed this fact: Mr. Waxman. What we're talking about were e-mails from outside of the [EOP] system to somebody in the system . . . [If] one of those e-mails were sent to somebody inside, and there was a carbon copy or copy directed to somebody else, then that would have been picked up, as well, in the ARMS --------------------------------------------------------------------------- system, wouldn't it? Mr. Barry. That's correct. March 23 hearing at 78. --------------------------------------------------------------------------- \85\ If ``an affected user received an incoming e-mail and forwarded it or replied to it with history (sending back the original incoming e-mail) then ARMS should have recorded the incoming e-mail.'' Statement of Counsel to the President Beth Nolan (Mar. 23, 2000). Mr. Barry confirmed that the text of a message would be in ARMS ``[i]f the user had done a reply with history.'' Testimony of Daniel A. Barry, March 23 hearing at 79. --------------------------------------------------------------------------- Furthermore, even if an e-mail was not archived by ARMS at all, it nevertheless could have been produced to investigators by the White House. Ms. Nolan informed the committee that when the White House counsel's office responds to subpoenas, in addition to searching ARMS it ``instructs individuals within the relevant EOP offices to search for responsive materials. This directive explicitly states that each individual should search computer records as well as hard copies.'' \86\ Thus, any responsive e-mails that were saved by the sender or recipient should have been produced, regardless of whether or not they were recorded in ARMS.\87\ --------------------------------------------------------------------------- \86\ Statement of Counsel to the President Beth Nolan (Mar. 23, 2000). The majority asserts that reliance on manual searches is ``woefully inadequate'' and states that Mr. Ruff was ``at a complete loss'' when asked how he conducted searches of his own e-mail. Majority report at 105. In fact, Mr. Ruff explained that ``I rarely used my E- mail for any substantive business. Indeed, I'm not sure that I ever did.'' Transcript of Interview of Charles F.C. Ruff, House Committee on Government Reform, 6 (Apr. 6, 2000). \87\ In addition, e-mails that were not retrieved by the White House may have been provided to investigators by other sources that sent e-mails to the White House and that were subpoenaed for documents including e-mails. These potential sources include Federal agencies and the Democratic National Committee. --------------------------------------------------------------------------- At the time of the discovery of the Mail2 problem, there was widespread discussion in the press about the ongoing Monica Lewinsky investigation being conducted by Independent Counsel Kenneth Starr.\88\ Laura Crabtree Callahan, a career civil servant in OA, and Mark Lindsay, then OA's General Counsel, discussed the Mail2 problem and agreed that this was a sensitive issue, given the ``other events going on'' reported in ``newspapers and the media.'' \89\ Within days of the discovery of the Mail2 problem, a meeting was held in the office of Mrs. Callahan. Ms. Lambuth, Mr. Spriggs, Mr. Haas, Ms. Salim, and Sandra Golas--all of whom were Northrop Grumman contract or subcontract employees--attended.\90\ Although accounts of this meeting conflict in some of their particulars, the testimony of those present at the meeting is in general agreement on two points. The first point is that Mr. Lindsay spoke with those present by speaker-phone and instructed them to avoid discussing the e-mail problem with anyone else as it was a sensitive matter.\91\ The second point is that, after Mr. Lindsay had spoken, Mrs. Callahan then reiterated to the contractors that they should not talk about the e-mail problem.\92\ --------------------------------------------------------------------------- \88\ See, e.g., ``Starr Hints He May File Impeachment Report,'' New York Times (June 3, 1998); ``Political Clock Ticking on Interim Starr Report,'' Washington Post (June 6, 1998). \89\ Testimony of Laura Callahan, March 23 hearing at 216. \90\ Testimony of Yiman Salim, March 23 hearing at 20; testimony of Robert Haas, March 23 hearing at 31. \91\ According to Mr. Haas (who referred to Mrs. Callahan by her maiden name of ``Crabtree''), ``Mr. Lindsay told us that the discovery of the Mail2 problem was to be treated as top secret and that only Ms. Crabtree, Ada Posey, and Mr. Lindsay, himself, could authorize the group to talk to anyone else.'' Testimony of Robert Haas, March 23 hearing at 31-32. Ms. Golas testified that she remembered Mr. Lindsay ``talking to us and telling us that it was very important that we didn't take the information out of the room, that we shouldn't discuss it with anyone.'' Testimony of Sandra Golas, March 23 hearing at 45. Mr. Lindsay, however, while he did not contest this point, told the committee that he did not recall having addressed the group by speaker- phone. Testimony of Mark Lindsay, March 23 hearing at 217. \92\ Testimony of Yiman Salim, March 23 hearing at 20-21, 46; testimony of Robert Haas, March 23 hearing at 32; testimony of John Spriggs, March 23 hearing at 47-48. --------------------------------------------------------------------------- After this meeting, the contractors continued investigating the technical issues at stake. Mr. Haas was charged with determining how many e-mails had not been records-managed (i.e., had not been archived into ARMS) because of the Mail2 problem. He spent several weeks examining the mail files of Mail2 users and determining how many of the e-mails in each file had not been records-managed. Because Mr. Haas was only able to examine e-mails that still remained on the server (i.e., that had not been deleted by their recipient), he was not able to identify how many e-mails had been affected by the Mail2 problem since its inception in August 1996. Nor was Mr. Haas able to determine whether the non-records-managed e-mails he located had been archived into ARMS ``through a secondary process.'' \93\ Nonetheless, the results of Mr. Haas's survey did provide a rough sense of the magnitude of the problem. As recorded in a 75-page document that Northrop Grumman provided to the committee, Mr. Haas's survey extended to 501 accounts and found that 246,053 e-mails out of a total of 1,353,641 e- mails (18 percent) had not been sent directly to ARMS.\94\ --------------------------------------------------------------------------- \93\ Testimony of Robert Haas, March 23 hearing at 83. \94\ The document compiled by Mr. Haas (NGL 00291-365) also indicates that an additional nine e-mail accounts had been deleted, and thus did not contain any e-mails. --------------------------------------------------------------------------- Meanwhile, OA quickly notified the White House about the Mail2 problem. A two-page memo dated June 19, 1998, was sent from Virginia Apuzzo, then the Assistant to the President for Management and Administration, to then-Deputy Chief of Staff John Podesta outlining the problem. The memo noted that an ``important function'' of the ARMS system was the ``identification and retrieval of documents in response to information requests.'' \95\ Mark Lindsay then separately briefed Mr. Podesta and then-White House Counsel Charles Ruff about the Mail2 problem.\96\ Former White House Deputy Counsel Cheryl Mills may also have attended the briefing of Mr. Ruff.\97\ --------------------------------------------------------------------------- \95\ Memorandum from Virginia M. Apuzzo to John D. Podesta (June 19, 1998) (E 3234-36, E 3373-76). \96\ See testimony of Mark Lindsay, March 23 hearing at 246. The majority questions Mr. Podesta's ``complete failure to follow-up at all on how the problem was handled.'' Majority report at 49, note 282. In fact, it appears that Mr. Podesta acted responsibly by making sure that Mr. Ruff was briefed immediately about the problem. Interview of John Podesta by majority and minority staff, House Committee on Government Reform (May 30, 2000) (stating that he either instructed Mr. Lindsay to brief Mr. Ruff or was told by Mr. Lindsay that Mr. Lindsay was going to brief Mr. Ruff); testimony of Mark Lindsay, March 30 hearing at 246 (stating that ``Mr. Podesta's response was just to ask if I had had any conversation with Mr. Ruff''). \97\ Mr. Ruff's calendar for June 19, 1998 (E 3445) contains a 4:30 p.m. entry for ``Lindsay, Mills.'' It is not clear if this entry refers to Mr. Lindsay's Mail2 briefing, nor is it clear that Ms. Mills actually attended the meeting. Ms. Mills testified that her best recollection was that she did not attend the meeting. Testimony of Cheryl Mills, May 4 hearing at 32. Mr. Lindsay did not recall Ms. Mills being present at the meeting, while Mr. Ruff did not recall whether or not she was present. Testimony of Mark Lindsay, May 4 hearing at 29; testimony of Charles Ruff, May 4 hearing at 42, 121. --------------------------------------------------------------------------- As the Northrop Grumman contractors continued to investigate the e-mail problem, tensions arose between them and Steven Hawkins, Northrop Grumman's program manager. These tensions contributed to Ms. Lambuth's being removed from the Northrop Grumman contract around the end of July. Several Northrop Grumman contract employees contacted and met with company executives and lawyers around early September 1998. Subsequent to these meetings, Northrop Grumman executives determined that fixing the Mail2 problem was outside of the scope of their contract with the EOP. Northrop Grumman communicated its determination to the EOP in a letter dated September 14, 1998, which stated: the level of effort required to remedy the dysfunction will substantially exceed the scope of the work contemplated under the referenced contract. As a consequence we are not proceeding with our efforts to remedy the dysfunction until we have received further contractual direction.\98\ --------------------------------------------------------------------------- \98\ Letter from Joseph F. Lucente to Dale Helms (Sept. 14, 1998) (NGL 00503). After the Northrop Grumman letter, employees of OA and Northrop Grumman discussed how to fix the Mail2 problem and reconstruct the ``missing'' e-mails. Mr. Haas's study had suggested that there were many non-archived e-mails still on the Mail2 server. The problem lay in retrieving e-mails that had been deleted from the server without being archived into ARMS. The solution to this problem lay in the fact that the EOP regularly backs up its servers and generally maintains its backup tapes. It soon became apparent, however, that actually cataloguing and accessing these backup tapes--which are essentially snapshots of what was on the entire computer system at a given point in time--would be a difficult and time- consuming process at best.\99\ There was also the problem of entering the recovered e-mails into the ARMS system in such a way that they could be accessed and searched in the future. --------------------------------------------------------------------------- \99\ Interview of John Spriggs by majority and minority staff, House Committee on Government Reform (Mar. 7, 2000). --------------------------------------------------------------------------- Northrop Grumman employees prepared a detailed proposal for a work order authorizing contract work by Northrop Grumman to retrieve the non-archived e-mails from the backup tapes. The proposal did not provide a solution to the Mail2 server problem but rather a detailed plan for how to come up with a solution to the problem. The proposal, which was completed and provided to the EOP in October 1998, estimated that the process of reconstructing the ``missing'' e-mails would take 6 to 9 months, at a cost of around $602,000.\100\ --------------------------------------------------------------------------- \100\ E-mail from Tracey A. Breeding to Joseph A. Vasta (Dec. 2, 1998) (NGL 00609-11). --------------------------------------------------------------------------- The EOP apparently rejected the draft work order for cost reasons. A decision was then made to ``stop the bleeding,'' and on November 22, 1998, the Mail2 problem was fixed prospectively.\101\ From that date forward, the Mail2 error ceased to prevent e-mails from being processed by ARMS. The problem remained, however, of reconstructing non-archived e- mails from before November 22, dating back to the origins of the Mail2 problem in August 1996. Having ``stopped the bleeding,'' OA deferred action on this reconstruction project in 1999 as it focused on addressing Y2K concerns.\102\ --------------------------------------------------------------------------- \101\ Testimony of Yiman Salim, March 23 hearing at 21. \102\ Testimony of Mr. Lindsay, March 23 hearing at 202 (``Because of that requirement to address the Y2K glitch . . . the reconstruction of the e-mail was a matter which had to be placed in the context of maintaining the total e-mail situation. What we did after we were able to address the Y2K problem, a[t] the end of February 29th of 2000, is we were able to then continue the efforts''). See also testimony of OA Director Michael Lyle, May 3 hearing at 55-58. --------------------------------------------------------------------------- It was only in 2000, with the Y2K concerns over and the end of the administration approaching, that the EOP focused again on the Mail2 reconstruction project. Ms. Nolan testified that she was first informed of the Mail2 problem during a January 18, 2000, briefing by OA on post-Presidency records management issues.\103\ At the briefing, Ms. Nolan was informed that the White House had previously made sure that these technical problems did not affect the White House's responses to information requests.\104\ --------------------------------------------------------------------------- \103\ Statement of Counsel to the President Beth Nolan (Mar. 23, 2000). The committee received briefing papers for the meeting which suggest that the Mail2 and letter ``d'' issues were discussed in the context of records management issues relating to Armstrong (E 3412-17). Michael Lyle, OA's Director, who also attended the briefing, confirmed that the purpose of the meeting was to prepare for another meeting, with the National Archives and Records Administration, regarding the Presidential transition. Testimony of Michael Lyle, May 3 hearing at 59. \104\ According to OA Director Michael Lyle, Ms. Nolan inquired at the meeting about whether the problems had affected subpoena compliance. Testimony of Michael Lyle, May 3 hearing at 103-04. Mr. Lyle said that he assured her that ``the question that she was asking had been dealt with prior by Mr. Lindsay and Mr. Ruff.'' Id. at 104. Mr. Lyle then checked with Mr. Lindsay, who confirmed that he had indeed handled the issue with Mr. Ruff. Id. --------------------------------------------------------------------------- C. Other E-Mail Problems In April 1999, Northrop Grumman personnel discovered an additional ARMS problem. This problem prevented incoming mail to persons whose account names began with the letter ``d'' from being recorded by ARMS. Approximately 200 accounts within the EOP were affected, including 54 accounts in OMB, 42 accounts in the White House Office, 32 accounts in OA, and 21 accounts in the NSC. The so-called ``letter `d' '' problem had apparently been caused accidentally by Northrop Grumman employees in the fall of 1998.\105\ This problem was fixed prospectively around May or June 1999. Mr. Lindsay testified that he informed the Office of White House Counsel about the letter ``d'' problem,\106\ but Mr. Ruff had no recollection of being informed of the letter ``d'' problem and Ms. Mills testified that she did not learn about the problem.\107\ --------------------------------------------------------------------------- \105\ According to Ms. Nolan, this problem occurred when the Mail2 problem was fixed in November 1998. Letter from Counsel to the President Beth Nolan to Representative Dan Burton (Mar. 17, 2000). \106\ Testimony of Mark Lindsay, May 4 hearing at 177. Mr. Lindsay could not recall whom he spoke to in the counsel's office. Id. at 178. \107\ Testimony of Charles Ruff and Cheryl Mills, May 4 hearing at 184. --------------------------------------------------------------------------- Since the Mail2 problem was publicly revealed in February 2000, the White House has also discovered and disclosed several additional problems relating to the archiving of e-mails. Ms. Nolan informed the committee on March 17, 2000, that e-mails on the server of the Office of the Vice President (OVP) have not been fully managed by ARMS.\108\ As explained by Ms. Nolan--and as confirmed by the committee's own investigation--the OVP apparently opted not to be connected to ARMS when the latter went into effect in 1994. Instead, it appears that the OVP maintained its own computer system, serviced by a contractor rather than by OA.\109\ --------------------------------------------------------------------------- \108\ Letter from Counsel to the President Beth Nolan to Representative Dan Burton (Mar. 17, 2000). \109\ Statement of Counsel to the President Beth Nolan (Mar. 23, 2000). OA took over responsibility for the OVP's computer system in approximately March 1997. --------------------------------------------------------------------------- Because the OVP server was not linked to ARMS, incoming and outgoing e-mails to or from OVP e-mail accounts created before March 1997 were not sent directly to ARMS (although, for the reasons explained above with respect to the Mail2 problem, some of those e-mails may nonetheless have been sent to ARMS by other means). Outgoing e-mail from OVP accounts created after March 1997 was apparently records-managed, but incoming e-mail to those OVP accounts was not sent to ARMS.\110\ The White House informed the committee on June 7, 2000, that all OVP accounts in the White House were now records-managed.\111\ --------------------------------------------------------------------------- \110\ Id. \111\ Letter from Senior Associate Counsel to the President Steven F. Reich to Chief Counsel James C. Wilson (June 7, 2000). The letter noted that OA was developing a way to records-manage OVP accounts on the Senate e-mail system. Id. --------------------------------------------------------------------------- Although OVP e-mail accounts were not records-managed by ARMS, OVP personnel were instructed to print out and save e- mails, and the OVP system was regularly backed up and the backup tapes saved.\112\ However, a technical configuration error apparently prevented e-mail on the OVP server from being backed up from the end of March 1998 through early April 1999.\113\ The error apparently resulted in 3 days' worth of Vice President Gore's e-mail being deleted.\114\ --------------------------------------------------------------------------- \112\ Interview of Hon. Todd Campbell by majority and minority staff, House Committee on Government Reform (Aug. 18, 2000). \113\ Letter from Senior Associate Counsel to the President Steven F. Reich to Chief Counsel James C. Wilson (June 7, 2000). \114\ Memorandum from Dorothy E. Cleal, Associate Director for Information Systems and Technology, Office of Administration, to Virginia Apuzzo, Assistant to the President for Management and Administration (May 13, 2000) (E 5201-03, E 6956-58). --------------------------------------------------------------------------- In addition, on July 26, 2000, Ms. Nolan informed the committee of a computer software problem that affected the National Security Council classified computer system from June 1997 until August 1999. According to Ms. Nolan, ``[a]s a result of this error, a small percentage of e-mails on a random basis were not recorded by the NSC's classified Electronic Records Management Database (ERMS).'' \115\ --------------------------------------------------------------------------- \115\ Letter from Counsel to the President Beth Nolan to Representative Dan Burton (July 26, 2000). According to a memorandum attached to the letter, the software error affected approximately 0.15 percent of NSC e-mails sent during the relevant timeframe. Memorandum from Robert A. Bradtke to Counsel to the President Beth Nolan (July 21, 2000). --------------------------------------------------------------------------- The Office of White House Counsel also informed the committee on August 31, 2000, of a recently discovered problem which caused a small percentage of e-mail messages processed since May 4, 2000, to be improperly archived in ARMS.\116\ The problem apparently caused some e-mails to be archived with mismatched headers and messages; because there is no way of distinguishing yet between properly and improperly archived e- mails, all e-mails sent between April 15, 2000, and August 30, 2000, are potentially unreliable.\117\ --------------------------------------------------------------------------- \116\ Letter from Associate Counsel to the President Lisa J. Klem to Representative Dan Burton (Aug. 31, 2000) attaching memorandum from Alberto Feraren to Daniel Barry (Aug. 31, 2000) (EOPNG-00-0297). \117\ Id.; memorandum from Alberto Feraren to Conrad Ribeiro and Robert Helms (Sept. 1, 2000) (EOPNG-00-0299). While the problem only affects e-mails processed since May 4, there was a 2-week backlog of e- mails in the Lotus Notes/ARMS interface queue at the time. Memorandum from Alberto Feraren to Conrad Ribeiro and Robert Helms (Sept. 1, 2000) (EOPNG-00-0299). --------------------------------------------------------------------------- Finally, on September 29, 2000, White House counsel informed the committee that it had learned of a new anomaly which ``causes problems with at least certain electronic pager records.'' \118\ According to White House counsel, the problem is still under investigation but ``pager confirmation documents bearing the phrase `unable to convert' are the most likely documents to be affected.'' \119\ --------------------------------------------------------------------------- \118\ Letter from Associate Counsel to the President Gregory S. Smith to Chief Counsel James C. Wilson (Sept. 29, 2000). \119\ Id. --------------------------------------------------------------------------- D. Committee Knowledge of the E-Mail Matter The record is unclear regarding when the committee was first aware of the Mail2 problem. There is evidence that the committee received information about the e-mail problem in 1998 but failed to act on that information. In courtroom testimony in an evidentiary hearing concerning the White House e-mail problems, Sheryl Hall, a former OA employee, stated under oath that she personally informed one of the committee's majority staff attorneys investigating the White House database about the White House e-mail problem in November 1998--over 15 months before the committee's e-mail investigation began.\120\ According to a press report, the majority staff attorney in question, who is currently working for Independent Counsel Robert Ray, admitted that he talked to Ms. Hall ``a couple of times'' and that he ``might have met with her once,'' but does not recall her telling him about the e-mail problem.\121\ --------------------------------------------------------------------------- \120\ Transcript of Evidentiary Hearing at 124, 149, 186-88, Alexander v. FBI, No. 96-2123 (July 31, 2000). According to a news article, Ms. Hall said that she told the staff attorney that the computer problem had caused over 100,000 e-mails to be missing. ``Congress Told of Project X in 1998,'' WorldNetDaily (Aug. 1, 2000) (on line at http://www.worldnetdaily.com/bluesky--sperry--news/ 20000801--xnspy--congress--t.shtml) (attached as exhibit 12). \121\ ``Congress Told of Project X in 1998,'' WorldNetDaily (Aug. 1, 2000) (on line at http://www.worldnetdaily.com/bluesky--sperry-- news/20000801--xnspy--congress--t.shtml). --------------------------------------------------------------------------- The majority could also have learned about the problems through the news media in 1998. In December 1998, Insight magazine published a short article about contractors in the White House investigating ``problems with a server in a West Wing computer system'' and discovering a ``blockage caused by about 100,000 e-mails.'' \122\ The article referred to efforts to investigate the e-mail problem as ``Project X.'' \123\ --------------------------------------------------------------------------- \122\ ``Computer Glitch Leads to Trove of `Lost' E-Mails at White House,'' Insight, 6 (Dec. 28, 1998). \123\ Id. The nickname ``Project X'' was apparently coined by Mr. Haas as a joking reference to the ``X-Files'' TV show, and was used informally to refer to the Mail2 project. Interview of Robert Haas by majority and minority staff, House Committee on Government Reform (Mar. 7, 2000); see interview with Yiman Salim by majority and minority staff, House Committee on Government Reform (Mar. 7, 2000). --------------------------------------------------------------------------- The majority apparently overlooked these early indications of e-mail problems. The committee's investigation did not begin until the Washington Times reported on February 15, 2000, that Sheryl Hall had accused the White House of ``hid[ing] thousands of e-mails containing information on Filegate, Chinagate, campaign finance abuses and Monica Lewinsky, all of which were under subpoena.'' \124\ Judicial Watch had previously filed a lawsuit on Ms. Hall's behalf in which Ms. Hall alleged that White House employees and the First Lady retaliated against her after she accused the administration of using a White House database for political purposes. The day after the Washington Times article appeared, Representative Burton issued a letter to Ms. Nolan citing ``recent media reports that certain e-mail systems were not searched for materials responsive to subpoenas,'' thus marking the beginning of the committee's investigation.\125\ --------------------------------------------------------------------------- \124\ ``White House Accused of Cover-Up,'' Washington Times (Feb. 15, 2000). Ms. Hall repeated her allegations in a declaration that she filed on Feb. 19, 2000. Third declaration of Sheryl Hall, Alexander v. FBI, No. 96-2123 (Feb. 19, 2000). \125\ Letter from Representative Dan Burton to Counsel to the President Beth Nolan (Feb. 16, 2000). --------------------------------------------------------------------------- III. Allegations Regarding the Mail2 Problem The majority has made numerous exaggerated allegations about the Mail2 issue, including allegations of a ``cover-up,'' ``obstruction of justice,'' and a ``criminal conspiracy.'' Representative Burton has charged that ``[t]he big deal is how the White House reacted to'' the Mail2 problem and ``it looks like they chose to cover it up.'' \126\ He even compared the missing e-mails to the 18\1/2\-minute gap in President Nixon's audiotapes, stating that ``[w]e had a President run out of office because of the missing tapes, 18\1/2\ minutes. Here we have hundreds of thousands of e-mails, and the White House has stonewalled the Justice Department, the Congress, several independent counsels.'' \127\ Representative Christopher Shays stated, ``the White House obstructed justice, and we're just trying to see who did it.'' \128\ Representative Chenoweth-Hage has accused the White House of engaging in ``an ongoing criminal conspiracy.'' \129\ --------------------------------------------------------------------------- \126\ Statement of Representative Dan Burton, March 23 hearing at 4-5. \127\ Statement of Representative Dan Burton, May 3 at 15-16. See also statement of Representative Dan Burton, Sept. 26 hearing at 24; majority report at viii. \128\ Statement of Representative Christopher Shays, May 3 hearing at 137. \129\ Statement of Representative Chenoweth-Hage at March 23 hearing. --------------------------------------------------------------------------- As discussed below, however, the evidence simply does not support these allegations. A. Allegation That E-Mails Relevant to Investigations Have Not Been Produced There have been numerous allegations that the missing e- mails contain ``smoking guns'' that would change the outcome of Clinton administration scandals. The source of many of these allegations appears to be two persons formerly affiliated with OA, Sheryl Hall and Betty Lambuth. Ms. Hall, a former OA employee, filed a declaration asserting that: A contractor for Northrop-Grumman assigned to the Clinton White House who examined this group of 100,000 e-mails told me the documents contained information relating to Filegate, concerning the Monica Lewinsky scandal, the sale of Clinton Commerce Department trade mission seats in exchange for campaign contributions, and Vice President Al Gore's involvement in campaign fundraising controversies. . . . I was also told by this contractor that if the contents of the e-mails became known, then there would be different outcomes to these scandals, as the e-mails were incriminating and could cause people to go to jail.\130\ --------------------------------------------------------------------------- \130\ Third declaration of Sheryl Hall, Alexander v. FBI, No. 96- 2123 (Feb. 19, 2000). --------------------------------------------------------------------------- Ms. Lambuth has made similar accusations: [a] contractor for Northrop-Grumman whom I supervised, and who examined this group of e-mail, told me the e- mail contained information relating to Filegate, concerning the Monica Lewinsky scandal, the sale of Clinton Commerce Department trade mission seats in exchange for campaign contributions, and Vice President Al Gore's involvement in campaign fundraising controversies.\131\ --------------------------------------------------------------------------- \131\ Declaration of Betty Lambuth, Alexander v. FBI, No. 96-2123 (Feb. 24, 2000). Ms. Lambuth repeated this claim in her testimony before the committee. Testimony of Betty Lambuth at March 23 hearing. These allegations have been widely reported. According to the Washington Times, a ``former White House computer manager has said that more than 100,000 White House e-mails containing information on Filegate, `Chinagate,' campaign finance abuses and Monica Lewinsky were missing, all of which were under subpoena by a federal grand jury and three congressional committees.'' \132\ Similarly, CNN reported that contractors testified that they were told ``not to discuss an ongoing e- mail server problem that resulted in hundreds of unrecorded messages that may have pertained to investigations such as the Monica Lewinsky matter.'' \133\ --------------------------------------------------------------------------- \132\ ``Hillary, White House Officials Cleared by Counsel on FBI Files,'' Washington Times (Mar. 17, 2000). \133\ ``Former White House Employees Say They Were Told to Keep Quiet on E-Mail Glitch,'' CNN.com (Mar. 23, 2000). --------------------------------------------------------------------------- Ms. Lambuth and Ms. Hall both claimed that the person who told them about incriminating material in the e-mails was Robert Haas.\134\ Mr. Haas, however, specifically denied that he knew or had said anything about what was in the ``missing'' e-mails. Mr. Haas testified that ``I never . . . intimated in any way, shape, or form that I knew any content of any e- mails'' other than two Monica Lewinsky-related e-mails that he looked at in an attempt to understand the Mail2 problem, and ``[a]t no time did I look at any other documents in any other mail files.'' \135\ --------------------------------------------------------------------------- \134\ Testimony of Betty Lambuth, March 23 hearing at 58, 88; testimony of Sheryl Hall, Transcript of Evidentiary Hearing at 24-26, Alexander v. FBI, No. 96-2123 (July 13, 2000). \135\ Testimony of Robert Haas, March 23 hearing at 89, 61. --------------------------------------------------------------------------- Moreover, the committee's investigation has revealed that it is not presently possible to determine the content of the e- mails that were not archived or produced because of the Mail2 problem (or any of the other technical problems discussed above). The White House is currently reconstructing, or retrieving, those e-mails from backup tapes, and until that process is complete, speculation about information in the ``missing'' e-mails is just that--speculation. Representative Burton apparently conceded this point when he remarked at the first e-mail hearing that, ``At this point, I don't think anyone has any idea what is in these e-mails.'' \136\ --------------------------------------------------------------------------- \136\ Statement of Representative Dan Burton, March 23 hearing at 12. --------------------------------------------------------------------------- B. Allegation That Northrop Grumman Employees Were Threatened with Jail If They Discussed the Mail2 Problem Several members of the committee have alleged that Northrop Grumman contractors were threatened with jail if they disclosed the Mail2 problem, and that these threats constituted an attempt to obstruct justice. Representative Bob Barr said with respect to the allegations of threats, ``My concern is . . . with regard to obstruction of justice, which includes intimidation of witnesses.'' \137\ Representative Chenoweth- Hage stated: --------------------------------------------------------------------------- \137\ Statement of Representative Bob Barr, March 23 hearing at 123. Representative Barr also referred to ``the obstruction that we went into last week with regard to witnesses testifying under oath that they were intimidated into not disclosing evidence that they had about this particular problem.'' Statement of Representative Bob Barr, March 30 hearing at 108. evidence suggests that contracted staffers were personally threatened with repercussions and even jail should they mention the very existence of the server problem to anyone, even their bosses. This occurred while these emails were under subpoenae. This is inexcusable. This is criminal. If this is not obstruction of justice, I don't know what is.\138\ --------------------------------------------------------------------------- \138\ Statement of Representative Chenoweth-Hage at March 23 hearing. In fact, witnesses provided conflicting testimony about whether or not these alleged threats were made. In total, eight individuals were present at meetings when the alleged threats were made. Of these eight individuals, two deny making any jail threats; \139\ three have no recollection of any jail threats; \140\ one recalls a jail threat being made in response to a ``flippant'' question; \141\ and one recalls the word ``jail'' being mentioned but cannot remember who said it.\142\ Moreover, the individuals who allegedly made the jail threats were not even White House employees; both worked in the Office of Administration, which provides support services to the White House, and one was a career civil servant. There is no evidence that White House officials had any knowledge of--or participated in--any threats. --------------------------------------------------------------------------- \139\ Testimony of Laura Callahan, March 23 hearing at 216, 226-27; testimony of Mark Lindsay, March 23 hearing at 199. \140\ Testimony of Yiman Salim, March 23 hearing at 21; testimony of John Spriggs, March 23 hearing at 47; statement of Paulette Cichon (Mar. 29, 2000). \141\ Testimony of Robert Haas, March 23 hearing at 32. \142\ Testimony of Sandra Golas, March 23 hearing at 45. --------------------------------------------------------------------------- With one exception, discussed below, the allegations of jail threats focus on a single remark allegedly made by Laura Crabtree Callahan, who served as the Branch Chief for Desktop Systems in OA's Information Systems and Technology Division (IS&T), in a meeting with six Northrop Grumman contract or subcontract employees that was held shortly after the discovery of the Mail2 problem. The committee heard testimony from Mrs. Callahan, as well as from the Northrop Grumman employees who attended the meeting (Betty Lambuth, John Spriggs, Robert Haas, Yiman Salim, and Sandra Golas). Ms. Salim said of the meeting with Mrs. Callahan, ``I do not remember hearing the word `jail,' and I never felt threatened.'' \143\ Mr. Spriggs also said that he ``did not hear the word `jail,' '' \144\ although he did concede that he felt threatened ``in narrow context.'' \145\ Mr. Haas, however, testified that he asked Mrs. Callahan ``[i]n a somewhat flippant way'' what would happen if he told his wife or then- Assistant to the President for Management and Administration Virginia Apuzzo about the Mail2 problem, to which she ``responded that there would be a jail cell with my name on it.'' \146\ Mr. Haas testified that despite the flippancy of his question, he took the response seriously.\147\ --------------------------------------------------------------------------- \143\ Testimony of Yiman Salim, March 23 hearing at 21. \144\ Testimony of John Spriggs, March 23 hearing at 47. \145\ Mr. Spriggs engaged in the following exchange with Representative Barr: Mr. Spriggs. When I was called into that office and Ms. Crabtree and Mr. Lindsay were giving me instructions, I perceived that those instructions were reasonable --------------------------------------------------------------------------- instructions. Mr. Barr. OK. That's not what I'm asking you, Mr. Spriggs. Mr. Spriggs. Were they threatening--I know, sir. I'm trying to get at your question. Were they threatening to me? Mr. Barr. Get at it quickly. Mr. Spriggs. Were they threatening to me? Yes, they were threatening to me, in---- Mr. Barr. That's my only question. Mr. Spriggs [continuing]. In narrow context. March 23 hearing at 100. While Mr. Spriggs was not asked to explain these comments, it appears that he was referring to the instructions made by Ms. Crabtree and Mr. Lindsay that the contractors not discuss the Mail2 issue. That issue is considered below. --------------------------------------------------------------------------- \146\ Testimony of Robert Haas, March 23 hearing at 32. \147\ Id. at 32, 90. Confirmation of this point was provided by Mr. Hawkins, who testified that he met with Mr. Haas, Mr. Spriggs, and Ms. Golas shortly thereafter and Mr. Haas said that he had been threatened. Testimony of Steven Hawkins, March 23 hearing at 55. --------------------------------------------------------------------------- Ms. Golas, who also attended the meeting, testified that she recalls a mention of jail in the meeting, but doesn't recall who said it.\148\ Ms. Golas further testified that when, shortly after the meeting, her supervisor Steve Hawkins accused her of being insubordinate by not telling him about the Mail2 problem, she replied, ``If it's a choice of being insubordinate or going to jail, I guess I'll have to be insubordinate.'' \149\ --------------------------------------------------------------------------- \148\ Testimony of Sandra Golas, March 23 hearing at 45. \149\ Id. at 45. See also testimony of Sandra Golas, March 23 hearing at 142. --------------------------------------------------------------------------- Mrs. Callahan denied Mr. Haas's allegation: I do not ever remember, nor would I have ever said anything about a jail cell. And, quite frankly, I think Mr. Haas characterized himself with his flippant comments. I would suggest that he may be either having [a] bad recollection or may have an overactive imagination with regards to the threat being made to him.\150\ --------------------------------------------------------------------------- \150\ Testimony of Laura Callahan, March 23 hearing at 226--27. Other than Mr. Haas's and Ms. Golas's testimony about Mrs. Callahan's alleged reference to a jail cell, the only other testimony alleging that threats were made comes from Betty Lambuth. Ms. Lambuth accused Mrs. Callahan of threatening her with jail if she talked about the e-mail problem.\151\ Afterwards, according to Ms. Lambuth's testimony, she asked for and received a meeting with then-OA General Counsel Mark Lindsay and Paulette Cichon, then the Deputy Director for Information Management at OA, at which Mr. Lindsay told Ms. Lambuth that if she and other Northrop Grumman workers told anyone about the Mail2 problem, ``we would all lose our jobs, we would be arrested, and we would be put in jail.'' \152\ --------------------------------------------------------------------------- \151\ Testimony of Betty Lambuth, March 23 hearing at 24. \152\ Id. at 25. --------------------------------------------------------------------------- Ms. Cichon, however, signed a written statement stating that Mr. Lindsay did not threaten Ms. Lambuth or anyone else in her presence.\153\ Ms. Cichon confirmed the accuracy of her statement in a subsequent interview with committee staff.\154\ Mr. Lindsay also denied making any threats.\155\ Furthermore, Ms. Lambuth's testimony may be viewed with a degree of skepticism, given that the committee also received evidence-- discussed above--directly contradicting her allegation about the content of the ``missing'' e-mails. --------------------------------------------------------------------------- \153\ Statement of Paulette Cichon (Mar. 29, 2000). \154\ Interview of Paulette Cichon by majority and minority staff, House Committee on Government Reform (Apr. 14, 2000). The majority asserts that ``Cichon has reason to be supportive of Lindsay and Callahan because she may in part be accountable for the failure to take effective steps to cure the problem or notify Congress.'' Majority report at 38. However, the majority fails to substantiate this allegation. \155\ Testimony of Mark Lindsay, March 23 hearing at 199. --------------------------------------------------------------------------- In addition, Ms. Lambuth's testimony about the threats is confused and inconsistent. Ms. Lambuth initially testified that Mrs. Callahan ``relayed those messages on to my staff, which had been relayed to her by Mr. Lindsay.'' \156\ However, asked by Mr. Burton ``what went on in that meeting, what went on in the conversations between you and Ms. Crabtree and Mr. Lindsay,'' Ms. Lambuth replied, ``I had more than one conversation that my staff was in, so some of this is going to mold in together.'' \157\ Ms. Lambuth then repeated her two allegations about Mr. Lindsay and Mrs. Callahan threatening her separately, but made no mention of the contractors being personally threatened by Mrs. Callahan.\158\ Nor do Ms. Lambuth's detailed opening statement or her affidavit mention the contractors being threatened.\159\ In fact, in both her opening statement and her declaration Ms. Lambuth states, ``I conveyed Lindsay's threats to my staff.'' \160\ --------------------------------------------------------------------------- \156\ Testimony of Betty Lambuth, March 23 hearing at 24. \157\ Id. at 50. \158\ Id. at 50-51. \159\ Statement of Betty Lambuth at March 23 hearing; declaration of Betty Lambuth, Alexander v. FBI, No. 96-2123 (Feb. 24, 2000). \160\ Id. (emphasis added). --------------------------------------------------------------------------- In her courtroom testimony, Ms. Lambuth alleged that Mr. Lindsay--not Mrs. Callahan--threatened the contractors with jail and loss of job when he addressed the group by speaker- phone.\161\ None of the others present have corroborated this allegation. Ms. Lambuth also testified that Mr. Haas informed her that Mrs. Callahan had threatened him with a ``jail cell with his name on it''--indicating that she was not present for the exchange.\162\ --------------------------------------------------------------------------- \161\ Transcript of Evidentiary Hearing at 28-29, Alexander v. FBI, No. 96-2123 (Aug. 1, 2000). \162\ Id. at 34-35. --------------------------------------------------------------------------- In sum, then, the evidence is inconclusive. Mr. Haas has a clear memory of Mrs. Callahan threatening him with jail in response to his ``flippant'' question. Ms. Golas recalls someone mentioning the word ``jail'' but does not know who. Neither Ms. Salim nor Mr. Spriggs recall the jail threat, however, and Mrs. Callahan emphatically denies the allegation. Ms. Lambuth recalls being threatened with jail by Mr. Lindsay and Mrs. Callahan separately, but apparently could not recall whether a threat was made in the meeting described by the other contractors. Her statements are also filled with internal inconsistencies. Ms. Cichon--who attended the meeting at which Mr. Lindsay allegedly threatened Ms. Lambuth--does not believe that threats were made in her presence. Moreover, no one has alleged that anyone in the White House (as distinct from OA) made any threats. There is simply no evidence that any White House officials had any knowledge of-- or participated in--any threats. c. allegation that northrop grumman employees were told not to tell others about the mail2 problem The evidence clearly indicates that Northrop Grumman employees were instructed not to tell others about the Mail2 problem when it was first discovered. The majority has claimed that this is evidence of a White House cover-up. Representative Barr stated: we do have evidence that you all indicated to persons not to share information, not to disclose information, to withhold information. . . . The fact of the matter is that it does appear that steps were taken to limit very severely information surrounding a very serious glitch in the White House computer system that related specifically [to] the matters well known to be under investigation by at least three different bodies-- namely, the Office of Independent Counsel, this committee, and the Judiciary Committee.\163\ --------------------------------------------------------------------------- \163\ Statement of Representative Bob Barr, March 23 hearing at 277-79. However, the evidence suggests that the instructions not to discuss the matter were an appropriate attempt to prevent disclosure of the e-mail problem pending further investigation and did not constitute a ``cover-up.'' 1. The OA Instructions Not to Discuss The testimony of Mr. Haas, Ms. Golas, Mr. Spriggs, Ms. Salim, and Ms. Lambuth is in general agreement that they were told by Mr. Lindsay and Mrs. Callahan to treat the Mail2 matter as sensitive and not to discuss it. The contractors evidently took these instructions seriously; several of them testified that they subsequently took steps, such as holding meetings outside the office, to keep the e-mail problem confidential.\164\ Mr. Lindsay and Mrs. Callahan also agreed that they were concerned about the e-mail matter being widely discussed. Mrs. Callahan testified that she discussed the e- mail problem with Mr. Lindsay shortly after its discovery, and they agreed that this was a sensitive issue, given the ``other events going on'' reported in ``newspapers and the media.'' \165\ --------------------------------------------------------------------------- \164\ According to Ms. Lambuth, ``We did meet privately. We did go to the park. We did sometimes go across the street to Starbuck's [sic] and speak in generalities.'' Testimony of Betty Lambuth, March 23 hearing at 26. Mr. Spriggs explained that ``if we're going to talk about this stuff and keep it under wraps, then we have to be careful as to where we are.'' Testimony of John Spriggs, March 23 hearing at 52. According to Mr. Vasta's notes, the contractors were further instructed not to take any notes about the Mail2 matter. Document entitled, ``Summary of Project X Discussions'' (Sept. 9, 1998). \165\ Testimony of Laura Callahan, March 23 hearing at 216. --------------------------------------------------------------------------- Mrs. Callahan testified that she ``instructed the contract employees at the meeting that this was an extremely sensitive situation.'' \166\ According to her testimony, she and Mr. Lindsay: --------------------------------------------------------------------------- \166\ Id. at 253. concurred that this was a situation that we needed to be careful of because it was sensitive. And, as such, Mr. Lindsay participated in the team conference call meeting in which all of the members of the team were present and Mr. Lindsay was there via conference call, and re-articulated the standard operating procedure. And in absolutely no way did I ever make any personal threats to any individuals during that time frame.\167\ --------------------------------------------------------------------------- \167\ Id. at 216. --------------------------------------------------------------------------- Mrs. Callahan explained: what I mean by that, as far as the ``standard procedures,'' and what they were advised at the meeting was the fact that the normal procedures are, if you are receiving any inquiries from folks such as the press, to please refer them to the Office of Public Affairs, and if anyone else had any particular questions or had a need to know, to please refer them to either myself or Mr. Lindsay.\168\ --------------------------------------------------------------------------- \168\ Id. at 215. There was nothing inappropriate about Mrs. Callahan's and Mr. Lindsay's instructions not to discuss the matter. At the time of the discovery of the Mail2 problem, Independent Counsel Starr was conducting a widely publicized investigation into matters concerning Ms. Lewinsky. Given the circumstances--a potential document production issue arising in the midst of a high-profile and widely reported-on investigation--it is not difficult to understand why Mr. Lindsay and Mrs. Callahan may have wanted to avoid widespread discussions about the matter pending further investigation. Moreover, several of the contractors explained that they did not find these requests for confidentiality to be unreasonable or suspicious. Ms. Salim testified that she believed that it ``was a reasonable request for them to ask us to keep a lid on this until they could manage the situation.'' \169\ Mr. Spriggs testified, ``When I was called into that office and Ms. Crabtree and Mr. Lindsay were giving me instructions, I perceived that those instructions were reasonable instructions.'' \170\ --------------------------------------------------------------------------- \169\ Testimony of Yiman Salim, March 23 hearing at 91. \170\ Testimony of John Spriggs, March 23 hearing at 100. --------------------------------------------------------------------------- The majority's allegation that Mr. Lindsay and Mrs. Callahan's instructions constituted a ``cover-up'' are apparently based on the assumption that those instructions were supposed to prevent further investigation into or the eventual disclosure of the Mail2 problem. Ms. Salim, however, testified that she did not understand Mr. Lindsay and Mrs. Callahan's instructions to mean that the problem would be kept permanently under wraps: My understanding was that this issue would remain with this small group only temporarily until the Office of Administration had a chance to manage the situation.\171\ --------------------------------------------------------------------------- \171\ Testimony of Yiman Salim, March 23 hearing at 21. Mr. Spriggs's testimony reaffirmed that far from being impeded in their attempts to investigate the Mail2 problem, the contractors were encouraged to complete their work. According --------------------------------------------------------------------------- to Mr. Spriggs: the reality was we needed to figure out what the problem was and how were we going to deal with getting these in the records management system. . . . There was no, from my point of view, any kind of question that we were not going to proceed forward with this and resolve this question. We were trying to get all of the information so that whomever--OA counsel or White House Counsel--would have sufficient information to be able to judge the import of the information that they had. As far as I knew personally--and my colleagues can speak to what they knew--I had no knowledge of anyone trying to stop us from doing any of that or trying to keep any information away from [Kenneth] Starr or anyone else at that point.\172\ --------------------------------------------------------------------------- \172\ Testimony of John Spriggs, March 23 hearing at 91-92. Even Ms. Lambuth believed that the request for --------------------------------------------------------------------------- confidentiality was reasonable: Mr. Waxman. I'd like to ask whether you think this was an unreasonable request? Anybody think it was an unreasonable request? Ms. Lambuth. I think in the beginning that's the way we all felt.\173\ --------------------------------------------------------------------------- \173\ March 23 hearing at 90-91. When pressed on this point later in the hearing, Ms. Lambuth reaffirmed that ``I didn't feel that it was unusual, knowing the circumstances of all the subpoenas.'' Testimony of Betty Lambuth, March 23 hearing at 175. Ms. Lambuth did testify that the delay in fixing the Mail2 --------------------------------------------------------------------------- problem caused her to change her mind: I think in the beginning we all felt that they just wanted to get their act together, basically, how they were going to let the public know about this. But as time went on and we couldn't get any decisions of how they wanted us to handle it, what the next step was going to be, etc., it became very obvious to us, and we had some discussions on this that they did not want this to come forth.\174\ --------------------------------------------------------------------------- \174\ Testimony of Betty Lambuth, March 23 hearing at 93. Mr. Hawkins concurred with Ms. Lambuth, citing his dealings with Mr. Lindsay as justifying his own belief ``that they did try to cover up the fact that they had a computer glitch.'' \175\ --------------------------------------------------------------------------- \175\ Testimony of Steven Hawkins, March 23 hearing at 93. --------------------------------------------------------------------------- Neither Ms. Lambuth nor Mr. Hawkins played a significant role in the e-mail project, however. Ms. Lambuth, by her own account, ``was only on this [e-mail] project for a short period of time.'' \176\ She left the White House in July 1998,\177\ 1 month after the discovery of the Mail2 problem. Mr. Hawkins told committee staffers that he left Northrop Grumman on October 9, 1998, and by his own account he played little if any role in the e-mail project prior to his departure.\178\ Mr. Spriggs, who played a significant role in the e-mail project, had a more judicious assessment. Asked if he agreed with Ms. Lambuth's conclusion, he testified that ``from my point of view, we didn't know enough about what was going on to say that the White House had stopped anything.'' \179\ --------------------------------------------------------------------------- \176\ Testimony of Betty Lambuth, March 23 hearing at 132. \177\ Testimony of Betty Lambuth at March 23 hearing. \178\ Interview of Steven Hawkins by majority and minority staff, House Committee on Government Reform (Mar. 7, 2000). \179\ Testimony of John Spriggs, March 23 hearing at 96. --------------------------------------------------------------------------- The committee has received documentary evidence which further suggests that the contractors did not think that the requests were improper. According to notes taken by Northrop Grumman employee Joe Vasta about a meeting he had with the contractors on August 28, 1998, Mr. Vasta ``questioned the team to determine whether they felt they were being asked to do anything that was illegal or unethical. They replied in the negative.'' \180\ A few days later, Mr. Hawkins also met with the contractors, who ``reiterated they believed they were not doing anything illegal.'' \181\ --------------------------------------------------------------------------- \180\ Document entitled, ``Summary of Project X Discussions'' (Sept. 9, 1998). \181\ Id. According to Mr. Vasta's notes, the contractors were ``uncomfortable because the project leader giving them direction was a non-Northrop Grumman employee'' and were ``concerned that decisions could be made concerning the project that were not in the best interests of Northrop Grumman.'' Id. --------------------------------------------------------------------------- 2. The OA Instructions Regarding Northrop Grumman Management While Mr. Lindsay and Mrs. Callahan's requests for confidentiality do not appear to have been, on their face, unreasonable, Mr. Haas, Mr. Spriggs, and Ms. Lambuth further testified that they were specifically told not to tell their supervisor, Steve Hawkins, about the e-mail matter.\182\ Although Mr. Lindsay and Mrs. Callahan denied this allegation,\183\ Mrs. Callahan stated that she wanted information about the Mail2 matter limited to ``[t]hose in the room'' at the Mail2 meeting, which would by implication exclude the absent Mr. Hawkins.\184\ Certainly, the weight of the evidence suggests that the contract employees felt that they were not allowed to discuss their work with their supervisor, and this put them in a difficult and unfair position. --------------------------------------------------------------------------- \182\ Testimony of Robert Haas, March 23 hearing at 32; testimony of John Spriggs, March 23 hearing at 48-49; testimony of Betty Lambuth, March 23 hearing at 50. \183\ Testimony of Mark Lindsay, March 23 hearing at 245; testimony of Laura Callahan, March 23 hearing at 254. \184\ Testimony of Laura Callahan, March 23 hearing at 254. --------------------------------------------------------------------------- The testimony regarding Mr. Hawkins's involvement is inconclusive. Mr. Hawkins indicated that he believed there was an effort to limit his understanding of the Mail2 problem.\185\ On the other hand, Mr. Lindsay testified that it ``didn't matter'' to him ``whether or not Hawkins was involved with'' the Mail2 investigation; \186\ indeed, Mr. Lindsay said that he himself briefed Mr. Hawkins about the Mail2 problem.\187\ --------------------------------------------------------------------------- \185\ See testimony of Steven Hawkins, March 23 hearing at 93. \186\ Testimony of Mark Lindsay, March 23 hearing at 256. \187\ Id. at 245. --------------------------------------------------------------------------- After the March 23 hearing at which both Mr. Hawkins and Mr. Lindsay testified, the committee received information that casts their testimony in a different light. The new evidence indicates that Northrop Grumman management above Mr. Hawkins's level was informed about the e-mail problem. James DeWire, currently a program manager with Logicon, a wholly owned subsidiary of Northrop Grumman, managed Northrop Grumman's EOP contract for approximately the last 7 months of 1998. Mr. DeWire told committee staff that he received a phone call from Mr. Hawkins in early or mid-June 1998, in which Mr. Hawkins said that employees had told him that they had been given instructions not to tell him what they were working on.\188\ Shortly after this phone call--possibly within minutes of his hanging up--Mr. DeWire received another phone call, this one from then-OA Director Ada Posey.\189\ According to Mr. DeWire, Ms. Posey explained that she had a very sensitive task which she wanted to be handled in a limited environment, with the Northrop Grumman employees reporting directly to a government employee without the intervening involvement of Northrop Grumman management.\190\ --------------------------------------------------------------------------- \188\ Interview of James DeWire by majority and minority staff, House Committee on Government Reform (June 15, 2000). \189\ Id. \190\ Id. --------------------------------------------------------------------------- Mr. DeWire said that after Ms. Posey assured him that the work was both within the scope of the contract and not illegal, he agreed to her request.\191\ Mr. DeWire said that he immediately informed Mr. Hawkins of the arrangement and instructed him not to try to find out the nature of the work being done by the contract employees.\192\ --------------------------------------------------------------------------- \191\ Id. \192\ Id. --------------------------------------------------------------------------- According to Mr. DeWire, then, within a short period of the discovery of the Mail2 problem, he was informed of, and he approved of, a scheme whereby the contract employees reported directly to EOP personnel as they investigated the Mail2 problem. Mr. DeWire's statements indicate that the actions of OA management toward Northrop Grumman management and contract personnel were appropriate and above-board. d. allegation that the white house concealed information about the mail2 problem from congress and various independent counsels Representative Burton has alleged that the White House intentionally failed to notify investigators about the Mail2 problem, and its potential impact on past and future subpoena compliance. Representative Burton stated that there is ``in effect, a purposeful effort to keep documents from Congress, the Department of Justice, and various Independent Counsels.'' \193\ Representative Burton also said that the White House ``knew about [the e-mail problem] in 1998, and they kept it under wraps from the Congress.'' \194\ --------------------------------------------------------------------------- \193\ Letter from Representative Dan Burton to Counsel to the President Beth Nolan (Mar. 8, 2000). \194\ Statement of Representative Dan Burton, May 3 hearing at 65. --------------------------------------------------------------------------- Representative Burton's allegations are contradicted by the testimony of White House and OA lawyers that they did not notify Congress or any independent counsels of subpoena compliance problems because they did not believe that any such problems existed. Former White House Counsel Charles F.C. Ruff, former White House Deputy Counsel Cheryl Mills, and former OA General Counsel Mark Lindsay all testified that they did not cover up, or have any knowledge of others covering up, the e- mail problem.\195\ Mr. Ruff testified emphatically that ``[n]ever, not once, did anyone on my staff seek to conceal, delay production of or otherwise cover up any document production whether it be electronic or paper.'' \196\ --------------------------------------------------------------------------- \195\ Testimony of Mark Lindsay, Cheryl Mills, and Charles Ruff, May 4 hearing at 54-57. \196\ Testimony of Charles Ruff, May 4 hearing at 57. --------------------------------------------------------------------------- White House counsel explained that their failure to inform investigators about the Mail2 problem resulted from their own (mistaken) belief that the problem had not affected document production. After the Mail2 problem was discovered, Mr. Haas was directed to perform a test search for non-records-managed e-mails relating to Monica Lewinsky. According to Ms. Nolan, the White House Counsel's office compared the results of Mr. Haas's search: against previously produced documents and determined that they were duplicative. The Counsel's Office believed that all necessary steps to make a complete search had been taken. They did not know that there was any remaining problem--prospective or retrospective. Thus, as Mr. Ruff understood the technical problem at the time, he did not think that the error had an effect on previous searches or that it might affect future searches of e-mail records. As a result, Mr. Ruff had no reason to believe there was any need to notify investigative bodies of this error.\197\ --------------------------------------------------------------------------- \197\ Statement of Counsel to the President Beth Nolan (Mar. 23, 2000). Mr. Ruff confirmed that ``at the point where the word came back to me that the Lewinsky e-mails had in fact been collected and it turned out they were duplicative of what we had already found, I believed that the problem did not, in fact, retrospectively affect our compliance.'' \198\ --------------------------------------------------------------------------- \198\ Testimony of Charles Ruff, May 4 hearing at 50. --------------------------------------------------------------------------- Similarly, Mr. Lindsay testified that, after the test search was performed, ``the word that I got back was that `Hey, these are duplicates. It probably isn't that big of a problem because this information has already been produced.' '' \199\ Thus, Mr. Lindsay concluded: --------------------------------------------------------------------------- \199\ Testimony of Mark Lindsay, March 23 hearing at 248. there may not have been a legal problem in terms of whether or not documents were produced or whether or not that was completed, but I still had a problem, and that was I still had a technical staff that reported to me that there was a glitch. Even if that test came back in a positive way, I may not have had a production problem, but I had a technical problem with my e-mail system and my ARMS system and how they worked together. If that--that was the issue that I needed to resolve.\200\ --------------------------------------------------------------------------- \200\ Id. at 259. Mr. Burton has dismissed Mr. Ruff's explanation, saying, ``The President's counsel never understood the full extent of the problem? I seriously doubt that explanation. This issue isn't very complicated.'' \201\ But the committee's investigation has demonstrated the extremely technical and complicated nature of the e-mail problems at the White House. It took the Northrop Grumman team of computer experts many months to investigate and fix the Mail2 problem. Even a technically adept observer could be excused for failing to grasp the intricacies of ARMS, and Mr. Ruff, by his own admission, ``didn't understand the scope or the details of the technology involved.'' \202\ Indeed, as discussed above in part II.D, there is evidence that the committee's own staff may have been informed of the Mail2 problem in 1998 and failed to understand its significance. --------------------------------------------------------------------------- \201\ Statement of Representative Dan Burton, March 30 hearing at 9. \202\ Transcript of interview of Charles F.C. Ruff, House Committee on Government Reform, 27 (Apr. 6, 2000). --------------------------------------------------------------------------- The alternative is to suppose that White House counsel embarked on a systematic conspiracy to avoid telling investigators about a technical problem affecting document production, all in an effort to avoid producing documents whose content they did not--could not--have known.\203\ There is no evidence to support this far-fetched supposition. --------------------------------------------------------------------------- \203\ The majority also alleges that it is ``difficult to understand why [White House Counsel Beth] Nolan did not understand that the e-mail problems had ongoing subpoena compliance consequences'' when she was told of the problems at a Jan. 18, 2000, briefing on records management issues, and accuses Ms. Nolan of failing to exercise ``minimal due diligence.'' Majority report at 51-52. In fact, OA Director Michael Lyle, who attended the meeting, testified that Ms. Nolan inquired about whether the e-mail problems had affected subpoena compliance. Testimony of Michael Lyle, May 3 hearing at 103-04. Mr. Lyle told Ms. Nolan that this question ``had been dealt with prior by Mr. Lindsay and Mr. Ruff.'' Id. at 104. Mr. Lyle further testified that he checked with Mr. Lindsay, who assured him that he had indeed handled the matter with Mr. Ruff. Id. --------------------------------------------------------------------------- e. allegation that earl silbert told the white house about the alleged threats and problems with subpoena compliance The majority apparently believes that they have found the ``smoking gun'' which demonstrates that the White House was aware of (1) the alleged threats against Northrop Grumman contractors, and (2) the possibility that the Mail2 problem had affected information requests from investigative bodies. That ``smoking gun'' involves contacts in 1998 between White House counsel and an attorney representing Northrop Grumman, Earl Silbert. Representative Burton has described Mr. Silbert as ``a high-priced Washington fixer'' \204\ and charged that ``Silbert's contacts may dramatically undermine White House claims of a `disconnect' that prevented them from understanding the e-mail problem.'' \205\ Representative Burton further asserted that ``Silbert's two separate contacts with the White House cast even more doubt on the White House claim that they weren't actively covering up the problem.'' \206\ --------------------------------------------------------------------------- \204\ Statement of Representative Dan Burton at Sept. 26 hearing. \205\ Memorandum from Representative Dan Burton to members of the Committee on Government Reform (Sept. 21, 2000). \206\ Statement of Representative Dan Burton at Sept. 26 hearing. --------------------------------------------------------------------------- Representative Burton's allegations about Mr. Silbert are wholly speculative and overlook the most obvious explanation for Mr. Silbert's contacts with White House counsel--namely, that Mr. Silbert was hired to assist Northrop Grumman in its attempt to resolve the question of whether work on the Mail2 project was within the scope of the company's contract with the EOP. Mr. Silbert's billing records indicate that he was hired to give ``advice to Logicon re: Executive Office of the President Contract'' or simply ``Contract Advice.'' \207\ Furthermore, it is clear that Northrop Grumman executives believed that work on the e-mail project was outside the scope of the EOP contract and that they communicated their belief to the EOP.\208\ Given the time and expense involved in fixing the problem retrospectively, their concern on this point is understandable. --------------------------------------------------------------------------- \207\ Billing records of Earl J. Silbert (Nov. 19, 1998, Jan. 27, 1999, Mar. 31, 1999). Logicon is a wholly owned Northrop Grumman subsidiary. \208\ See letter from Joseph F. Lucente to Dale Helms (Sept. 14, 1998) (NGL 00503). Mr. Lindsay testified before the committee about the difference of opinion between Northrop Grumman and the White House over whether work on the e-mail problem was within the scope of the company's contract. Testimony of Mark Lindsay, March 23 hearing at 261- 63. --------------------------------------------------------------------------- The committee has obtained no evidence that Mr. Silbert was even aware of allegations concerning threats or subpoena compliance--issues that were peripheral, if not irrelevant, to the contractual matter at stake.\209\ Mr. Silbert's billing records contain an entry of 1.25 hours on September 11, 1998, for a ``teleconference with Northrop Grumman counsel and a company employee.'' Mr. Silbert claimed that the identity of the employee was protected by the work product privilege, but said that he did not recall the substance of this conversation.\210\ --------------------------------------------------------------------------- \209\ Subsequent to the committee vote on the majority's e-mail report, the majority issued a document that purports to address the draft minority views that were circulated before the committee vote. ``Inaccuracies, Misrepresentations, and Omissions in the Democrats' E- Mail Report Rebuttal,'' House Committee on Government Reform (undated). In this ``rebuttal,'' the majority states that the committee has learned that Mr. Silbert took notes of his conversations with Northrop Grumman counsel and a Northrop Grumman employee. Noting that these documents have not been available to the committee, the majority asserts: Until Mr. Silbert either explains the substance of the meeting or produces the notes, it is simply premature for the Minority to claim that ``[t]here is no evidence'' related to Mr. Silbert's communications concerning threats --------------------------------------------------------------------------- or subpoena compliance. Id. at 4. In essence, the majority is asserting that notes that the majority has never seen--and does not know the content of--constitute ``evidence'' of White House wrongdoing. As additional support for its critique, the majority asserts that Mr. Haas ``testified that he recounted the threats to an outside counsel described to him as a `gray beard,' '' and that Mr. Silbert's billing records suggest that he was the ``grey beard'' to whom Mr. Haas spoke. Id. This statement mischaracterizes the evidence before the committee. As discussed infra at note 210, even assuming that Mr. Silbert was the ``grey beard'' in question, the committee simply does not know what Mr. Haas told him. --------------------------------------------------------------------------- \210\ There is evidence to indicate that the employee in question was Mr. Haas. Mr. Haas provided courtroom testimony in a lawsuit relating to the White House's handling of confidential FBI files about a meeting he attended with Northrop Grumman executives in September 1998. Mr. Haas said that during the meeting there ``was a phone conversation from the Northrop Grumman lawyer's office. He called a person he referred to as a Grey Beard. And I recanted [sic] my story to him.'' Transcript of Evidentiary Hearing at 56-57, Alexander v. FBI, No. 96-2123 (Aug. 14, 2000). Mr. Haas did not further identify the ``grey beard,'' nor did he provide any information about what he relayed to the ``grey beard.'' --------------------------------------------------------------------------- Representative Burton has alleged that ``Haas told the outside counsel about the threats he had encountered, as well as his concerns about the legal ramifications of the e-mail problem.'' Letter from Representative Dan Burton to Judge Royce Lamberth, note 1 (Sept. 26, 2000). A careful reading of Mr. Haas's testimony makes clear, however, that Mr. Haas was describing what he said at the meeting with Northrop Grumman counsel and that he did not describe or characterize his statements to the ``grey beard.'' Transcript of Evidentiary Hearing at 56-61, Alexander v. FBI, No. 96-2123 (Aug. 14, 2000). Thus, even if Mr. Haas's testimony is accurate, and even if Mr. Silbert was the ``grey beard'' in question, the committee does not know exactly what Mr. Haas told Mr. Silbert. Nor is there any evidence that Mr. Silbert communicated information about the alleged threats or subpoena compliance issues to the White House. A privilege log accompanying his billing records indicates that on September 28, 1998, and December 30, 1998, Mr. Silbert billed Northrop Grumman for a ``teleconference with White House counsel.'' \211\ Each of the teleconferences lasted 0.25 hours each; since this is apparently the smallest increment of time for which Mr. Silbert's firm bills its clients, the calls may have been considerably less than 15 minutes long. Mr. Silbert informed committee staff that he has no recollection of whom he spoke to or the subject matter of the brief discussions.\212\ --------------------------------------------------------------------------- \211\ Mr. Silbert redacted information in the billing records about the nature of the work he performed for Northrop Grumman, claiming attorney-client and attorney work product privileges. \212\ Representative Burton questioned Mr. Silbert's veracity on this point, stating that Mr. Silbert: told our staff that he didn't remember who he called or what he discussed. We've had an epidemic of memory loss in this town. Significant things, an absolute epidemic. I can't believe it. Must be something in the water. He didn't remember who called him or what he discussed or who he had called at the White House or what he had discussed. Imagine that. He hears a story about possible law breaking and threats to his client's employees and he doesn't even --------------------------------------------------------------------------- remember who he talked to at the White House. Statement of Representative Dan Burton, Sept. 26 hearing at 13-14. Mr. Burton, however, overlooks a more mundane explanation--namely, that Mr. Silbert does not recall his contacts because they were (1) brief, (2) related to a matter that he worked on 2 years ago for less than 5 hours, and (3) solely related to contractual matters and not to allegations ``about possible law breaking and threats to his client's employees.'' Testimony provided by Mark Lindsay in the Alexander case reinforces the likelihood that Mr. Silbert's contacts with White House counsel were limited to contractual matters and did not concern threats or subpoena compliance. Mr. Lindsay testified that he heard mention of Mr. Silbert's name in the context of Northrop Grumman: there was a concern about the scope of the contract and I believe that someone in the counsel's office knew this person [Mr. Silbert] and they raised a concern, and he called me to say is this something we should be worried about? I didn't talk to the Northrop Grumman person. This is someone in the White House counsel's office, and I said, no, I don't think so.\213\ --------------------------------------------------------------------------- \213\ Transcript of Evidentiary Hearing at 139, Alexander v. FBI, No. 96-2123 (Aug. 23, 2000). Mr. Lindsay said that he thought the person in the counsel's office who contacted him was Lanny Breuer. Id. Mr. Lindsay testified that ``it was a very, very general reference about scope of work,'' and that he was not aware of Mr. Silbert raising with the White House counsel's office the alleged threats against the Northrop Grumman employees.\214\ --------------------------------------------------------------------------- \214\ Id. at 140-41. --------------------------------------------------------------------------- Furthermore, Mr. Silbert explained that the entry in his billing records for 0.25 hours for ``document review'' on September 12, 1998, related to a letter that was sent by Northrop Grumman's Joseph Lucente to Dale Helms of OA. That letter makes clear that Northrop Grumman had determined that work on the e-mail dysfunction would ``substantially exceed the scope of work contemplated under the'' EOP contract.\215\ The letter makes no mention of threats or issues regarding compliance with information requests. Nor is there any reason to think that those matters would have been relevant to Mr. Silbert if, as the evidence indicates, his role was simply to mediate or advise with respect to a straight-forward contractual discussion.\216\ --------------------------------------------------------------------------- \215\ Letter from Joseph F. Lucente to Dale Helms (Sept. 14, 1998) (NGL 00503). \216\ The majority has alleged that ``Lucente told the Committee that `[t]he threats were the inspiration for sending the letter,' '' citing an interview of Joseph Lucente by majority and minority staff on May 1, 2000. ``Inaccuracies, Misrepresentations, and Omissions in the Democrats' E-Mail Report Rebuttal,'' House Committee on Government Reform, 4 (undated). However, in a subsequent interview, Mr. Lucente told committee staffers that the threats were not ``the'' inspiration but ``an'' inspiration for the letter, and that the letter makes no mention of threats, veiled or otherwise. Interview of Joseph Lucente by majority and minority staff, House Committee on Government Reform (Oct. 17, 2000). More importantly, Mr. Lucente did not say--and there is no evidence to suggest--that he talked to Mr. Silbert about the alleged threats. --------------------------------------------------------------------------- Representative Burton has also suggested that Mr. Silbert had reason to be less than forthcoming about the e-mail problem in his discussions with the White House. Noting that Mr. Silbert has represented Indonesian businessman James Riady (who has been accused of orchestrating conduit contributions to President Clinton in the 1992 election), Peter Knight (a former aide to Vice President Gore investigated for his involvement in the Portals matter), and former White House Chief of Staff Erskine Bowles, Representative Burton stated that Mr. Silbert's clients ``have many reasons to be worried about what will come out when all the White House e-mails are reconstructed.'' \217\ --------------------------------------------------------------------------- \217\ Statement of Representative Dan Burton at Sept. 26 hearing. See majority report at 64, note 362. --------------------------------------------------------------------------- The insinuation that Mr. Silbert shaded the truth in his dealings with the White House is wholly unsubstantiated. Mr. Silbert is a well-respected attorney with a distinguished career in public service, including 5 years as the U.S. Attorney for the District of Columbia. The allegation also directly contradicts Representative Burton's assertion that Mr. Silbert may have told the White House about the Mail2 problem. It is impossible to reconcile Mr. Burton's speculation that Mr. Silbert fully briefed White House counsel about the Mail2 problem with his speculation that Mr. Silbert obscured the truth about the Mail2 problem in an effort to protect other clients. Mr. Burton also launched an entirely gratuitous attack upon the integrity of one of Mr. Silbert's law partners, Richard Oparil. Mr. Burton wrote to Judge Lamberth on September 26, 2000, to say that Mr. Oparil, who represents Northrop Grumman in the Alexander case, ``intentionally misled the Court in stating that there had not been any contacts between Silbert and the White House regarding the e-mail matter.'' \218\ Mr. Burton cited statements by Mr. Oparil indicating that after speaking to Mr. Silbert and after looking through the firm's files, ``we don't believe that there were any oral communications'' between Mr. Silbert and White House counsel.\219\ Mr. Burton wrote that, since ``[t]he firm's billing records provide the most obvious source of corroboration of telephone calls and are presumably easily searched,'' Mr. Oparil must have ``intentionally misled the Court.'' \220\ --------------------------------------------------------------------------- \218\ Letter from Representative Dan Burton to Judge Royce Lamberth (Sept. 26, 2000). \219\ Transcript of Evidentiary Hearing at 229, Alexander v. FBI, No. 96-2123 (Aug. 16, 2000). \220\ Letter from Representative Dan Burton to Judge Royce Lamberth (Sept. 26, 2000). --------------------------------------------------------------------------- As Mr. Oparil explained, however, ``[t]he billing records for the Northrop Grumman matter were not part of the client file that I reviewed.'' \221\ Furthermore, Mr. Oparil wrote Judge Lamberth on September 13--almost 2 weeks before Mr. Burton made his allegation--to tell him that he had located the two entries on Mr. Silbert's billing records regarding phone calls with White House counsel.\222\ In other words, Mr. Burton publicly accused Mr. Oparil of covering up a matter that he had already voluntarily disclosed. --------------------------------------------------------------------------- \221\ Letter from Richard J. Oparil to Judge Royce C. Lamberth (Sept. 27, 2000) (attached as exhibit 13). \222\ Letter from Richard J. Oparil to Judge Royce C. Lamberth (Sept. 13, 2000) (attached as exhibit 14). --------------------------------------------------------------------------- F. Allegation That the White House Failed To Disclose a Computer Disk Containing Non-Produced Monica Lewinsky E-Mails An article in the Washington Times alleged that the White House had in its possession ``a previously undisclosed computer disk with e-mails by former intern Monica Lewinsky'' that were among e-mail messages sought ``by a federal grand jury and three congressional committees, but never turned over.'' \223\ --------------------------------------------------------------------------- \223\ ``White House Has Disk With Lewinsky E-Mail,'' Washington Times (Mar. 29, 2000). --------------------------------------------------------------------------- This allegation was shown to be wholly without merit. White House Counsel Beth Nolan informed the committee that the computer disk containing Monica Lewinsky's e-mails was a copy of a file belonging to Mr. Haas and that the Lewinsky-related e-mail on the disk had already been produced.\224\ The contents of this disk were provided to the committee. The committee has obtained no evidence that contradicts Ms. Nolan's explanation. --------------------------------------------------------------------------- \224\ Testimony of Beth Nolan, March 30 hearing at 26-27. --------------------------------------------------------------------------- G. Allegation That an OA Employee Filed a False and Misleading Affidavit about the Mail2 Problem Mr. Burton also alleged that ``a White House employee, aided and counseled by Justice Department lawyers, submitted a false affidavit to a federal court that concealed the failure of the White House to search for all e-mails responsive to subpoenas.'' \225\ Mr. Burton even made a criminal referral to the Attorney General, in which he accused the employee, Daniel A. ``Tony'' Barry, of knowingly making false statements under oath, adding that ``there is evidence that the Justice Department itself may have been involved in preparing and presenting false testimony.'' \226\ --------------------------------------------------------------------------- \225\ Letter from Representative Dan Burton to Attorney General Janet Reno (Sept. 7, 2000). \226\ Letter from Representative Dan Burton to Attorney General Janet Reno (Mar. 30, 2000). Earlier, Representative Burton had accused the Justice Department's civil division of ``help[ing] the White House craft its efforts to hide these e-mails.'' Letter from Representative Dan Burton to Attorney General Janet Reno (Mar. 27, 2000). --------------------------------------------------------------------------- The affidavit in question was filed by Mr. Barry, OA's ARMS expert, on July 9, 1999, in the Alexander case involving FBI files. The affidavit states in relevant part, ``Since July 14, 1994, e-mail within the EOP system administered by the Office of Administration has been archived in the EOP Automated Records Management System (ARMS).'' \227\ According to Mr. Burton, this statement is ``utterly false.'' \228\ --------------------------------------------------------------------------- \227\ Declaration of Daniel A. Barry, Alexander v. FBI, No. 96-2123 (July 9, 1999), para. 4. \228\ Letter from Representative Dan Burton to Attorney General Janet Reno (Mar. 30, 2000). --------------------------------------------------------------------------- This allegation ignores the context of the Barry affidavit. The affidavit was filed as part of the government's efforts to convince the judge hearing the lawsuit that ARMS searches were not necessary for discovery purposes. Accordingly, the affidavit describes in some detail the cost and time involved in conducting a search of ARMS. Given this context, it appears that Mr. Barry was simply and accurately attempting to explain some basic facts about ARMS--namely, that it archives e-mail and that it has been in effect since July 14, 1994.\229\ --------------------------------------------------------------------------- \229\ The majority also states that Mr. Barry should have corrected similarly general statements that he made about ARMS during a June 11, 1998, deposition and criticizes Sally Paxton, a member of the Office of White House Counsel who assisted Mr. Barry, for a ``cavalier attitude towards the deposition process.'' Majority report at 131-33. The charge involving Ms. Paxton is doubly unfair. For one thing, since Ms. Paxton was apparently not aware of any ongoing ARMS problems, it is difficult to see how she can be blamed for failing to clarify Mr. Barry's statements. For another, the majority mischaracterizes Ms. Paxton's comments in an interview about the deposition with committee staff on June 22, 2000. Ms. Paxton did not say that ``she told Barry not to change the substance of depositions because it could open him up to being re-deposed.'' Majority report at 133. Rather, Ms. Paxton told staff that she did not recall telling Mr. Barry anything, and that she was not sure that she had standard instructions for a deponent about problems he might have with a deposition transcript. Interview of Sally Paxton by majority and minority staff, House Committee on Government Reform (June 22, 2000). She further said that making substantive changes would open the person up to being re-deposed but that she was not sure that she would generally mention this detail to deponents. Id. See letter from Steven M. McNabb to Representative Dan Burton (Oct. 18, 2000) (correcting ``certain false and misleading statements about my client, Sally Paxton'' in the majority's report) (attached as exhibit 15). --------------------------------------------------------------------------- The flimsiness of Mr. Burton's allegation is underscored by the fact that Mr. Barry received letters from both the Justice Department and the Office of Independent Counsel stating that he is not a target of their respective e-mail investigations.\230\ --------------------------------------------------------------------------- \230\ Letter from Deputy Assistant Attorney General Alan Gershel, to Steve Ryan, Esq. (Aug. 1, 2000) (attached as exhibit 16); letter from Independent Counsel Robert W. Ray to Stephen M. Ryan, Esq., and Pamela J. Marple, Esq. (Aug. 2, 2000) (attached as exhibit 17). --------------------------------------------------------------------------- The majority report also states that ``[b]y counseling Barry through the process of preparing and submitting the false affidavit to the court, Justice Department and White House lawyers were complicit in the fraud perpetrated upon Judge Royce Lamberth's court.'' \231\ This allegation overlooks the incontrovertible fact that there is no evidence that any White House or Justice Department lawyers involved in preparing and submitting the affidavit were aware of any ARMS-related problems. --------------------------------------------------------------------------- \231\ Majority report at 135. --------------------------------------------------------------------------- H. Allegation That an OA Employee Attempted To Hide Information about the Mail2 Problem from Congress Representative Burton has accused Karl Heissner, the branch chief for Systems Integration and Development in OA's IS&T division, of seeking to keep the Mail2 problem a secret from investigators. Mr. Burton cited as evidence an e-mail written by Mr. Heissner, which he interpreted as follows: ``he concludes by saying, `Let sleeping dogs lie.' I think translated that means let's keep a lid on this and don't let Congress or the independent counsels know about it.'' \232\ Mr. Barr suggested that, if he were a prosecutor, Mr. Heissner's e- mail ``would be considered evidence of obstruction of justice.'' \233\ --------------------------------------------------------------------------- \232\ Statement of Representative Dan Burton, May 3 hearing at 13. \233\ Statement of Representative Bob Barr, May 3 hearing at 35. --------------------------------------------------------------------------- Mr. Heissner, a 25-year career civil servant, testified that his e-mail memo addressed two separate and unrelated issues.\234\ The first part of the e-mail is entitled, ``Information Requests'' and states, in relevant part: --------------------------------------------------------------------------- \234\ Testimony of Karl Heissner, May 3 hearing at 49-50. While I'll be glad to write up something related to the ``Information Requests'' channeled to us via White House Counsel in response to various requests from Congress and litigants against the Government, we may not want to call undue attention to the issue by bringing the issue to the attention of Congress because [l]ast year's hours consumed by SID staff amounts to only a little over 500, [t]his year's hours consumed so far amounts to only 65, and [t]he level of requests --------------------------------------------------------------------------- appears to be declining. (Let sleeping dogs lie . . .) \235\ --------------------------------------------------------------------------- \235\ E-mail from Karl H. Heissner to Dorothy E. Cleal (Feb. 5, 1999) (E 3865-74). The second part of the e-mail is entitled ``Mail2 Reconstruction.'' It provides a summary of the Mail2 problem, its discovery, and subsequent efforts to fix it. Mr. Heissner testified that his suggestion to let ``sleeping dogs lie'' was simply expressing a desire not to bring up the fact that the number of information requests received by the White House was declining.\236\ According to Mr. Heissner, since the number of information requests was declining, ``we don't need to go to Congress to ask for funding to pay for the costs for performing these information requests.'' \237\ Mr. Heissner stated that he was not trying to prevent Congress from finding out about the Mail2 problem.\238\ --------------------------------------------------------------------------- \236\ Testimony of Karl Heissner, May 3 hearing at 51. \237\ Id. at 34. \238\ Id. at 50. --------------------------------------------------------------------------- The majority appears to recognize that the allegations about Mr. Heissner are without merit because there is no mention of Mr. Burton's or Mr. Barr's allegations in the majority report. Unfortunately, the majority makes no attempt to clear the record or to clear Mr. Heissner's name in the majority report. I. Allegation That Cheryl Mills Was Responsible for the Failure To Disclose the Mail2 Problem Mr. Burton has made a number of misleading and inaccurate allegations about the role of then-Deputy Counsel to the President Cheryl Mills in the e-mail matter. For example, Mr. Burton alleged that ``Cheryl Mills is a central figure in the e-mail investigation,'' \239\ and that Ms. Mills: --------------------------------------------------------------------------- \239\ Letter from Representative Dan Burton to Attorney General Reno (June 28, 2000). See also majority report at 114 (``Cheryl Mills has been a central figure in the investigation into the White House's e-mail problems and subsequent failure to produce subpoenaed documents''). was in charge of determining the extent of the problem and whether there were any ramifications for document production. As we now know, Ms. Mills--by incompetence or design--may have prevented a number of investigative bodies, including Congress, the Justice Department, and Independent Counsels, from receiving subpoenaed documents. . . . [I]t is clear that Ms. Mills is the central figure in terms of the White House Counsel's Office['s] failure to solve the e-mail problems or its failure to notify interested parties that documents were not being produced.\240\ --------------------------------------------------------------------------- \240\ Letter from Representative Dan Burton to Attorney General Reno (June 28, 2000). In fact, Ms. Mills's testimony before the committee indicated that her involvement in the e-mail matter was limited to a discussion with Mr. Ruff about the problem, after which she forwarded a batch of e-mails to White House Associate Counsel Michelle Peterson, who determined that they had already --------------------------------------------------------------------------- been produced. According to Ms. Mills's testimony: Mr. Ruff indicated that there had been a problem with certain e-mails that might not have been captured, that OA was gathering them, that they were going to forward them to our office. We were going to then need to make a determination whether or not those e-mails had or had not been produced and if they had not been produced that we needed to produce them immediately. . . . The e-mails--the material came from OA over to our office; and I forwarded them to Shelly Peterson, an associate counsel in our office, who reviewed the materials to determine whether or not they were duplicative.\241\ --------------------------------------------------------------------------- \241\ Testimony of Cheryl Mills, May 4 hearing at 33-34. Ms. Mills's testimony contradicts Mr. Burton's assertion that she was ``in charge of determining the extent of the problem and whether there were any ramifications for document production.'' According to her testimony, her role was limited to determining whether or not certain e-mails relating to Monica Lewinsky had or had not been produced.\242\ There is no evidence to suggest that Ms. Mills's testimony on this point was inaccurate. --------------------------------------------------------------------------- \242\ Id. at 34. --------------------------------------------------------------------------- Representative Burton has also implied that Ms. Mills was informed about broad e-mail problems affecting the office of the Vice President. Representative Burton wrote to the Attorney General that a matter of ``some importance'' was a document indicating that ``[t]he OVP memorandum regarding the Vice President's computer problems has been cleared with Cheryl Mills' office.'' \243\ This statement seems to suggest that the memorandum in question contained information about deficiencies in the records management practices of the Office of the Vice President. --------------------------------------------------------------------------- \243\ Letter from Representative Dan Burton to Attorney General Reno (June 28, 2000). --------------------------------------------------------------------------- In fact, however, the memorandum in question discussed a technical failure that caused the Vice President to be ``unable to send or receive E-mail for approximately seven hours'' on April 2, 1999.\244\ According to this memorandum, as a result of this technical failure, ``[a]ll documents which had not been saved to a disk--in this case three days of E-mail--were irretrievably lost.'' \245\ The memorandum does not discuss broader issues about records management of the Vice President's e-mail. It is therefore difficult to understand how Ms. Mills's alleged knowledge of the contents of the memorandum is in any way inculpatory. --------------------------------------------------------------------------- \244\ Memorandum from Dorothy E. Cleal, Associate Director for Information Systems and Technology, Office of Administration, to Virginia Apuzzo, Assistant to the President for Management and Administration (May 13, 2000) (E 5201-03, E 6956-58). \245\ Id. --------------------------------------------------------------------------- This is not the first time the committee has targeted Cheryl Mills. In September 1998, Representative David McIntosh requested that the Department of Justice investigate whether Ms. Mills committed perjury and obstructed justice because, in essence, she did not agree with him about the relevance of two sets of documents to a committee request.\246\ As the Department of Justice found, this attempt to transform a simple document request into a potential criminal offense lacked any merit.\247\ The allegations in this instance appear equally unwarranted. --------------------------------------------------------------------------- \246\ Letter from Representative David McIntosh to Attorney General Janet Reno (Sept. 17, 1998). \247\ Letter from Ms. Faith Burton to Representative David McIntosh (May 6, 1999) (attached as exhibit 18). --------------------------------------------------------------------------- J. Allegation That the Justice Department Has Failed To Investigate, or To Appoint a Special Counsel to Investigate, the E-Mail Matter Mr. Burton has repeatedly condemned the Justice Department's investigation of the e-mail matter. Mr. Burton has accused the Department of ``investigative laxity'' \248\ and has charged that the Justice Department ``took no steps to determine whether reports about the e-mail problem were true,'' \249\ further stating that ``I get the impression that the Justice Department really isn't all that interested'' in the e- mails.\250\ Because of these perceived deficiencies, Mr. Burton has called for the appointment of a special counsel to investigate the e-mail matter.\251\ --------------------------------------------------------------------------- \248\ Letter from Representative Dan Burton to Attorney General Janet Reno (June 28, 2000). \249\ Letter from Representative Dan Burton to Judge Royce C. Lamberth (Mar. 29, 2000). \250\ Statement of Representative Dan Burton, March 23 hearing at 12. \251\ Letter from Representative Dan Burton to Attorney General Janet Reno (Mar. 27, 2000); letter from Representative Dan Burton to Attorney General Janet Reno (Mar. 30, 2000). --------------------------------------------------------------------------- While it would be premature to judge the thoroughness of the Department's e-mail investigation, Mr. Burton's request for a special counsel makes no sense, as the e-mail matter is already the subject of an investigation by Independent Counsel Robert Ray. Deputy Assistant Attorney General Alan Gershel testified that ``with respect to the White House e-mail matter the [Department's] task force and the office of the independent counsel are working together in a coordinated investigation.'' \252\ --------------------------------------------------------------------------- \252\ Testimony of Alan Gershel, Sept. 26 hearing at 35. --------------------------------------------------------------------------- Mr. Burton has alleged that Independent Counsel Ray's investigation ``is limited'' and ``[a] lot of the things that we're talking about in the e-mail investigation Mr. Ray does not have any jurisdiction over.'' \253\ In fact, Mr. Gershel confirmed that the independent counsel's investigation necessarily involves the same basic factual matters as the committee's e-mail investigation.\254\ While the independent counsel may be focused on examining the e-mail matter as it relates to the production of documents to his office, all of the issues explored by the committee--including allegations of threats and a cover-up--are relevant to this inquiry. Mr. Burton's allegation is simply without basis. --------------------------------------------------------------------------- \253\ Statement of Representative Dan Burton, Sept. 26 hearing at 69. \254\ Testimony of Alan Gershel, Sept. 26 hearing at 105-06. Mr. Gershel also affirmed that the Department had not impeded or limited the scope of Mr. Ray's e-mail investigation. Id. at 48. --------------------------------------------------------------------------- The majority report also makes the assertion that ``[i]t appears that for at least part of its e-mail investigation, the Justice Department had only one part-time lawyer assigned to its e-mail investigation.'' \255\ The majority report offers no evidence to support this allegation. Instead, the report states the Mr. Gershel's refusal to rebut the charge ``suggests that it is likely true.'' \256\ In fact, Mr. Gershel made clear that his refusal to discuss staffing levels was based on the Department's longstanding policy of not disclosing staffing levels for ongoing investigations.\257\ --------------------------------------------------------------------------- \255\ Majority report at 141. \256\ Id. at 143. \257\ Testimony of Alan Gershel, Sept. 26 hearing at 34-35. --------------------------------------------------------------------------- Finally, the majority report accuses the Justice Department of having a conflict of interest because of the role of the Department's civil division in defending the White House in the Alexander case.\258\ However, Assistant Attorney General Robert Raben explained to the committee: --------------------------------------------------------------------------- \258\ Majority report at 129. The Department often represents the interests of a governmental entity in civil litigation where an issue presented in that civil case touches upon a pending criminal investigation. If an aspect of an ongoing civil case threatens to duplicate or interfere with the conduct of an ongoing criminal investigation, the Department often seeks to stay that part of the civil case that might duplicate or interfere with the progress of the criminal investigation. That is precisely the relief the Department sought in the Alexander case, in which the Department asserted that the lawyers in the Civil Division, who had been looking into the email issue, should not proceed with that investigation because it could duplicate or compromise the investigation by the Task Force and the Office of Independent Counsel.\259\ --------------------------------------------------------------------------- \259\ Letter from Assistant Attorney General Robert Raben to Representative Dan Burton (Apr. 12, 2000) (attached as exhibit 19). The majority asserts that ``[t]he Department of Justice has received no such stay.'' Majority report at 129. This assertion is misleading, as the judge hearing the Alexander case delayed holding hearings on the e- mail matter for several months until receiving assurances that ``the criminal investigation has reached a stage where further inquiry . . . can recommence without threatening the integrity of the criminal investigation or other law enforcement interests.'' Order of Judge Royce Lamberth, Alexander v. FBI, No. 96-2123 (July 20, 2000). The judge further noted that he had ``proceeded cautiously'' since the task force began its investigation ``to ensure that these proceedings do not interfere with the criminal investigation.'' Id. The Alexander plaintiffs filed a motion requesting an evidentiary hearing on e-mail matters on Feb. 19, 2000; the court did not commence the hearing until July 31. Id. --------------------------------------------------------------------------- K. Other Allegations 1. Allegation That the White House Has Delayed Reconstruction of the E- mails Mr. Burton has stated that ``it is now obvious to me that the White House has failed to expedite the production of subpoenaed documents to the Committee,'' adding that ``the White House has clearly demonstrated its utter disregard for both the legislative and judicial branches'' and that delays in the reconstruction process ``are not surprising and seem very convenient.'' \260\ Mr. Burton has further called for the appointment of a special master to supervise production of e- mails.\261\ --------------------------------------------------------------------------- \260\ Letter from Representative Dan Burton to Counsel to the President Beth Nolan (July 26, 2000). \261\ Letter from Representative Dan Burton to Counsel to the President Beth Nolan and Attorney General Janet Reno (July 12, 2000). --------------------------------------------------------------------------- Ms. Nolan has responded in writing to Mr. Burton's allegations in some detail, noting correctly that she warned during her testimony before the committee that the schedule for the e-mail reconstruction project was subject to possible delays.\262\ Ms. Nolan also testified that ``[a]s our review progresses to completion, we will likely uncover information that alters or amends these preliminary conclusions'' and referred to the ``contractor's preliminary estimate,'' adding that ``I want to emphasize preliminary because these estimates are subject to amendment as the process proceeds and the contractor learns new information.'' \263\ --------------------------------------------------------------------------- \262\ Letter from Counsel to the President Beth Nolan to Representative Dan Burton (Aug. 7, 2000) (attached as exhibit 20). Ms. Nolan also pointed out that, in addition to testifying twice before the committee, she has provided the committee with several updates on the reconstruction project and records management issues. Id. \263\ Testimony of Beth Nolan, March 30 hearing at 25. --------------------------------------------------------------------------- The majority has not yet responded to an offer made by the White House on September 14, 2000, to search, reconstruct, and produce batches of e-mails on an expedited basis.\264\ The White House notified committee staff that with about 3 weeks of computer staff time, it would be able to conduct targeted searches using 100 backup tapes, 70 e-mail accounts, and 70 search terms.\265\ The White House repeated the offer on October 4.\266\ To date, however, the majority has failed to take the White House up on its offer. This might suggest that the majority is more interested in speculating about the ``missing'' e-mails--and accusing the White House of delay-- than in actually reviewing the e-mails. --------------------------------------------------------------------------- \264\ See letter from Counsel to the President Beth Nolan to Representative Dan Burton (Sept. 26, 2000). \265\ Id. The White House further noted that with about 2 weeks of computer staff time, it would be able to conduct targeted searches using 50 backup tapes, 35 e-mail accounts, and 35 search terms. Id. \266\ Letter from Associate Counsel to the President Lisa Klem to Chief Counsel James C. Wilson (Oct. 4, 2000). --------------------------------------------------------------------------- 2. Allegation That the White House Has Impeded the Committee's Investigation The majority asserts that ``the White House Counsel's Office has used a number of questionable tactics that appear to have no purpose other than to impede the investigation.'' \267\ However, the majority cites scant evidence to support this assertion. For example, the majority states: --------------------------------------------------------------------------- \267\ Majority report at 107. the original White House production in the e-mail matter was sent in the evening, two days before the Committee's first scheduled hearing of March 23, 2000. This forced an expedited review of 3,396 pages of documents in less than 36 hours. By placing the Committee in this difficult position, the White House made the hearing process less efficient.\268\ --------------------------------------------------------------------------- \268\ Id. at 107. In fact, the majority has only itself to blame for its ``difficult position.'' The problem encountered by the majority was caused by the fact that the majority scheduled a hearing before the committee had received key documentation. The majority also accuses the White House of employing a ``delaying tactic'' by asserting privilege over certain documents.\269\ This accusation concerns an April 28, 2000, letter from White House counsel to the majority in which the White House counsel enclosed a ``draft log'' describing several documents ``subject to privilege.'' \270\ The majority concedes, however, that 1 day after receiving a written objection from Mr. Burton, the White House decided not to pursue privilege discussions and agreed to provide the documents to the committee.\271\ Given that this whole process took all of 2 business days, it is unclear how much advantage this alleged ``delay'' could have given the White House.\272\ --------------------------------------------------------------------------- \269\ Id. at 110. \270\ Letter from Associate Counsel to the President Dimitri J. Nionakis to Chief Counsel James Wilson (Apr. 28, 2000). White House counsel testified that the log was provided as an invitation to discuss seven documents that White House counsel believed concerned areas relating to ``the internal deliberations of the executive branch,'' and that ``that is exactly the kind of thing that calls for a discussion between the committee and the relevant executive agency.'' Testimony of Beth Nolan, May 4 hearing at 228-29. \271\ Majority report at 111. \272\ According to the majority, ``the White House so quickly abandoned its privilege claims because the claims were without merit and could only have been intended to drag out the investigation.'' Id. at 111. The majority overlooks the more plausible assumption that the White House dropped its claim in order to accommodate the committee, and to avoid providing the majority with another pretext to complain of ``delaying tactics.'' --------------------------------------------------------------------------- Another trivial accusation is the majority's complaint that White House counsel did not initially produce copies of the Lewinsky-related e-mails located by Mr. Haas. In fact, after receiving a letter from Mr. Burton, the White House provided these documents. Once again, the majority construes a minor disagreement over document production as evidence of dilatory tactics--even when the White House immediately acceded to the majority's demands.\273\ --------------------------------------------------------------------------- \273\ The majority states that White House counsel claimed that the Lewinsky e-mails ``were unrelated to the Mail2 error and therefore were not relevant to the Committee's inquiry.'' Id. at 111. In fact, Ms. Nolan testified that she took the view that the Lewinsky e-mails were not covered by the committee's pre-existing subpoena. Testimony of Beth Nolan, May 4 hearing at 253. Ms. Nolan further pointed out her view was evidently shared by Representative Burton, who had told Ms. Nolan during her previous appearance before the committee that he intended to issue a separate subpoena for the zip disk containing the Lewinsky e- mails. Id.; see statement of Representative Dan Burton, March 30 hearing at 82 (stating that ``I think we'll issue a subpoena for both the original zip disk and the one that was remade off of [Mr. Haas's] hard drive''). --------------------------------------------------------------------------- The majority also makes another spurious allegation: Because of the Committee's persistence regarding responsive OVP documents, the White House eventually made a startling admission about the OVP server. On June 7, 2000, Steven Reich sent a letter accompanying a large production of documents related to the OVP e-mail problems. He wrote, ``your May 16, 2000, letter regarding non-records managed e-mail has led us to discover that a technical configuration error apparently prevented e-mail on the OVP server from being backed-up from the end of March 1998 through early April 1999.'' In other words, if the Committee had not followed-up on the OVP problems . . . the White House most likely would never have disclosed the existence of another serious flaw in its records management process.\274\ --------------------------------------------------------------------------- \274\ Majority report at 110 (emphasis added). This allegation distorts the role of White House counsel. As Mr. Reich's letter clearly stated, White House counsel only discovered the backup problem with the OVP server in the course of responding to the committee's request. The implication that White House counsel were aware of the problem all along, and only disclosed it when they were forced to do so, is wholly unsubstantiated. 3. Allegation That OA Briefing Materials Are Evidence of a Conspiracy to Hide the Mail2 Problem from Congress A reference to the Mail2 problem was removed from draft materials prepared to brief Mr. Lindsay prior to his testimony before congressional appropriators. The majority has suggested this deletion reflected a deliberate attempt to prevent Congress from finding out about the problem.\275\ In fact, the deletion had an innocent explanation. OA Director Michael Lyle explained that the briefing materials were internal documents prepared for Mr. Lindsay's testimony regarding appropriation matters, and that the reference to Mail2 was removed because ``funds were not being sought for the e-Mail2 reconstruction project in this appropriation.'' \276\ --------------------------------------------------------------------------- \275\ Id. at 89. \276\ Testimony of Michael Lyle, May 3 hearing at 130-33. --------------------------------------------------------------------------- 4. Allegation That Sidney Blumenthal Tried to Prevent His E-mails From Being Archived A May 3 Washington Times article stated that a White House memo shows that ``White House aide Sidney Blumenthal, who figured prominently in the Monica Lewinsky investigation, asked last year to have his personal e-mail messages removed from the White House's automated-records management system--meaning they couldn't be retrieved.'' \277\ --------------------------------------------------------------------------- \277\ ``Blumenthal Wanted His E-mail Erased from White House,'' Washington Times (May 3, 2000). --------------------------------------------------------------------------- However, according to testimony by OA's director, Michael Lyle, the memo regarding the Blumenthal e-mail concerned a single e-mail to Mr. Blumenthal that had duplicated itself to the point where it crashed Mr. Blumenthal's computer.\278\ Mr. Lyle said the Office of Administration decided to delete the duplicates, while keeping the original.\279\ There is no evidence to contradict Mr. Lyle's testimony or to suggest that there was an attempt to prevent Mr. Blumenthal's e-mails from being records-managed. --------------------------------------------------------------------------- \278\ Testimony of Michael Lyle, May 3 hearing at 81. \279\ Id. at 82. --------------------------------------------------------------------------- IV. Allegations Concerning the Office of the Vice President A. Allegation That the OVP Deliberately Attempted to Circumvent Subpoena Compliance The majority report alleges that ``the Vice President's Office took affirmative steps to keep from storing its e-mail records in the only system that would permit full and accurate subpoena compliance.'' \280\ According to the majority, a counsel to the Vice President ``personally decided that the Vice President would not store his records in a way that would permit compliance with document requests'' and there ``can be little doubt that the Vice President's advisors knew that their actions would permit his office to operate in a manner that would make it less susceptible to oversight.'' \281\ --------------------------------------------------------------------------- \280\ Majority report at viii. \281\ Id. at xviii. --------------------------------------------------------------------------- This allegation is wholly without merit. The committee's investigation revealed that in 1994, the Office of the Vice President opted not to archive its e-mails electronically via ARMS.\282\ Instead, in order to preserve Vice Presidential records in compliance with the Presidential Records Act, and consistent with previous practice, OVP personnel were instructed to print out and save work-related e-mails. In addition, the OVP system was regularly backed up and the backup tapes were saved.\283\ --------------------------------------------------------------------------- \282\ Instead, the OVP maintained its own computer system, serviced by a contractor rather than by OA. Statement of Counsel to the President Beth Nolan (Mar. 23, 2000). \283\ Former Counsel to the Vice President Todd Campbell described this system as a ``belts and suspenders'' records management policy, with the backup tapes in place in the event of any technical or other problem arising. Interview of Hon. Todd Campbell by majority and minority staff, House Committee on Government Reform (Aug. 18, 2000). --------------------------------------------------------------------------- There is no evidence whatsoever that this decision was intended, or could have been intended, to hamper subpoena compliance. At the time, ARMS was intended solely as a means of archiving electronic records for posterity in compliance with the Federal Records Act--not as a tool for subpoena compliance.\284\ There is no evidence that anyone had even considered the possibility of using ARMS to search for responsive documents. Indeed, former Counsel to the Vice President Todd Campbell, now a Federal judge, informed the committee that the OVP received only a few subpoenas during his tenure there, which lasted through the 1994 election.\285\ Judge Campbell also indicated that he made the decision not to use ARMS to archive Vice Presidential records; that his decision was not intended to prevent OVP e-mails from being saved on a searchable database; and that he had no memory of ARMS even being a searchable database.\286\ --------------------------------------------------------------------------- \284\ Testimony of Beth Nolan, March 30 hearing at 85 (stating that ``ARMS was set up in order for the executive office of the President to comply with the Federal Records Act''). \285\ Interview of Hon. Todd Campbell by majority and minority staff, House Committee on Government Reform (Aug. 18, 2000). \286\ Id. The majority notes that Judge Campbell told staff that he did not direct that the backup tapes be searched in response to subpoenas but claims that ``[h]e could not offer any explanation as to why not.'' Majority report at 76. In fact, Judge Campbell stated in his interview that the subpoenas received when he was at the White House were so remote from matters handled by the OVP that there was no need to take this step. Interview of Hon. Todd Campbell by majority and minority staff, House Committee on Government Reform (Aug. 18, 2000). --------------------------------------------------------------------------- Judge Campbell explained that he made his decision after consulting with Michael Gill, who handled information technology matters in the OVP from 1993 through the fall of 1996, and Kimiki Gibson, then the Associate Counsel to the Vice President.\287\ Judge Campbell believed that his decision was legal and appropriate, and there is no evidence that would indicate his belief was mistaken. As explained above, ARMS was created in order to comply with the Armstrong decision, which held that existing EOP guidelines for managing e-mail were not in compliance with FRA recordkeeping requirements. Since records created by the OVP are governed by the PRA, not the FRA, the OVP was under no requirement to rely on ARMS for its records management.\288\ Moreover, the OVP's decision to rely on saving paper copies of e-mails instead of using ARMS to archive e-mails was fully in keeping with both the letter and the spirit of Armstrong.\289\ --------------------------------------------------------------------------- \287\ Interview of Hon. Todd Campbell by majority and minority staff, House Committee on Government Reform (Aug. 18, 2000). \288\ The Armstrong decision explicitly applied only to Federal records, and the court made it clear that the President has great discretion in implementing the PRA. The PRA ``accords the President virtually complete control over his records during his term of office.'' 1 F.3d at 1291 (citation omitted). The Armstrong decision also made clear that judicial review of the PRA is limited: ``the courts may review guidelines outlining what is, and what is not, a `presidential record' to ensure that materials that are not subject to the PRA are not treated as presidential records'' but ``the PRA impliedly precludes judicial review of the President's decisions concerning the creation, management, and disposal of presidential records during his term of office.'' 1 F.3d at 1294 (citation omitted). \289\ The Armstrong decision did not hold that printing and saving paper copies of e-mails was inherently incompatible with records management responsibilities. Rather, the Armstrong decision noted that ``important information present in the e-mail system, such as who sent a document, who received it, and when that person received it, will not always appear on the computer screen and so will not be preserved on the paper print-out.'' 1 F.3d at 1284. Armstrong did not hold that the only acceptable way to manage electronic records was via an electronic archiving system, but rather that retaining ``amputated paper print- outs''--lacking data contained in the original e-mail--was not sufficient for purposes of the FRA. 1 F.3d at 1285. Since the OVP's paper print-outs apparently contained full data about the sender and recipients, the OVP's records management regime was in compliance with the spirit of Armstrong. --------------------------------------------------------------------------- The majority asserts that it is ``difficult to understand why the OVP chose not to use the White House's ARMS system.'' \290\ In fact, Judge Campbell told the committee that the OVP had technical concerns about connecting to ARMS.\291\ According to Mr. Gill, in order for the OVP to connect to ARMS, it would have had to take a giant technological step backwards by converting its e-mail system from the Windows-based ``Lotus cc:Mail'' to the character-based ``All-in-One,'' which Mr. Gill considered to be less user-friendly.\292\ --------------------------------------------------------------------------- \290\ Majority report at 76. \291\ Interview of Hon. Todd Campbell by majority and minority staff, House Committee on Government Reform (Aug. 18, 2000). \292\ Interview of Michael Gill by majority and minority staff, House Committee on Government Reform (July 24, 2000). --------------------------------------------------------------------------- The majority further asserts that the ``decision by the Vice President's office to have his [sic] e-mails managed separately from the rest of the White House meant that the Vice President's office could not effectively comply with subpoenas.'' \293\ This assertion is simply wrong. The notion that the White House, or any other entity, cannot ``effectively comply with subpoenas'' unless it has a word-searchable electronic archive that preserves its e-mails has no basis in law. If the majority's assertion were true, there would be few, if any, corporations, citizens, or governmental entities capable of complying with subpoenas ``effectively.'' \294\ As any lawyer with rudimentary litigation experience can attest, compliance with subpoenas requires a reasonable, good faith effort to locate responsive documents--no more and no less.\295\ --------------------------------------------------------------------------- \293\ Majority report at xvii. \294\ See, e.g., statement of Counsel to the President Beth Nolan (Mar. 23, 2000) (``archiving e-mail records is a relatively novel concept. I am told that the ARMS system had to be custom built because at that time no appropriate system was commercially available. As far as we are aware, no other government entity--including Congress-- maintains a similar on-line archival system''). See also ``With White House E-Mail, It's Click Now, Repent Later,'' Christian Science Monitor (Apr. 7, 2000) (noting that ``[i]ronically, the office of Rep. Dan Burton (R) of Indiana, who last week grilled White House counsel about the missing e-mails, stores its electronic messages for a mere week, then overrides them with new work'') (attached as exhibit 21). The majority's assertion that ``the difficulty in searching backup tapes was one of the fundamental reasons for the creation of ARMS'' is equally specious. Majority report at 20. The only evidence the majority cites in support of this proposition is a statement by Mr. Haas, a Northrop Grumman contract engineer who evidently took no part in the legal and policy discussions that led to ARMS's creation. Mr. Haas's assertion is inconsistent with the interviews conducted and documents received by the committee, which uniformly indicate that the sole impetus for the creation of ARMS was the Armstrong decision. See, e.g., testimony of Beth Nolan, March 30 hearing at 85 (stating that ``ARMS was set up in order for the executive office of the President to comply with the Federal Records Act''); interview of Daniel A. Barry by majority and minority staff, House Committee on Government Reform (Mar. 9, 2000). \295\ See, e.g., U.S. v. Ryan, 402 U.S. 530, 534 (1971) (subpoena duces tecum ``placed respondent under a duty to make in good faith all reasonable efforts to comply with it''); Food Lion v. United Food and Commercial Workers International Union, 103 F.3d 1007, 1017 (D.C. Cir. 1997) (noting that ``[s]everal courts have held that a party charged with contempt may assert a defense of good faith substantial compliance''). --------------------------------------------------------------------------- B. Allegation That the Reconstructed OVP E-Mails Contain Significant Information To date, between 180,000 and 200,000 e-mails have been reconstructed and reviewed, and any responsive e-mails have been produced to the Office of Independent Counsel Robert Ray or the Justice Department's campaign finance task force. Only 56 of the e-mails produced to the independent counsel or the task force were responsive to this committee's subpoenas, and several of those had already been produced in similar form (e.g., with a different recipient or sender). The majority has alleged that the e-mails contain damaging new information. According to the majority report, the e-mails produced by the White House ``are highly relevant to the Committee's investigation of campaign finance matters,'' and the information in these e-mails is ``important for evaluating whether the Vice President committed perjury'' and ``shows that it is impossible to come to a final conclusion about underlying campaign finance matters without a complete review of all the previously withheld information.'' \296\ --------------------------------------------------------------------------- \296\ Majority report at viii, x. --------------------------------------------------------------------------- In fact, none of the 56 reconstructed e-mails provided to the committee contains significant new evidence. The majority cites as significant new information one e- mail between two Vice Presidential staffers that refers to ``FR coffees'' at the White House, which the majority asserts is evidence that the coffees were used for fundraising purposes.\297\ It is not clear, however, whether the term ``FR'' refers to ``fundraising'' or ``finance-related.'' Moreover, even if the term ``FR'' is construed to refer to fundraising, the e-mail does not add new evidence. Other internal communications in the Vice President's Office have described these coffees as ``fundraising'' events.\298\ Indeed, the Vice President has repeatedly said that he knew attendees at White House coffees would likely be solicited for contributions later on.\299\ --------------------------------------------------------------------------- \297\ E-mail from Karen Skelton to Ellen L. Ochs (Apr. 23, 1996) (E 8862) (discussed in majority report at x). \298\ See, e.g., Senate Committee on Governmental Affairs, ``Investigation of Illegal or Improper Activities in Connection with 1996 Federal Election Campaigns,'' 105th Cong., 2d sess., vol. 1, 196 (March 1998) (stating that ``[a] number of White House and DNC documents underline the importance of the coffees as fundraising events''). \299\ The Vice President told investigators that the coffees ``allowed the President to spend time with influential people who wanted to talk about policy, who would at some later time possibly be asked to financially support the DNC.'' He further stated that ``[i]t was contemplated at the time when they were set up that some or many of those who participated in those sessions would later on be likely to contribute.'' Interview of Vice President Gore with Robert J. Conrad, Jr., Head of the Department of Justice Campaign Financing Task Force (Apr. 18, 2000). --------------------------------------------------------------------------- Another e-mail relied upon by the majority is an e-mail from a scheduler that refers to a fundraising event in Los Angeles and lists an event at the Hsi Lai Buddhist Temple.\300\ But this e-mail is a draft schedule and it is incomplete and inaccurate in several places.\301\ It adds little to what is already known about the Hsi Lai Temple event. Internal communications in which the Vice President's staff apparently used the term ``fundraiser'' to describe the Hsi Lai Temple event were produced and investigated long ago.\302\ Three years ago, the Senate Governmental Affairs Committee talked with the Vice President's scheduling staff about such internal communications, and thoroughly explored whether staff viewed the event as a fundraiser and how the Vice President was briefed about the event.\303\ The newly reconstructed e-mails received by the committee contain no e-mails either to or from the Vice President regarding the Temple event. --------------------------------------------------------------------------- \300\ E-mail from Jackie A. Dycke to R. Martinez (Apr. 9, 1996) (E 8747-54) (discussed in majority report at x). \301\ For example, the document indicates that the Vice President will attend a DNC Reception at the Hsi Lai Temple both in Los Angeles and San Jose. Id. \302\ E.g., document labeled ``Current Schedule for April 29'' (EOP 056497) (referring to a ``DNC luncheon in LA/Hacienda Heights''); e- mail from Jackie A. Dycke to R. Martinez (Apr. 10, 1996) (EOP 053292) (noting that ``the VP is going to San Jose and LA for DNC fundraising events on April 29''). \303\ Senate Committee on Governmental Affairs, ``Investigation of Illegal or Improper Activities in Connection with 1996 Federal Election Campaigns,'' 105th Cong., 2d sess., vol. 2, 1793-94, vol. 4, 4818-31 (March 1998). Staff testified that they were sloppy in their use of the term ``fundraiser.'' But the key scheduler responsible for the Hsi Lai Temple event in the Vice President's Office testified that she viewed the event as a community outreach event, not a fundraiser, and the staff person who briefed the Vice President on the event testified that he informed the Vice President that the event was a community outreach event. Id. at 4822-26. --------------------------------------------------------------------------- C. Allegation That Vice President Gore Sought To Hide E-Mails from Investigators Mr. Burton recently alleged: the Vice President wanted the backup tapes on many of his e-mails not kept. He didn't want there to be backup tapes because they said the only way--in one of the memos, they says [sic] the only way that we can keep from having backup tapes is to use the Clinton-Gore email system. And so there was a deliberate attempt to try to keep these e-mails from being backed up on the tapes.\304\ --------------------------------------------------------------------------- \304\ ``The Edge with Paula Zahn,'' Fox News (Sept. 27, 2000). This allegation is wholly without merit. Mr. Burton appears to be referring to an e-mail sent to the Vice President which stated that ``[a]ll internet e-mails are recorded on the White House computers. According to Michael, the only way not to have your e-mails backed up on government computers would be to get a Clinton/Gore computer in your office and set it up for private e-mails.'' \305\ The White House has informed the committee that, as best it can determine, the Vice President did not have a Clinton/Gore '96 computer or e-mail account in the White House.\306\ Nor is there anything inappropriate about the suggestion that ``private e-mails'' should not be archived. Since the PRA requires only that official Vice Presidential records be saved, it would be legal and appropriate not to archive private, personal, or campaign e-mails. --------------------------------------------------------------------------- \305\ E-mail from Joel Velasco to Vice President Gore (Feb. 22, 1998) (E 8701). \306\ Ms. Nolan informed the committee that such computers were set up in the EOP as ``[u]nder federal law, equipment in the White House that is dedicated for political purposes must be paid for by the appropriate political committee, not with official funds.'' Letter from Counsel to the President Beth Nolan to Representative Dan Burton (Sept. 26, 2000). However, Ms. Nolan stated that ``[a]s best we can determine, the Vice President did not have a Clinton/Gore '96 computer or Clinton/ Gore '96 e-mail account in the White House.'' Id. --------------------------------------------------------------------------- D. Allegation That the Vice President Was Aware of Records Management Problems in the OVP The Vice President has informed investigators that he did not know about the failure of the White House e-mail system to store or archive e-mail messages from 1998 to 1999.\307\ According to the majority, ``The Vice President's claim to be ignorant of his Office's records management problems is not credible.'' \308\ --------------------------------------------------------------------------- \307\ Interview of Vice President Gore with Robert J. Conrad, Jr., Head of the Department of Justice Campaign Financing Task Force (Apr. 18, 2000). See also ``The Edge with Paula Zahn,'' Fox News (June 14, 2000). \308\ Majority report at 73. --------------------------------------------------------------------------- The only support that the majority can cite for this assertion, however, is the fact that the Vice President ``is extremely computer savvy and highly involved in issues related to information systems both generally and within his office.'' \309\ Such speculation is flimsy and provides no reasonable basis for questioning the Vice President's credibility. --------------------------------------------------------------------------- \309\ Id. --------------------------------------------------------------------------- There is also no evidence to suggest that the Vice President was aware of the decision not to use ARMS. To the contrary, Judge Campbell told committee staff that he did not inform the Vice President in 1994 about his decision not to connect to ARMS and that he would be surprised if anyone else did.\310\ Furthermore, the Vice President's Chief of Staff, Charles Burson, told the committee that he thought, on the basis of meetings he had had with White House counsel, that OVP e-mails were being electronically archived on the same system as the rest of the White House.\311\ --------------------------------------------------------------------------- \310\ Interview of Hon. Todd Campbell by majority and minority staff, House Committee on Government Reform (Aug. 18, 2000). \311\ Interview of Charles Burson by majority and minority staff, House Committee on Government Reform (Aug. 3, 2000). Mr. Burson joined the OVP as counsel in February 1997, long after the decision about connecting to ARMS had been made. --------------------------------------------------------------------------- In fact, the committee has documentary evidence that Vice President Gore was told that his e-mails were being automatically archived. The committee received a copy of an e- mail to Vice President Gore, discussed above, which stated that ``[a]ll internet e-mails are recorded on the White House computers. According to Michael, the only way not to have your e-mails backed up on government computers would be to get a Clinton/Gore computer in your office and set it up for private e-mails.'' \312\ --------------------------------------------------------------------------- \312\ E-mail from Joel Velasco to Vice President Gore (Feb. 22, 1998) (E 8701). --------------------------------------------------------------------------- While technical personnel in OA were apparently aware that the OVP was not connected to ARMS, it does not appear that they communicated this information to anyone in the White House. To the contrary, White House counsel repeatedly received written communications indicating that OVP e-mails were being archived on ARMS. The committee received dozens of e-mails between Tony Barry, OA's ARMS expert, and persons in the White House counsel's office which indicate that Mr. Barry told White House counsel that he was searching ARMS for OVP records.\313\ Although Mr. Barry was presumably aware that OVP e-mails were not being systematically captured, he apparently placed OVP e- mails which arrived in ARMS through various secondary means into a ``bucket,'' which he would search in response to requests to look for OVP records.\314\ --------------------------------------------------------------------------- \313\ Mr. Barry explained to the committee that after he receives requests to perform an ARMS search, he responds by e-mail to confirm the details of the search (i.e., the search definition, an estimate of the cost and time that the search will take, and the search schedule). Interview of Daniel A. Barry by majority and minority staff, House Committee on Government Reform (Mar. 9, 2000). Many of these e-mails from Mr. Barry to members of the Office of White House Counsel were produced to the committee and refer explicitly to Mr. Barry conducting searches of OVP records. See, e.g., e-mail from Daniel A. Barry to Michael Imbroscio (Sept. 2, 1997) (E 7845); e-mail from Daniel A. Barry to Karl Racine (July 27, 1998) (E 7830); e-mail from Daniel A. Barry to Steven Reich (Mar. 6, 2000) (E 7822). These three e-mails are attached as exhibit 22. \314\ See e-mail from Daniel A. Barry to Sandra Golas (July 28, 1998) (describing the processing of e-mails into ARMS and referring to distinct ``buckets'' for records from such EOP agencies as ``WHO'' (the White House Office), ``VPO'' (the Vice President's Office), ``OPD'' (the Office of Policy Development), and ``CEA'' (Council of Economic Advisors)) (E 7301) (attached as exhibit 23). --------------------------------------------------------------------------- V. The Costs of the Investigation and the Reconstruction Effort As of September 29, 2000, the White House has committed, obligated, or expended approximately $6.9 million on reconstructing the ``missing'' e-mails.\315\ 39,157 hours of work have been spent on this mammoth project--34,822 hours by contract employees, 3,795 hours by employees of the Executive Office of the President, and 540 hours by security personnel. Overall, the cost of the project has been estimated at $11.7 million.\316\ --------------------------------------------------------------------------- \315\ Letter from Michael K. Bartosz, general counsel to the Office of Administration, to James C. Wilson, chief counsel (Sept. 29, 2000). \316\ Id. --------------------------------------------------------------------------- The committee has also expended considerable taxpayer dollars on its own investigation. The committee's investigation has included 5 days of hearings and 36 interviews of witnesses, many of them Federal Government employees. It also required the production of over 10,000 pages of documents, the majority of which were produced by the White House. In dollar terms, then, the majority's allegations are costing the taxpayers of this country millions of dollars. For many, however, dollars alone fail to capture the true cost of the e-mail investigation. The investigation is part of a series of scandal investigations by this committee that unfairly smeared reputations of many dedicated public servants and drove others to leave government service. The impact of these investigations was eloquently expressed by Cheryl Mills in her testimony before the committee on May 4, 2000: Mr. Chairman, I left because I was tired of playing a role in dramas like today, when so many issues that mattered to me . . . were not being addressed. You have held four days of hearings, and spent countless more dollars on depositions and document productions, but yet you have not chosen to use your oversight authority to hold one day's worth of hearings about: a man who was shot dead by an undercover New York police officer while he was getting into a cab, after refusing to buy drugs from that officer; any of the 67 cases and counting that have been overturned because officers in Los Angeles Police Department planted guns and drugs to frame people, shot an unarmed man, and quite possibly shot another man, with no criminal record, 10 times-- killing him; why African American youths charged with drug offenses are 48 times more likely than white youths to be sentenced to prison. * * * * * Nothing you discover here today, will feed one person, give shelter to someone who is homeless, educate one child, provide health care for one family, or offer justice to one African American or Hispanic juvenile. You could do so much to transform our country--but instead you are compelled to use your great authority and resources to address . . . e-mails.\317\ --------------------------------------------------------------------------- \317\ Testimony of Cheryl Mills, May 4 hearing (attached as exhibit 24). Hon. Henry A. Waxman. Hon. Tom Lantos. Hon. Major R. Owens. Hon. Edolphus Towns. Hon. Paul E. Kanjorski. Hon. Patsy T. Mink. Hon. Carolyn B. Maloney. Hon. Eleanor Holmes Norton. Hon. Chaka Fattah. Hon. Elijah E. Cummings. Hon. Dennis J. Kucinich. Hon. Rod R. Blagojevich. Hon. Danny K. Davis. Hon. Jim Turner. Hon. Harold E. Ford, Jr. Hon. Janice D. Schakowsky. [The exhibits referred to follow:] EXHIBIT 1 EXHIBIT 2
EXHIBIT 3
EXHIBIT 4
EXHIBIT 5
EXHIBIT 6
EXHIBIT 7
EXHIBIT 8
EXHIBIT 9
EXHIBIT 10
EXHIBIT 11
EXHIBIT 12
EXHIBIT 13
EXHIBIT 14
EXHIBIT 15
EXHIBIT 16
EXHIBIT 17
EXHIBIT 18
EXHIBIT 19
EXHIBIT 20
EXHIBIT 21
EXHIBIT 22
EXHIBIT 23
EXHIBIT 24
Additional Views of Hon. Dan Burton The committee's investigation into the failure to produce both White House Office and Office of the Vice President (OVP) e-mails is ongoing and active. Since the draft of this report was submitted on October 2, 2000, for Members' consideration, events have continued to unfold and new evidence has continued to come to light. In the last 2\1/2\ weeks, committee members interviewed Attorney General Janet Reno regarding a number of subjects, including her Department's investigation into the e- mail matter. Committee staff also re-interviewed Northrop Grumman employees Robert Haas and Joseph Lucente, and attempted to interview former White House lawyer Lanny Breuer. The White House has produced additional relevant documents following the committee's vote on the report, and several developments arose from parallel proceedings in the civil FBI files case, Alexander v. FBI. I. Further Evidence That Northrop Grumman Employees were Threatened into Secrecy about the E-Mail Problem As explained in the report, White House employees threatened the Northrop Grumman employees who discovered the e- mail problem. The motivation for the White House officials to threaten the contract employees into secrecy likely grew out of the fear that the e-mail problem would become public during the height of a criminal grand jury investigation of the President. Revelations that document searches conducted by the White House had been significantly incomplete would likely have rekindled virtually every one of the countless administration scandals of the previous 6 years. Thus, it was in the interest of the White House, first, to keep the e-mail archiving problems hidden and, second, to avoid reconstructing the e-mails from backup tapes for as long as possible. The efforts to achieve the first objective assisted in accomplishing the second because the secrecy constraints imposed by Mark Lindsay and Laura Callahan prevented the problem from being fixed. a. robert haas told joseph vasta about the threats Further evidence of the threats against Northrop Grumman employees was developed recently when committee staff re- interviewed Robert Haas on October 11, 2000. Haas explained that the reason he, Sandra Golas, and John Spriggs asked to meet with Deputy Program Manager Joseph Vasta in late August 1998 was that the e-mail reconstruction had not yet begun, and they felt that they could not get the problem solved with the secrecy restraints under which they had been placed.\1\ He said they needed to ``break this rule down because it is ridiculous. Without removing the rule, we could not get it fixed.'' \2\ Haas' contact with Vasta led to the meeting between the Northrop Grumman employees and Northrop Grumman counsel in September 1998. After this meeting, Haas felt free to tell Vasta everything about the e-mail problem, including the threats that were directed at him by White House staff.\3\ --------------------------------------------------------------------------- \1\ Interview with Robert Haas, Lotus Notes administrator, Northrop Grumman, in Washington, DC (Oct. 11, 2000). \2\ Id. \3\ Id. --------------------------------------------------------------------------- Haas corroborated Spriggs' account of the meeting with Vasta. Haas stated that the group was trying to make him understand that there was a serious problem, but was hesitant to share the details of the problem with him.\4\ Like Spriggs, Haas said that the goal of the meeting with Vasta was to get the ``higher-ups'' at Northrop Grumman involved.\5\ Haas also recalled that Spriggs took Vasta's handwritten notes of the meeting away from Vasta. When asked why the notes were confiscated, Haas said that the group's standard practice at meetings discussing the Mail2 problem was to make copies of the notes necessary to conduct the meeting and then to tear them up and place them in a ``burn bag.'' \6\ Haas' recollection is also consistent with what Spriggs said.\7\ Haas added that he maintained a Mail2 burn bag separate from the standard burn bags used at the Executive Office of the President (EOP) for documents with individual's names or other private information.\8\ According to Haas, their practices with regard to Mail2 notes were pursuant to the instructions from Laura Callahan and Mark Lindsay not to keep notes related to the e- mail archiving problem.\9\ This also corroborates Betty Lambuth's testimony with regard to keeping notes.\10\ --------------------------------------------------------------------------- \4\ Id. \5\ Id. \6\ Id. \7\ See ``The Failure to Produce White House E-mails: Threats, Obstruction, and Unanswered Questions,'' House Committee on Government Reform, at sec. III.A.4.f. (hereinafter, ``e-mail report''). \8\ Interview with Robert Haas, Lotus Notes administrator, Northrop Grumman, in Washington, DC (Oct. 11, 2000). \9\ Id. \10\ See e-mail report at sec. III.A.2. --------------------------------------------------------------------------- b. northrop grumman director of contracts joseph lucente's letter to the contractor was prompted by the allegations of threats As explained in the report, Northrop Grumman's director of contracts, Joseph Lucente, sent a letter to the Contracting Officer on the White House facilities contract, Dale Helms, on September 14, 1998.\11\ The letter explained that Northrop Grumman management was aware of the e-mail archiving problem and that the dysfunction prevented the retrieval of messages stored in the system.\12\ The letter also said that Northrop Grumman was aware that Laura Callahan had ``directed the Company employees to evaluate the problem and undertake remedial action, without Northrop Grumman management involvement.'' \13\ In his first interview, Lucente was asked about the ambiguity in that statement.\14\ Read one way, the statement could mean that Callahan directed the Northrop Grumman employees and did so while merely neglecting to involve their managers. Read another way, it could mean that she had specifically instructed the employees to do their work in such a way as to conceal it from their managers. In response, Lucente indicated that he understood at the time that Callahan had specifically directed the employees not to tell their superiors about the problem.\15\ He further indicated that he thought it was fundamentally unfair for the government to place his company's employees in that position.\16\ When asked if allegations of threats were an inspiration for sending his letter, Lucente replied affirmatively.\17\ In his second interview, conducted on October 17, 2000, Lucente was asked to explain in what way the letter had been inspired by allegations of threats.\18\ However, Lucente was prohibited from providing any further explanation by his counsel, who claimed that such information was privileged.\19\ Lucente did confirm, however, that the allegations of threats were, in fact, an inspiration for the letter.\20\ --------------------------------------------------------------------------- \11\ Northrop Grumman document production NGL 00503 (exhibit 64). \12\ See id. \13\ Id. \14\ Interview with Joseph Lucente, director of contracts and subcontracts, Northrop Grumman, in Washington, DC (May 1, 2000). \15\ Id. Given that Lucente has never spoken to Haas without counsel present, this knowledge presumably comes from communications he witnessed during meetings between Haas, his colleagues, and corporate counsel. See id. (Oct. 17, 2000). \16\ Id. (May 1, 2000). \17\ Id. \18\ Id. (Oct. 17, 2000). \19\ Id. \20\ Id. --------------------------------------------------------------------------- c. earl silbert's law firm has additional documents related to his contacts with the white house and representation of northrop grumman The report outlines how former Watergate prosecutor Earl Silbert was hired by Northrop Grumman as outside counsel on the contract dispute arising out of the e-mail matter and how Haas testified that during a September 11, 1998, conference call he told someone referred to as a ``gray beard'' \21\ about being threatened.\22\ The report also explains that Silbert's billing records indicate that he had a teleconference with a Northrop Grumman employee on September 11, 1998, and then on two other occasions had teleconferences with someone in the White House Counsel's Office.\23\ Silbert's contacts with Northrop Grumman employees and the White House raise the likelihood that White House lawyers were informed about the e-mail problem and the threats against Northrop Grumman employees by Earl Silbert. --------------------------------------------------------------------------- \21\ During his second interview with the committee, Joseph Lucente also stated that Northrop Grumman counsel had referred to a ``gray beard's'' involvement in the matter. Interview with Joseph Lucente, director of contracts and subcontracts, Northrop Grumman, in Washington, DC (Oct. 17, 2000). \22\ See e-mail report at sec. III.A.4.g. \23\ Id. --------------------------------------------------------------------------- This already compelling circumstantial evidence has been bolstered further by revelations in Federal court that Silbert's law firm, Piper Marbury Rudnick & Wolfe, is in possession of even more documentary evidence regarding Silbert's work on the matter. On October 3, 2000, Piper Marbury provided a privilege log in the Alexander case listing 18 documents relating to Silbert's work on the e-mail matter, many of which it withheld under claims of attorney-client and work- product privileges.\24\ Among the documents described in the log are undated, handwritten notes by Earl Silbert, four drafts of Joseph Lucente's letter to Dale Helms, a fax coversheet with a copy of the Drudge report from December 5, 1998, and two fax coversheets with handwritten notes of Earl Silbert and copies of the Insight article ``Computer Glitch Leads to Trove of Lost E-mails at White House.'' \25\ The volume of documents in Silbert's possession confirms that Silbert did perform substantive work on Northrop Grumman's behalf in the e-mail matter. Unfortunately, Northrop Grumman has aggressively asserted privileges, preventing the public from learning what Silbert told the White House. --------------------------------------------------------------------------- \24\ Response of Non-Party Witness Piper Marbury Rudnick & Wolfe LLP to Subpoena at exhibit A, Alexander v. FBI (D.D.C. Oct. 3, 2000) (CA 96-2123) (exhibit AV-1). \25\ Id. --------------------------------------------------------------------------- Judge Lamberth has indicated that these or other documents yet to be released may lend even further credibility to allegations of threats. During a status conference in Alexander v. FBI on Friday, October 13, 2000, Justice Department lawyer Thomas Millet was cautioned by Judge Lamberth in the following exchange: Millet: In fact, this whole threat issue has been blown out of proportion. Remember what Mr. [Haas] said---- The Court: Before you go too far there, you have to recognize I have some documents in camera on that subject; I ordered full briefing on it. But you better not get too far out on a limb about what you think happened.\26\ --------------------------------------------------------------------------- \26\ Transcript of Evidentiary Hearing, Alexander v. FBI at 19 (D.D.C. Oct. 13, 2000) (CA 96-2123). Of particular interest among the documents being withheld by Northrop Grumman are the earlier drafts of Joseph Lucente's September 14, 1998, letter to Dale Helms. In his first interview, Lucente explained that he knew of at least two earlier drafts of his letter, both of which were longer than the final version.\27\ In his second interview with committee staff, Lucente said that he had destroyed all copies of the earlier drafts as per an instruction to do so by corporate counsel.\28\ However, Lucente did not know until told by staff at the interview that his letter had been reviewed and edited by Earl Silbert.\29\ Therefore, he was unaware that corporate counsel for Northrop Grumman had provided a draft to Silbert, that Silbert had suggested changes, or that Silbert's firm, Piper Marbury, had retained copies of the earlier drafts.\30\ Given that Lucente has admitted that the allegations of threats were the inspiration for the letter, it is imperative that the drafts be reviewed to determine whether they describe more specifically the threats made by White House staff. If the discussion of threats was deleted, it would raise the critical question of who deleted the information and why. --------------------------------------------------------------------------- \27\ Interview with Joseph Lucente, director of contracts and subcontracts, Northrop Grumman, in Washington, DC (May 1, 2000). \28\ Id. (Oct. 17, 2000). \29\ Transcript of Evidentiary Hearing, Alexander v. FBI at 91 (D.D.C. Oct. 3, 2000) (CA 96-2123); interview with Joseph Lucente, director of contracts and subcontracts, Northrop Grumman, in Washington, DC (Oct. 17, 2000). \30\ Id. --------------------------------------------------------------------------- d. a telephone message slip confirmed contact between earl silbert and special counsel to the president lanny breuer in december 1998 The report details testimony from Mark Lindsay in Federal court regarding a conversation he had with Special Counsel to the President Lanny Breuer about Earl Silbert's involvement in the e-mail matter. Lindsay vaguely recalled being contacted by Breuer to discuss a conversation Breuer had with Silbert regarding the contract dispute arising from the e-mail archiving problem.\31\ While it was unclear from Lindsay's testimony what the substance of Silbert's conversation with Breuer entailed and exactly when it occurred, a new document has surfaced since filing the report which clarifies at least one of those issues. The document is a telephone message slip from Silbert's client file and indicates a call from Lanny Breuer on December 30, at 11:27 a.m.\32\ Silbert's billing records already indicated that he called the White House Counsel's Office on December 30, 1998.\33\ This message slip indicates that Lanny Breuer was the individual at the White House with whom Silbert spoke. Thus, it corroborates Silbert's billing records as well as Lindsay's testimony that Breuer relayed to him a conversation with Silbert. --------------------------------------------------------------------------- \31\ See e-mail report at sec. III.C.3. \32\ Letter from Richard J. Oparil, partner, Piper Marbury Rudnick & Wolfe, to Larry Klayman, chairman and general counsel, Judicial Watch (Oct. 4, 2000) (message slip attached) (exhibit AV-2). \33\ See e-mail report at sec. III.A.4.g. --------------------------------------------------------------------------- Only after several meritless assertions of privilege in an attempt to avoid the interview entirely did Silbert reluctantly agree to be questioned by the committee on his contacts with the White House.\34\ As explained in the report, Silbert claimed to recall neither the identity of the person at the White House with whom he spoke nor anything whatsoever about the substance of the conversation--except of course that it was properly billable to Northrop Grumman.\35\ --------------------------------------------------------------------------- \34\ Id. \35\ Id. --------------------------------------------------------------------------- e. earl silbert was not northrop grumman's natural choice for outside counsel on a contracts matter Some have attempted to minimize the significance of Earl Silbert's involvement in the matter, attempting to portray it as the ordinary involvement of a lawyer in a dispute between the White House and Northrop Grumman regarding the scope of the contract between the two parties. However, the committee has learned that Silbert's involvement was highly unusual. Joseph Lucente informed committee staff that Northrop Grumman usually turned to an attorney named Neil O'Donnell with disputes regarding the scope of its contracts.\36\ Lucente had never worked with Silbert before.\37\ Furthermore, Lucente said he had never heard of Earl Silbert working on scope of contract issues for Northrop Grumman in the past.\38\ Thus, it is far more likely that Northrop Grumman in-house counsel would have consulted Silbert about whether they had an obligation to disclose the ``jail cell'' comment than about the finer points of government contracting. It is also likely that they would have consulted with Silbert about whether they had an obligation to disclose the existence of the e-mail problem itself and the fact that ongoing document searches were incomplete. --------------------------------------------------------------------------- \36\ Interview with Joseph Lucente, director of contracts and subcontracts, Northrop Grumman, in Washington, DC (Oct. 17, 2000). \37\ Id. \38\ Id. --------------------------------------------------------------------------- f. lanny breuer's recollection of the contact with earl silbert Since it became fairly well-established that Lanny Breuer was the White House lawyer with whom Silbert spoke at least on one occasion in December 1998, the committee attempted to interview him to determine whether he had any recollection of the conversation. Through his counsel, he was scheduled to be interviewed on October 6, 2000, the day after the committee voted on the report. He later canceled this interview and rescheduled for Monday, October 16, 2000, just before the deadline for these additional views. On the day of the interview, however, he again canceled and sought to reschedule the interview after his testimony in the FBI files litigation and the deadline for filing these additional views.\39\ --------------------------------------------------------------------------- \39\ See letter from Mark H. Lynch, partner, Covington & Burling, to David A. Kass, deputy counsel & parliamentarian, Committee on Government Reform (Oct. 16, 2000). See also letter from David A. Kass, deputy counsel & parliamentarian, Committee on Government Reform, to Mark H. Lynch, partner, Covington & Burling (Oct. 16, 2000). --------------------------------------------------------------------------- On October 19, 2000, Breuer testified in the Alexander case that he might have had telephone conversations with Earl Silbert in 1998, but could not remember any specifics.\40\ Breuer said there could have been occasions for Silbert to have called him at the White House.\41\ Breuer also recalled that Silbert was counsel for James Riady and Erskine Bowles, and he and Silbert were professional friends.\42\ Also, Breuer rather implausibly suggested that perhaps Silbert might have contacted him because Silbert might not have known who else to contact at the White House.\43\ According to Breuer, he possibly could have passed Silbert along to Mark Lindsay if a contract item came up in a telephone call.\44\ And, Breuer suggested that maybe he and Silbert might have even talked about unrelated matters.\45\ Breuer made it clear that he does not remember having specific telephone conversations with Silbert regarding the issues of e-mail problems, contracts, or threats in 1998.\46\ He stated that if Silbert would have have raised the issue of threats, Breuer would have reported it to Charles Ruff.\47\ He also stated that he took ``very, very'' few notes while working at the White House.\48\ --------------------------------------------------------------------------- \40\ Evidentiary Hearing, Alexander v. FBI (D.D.C. Oct. 19, 2000) (CA 96-2123). \41\ Id. \42\ Id. \43\ Id. \44\ Id. \45\ Id. \46\ Id. \47\ Id. \48\ Id. --------------------------------------------------------------------------- g. lucente confirmed the extraordinary nature of oa director ada posey's ``special task order'' request As detailed in the report, Northrop Grumman Program Director Jim DeWire told committee staff that shortly after learning from Program Manager Steve Hawkins that his employees were working on some sort of secret project, DeWire received a call from the Director of the Office of Administration, Ada Posey.\49\ Posey then proceeded to seek permission from DeWire to have government personnel direct the private contractors on a special project without disclosing the nature or subject matter of the project.\50\ DeWire agreed, requiring only that Posey orally assure him that the project was legal and within the scope of the contract.\51\ DeWire described this as a ``special task order.'' \52\ --------------------------------------------------------------------------- \49\ See e-mail report at sec. III.D.1. \50\ Id. \51\ Id. \52\ Id. --------------------------------------------------------------------------- When asked if he was aware of the ``special task order,'' Lucente said he was not.\53\ He further said that it would not have been the normal way to operate.\54\ Even though she was the Director of the Office of Administration (OA), Ada Posey was not the authorized agent for the government on the contract. The authorized agent was the contracting officer, Dale Helms. Lucente said that if DeWire had asked his advice on the matter he would have recommended consultation with in-house counsel, the chief operating officer, or the president of the company rather than merely accepting Posey's assurances and failing to ensure that the contracting officer was at least informed.\55\ Finally, asked if he would have advised DeWire against approving Posey's request, Lucente said he would. Lucente was the director of contracts and subcontracts for about 12 years and thus his perspective on this issue is valuable. It appears that both Posey's request and DeWire's acquiescence to it may have been improper. The net effect of both was to allow the e-mail problem to remain secret from Northrop Grumman managers throughout the summer of 1998, delaying the ultimate reconstruction and production of relevant subpoenaed e-mail records. --------------------------------------------------------------------------- \53\ Interview with Joseph Lucente, director of contracts and subcontracts, Northrop Grumman, in Washington, DC (Oct. 17, 2000). \54\ Id. \55\ Id. --------------------------------------------------------------------------- II. Northrop Grumman's Recent Failure to Cooperate with the Investigation a. northrop grumman's specious assertions of privilege As part of the committee's investigation into possible obstruction of justice regarding the White House's e-mail problems, the committee has been investigating Northrop Grumman's retention of Earl Silbert and his efforts on the company's behalf. As the report notes, Silbert was a former Watergate prosecutor who Northrop Grumman hired as outside counsel specifically to deal with the White House on the e-mail matter. As the report also noted, the significance of Silbert's contacts with the White House is compelling. Such contacts might severely undermine the White House's current claims that it did not contemporaneously appreciate its e-mail problem. In the report, the committee describes evidence suggesting that on September 11, 1998, Robert Haas met with Northrop Grumman counsel, during which time Haas recounted to Northrop Grumman counsel and Silbert that he had been threatened by White House staff.\56\ The committee's report also describes how, during Silbert's interview with committee staff, Silbert wholly failed to recall with whom he spoke at the White House or the subject matter of his communications with the White House Counsel's Office, which took place after Haas apparently spoke to him. And, when his recollection was not failing him, Silbert refused to answer questions posed by committee staff on the basis of attorney-client privilege and the work-product doctrine. Silbert did essentially the same when he testified in the recent evidentiary hearings in Alexander v. FBI. --------------------------------------------------------------------------- \56\ See e-mail report at sec. III.A.4.g. --------------------------------------------------------------------------- In those proceedings, Silbert recalled that he was retained by Northrop Grumman in September 1998, to represent it ``on a matter involving government contracts between Northrop Grumman as the contractor and the Executive Office of the President as the customer.'' \57\ Silbert also recalled that the matter for which Northrop Grumman retained him regarded a ``scope of contract'' issue and ``some instruction given to employees of Grumman.'' \58\ He even recalled having heard that instructions were given to the employees not to discuss matters regarding non-archived e-mail outside the group.\59\ However, Silbert maintained that his communications with the White House Counsel's Office were privileged.\60\ Under either the attorney-client privilege or work-product doctrine, Silbert's claims are facially without merit. --------------------------------------------------------------------------- \57\ Transcript of Evidentiary Hearing at 37, Alexander v. FBI (D.D.C. Oct. 3, 2000) (CA 96-2123). \58\ Id. at 41. \59\ Id. at 89. Interestingly, when Silbert was asked whether he was told that the reason Haas could not discuss the problem was because he would go to jail, Silbert left the door open. He stated, I think in a sense I've tried to answer that question. I have no recollection of that, and the predicate for your question means to me you may have misconstrued my answer. I did not say--I was not, in answering your question, saying this was what the employee told me. What I was answering or trying to answer was my understanding of an issue that Northrop Grumman's management was confronting and how to --------------------------------------------------------------------------- deal with it. Id. at 90 (emphasis added). \60\ Id. at 57. --------------------------------------------------------------------------- Recently, on October 11, 2000, committee staff interviewed Robert Haas. At that interview, committee staff attempted to probe facts surrounding his conversations with Earl Silbert. During that interview, Haas recalled having met with Northrop Grumman in-house counsel in Herndon, VA.\61\ Also, Haas recalled that, in addition to in-house counsel, Spriggs, Golas, several contract specialists and possibly Jim DeWire, Northrop Grumman's program manager, attended the meeting.\62\ --------------------------------------------------------------------------- \61\ Interview with Robert Haas, Lotus Notes administrator, in Washington, DC (Oct. 11, 2000). In other words, Haas misspoke when he testified in Alexander v. FBI, the FBI files civil suit, in which he identified the location as ``Reston.'' \62\ Id. Haas clarified that when he testified in Alexander regarding whether he repeated his story to the ``gray beard,'' the word ``recanted'' in the transcript should read ``recounted.'' See also Transcript of Evidentiary Hearing at 56-57, 60, Alexander v. FBI (D.D.C. Aug. 14, 2000) (CA 96-2123) (original testimony reading ``recanted''). --------------------------------------------------------------------------- However, when committee staff attempted to question Haas about his discussions with Silbert, Haas' counsel, John M. Bray, of King & Spalding, instructed Haas not to tell committee staff who attended the meeting via speakerphone, citing attorney-client privilege.\63\ Even after committee staff reminded counsel that the mere fact of someone's participation in a communication or even his identity are not ``communications'' subject to privilege, counsel instructed Haas not to answer.\64\ Later in the interview, counsel directed Haas not to answer questions intended only to refresh his recollection as to his prior testimony in Alexander.\65\ It is troubling that counsel would claim privilege over issues previously discussed in a public proceeding.\66\ --------------------------------------------------------------------------- \63\ Interview with Robert Haas, Lotus Notes administrator, in Washington, DC (Oct. 11, 2000). Although Haas and the other Northrop Grumman witnesses are being represented by King & Spalding, the cost of their representation is being paid by Northrop Grumman. \64\ Id. \65\ Id. \66\ See Transcript of Evidentiary Hearing, Alexander v. FBI (D.D.C. Aug. 14, 2000) (CA 96-2123) (Hass' original testimony). --------------------------------------------------------------------------- In the committee's October 17, 2000, interview with Joseph Lucente, Lucente's counsel, Ann M. Hart, also from King & Spalding, continued interposing expansive objections that prevented the committee from obtaining needed information. For example, she repeatedly invoked attorney-client privilege over numerous non-privileged matters, including (1) non- communications, (2) mere facts underlying the purportedly privileged communications, and (3) facts needed to establish the existence of a privilege.\67\ With regard to the latter, counsel saw fit to ignore even the threshold requirement in privilege law that only communications between an attorney and his client are privileged.\68\ She stated that, in her view, even discussions between two non-lawyers regarding the need for getting legal advice was confidential under the attorney-client privilege. In fact, at the interview, counsel maintained that ``we are putting the umbrella [of privilege] over the whole legal advice issue.'' \69\ Such a position either reflects a surprising misunderstanding of basic privilege law or an unacceptable failure to cooperate with the Constitutional prerogative of this committee to exercise its investigative oversight function. --------------------------------------------------------------------------- \67\ It is beyond dispute that the attorney-client privilege protects only communications between a client and the attorney. See Upjohn Co. v. US 449 U.S. 383 (1981). See also id. at 395 (``The privilege only protects disclosure of communications; it does not protect disclosure of underlying facts by those who communicated with the attorney . . . .''). To claim attorney-client privilege, the claimant must provide sufficient information to demonstrate that each element of the doctrine or privilege is satisfied, including the date of communication; the names of the author(s), if it's a document; the recipient and/or all persons given copies of the communication, if it's a document; the identity of those party to the communication, if it's oral; and a description of the subject matter of the document with information sufficient to demonstrate the existence of the privilege. See, e.g., 24 Charles Alan Wright, Kenneth W. Graham, Jr., ``Federal Practice and Procedure'' Sec. 5507 (2000 pocket part) (RR 503) (citations omitted). Some courts have required the claimant to state further whether the primary purpose of the communication withheld on the basis of privilege was to seek or provide legal advice or services; whether the communication was transmitted in confidence; a statement that the privilege has not been subsequently waived; and, if documents, the Bates numbers of the withheld records. See, e.g., US v. Exxon Corp., 87 F.R.D. 624, 637 (D.D.C. 1980); Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 877 (1974). \68\ See, e.g., Alexander v. FBI, 186 F.R.D. 21, 27 (D.D.C. 1998) (holding that information is protected by attorney-client privilege only if it relates to a fact conveyed between client and lawyer). \69\ Interview with Joseph Lucente, director of contracts, Northrop Grumman, in Washington, DC (Oct. 17, 2000). --------------------------------------------------------------------------- Examples of those questions to which counsel instructed her client not to answer on the basis of privilege included the following:
Did either Jim DeWire or Joe Cunningham (Northrop Grumman managers who are not lawyers) indicate to you in conversations without counsel present why Haas and the others were seeking advice from counsel? Did either DeWire or Cunningham indicate that Northrop Grumman employees were seeking legal advice for themselves? To what extent did threats inspire sending your September 14, 1998, letter? \70\ --------------------------------------------------------------------------- \70\ To this question, Lucente's attorney cited in-house counsel's participation in drafting the letter as a basis for disallowing any questioning as to why the letter was written. She stated, ``Joe didn't write the letter in a vacuum.'' Interview with Joseph Lucente, director of contracts, Northrop Grumman, in Washington, DC (Oct. 17, 2000). How did Haas go up the chain-of-command in obtaining --------------------------------------------------------------------------- the advice of in-house counsel? If threats were indeed an inspiration of the letter, why did the letter not actually include reference to threats? Did earlier drafts of the letter mention threats? To what extent did your concerns about the secrecy instruction give rise to sending the letter? Did you believe that Haas, Spriggs, and Golas were seeking legal advice? Did they say or do anything to indicate that rather than seek legal advice, they were merely seeking to disclose information so that counsel could provide legal advice to the corporation? Did legal counsel explain to them that they represented the corporation's interests and not the employee's interests? Did legal counsel explain to them that they were interviewing them only in order to obtain information for use in providing legal advice to the corporation and not to provide legal advice to them as individuals? Did legal counsel instruct them that they were to keep the communication during the meeting confidential? Did legal counsel instruct them specifically about with whom they could share the details of the meeting? As suggested above, even if counsels' claims of privilege regarding Haas' communications are valid--and they plainly are not--the privilege might have nonetheless been waived through disclosures by Northrop Grumman employees. Generally, attorney- client privilege is waived if the client discloses the protected communication to a third party.\71\ Even though a client might not have intended to waive the privilege, once the confidential information is disclosed to a third party, there is no further need to conceal the information to protect the attorney-client relationship; so, the privilege is waived.\72\ --------------------------------------------------------------------------- \71\ Thomas R. Mulroy Jr. & W. Joseph Thesing Jr., ``Confidential Concerns in Internal Corporate Investigations,'' 25 Tort & Ins. L.J. 48, 53 (1989). \72\ Ross G. Greenberg, Jordan Klingsberg & Deidre Mulligan, ``Attorney-Client Privilege,'' 30 Am. Crim. L. Rev. 1011 (1993) (citing generally Michael E. Prangle, ``The Inadvertent Waiver of Privilege,'' 28 Tort & Ins. L.J. 637 (1991)). --------------------------------------------------------------------------- As described in section III of the report, Haas was the Northrop Grumman contractor to whom Laura Callahan directed her comment that, if he revealed the Mail2 problem to anyone, ``there would be a jail cell with your name on it.'' Joseph Vasta, Northrop Grumman's former deputy project manager on the facilities contract, stated that when the contractors, including Haas, met with him in August 28, 1998, Jim Webster (Betty Lambuth's replacement) had been meeting with OA staff without the contractors.\73\ So, he noted that the contractors were concerned that Webster's having done so ``might get them in trouble.'' \74\ Vasta further noted that ``to enable the employees to meet with an attorney to freely discuss their concerns, Jim DeWire [the program director] scheduled a meeting among the team and Ralph Pope [from in-house counsel's office] on September 9, 1998.'' \75\ Also, Joseph Lucente confirmed that he understood that, when Haas came in to see in-house counsel, Haas was in fact seeking legal advice.\76\ So, the evidence suggests that when Haas and the other contractors met with in-house counsel, they were seeking legal advice for themselves. --------------------------------------------------------------------------- \73\ Interview with Joseph Vasta, former program manager, Northrop Grumman, in Washington, DC (June 28, 2000). See also Joseph Vasta document production (exhibit 155) (documenting Aug. 28, 1998, and Sept. 3, 1998, meetings with contractors). \74\ Interview with Joseph Vasta, former program manager, Northrop Grumman, in Washington, DC (June 28, 2000) (emphasis added). \75\ Joseph Vasta document production (exhibit 155) (emphasis added). \76\ Interview with Joseph Lucente, director of contracts, Northrop Grumman, in Washington, DC (Oct. 17, 2000). Counsel for the Northrop Grumman employees have consistently maintained that Haas and the other contractors do not bear the privilege. Presumably, they are arguing that when they met with in-house counsel, they were seeking legal advice for the corporation. However, such a position is subject to question. Indeed, the contractors were low-level employees, who were in no position to seek legal advice for the company. And, even if they did--such that they could be deemed within Northrop Grumman's ``control group''--they (as members of the company's control group) would have had the authority to waive the privilege on the company's behalf. --------------------------------------------------------------------------- Central to the question as to who may waive an attorney- client privilege is the issue of who actually bears the privilege. If Haas or the other employees who sought the meeting with in-house counsel bear the privilege, it is theirs to waive. However, if the corporation bears the privilege, the analysis becomes more complex. Certainly, a corporation's directors and officers can waive the privilege. However, a corporation might seek, as Northrop Grumman apparently does here, to have the privilege expanded to capture communications involving employees outside the ``control group.'' In such a case, a reviewing court might well not allow Northrop Grumman to enjoy the benefits of an expanded attorney-client privilege without likewise accepting the consequences that the privilege could be waived by a lower-level employee like Haas--someone outside the ``control group.'' \77\ In order to evaluate the claim, however, the committee needs to have its questions regarding the merits of Northrop Grumman's privilege claim answered.\78\ --------------------------------------------------------------------------- \77\ There appears to be some authority on point. See, e.g., Jonathan Corp. v. Prime Computer, Inc. 114 F.R.D. 693 (E.D.Va. 1987) (``Prime seeks protection through the attorney-client privilege on a legal communication made to individuals outside of Prime's `control group.' Then, Prime claims that while it is entitled to the benefits of the privilege on this communication, it is not responsible for any waiver of the privilege on the communication by one of these individuals outside the `control group.' In other words, [Prime claims] the privilege can be created for the benefit of legal communications with employees at all levels but cannot be waived or destroyed by these employees. This proposition is inconsistent with a joint reading and the holdings [of the Supreme Court] in Weintraub and Upjohn Co.''). \78\ ``The precedents of the Senate and House of Representatives, which are founded on Congress' inherent constitutional prerogative to investigate, establish that the acceptance of a claim of attorney- client or work product privilege rests in the sound discretion of a congressional committee regardless of whether a court would uphold the claim in the context of litigation.'' See Morton Rosenberg, ``CRS Report for Congress: Investigative Oversight--An Introduction to the Law, Practice and Procedure of Congressional Inquiry'' 43 (1995). However, a committee may consider and evaluate the strength of a claimant's assertion in light of the potential unavailability of the privilege to the claimant if it were raised in a judicial forum. Id. at 44. See also Exxon Corp., 87 F.R.D. at 637 (``This court has recognized the necessity of asserting the attorney-client privilege in a manner specific enough to allow the court to adjudicate the merits of its invocation. [citation omitted] A mere assertion of privilege [without more] is insufficient.'') (citing SEC v. Dresser Industries, Inc., 453 F.Supp. 573, 576 (D.D.C. 1978)). As stated above, courts have required privilege claimants to state, among other things, whether the primary purpose of the communication withheld on the basis of privilege was to seek or provide legal advice or services. See, e.g., US v. Exxon Corp., 87 F.R.D. 624, 637 (D.D.C. 1980). --------------------------------------------------------------------------- Under any analysis, Haas might very well have waived the privilege. For example, in Haas' most recent interview, Haas told committee staff of a conversation he had with Northrop Grumman Deputy Program Manager Joseph Vasta following his meeting with corporate counsel in September 1998.\79\ The discussion took place informally ``by the coffee pot.'' \80\ Haas said he told Vasta about the threats because he expected that Vasta would have been briefed about the threats and that he ``no longer had to worry about going to jail.'' \81\ Asked specifically if he told Vasta about his discussions with Northrop Grumman counsel, Haas replied, ``yes.'' \82\ Vasta did not attend that meeting and is not an attorney. Furthermore, the committee has found no evidence that Haas was authorized by the managers at the meeting to disclose to Vasta the details of his purportedly privileged communications with counsel. --------------------------------------------------------------------------- \79\ See interview with Robert Haas, Lotus Notes administrator, Northrop Grumman, in Washington, DC (Oct. 11, 2000). \80\ Id. \81\ Id. \82\ Id. --------------------------------------------------------------------------- B. Northrop Grumman's Refusal to Waive Attorney-Client Privilege As indicated above, Northrop Grumman's assertions of privilege are disturbing. Its baseless assertions of privilege have been made despite the fact that counsel had been informed that Congress need not recognize the attorney-client privilege. Northrop Grumman's refusal simply to waive the privilege is equally disturbing. Early in the committee's investigation of Earl Silbert's efforts on Northrop Grumman's behalf, Northrop Grumman indicated that it did not intend to waive attorney- client privilege. On September 21, 2000, the committee informed Northrop Grumman chairman, president, and CEO, Kent Kresa, of its intent to issue a subpoena for his appearance before the committee to explain the company's decision to assert the privilege. Kresa responded on the next day simply saying that ``[w]e believe that who [Silbert] contacted and for what purpose, and what information that he chose to report back to the [c]ompany are protected by the attorney-client privilege, and we simply will not waive that privilege.'' \83\ --------------------------------------------------------------------------- \83\ Letter from Kent Kresa, chairman, president and chief executive officer, Northrop Grumman, to the Honorable Dan Burton, chairman, Committee on Government Reform (Sept. 22, 2000). --------------------------------------------------------------------------- However, to date, the committee has interviewed or taken testimony from several Northrop Grumman witnesses who recounted being subjected to threats and intimidation to work on the Mail2 project in secret and without direction from their Northrop Grumman managers. Those facts are already out in the open. When they--including Haas--originally gave the committee their accounts, none of them asserted any privileges, and Northrop Grumman cooperated with the committee. But now, for whatever reason, they have begun claiming privileges. Northrop Grumman's change of attitude is disappointing, and has prevented the committee from gathering necessary facts. Northrop Grumman's lack of cooperation was also evident in the questioning of Earl Silbert in the Alexander case: when asked about various documents which he claimed were privileged, Silbert conceded that he had not looked at them since he originally generated them in September 1998. Q. All right. Given your involvement in this controversy, how is it that you never bothered to look at [those documents]? A. [T]he reason I did not look at the notes is that I was concerned that if I did look at the notes and, in fact, they--that if I did look at the notes, then there would be a basis for you to claim a waiver of the attorney/client privilege, and I believe there is case law in the District of Columbia, a 1980 decision by a District Court Judge, to that effect. I tried to be very careful, again, to comply with the rules of professional conduct and the instructions of my client. Q. You're saying that simply by looking at your notes, which you claim an attorney/client privilege and work product---- A. Yes. Q. ----that just by looking at them you would waive your privileges? A. There was, in my view, a risk that that would happen, and I believe there is some case law to support that.\84\ --------------------------------------------------------------------------- \84\ Transcript of Evidentiary Hearings at 50, Alexander v. FBI (D.D.C. Oct. 3, 2000) (CA 96-2123). The lengths to which Silbert went in order to preserve the privilege were in response to an instruction from Northrop Grumman General Counsel W. Burks Terry to ``observe the privilege, honor the privilege.'' \85\ Needless to say, this is quite troubling. As Judge Lamberth noted, --------------------------------------------------------------------------- \85\ Id. at 55-56. General Counsel of Northrop Grumman called Mr. Silbert and told him to claim the attorney-client privilege to the maximum extent possible; that was the instruction he had when he came down here. And he didn't review one note that might be attorney-client privilege, so he wouldn't accidentally tell anything that he really knew, that his memory could be refreshed from.\86\ --------------------------------------------------------------------------- \86\ Id. at 21. Silbert's rather tortured justification for not having looked at even a single document for which he claims privilege, prior to the submission of the privilege log by Northrop Grumman counsel, is--at the very least--indicative of the lengths to which Northrop Grumman is willing to go to assert the privilege. At the most, it reflects an intent by Silbert to keep relevant information from a judicial tribunal. After Silbert testified in Alexander, Judge Lamberth suggested to the Justice Department, which is representing the White House, that the White House ask Northrop Grumman simply to waive the privilege. It would be important for the White House to say to Northrop Grumman, ``Why don't you waive your attorney- client privilege?'' I mean, Northrop Grumman feels under some compulsion to claim this attorney-client privilege on these important matters. I don't understand why your client couldn't suggest to Northrop Grumman [that] they waive it and allow the facts to be produced, rather than hiding behind the privilege.\87\ --------------------------------------------------------------------------- \87\ Id. at 20. He continued, ``[the] White House can sit back and let Northrop Grumman do that and make no comment, if that's the posture that the White House wants to be in, but I suggest it would be in everybody's interest for the facts to come out.'' \88\ The Judge observed, ``It's very curious that Northrop Grumman feels so compelled to go to such great lengths to tell Mr. Silbert to come down and invoke [the privilege] the way he invoked it. It's just a little odd to me.'' \89\ ``But I just find it very odd that Northrop Grumman wants to prevent the facts from coming out.'' \90\ --------------------------------------------------------------------------- \88\ Id. \89\ Id. \90\ Id. at 22. --------------------------------------------------------------------------- It appears that the Justice Department and the White House are, in fact, content with permitting Northrop Grumman to claim privilege over these matters, preventing the public from learning what really happened. It also appears that Northrop Grumman is intent on covering up actions taken by White House staff to threaten and intimidate Northrop Grumman employees. It is surprising that Northrop Grumman does not have greater concern for either the welfare of its employees, or the public's interest in a matter of national significance. C. Northrop Grumman's Failure to Provide Documents in a Timely Manner At the outset of the committee's investigation, a generalized document subpoena was sent to Northrop Grumman Corp. Pursuant to this March 9, 2000, subpoena, Northrop Grumman produced to the committee 608 pages of documents numbered NGL 00001 through NGL 00608 on March 20, 2000.\91\ Through 4 days of committee hearings held between the end of March and the beginning of May and throughout the summer of 2000, the committee received no further document productions from Northrop Grumman. Then, on August 14, 2000, committee staff learned--only through monitoring the related evidentiary hearings being held in the Alexander litigation--that Northrop Grumman had produced in that proceeding documents bearing apparently the same numbering scheme but higher than NGL 00608. One document mentioned in particular, NGL 00795, was a page of handwritten notes reading in part, ``Instructed never to commit to paper. Each person on Mail2 registered from a list.'' Northrop Grumman failed to produce this clearly responsive document to the committee for more than 5 months. --------------------------------------------------------------------------- \91\ Letter from H. Lowell Brown, assistant general counsel, Northrop Grumman, to James C. Wilson, chief counsel, Committee on Government Reform (Mar. 20, 2000). --------------------------------------------------------------------------- On August 29, 2000, committee counsel wrote to the vice president and assistant general counsel of Northrop Grumman and requested that the document be produced as required by the March 9, 2000, subpoena. The letter also requested, ``All records that have been provided to the court in Alexander v. FBI. This includes all materials bates numbered above NGL 00608. . . . If documents are produced pursuant to Alexander in the future, please provide them to the Committee.'' \92\ The following day, August 30, 2000, Richard Oparil responded in detail to the letter and provided 658 additional pages of responsive documents. However, since that date, he has ignored the committee's unambiguous, continuing request to provide all documents produced pursuant to Alexander in the future. For example, to this date Oparil has not produced to the committee a copy of the Lanny Breuer message slip numbered NGL 01393, which indicates contact with Earl Silbert. Presuming that the intervening numbered documents, NGL 01268 through NGL 01392, were also produced to the Alexander court, then Oparil has also failed to provide the committee with another 126 pages of requested documents. Additionally, on the day of Earl Silbert's testimony before Judge Lamberth, Oparil produced a privilege log and documents numbered up to NGL 01405. Ordinarily, any one of these shortcomings would be dismissed as inattention to detail or a simple oversight. However, taken together and in combination with the specious claims of privilege discussed above, the group of lawyers associated with Northrop Grumman appears to be doing everything possible to prevent the American people from learning the complete truth about the White House e-mail archiving problem. The question is ``why?'' --------------------------------------------------------------------------- \92\ Letter from James C. Wilson, chief counsel, Committee on Government Reform, to H. Lowell Brown, assistant general counsel, Northrop Grumman (Aug. 29, 2000). --------------------------------------------------------------------------- III. Further Evidence of the Insufficiency of the Test Search and the Unraveling of the ``Disconnect'' Defense A. The Attorney who Performed the Comparison Changed her Story As discussed in section III.C of the report, Associate White House Counsel Michelle Peterson was tasked with comparing a stack of e-mails to documents that had already been produced to the independent counsel in the Lewinsky investigation. The purpose of the comparison was to determine if there was a problem with prior document productions. Peterson, Cheryl Mills, and other witnesses told the committee that the results of the comparison test were identical and that the White House Counsel's Office therefore concluded that there was no problem with prior searches or productions. However, Peterson's story recently began to unravel. On September 28, 2000, Peterson submitted an affidavit to the Alexander court indicating that Peterson's earlier testimony to the court, and by implication, her statements to this committee, were inaccurate. Peterson testified that during the course of her testimony to the grand jury convened by the Independent Counsel's Office to investigate the e-mail matter, it appeared from the documents shown to her that she ``may have been mistaken with respect to one or possibly two e-mails.'' \93\ After the committee voted on the report, new evidence regarding her testimony came to light that further undermined Peterson's claim that the two stacks were identical. --------------------------------------------------------------------------- \93\ Third declaration of Michelle Peterson at para. 6, Alexander v. FBI (D.D.C. Sept. 27, 2000) (CA 96-2123). --------------------------------------------------------------------------- It now appears that even Peterson's affidavit that was submitted to correct her earlier misstatements understated the extent of her error, in that she had not described the missing 69-page index. In an October 5, 2000, letter written to Peterson's attorney and courtesy copied to Judge Lamberth, the deputy independent counsel explained that Peterson did not fully correct her misstatements: While I appreciate Ms. Peterson disclosing to the Court by way of her declaration the existence of the index and the fact that it was not produced to this Office, I believe that her attempt to suggest that the index was not required to have been produced to this Office, at least in June 1998, is both inaccurate and misleading. Her declaration (paragraph 10) states that the index ``appeared to be a document that was created after the date of the subpoena,'' presumably because the index which she reviewed had not been printed onto paper until June of 1998 in conjunction with the test run. By that reasoning neither the index, nor any of the e- mails, were required to be produced, inasmuch as they were not printed onto paper (or ``created'' to use her term) until after the date of the subpoena. The fact is that the index, like the e-mails, was required to have been produced to this Office because it existed in electronic form prior to the issue date of the subpoena.\94\ --------------------------------------------------------------------------- \94\ Letter from Jay Apperson, deputy independent counsel, Office of the Independent Counsel, to the Honorable Royce C. Lamberth, U.S. District Judge, District of Columbia 5 (Oct. 5, 2000) (referring to attachment 3, pages 1-2) (exhibit AV-3) (emphasis in original). Not only did Peterson inaccurately tell this committee that the two stacks were identical, she also testified to the same in Federal court. As the Independent Counsel's Office pointed out in its letter, Peterson's testimony before Judge Lamberth on August 28, 2000, included statements such as ``[e]verything that was in the stack that Ms. Mills gave me was also contained in the stack that we had already produced to Independent Counsel Starr;'' \95\ and ``[t]he fact that all of these documents had been produced meant that I didn't have to write a letter or make a call explaining there were additional documents that hadn't been produced.'' \96\ Those statements were clearly false. It is telling that the Office of Independent Counsel found Peterson's testimony so troubling that they felt obliged to inform the court of all of the information Peterson left out of her affidavit. --------------------------------------------------------------------------- \95\ Id. \96\ Id. --------------------------------------------------------------------------- Given the foregoing, the assertions by White House officials that they could reasonably rely on the test search to conclude that there was no problem with e-mail productions become much less tenable. Indeed, the entire theory of the ``disconnect'' rests on the White House's reliance on the increasingly faulty comparison test. As Michelle Peterson's claim that the e-mail stacks were identical continues to unravel, the White House's already flimsy ``disconnect'' defense becomes even less plausible. B. Mark Lindsay Failed to Act after Learning of the Comparison Results The validity of the ``disconnect'' defense is further eroded by testimony from Mark Lindsay. Prior to his August 23, 2000, testimony in the Alexander case, Lindsay told the committee that, in briefing his superiors of the e-mail problem, he needed to ``try to collect the information as soberly and deliberately as we could and then present that information.'' \97\ He further stated that once he delivered the memo outlining the e-mail problem to his superiors, he ``could put a bit of a sigh of relief, because, frankly, we had conveyed it, and then it was up to them to provide the-- particularly the legal folks--to provide the legal analysis based on the information, the evidence, and the materials that they had which I didn't have access to at that particular time.'' \98\ However, as his testimony in Alexander that follows shows, the memo that went to Podesta and Ruff was not the end of Lindsay's communications with the White House Counsel's Office concerning the ARMS system. --------------------------------------------------------------------------- \97\`` Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 237 (Mar. 23, 2000) (testimony of Mark Lindsay, Assistant to the President for Management and Administration, the White House). \98\ Id. at 238. Q. And the search confirmed that, in fact, there were e-mails that had not been archived that were responsive to subpoenas of the Independent Counsel in the Lewinsky --------------------------------------------------------------------------- matter? A. That was not my understanding. Quite the opposite. My--I think that it is accurate to say that I was concerned about what the nature of this result was going to be. When it went to them, the information that I got back was that the information was 100 percent duplicates of information that had already been provided. Q. Who did you talk to who said it was duplicates? A. I don't remember specifically who it was. But there were numerous people I talked to in the counsel's office. Q. But you say you don't remember specifically. Who generically was it? A. It may have been Mr. Ruff. It may have been Lanny Breuer. It may have been Shelly Peterson. I don't know which one, but someone in the counsel's office who is in a position who knew something about this matter said to me, it wasn't anything.\99\ --------------------------------------------------------------------------- \99\ Transcript of Evidentiary Hearing at 145, Alexander v. FBI (D.D.C. Aug. 25, 2000) (CA 96-2123). It should be noted that Lindsay told the committee at the Mar. 23, 2000, hearing that he heard word back that the test showed duplicates, but he did not say that he received this information from someone in the White House Counsel's Office. ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 259 (Mar. 23, 2000) (testimony of Mark Lindsay, Assistant to the President for Management and Administration, the White House). This testimony greatly undermines the ``disconnect'' defense. As described in sections III.C.5 and III.E.1 of the report, Lindsay was told repeatedly by Kathleen Gallant and others on his staff that there was a problem with the ARMS system. Gallant also told the committee that she forwarded e- mails from Tony Barry to Lindsay when he was OA Counsel. Although Gallant did not recall which e-mails she specifically forwarded to Lindsay, one of Barry's e-mails in that time period read, ``I feel that the records must be recreated and any searches need to be reperformed if the requestors feel it is necessary[.] . . . This seems like a daunting proposition, but I do not see any other alternative.'' \100\ And as Gallant wrote in response to this e-mail, ``I also agree with Tony about the new searches that will have to be done. We need direction from OA Counsel on that front.'' \101\ --------------------------------------------------------------------------- \100\ White House document production E 0999 (exhibit 52). \101\ White House document production E 1002 (exhibit 40). This response to Barry's e-mail demonstrates that Gallant most likely communicated to Lindsay the need to re-perform the searches when she pulled him aside at the weekly meetings. --------------------------------------------------------------------------- In essence, it is virtually impossible that Lindsay did not know that there was an ongoing problem with e-mail searches. The difficulties his staff were facing in curing the e-mail problem were communicated to him by Gallant at weekly meetings. When he heard from someone at the White House Counsel's Office that there was a match between the two stacks, he must have known that either the White House Counsel's Office was mistaken, or that his staff were mistaken. It is simply illogical that Lindsay would allow the staff at OA to continue to struggle through the ``fixing the bleeding'' phase of the ARMS project if he was confident that the White House Counsel's Office had determined that there was not a problem with e-mail searches. In sum, Lindsay should have informed the White House Counsel's Office that they were mistaken. That he apparently did not is further evidence that Lindsay may have been involved in obstruction of justice. IV. The Justice Department's Questionable Handling of the E-mail Matter A. Examples of Advocacy in Alexander v. FBI that Undermine Confidence in the Purported Criminal Investigation As discussed in detail in section V of the report, the Justice Department has an inherent conflict of interest in its investigation of the White House e-mail problem. The Justice Department is on both sides of the same case. The Department's criminal investigation of the e-mail matter--if conducted properly--would entail Justice Department lawyers investigating the actions of the Justice Department lawyers who are currently defending the White House in the Alexander v. FBI case. As a threshold matter, a proper criminal investigation would have to look into the role of Justice Department lawyers, including James Gilligan, Allison Giles, and others, in the submission of Daniel Barry's false affidavits and his false deposition testimony to the court in Alexander. It is problematic that the Justice Department has already sent Barry a letter indicating that he is not a target of the e-mail investigation. At a September 26, 2000, hearing, the committee attempted to gather facts necessary to understand the nature of the Justice Department's criminal investigation. Committee members sought for basic facts from Alan Gershel, deputy assistant attorney general. Gershel refused to answer almost all of the committee's questions, including how many attorneys were working on the criminal investigation.\102\ The refusal of Justice Department officials to disclose even the most basic facts leads to the conclusion that it will be difficult, if not impossible, to determine whether the Justice Department has properly investigated the role of its own attorneys in the Alexander case. However, as is discussed in section V of the report, the evidence strongly suggests that the Department is not conducting a vigorous investigation and has therefore most likely not adequately probed the role of its own attorneys in covering for possible obstruction of justice by the White House. --------------------------------------------------------------------------- \102\ See ``Contacts Between Northrop Grumman Corporation and the White House Regarding Missing White House E-mails,'' hearings before the Committee on Government Reform, 106th Cong. 40 (Sept. 26, 2000). --------------------------------------------------------------------------- In that context, the aggressive advocacy of the White House position by Justice Department attorneys is particularly troubling. Following the ``no target'' letter being sent to Barry, Justice Department attorneys made several arguments to the court in the Alexander case that appeared to be nothing more than a recitation of White House spin. In attempting to have the court end its inquiry into possible obstruction of justice, Justice Department attorney Thomas Millet heavily relied on the ``disconnect'' defense put forth by the White House. Millet even invoked Mark Lindsay--the very person at the center of the alleged obstruction of justice--as the authority for the defense. Several examples follow: Millet: [I] think the underlying question that the Court had, again, is why weren't you told sooner. I think Mr. Lindsay gave you your answer on Wednesday. The answer was frankly---- Court: That he passed the buck. He said it's White House Counsel's problem, not his. Millet: In part. Court: That's all he did was pass the buck. Millet: In part, but I think he also was very candid with Your Honor in saying that at the time he and the other higherups who are responsible for making these decisions either didn't understand or didn't appreciate what he called the people who were doing the real work doing these searches actually knew, and that they did perform a test. It wasn't a perfect test, but it was a test. And when he finished it, they thought they had the problem solved that it wasn't really a problem. There was clearly a disconnect between the people doing the work and the people making the decision. I think that's the answer to the Court's question that if we want to go forward with more witnesses and more evidence---- Court: It never dawned on any of them to tell any lawyer in the Justice Department about this test or any of that other information? See it's really a notion that is not akin to the Court's own experience in how real life works. They do a little test like that to see whether this works and they never tell any of the lawyers working on case? Millet: Your Honor, if we go forward with more evidence and we're required to put the Justice Department attorneys on the stand and have them testify, which frankly to me is a very big step that the Court should not undertake lightly and I don't [sic] the Court should undertake on the basis of this record, you're going to hear that inquiries were made and the answer that you heard from Mr. Lindsay was the answer that came back to the Justice Department. I can represent that to the Court. I have interviewed my colleagues. That is the answer. We can go through that processes, but it is the same answer that you heard from Mr. Lindsay on Wednesday[.] \103\ --------------------------------------------------------------------------- \103\ Transcript of Evidentiary Hearing at 10-11, Alexander v. FBI (D.D.C. Aug. 25, 2000) (CA 96-2123) (emphasis added). * * * * * Millet: [S]ometimes lawyers and technical people don't always understand each other, don't always use the same language, don't always use the same words to mean the same things. I think, again, on Wednesday Mr. Lindsay put his finger on the problem as being that kind of disconnect between the lawyers and the technical people just perhaps not understanding each other and not appreciating what they were being told as being the real core of what happened here[.] \104\ --------------------------------------------------------------------------- \104\ Id. at 15 (emphasis added). * * * * * Millet: You have your answer. I think Mr. Lindsay gave you your answer. I can't express it any better than he did. There was a breakdown between technical people and the higherups. The higherups thought the problem was addressed. As Mr. Lindsay said, they didn't know or understand what the people who were doing the real work --------------------------------------------------------------------------- knew, and that was the---- Court: To decide the question though of whether it was negligent, reckless, or deliberate, would I not need to know--have more evidence about what the testing was or how that conclusion was reached? Millet: I don't think so, Your Honor. I think you've heard in the record--for that matter you can look--for that point, you can look at the congressional testimony, particularly Mr. Ruff's. You can see--as the people who actually pulled the documents did appear before you, they told you what they did, what they did with the documents, and what happened with them. I think between--between what Mr. Lindsay said, I think it would be appropriate to look at the congressional testimony. Between what's in there, you'll see that that's the answer.\105\ --------------------------------------------------------------------------- \105\ Id. at 29 (emphasis added). Another Justice Department lawyer, Elizabeth Shapiro, came to the personal defense of White House lawyers Michelle Peterson and Sally Paxton in a representation to Judge --------------------------------------------------------------------------- Lamberth: I want to say one last thing and may be somewhat out of turn. When the Court spoke about White House Counsel who worked on this case, I just wanted to make it clear that we are not--this is not the apt's [sic] case. I don't know the experience of that case, but I can speak to the experience in this case. That's Ms. Paxton and Peterson have acted in every way as diligently any [sic] agency counsel I have ever encountered. They have worked long and hard and produced thousands and thousands of documents and engaged in long periods of discovery I have with extreme diligence. I would want to say that on their behalf.\106\ --------------------------------------------------------------------------- \106\ Id. at 99 (emphasis added). This kind of overzealous advocacy by the Justice Department on behalf of the White House indicates why the Justice Department cannot be counted upon to conduct a thorough investigation of this matter. It is difficult to believe that the Justice Department would conduct a serious criminal investigation of a White House lawyer such as Peterson while, at the same time, a Justice Department lawyer provides such a glowing character reference for her in court. B. The Attorney General's Failure to Allocate Adequate Resources to the E-mail Investigation The advocacy and overreaching of Justice Department attorneys is especially troubling in light of the apparent lack of a serious investigation of the e-mail scandal on the part of the Justice Department's Campaign Financing Task Force. The Justice Department seems willing to devote more attorneys and resources to the defense of the White House than to the investigation of it. Deputy Assistant Attorney General Alan Gershel's refusal to disclose even a ballpark estimate of the number of attorneys working on the criminal investigation does nothing to allay those concerns. Perhaps even more revealing are recent statements made by Attorney General Reno during an interview with committee staff. The Attorney General was asked to give an estimate of the number of attorneys working on the e-mail investigation because of the concern in hearing that only one part-time attorney was on the case.\107\ The Attorney General failed to provide an estimate.\108\ The following exchange then took place between committee counsel and the Attorney General: --------------------------------------------------------------------------- \107\ Transcript of interview with the Honorable Janet Reno, Attorney General, Department of Justice, in Washington, DC, at 9 (Oct. 5, 2000). \108\ Id. Counsel: If there were for a period of weeks no attorneys--and we know there are FBI agents but if there were no Department of Justice attorneys devoted full-time to this matter, would you answer that to be a --------------------------------------------------------------------------- sufficient number of attorneys devoted to this matter? Reno: If there were sufficient attorneys devoted to the matter, I would consider it to be sufficient. Counsel: But would zero be sufficient? Reno: Your question was whether there would be sufficient people if there was not a full-time attorney devoted to it. How I devote attorneys I think should be an executive function and I think based on everything that I have been advised--as to which I have been advised, there are sufficient. Counsel: Okay. And we are not going to go too much further but I did want to get back to my original question, which is if there were zero attorneys, would that be in your view in this situation sufficient? Reno: If there were zero attorneys what? Counsel: Devoted to full-time staffing of the---- Reno: Yes, it could be possible that if you had different attorneys devoted to [it] less than full- time.\109\ --------------------------------------------------------------------------- \109\ Id. at 9-10. From this exchange, the Attorney General apparently conceded that in her opinion having no full-time Justice Department attorneys working on the e-mail investigation could be sufficient. While the Attorney General refused to actually confirm that there are no full-time attorneys working on the e- mail investigation, such a conclusion is consistent with information obtained by the committee. This underscores the inherent conflict of interest of the Justice Department in the e-mail matter. The problems with Justice Department attorneys investigating their colleagues are exacerbated when the time and resources devoted to the investigation are apparently far less than those devoted to the defense of the White House. V. The Critics of the Investigation Have Utterly Failed to Address the Facts on Their Merits A number of criticisms have been made of the committee's investigations. Some of these criticisms are simply inaccurate. Others have taken the form of baseless attacks against the committee. All of the criticisms, however, clearly demonstrate that the White House, and its allies in Congress want to keep the public from knowing what happened. A. Response to the Minority Staff Rebuttal Following the release of the committee's report, the minority circulated a ``rebuttal'' to the news media. Unfortunately, the minority rebuttal is riddled with errors and misleading statements. The Spin: ``The number of e-mails affected by the Mail2 problem is relatively small compared to the total number of e- mails properly recorded in ARMS.'' \110\ --------------------------------------------------------------------------- \110\ Rebuttal prepared by minority staff. --------------------------------------------------------------------------- The Truth: The precise number of e-mails affected is not the point. To prevent the production of even one subpoenaed document through threats and intimidation is serious misconduct. The point is that the White House knew that a number of messages were not searched. It knew that the number of unsearched messages was significant. Yet it failed to either search the messages or inform Congress that it could not. The number of records properly recorded in ARMS in 1994 was 1.7 million. In 1997 it was 4.1 million. By the end of 2000, it is estimated that it will record 30 million.\111\ Even a small percentage of such large numbers would be significant. For example, the Mail2 problem alone affected all of 1997, when 4.1 million records were recorded in ARMS. If only a ``relatively small'' number of those records--say 10 percent-- were affected by the Mail2 error, that would mean 410,000 records were not searched. That would represent only 1 year during only one of the several archiving errors. In fact, the audit prepared by Robert Haas on June 18, 1998, shows that, as of that date, 246,083 e-mails were not recorded in ARMS.\112\ --------------------------------------------------------------------------- \111\ ``The Budget of the Executive Office of the President,'' hearings before the Treasury, Postal, and the Executive Branch Subcommittee of the Committee on Appropriations, 105th Cong. (Mar. 12, 1998) (testimony of Ada Posey, Director, Office of Administration). \112\ E-mail report at sec. III.B.1, IV.A.2. The Spin: ``These e-mail problems are highly technical. All of them were inadvertent.'' \113\ --------------------------------------------------------------------------- \113\ Rebuttal prepared by minority staff. --------------------------------------------------------------------------- The Truth: The net effect of the problems is not technical or difficult to comprehend. A large universe of documents was not searched.\114\ The White House was clearly told as much, but failed to inform those who had subpoenaed documents from them.\115\ --------------------------------------------------------------------------- \114\ E-mail report at sec. II. \115\ Id. at sec. III.C.1. The OVP decision to manage e-mail solely by backup tapes and avoid archiving in ARMS was not inadvertent. It was intentional.\116\ --------------------------------------------------------------------------- \116\ Id. at sec. II.C, III.D.3.c. The Spin: ``Mr. Haas found a few Lewinsky-related e-mails that turned out to have already been previously provided to Independent Counsel Kenneth Starr.'' \117\ --------------------------------------------------------------------------- \117\ Rebuttal prepared by minority staff. --------------------------------------------------------------------------- The Truth: Haas found more than ``a few'' Lewinsky-related e- mails. In fact, the White House produced to the committee 832 pages of e-mails found by Haas and used by the White House Counsel's Office to argue that the e-mail did not affect document production.\118\ --------------------------------------------------------------------------- \118\ Letter from Beth Nolan, Counsel to the President, the White House, to the Honorable Dan Burton, chairman, Committee on Government Reform (May 2, 2000). See also e-mail report at sec. IV.B.3. Michelle Peterson, the lawyer who compared Haas' e- mails to those already produced to the independent counsel, filed a September 27, 2000, affidavit in the FBI files litigation stating that, during her grand jury testimony, she was shown documents which indicate that she may have been mistaken in concluding that the two stacks of e-mail she reviewed were identical.\119\ --------------------------------------------------------------------------- \119\ Id. The e-mail provided to the Counsel's Office in order to perform the comparison included a 69-page index, which itself was withheld from the independent counsel even after Peterson's comparison.\120\ Peterson's ``mistake'' was far from merely overlooking a one or two pages, and the two stacks of e- mail were far from identical. --------------------------------------------------------------------------- \120\ See letter from Jay Apperson, deputy independent counsel, Office of the Independent Counsel, to the Honorable Royce C. Lamberth, U.S. District Judge, District of Columbia 5 (Oct. 5, 2000) (referring to attachment 3, pages 1-2) (exhibit AV-3). Attachment 3 to Apperson's letter to Judge Lamberth is letter from Apperson to Mark Lynch, counsel for Michelle Peterson, in which Apperson describes Peterson's affidavit as ``both inaccurate and misleading'' in its suggestion that the index was not required to have been produced to the independent counsel in June 1998. Id. White House Counsel Charles F.C. Ruff conceded that his belief that using the Lewinsky production as a tool to determine whether there was a problem with the White House's subpoena compliance ability was erroneous.\121\ And in fact, it was. --------------------------------------------------------------------------- \121\ Id. at sec. III.C.2. See also id. at n.347-348 and accompanying text. The Spin: ``The evidence regarding alleged jail threats is inconclusive and contradictory. In total, eight individuals were present at meetings when the alleged threats were made. Of those eight witnesses, two deny making any jail threats; three have no recollection of any jail threat; one recalls a jail threat being made in response to a `flippant' question; and one recalls the word `jail' being mentioned but cannot remember who said it.'' \122\ --------------------------------------------------------------------------- \122\ Rebuttal prepared by minority staff. --------------------------------------------------------------------------- The Truth: Other than Laura Callahan--the person accused of making the threat--there were five people present at the meeting at which Robert Haas claims he was threatened. Of those five, three recall the jail threat (Robert Haas, Betty Lambuth, and Sandra Golas). And a fourth, John Spriggs, believed he was threatened, though he did not specifically recall the word jail: ``Were they threatening to me? Yes, they were threatening to me, in--in a narrow context.'' \123\ --------------------------------------------------------------------------- \123\ ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 100 (Mar. 23, 2000) (testimony of John Spriggs, senior engineer, Northrop Grumman). See also e-mail report at sec. III.A.5. Robert Haas contemporaneously repeated his allegation to multiple witnesses, including Northrop Grumman employees Steve Hawkins, Joe Vasta, and Joseph Lucente.\124\ He also told IS&T Director Kathleen Gallant, as well as his wife and several members of his family.\125\ --------------------------------------------------------------------------- \124\ Id. at sec. III.A.4.a, III.A.4.e-g. \125\ Id. Those who did not recall hearing the jail threat did not question the credibility of those who did. In fact, neither did Ranking Minority Member Henry Waxman. As he stated at the March 23, 2000, hearing: ``Mr. Haas, who seemed credible to me, clearly believed he had been threatened with jail by Ms. Callahan.'' \126\ --------------------------------------------------------------------------- \126\ Id. at sec. III.A.5. Golas took the threat so seriously that she risked her job in trying to comply with the warnings not to tell anyone.\127\ Also, the other contractors took the threats so seriously that they felt the need to hold their meetings out of the office at a local park and at a Starbucks.\128\ --------------------------------------------------------------------------- \127\ Id. at sec. III.A.4.b. \128\ Id. at sec. III.A.4.d. The Spin: ``[T]he individuals who allegedly made the jail threats were not even White House employees: both worked in the Office of Administration (OA), which provides support services to the White House, and one was a career civil servant. There is no evidence that White House officials had any knowledge of--or participated in--any threats.'' \129\ --------------------------------------------------------------------------- \129\ Rebuttal prepared by minority staff. --------------------------------------------------------------------------- The Truth: OA is an entity within the Executive Office of the President. While the OA is not within the physical building of the White House, it is disingenuous and misleading to argue that Mark Lindsay and Laura Callahan were not White House employees. OA employees are responsible to the White House, and they ultimately answer to the Assistant to the President for Management and Administration. Moreover, Mark Lindsay was elevated to the high position of Assistant to the President-- working in the White House--after the e-mail problems occurred but before they became public. Also, Mark Lindsay was a political appointee in OA at the time he allegedly threatened Northrop Grumman contractors. It should also be noted that Laura Callahan continues to work for the Clinton administration at the Department of Labor. It is also illogical to assume that the very persons who allegedly threatened contractors would inform their White House superiors of such heavy-handed and possibly illegal tactics, unless their superiors were complicit in the misconduct. The Spin: ``There is no evidence that Mr. [Earl] Silbert was aware of, or communicated information about, threats or subpoena compliance--issues that were peripheral, if not irrelevant, to the contractual matter at stake.'' \130\ --------------------------------------------------------------------------- \130\ Id. --------------------------------------------------------------------------- The Truth: The committee questioned Earl Silbert--former Watergate prosecutor and friend of then-White House Counsel Charles F.C. Ruff--about his contacts in late 1998 with Northrop Grumman (NG) and the White House Counsel's Office. When asked specifically about the discussion of threats with White House counsel, Silbert claimed he had no recollection of such discussions and at the same time asserted attorney-client privilege.\131\ On October 3, 2000, the committee also learned through his testimony in Federal court that Silbert took notes of his conversations with NG counsel and a NG employee.\132\ These notes have not yet been reviewed by the committee. Until Mr. Silbert either explains the substance of the meeting or produces the notes, it is simply premature for the minority to claim that ``[t]here is no evidence'' related to Mr. Silbert's communications concerning threats or subpoena compliance. This claim by the minority also appears to be premature when considering the testimony of Robert Haas on August 14, 2000, in the FBI files case. Haas testified that he recounted the threats to an outside counsel described to him as a ``gray beard.'' \133\ This evidence, coupled with Silbert's billing records, strongly suggests that Earl Silbert is the ``gray beard'' with whom Haas spoke. --------------------------------------------------------------------------- \131\ E-mail report at sec. III.A.4.g. \132\ Transcript of Evidentiary Hearing at 47, Alexander v. FBI (D.D.C. Oct. 3, 2000) (CA 96-2123). \133\ E-mail report at sec. III.A.4.g. The claim that threats were peripheral or irrelevant to the contractual matter at stake completely ignores the testimony of the persons involved in the meetings between NG employees, NG Director of Contracts Joseph Lucente, and NG counsel Ralph Pope in September 1998. In that meeting, NG employees discussed threats with Lucente and Pope.\134\ Lucente in turn drafted a letter that went to the White House on September 14, 1998, stating that NG would not move forward on the contract.\135\ It was recently learned in court that Silbert had direct involvement in the review and editing of this letter.\136\ Lucente told the committee that the threats were an inspiration for sending the letter.\137\ --------------------------------------------------------------------------- \134\ Id. \135\ Id. at sec. III.E.1.b.ii. \136\ Transcript of Evidentiary Hearing at 91, Alexander v. FBI (D.D.C. Oct. 3, 2000) (CA 96-2123). When informed of this testimony, Lucente was surprised to learn that his letter had been reviewed by Silbert and that Silbert had provided corporate counsel with edits. Interview with Joseph Lucente, director of contracts and subcontracts, Northrop Grumman (Oct. 17, 2000). \137\ Id. The Spin: ``In the course of responding to committee inquiries regarding the Mail2 problem, the White House also discovered other e-mail problems including . . . a problem that prevented e-mail in the Office of the Vice President from being backed up from the end of March 1998 through early April 1999.'' \138\ --------------------------------------------------------------------------- \138\ Rebuttal prepared by minority staff. The Truth: This is merely one of the many problems in the Office of the Vice President (OVP). The minority failed to mention the others: The OVP decided in 1994 not to connect its e-mail system to ARMS, thereby ensuring that its e-mail would not be archived.\139\ But the White House Counsel's Office claims not to have been aware of this decision.\140\ ARMS searches that were represented as including OVP records in fact did not, and no one searched the OVP backup tapes in response to subpoenas.\141\ --------------------------------------------------------------------------- \139\ E-mail report at sec. II.C, III.D.3.c. \140\ Id. at sec. II.C. \141\ Id. at sec. III.D.3.c. In April 1999, when responsibility for the OVP server was transferred to IS&T, backup tapes were ordered to be recycled on a rotating 3-week basis. This occurred at a time when the OVP was still not participating in ARMS. In the words of Senior Engineer John Spriggs, ``Every three weeks they overwrite the existing tapes. And so if the OVP is doing records management with tape backups, then they have a problem.'' \142\ --------------------------------------------------------------------------- \142\ Id. at sec. II.C. The Spin: ``So far, between 130,000 and 150,000 e-mails have been reconstructed and reviewed. Of those, only 55 were responsive to this committee's subpoenas, and many of those had already been produced in similar form. None of these 55 e-mails provided significant new evidence.'' \143\ --------------------------------------------------------------------------- \143\ Rebuttal prepared by minority staff. --------------------------------------------------------------------------- The Truth: The first batch of responsive e-mails produced to the committee on September 22, 2000, include a document regarding political advisor Carter Eskew sent directly to Vice President Gore stating ``Reminder: All internet e-mails are recorded on the White House computers. According to Michael, the only way not to have your e-mails backed up on government computers would be to get a Clinton/Gore computer in your office and set it up for private e-mails. QUESTION: How would you like to proceed on this?'' \144\ This e-mail goes to the Vice President's knowledge of the archiving of his e-mail messages that this committee is investigating. --------------------------------------------------------------------------- \144\ E-mail report at 74. The September 22, 2000, production also includes an e-mail from the person ``desking the VP's trip to CA on 4/29,'' stating that the Vice President was committed to do a fundraising event in Los Angeles on April 29, 1996. The e-mail was drafted on April 9, 1996, and the only event in Los Angeles as of that date was a luncheon at the Hsi Lai Temple. This information is significant because as of April 9, 1996, the Hsi Lai Temple event was considered a fundraiser, and there is no mention of an event at another venue--a direct contradiction of representations that a separate fundraising event had been scheduled and then canceled at the last minute.\145\ --------------------------------------------------------------------------- \145\ Id. at sec. III.D.3.b. Finally, it is troubling that the minority has attacked the credibility of the majority by citing an allegation from a newspaper article as if it were from the committee. The Democrats' rebuttal endeavors to correct a statement from the March 29, 2000, edition of the Washington Times concerning a computer disk containing Lewinsky-related e-mail.\146\ While it is comforting to know that the minority is chasing down inaccuracies in the newspapers, such charges have little to do with the committee's work. --------------------------------------------------------------------------- \146\ Rebuttal prepared by minority staff. --------------------------------------------------------------------------- B. Judge Todd Campbell's Comments on the Report In an article published in the Tennessean on October 19, 2000, Federal Judge and former Counsel to the Vice President Todd Campbell was quoted as calling Chairman Burton ``a zealot who has no regard to the reputation of others. And he has no credibility.'' It is surprising to see such language from a sitting Federal judge. Even more surprising is that Judge Campbell's intemperate remarks were made in response to purely factual assertions in the committee's report of which he was the source. These facts suggest that Judge Campbell's ire is more likely the result of his relationship with Vice President Gore and the Presidential election season than it is of any unfair statement in the committee's report. Judge Campbell's name is mentioned in the report as the decisionmaker in the Office of the Vice President (OVP) on the issue of whether the OVP would participate in a system-wide White House e-mail archiving system. Committee staff interviewed him by telephone on August 18, 2000. Judge Campbell was cordial and candid, which was appreciated. However, he has mischaracterized the substance of the report as well as Chairman Burton's motives. He was also quoted as saying: The Office of the Vice President was in full compliance with the Presidential Records Act in two ways: One, we had backup tapes of all the e-mail, and two, the staff was instructed to keep hard copies of all documents that were responsive to the Presidential Records Act. In 1994, it was not even clear that you had to have backup tapes.\147\ --------------------------------------------------------------------------- \147\ Rob Johnson, ``Former Gore Legal Counsel Dragged into E-mail Inquiry,'' the Tennessean, Oct. 19, 2000. The report does not claim that the OVP failed to comply with the Presidential Records Act. In fact, the Presidential Records Act (PRA) is not even mentioned in either of the two sections dealing with the OVP. Rather, the committee's concern is that the Vice President's e-mail was managed in such a way as to avoid subpoena compliance. Judge Campbell also said that the report was released ``for partisan purposes to influence the outcome of the presidential elections.'' \148\ This is perhaps the Judge's most absurd statement. The portion of the report devoted to the Vice President's Office e-mail problems comprises only about 6 percent of the total report and the conclusions are qualified as being preliminary. It is disappointing that a sitting judge would not be more concerned that an office at the Executive Office of the President had failed to comply with a number of subpoenas because of a decision he had made. That decision, and the resulting failure of the OVP to comply with the committee's subpoenas, is the committee's concern--and it should be Judge Campbell's as well. --------------------------------------------------------------------------- \148\ Id. --------------------------------------------------------------------------- C. Cheryl Mills' Opening Statement at the Committee's March 4, 2000 Hearing In her opening statement before the committee on March 4, 2000, former Deputy Counsel to the President Cheryl Mills demonstrated utter contempt for the committee's legitimate oversight authority by smugly dismissing its core function as, essentially, a waste of her time. The Weekly Standard described her statement as follows: At last week's House Government Reform Committee hearing on the suppression of subpoenaed White House e- mails, Mills took the stand and immediately rebuked the committee's members, while current and former Clinton aides in attendance nodded their heads in vigorous assent. ``Nothing you discover here today,'' the allegedly impressive lady intoned, ``will feed one person, give shelter to someone who is homeless, educate one child, provide health care for one family, or offer justice to one African-American or Hispanic juvenile.'' In other words: Favored Democratic social policies are the test of all government work. A man has committed murder. Should he be sent to prison? Will sending him to prison ``feed one child?'' The answer being no, the murderer must go free.\149\ --------------------------------------------------------------------------- \149\ ``Mills on the Hill,'' the Weekly Standard, May 15, 2000, at 2. It is telling that Mills' view was contradicted later that day by her more seasoned and respected former boss, former Counsel --------------------------------------------------------------------------- to the President Charles F.C. Ruff: Mr. Hutchinson. How would you have failed if in your defense of the President you had requested certain documents from the Congress or from other body and then you had come to find out that they were never produced? Mr. Ruff. [I] think the point you make is an absolutely solid and important one. This committee has every obligation to inquire into the circumstances surrounding those events in order to determine, first, whether indeed there was any impropriety--and I am firmly of the belief that there was none; second, to determine whether there's a systemic problem that needs to be corrected; and, third, whether the White House is responding appropriately to the committee's concerns. I view all of those as entirely legitimate inquiries, and we're doing our best to try to respond to them.\150\ --------------------------------------------------------------------------- \150\ ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 115-116 (May 4, 2000) (emphasis added). While Mills dismissed the investigation as wholly illegitimate, Ruff described it as ``entirely legitimate.'' \151\ Moreover, he said the committee had not merely a legitimate interest; it had ``every obligation'' to inquire. This contrast with Mills' position could not be more stark. --------------------------------------------------------------------------- \151\ Id. --------------------------------------------------------------------------- Mills' failure to divert attention from the issue at hand was illustrated by the reaction of Congressman Christopher Shays: Mr. Shays. [W]hen I read your statement, Ms. Mills, before you even delivered it, I became so incensed by the focus on you and not about getting at this issue that I've written out a statement, and I've written out the statement so I don't say more than I need to say. So, Ms. Mills, you're not the only one disillusioned by this process. I have been pushed from disappointment to anger to outrage by the pervasive ethical and moral minimalism of this White House. Among the important issues you omitted from your list is respect for law and the affirmative obligation of sworn officers of the court to disclose material facts to properly constituted authorities. As much as you might not like it, this committee is such a properly constituted authority. While undoubtedly deeply felt, your statement conveyed to me a profound lack of respect for this constitutional process, and I'll say unlike the profound respect that I thought you showed to the Senate. It's not enough for those in the White House you defend to say no evidence has been found that anyone intentionally sought to hide the e-mail system problems. That's far too low a bar to set for yourselves, to convince yourselves prematurely the problem was minimal, to hide behind the expense and difficulty of the reconstruction project, to delay any disclosure of a problem until forced by negative publicity. All bespeak an ethical opportunism that allows by omission, if not by commission, the obstruction of justice. * * * * * Now, I also remember some people at the White House. I remember Billy Dale and John Drellinger . . . They were in the White House and they got fired, and then to defend their being fired the FBI and the IRS had to take a good look at them. And I was looking at an old article, and this may have been said in jest, Mr. Ruff, I know it was said in jest, but it has an eerie feeling of strength to it. You were interviewed by Bob Woodward[.] I'll read what Mr. Woodward says[:] . . . If called to testify some day at such an inquiry . . . Ruff says he knows just what he would do, ``I'd say, gee, I just don't remember what happened back then and they won't be able to indict me for perjury and that maybe that's the principal thing I've learned in 4 years, I just intend to rely on that failure of memory.'' I know you said it in jest, but the words you used to respond to questions: ``I don't recall,'' ``I don't remember,'' ``I understood this is an issue'' and so on and ``[I] don't remember if I was at a meeting.'' The meeting: Mr. Lindsay, on June 19th, how many people were at that meeting when you spoke to Mr. Ruff? Mr. Lindsay. I don't recall, sir.\152\ --------------------------------------------------------------------------- \152\ ``Missing White House E-mails, Mismanagement of Subpoenaed Records,'' hearings before the Committee on Government Reform, 106th Cong. 80-82 (May 4, 2000). In essence, that is the story of this investigation. [The exhibits referred to follow:] ![]()