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April 14, 2007

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Marcy, you continue to amaze me.

Mr. Libby has double-barreled Ivy League degrees, is a former partner at a large Washington, DC, firm, and is an expert litigator in defense of white collar criminal defendants (which would involve detailed knowledge of electronic discovery requirements).

It would be extraordinary if Miss Jennifer's explicit, hand-written exception regarding her not searching for e-mails were by happenstance. One, the first certification only implies that she did not search her or Mr. Libby's computers, PDA's, mobile phones, small or large back-up devices, etc., for e-mails and text messages. Two, even if her statement are adequately exculpatory, it would not release her from her responsibility to have searched for drafts, copies, etc. of electronic communications that might have been on those systems, but removed by her or someone else from central files.

Perhaps everyone in the White House is being too clever by half. A fish may rot from the head, but this one's tail already smells.

I trust Maguire will be popping by to give the 'innocent' explanation.

"Centralized search" doesn't refer to a normal email "server."

It refers to the special centralized "ARMS" archive, which isn't an email "server", and which was set up by the Clinton White House to make sure that emails wouldn't get lost again. (Starr, and Ray, and the NY Times, and others, had complained about the thousands of emails lost by the Clinton White House.)

According to credible sources, as reported by CREW, the Bush White House deliberately sabotaged the "ARMS" archive in several different ways.

However, if it hadn't been sabotaged, then the centralized archive would have been the best and most appropriate place to search for emails.

goober

Fair point.

Anyone know if RICO cause of action can be brought against an adminstration, or the RNC?

If so, can a state AG or a private citizen through a qui tam action get standing to bring a RICO suit?

I do not litigate for a living, so I am curious.

There is a point that I have tried to raise on a couple of other blogs that you might want to note, Marcie...

In the daily press briefing yesterday, Dana Perino mentioned that the WH email had been converted a couple of years ago from Lotus Notes to Microsoft Exchange (what most people call "Outlook.") It is not an easy conversion, in that Lotus Notes email archives cannot be read by Outlook and have to literally be converted into an Outlook archive file so that Outlook can read them (and search them). If it is not done properly, much of the email cannot be found.

I have to wonder if the Lotus Notes archive files are still on the hard drives of the users' computers... Someone familiar with Lotus Notes can easily find them. I know about this because I managed a similar project last Fall.

Which raises another thought... Could it be that the Lotus Notes email system has been retained for use by specific individuals who use it for very private communications? Theoretically, Lotus Notes and Outlook do not get along well on the same computer, but it can be made to work. All the individual would have to do is open his Lotus Notes account to go through the separate system, which is stored on a separate server.

This has bugged me ever since the press conference...

Love the site!

OK, this is kind of off topic, but here's an interview with a recently retired DoJ attorney in the Office of Information and Privacy. He wraps up the interview with:

"Second, candor compels me to acknowledge that there in fact was a situation in which, rather than being asked to do something for purposes of a political agenda, I surely was asked to refrain from doing something quite ordinary for a reason that I later learned (and earlier had surmised) was indeed very much a "political" type of agenda. That situation does stand apart in my government experience, but I will refrain from saying anything more about it here, other than that it did occur during the early months of 2005."

http://www.law.com/jsp/article.jsp?id=1176455062969

Any guess as to what kind of action he was asked to not do? Sounds strange to me. Also sounds like he's willing to talk about it, just not in that interview....

Greetings to all.
I have enjoyed reading your post,but i need some additional information on following points :

a.When Mr Libby emended the printed statement with notes ,is he still certifying that he(personally) performed the search in required manner.
b.Do the subpoenas require each individual member to actively perform that required himself or he can leave it to a administrative official.
c.When officials in White house are subpoenaed, are the addressed personally to those official.
c.Who normally handles the transmission of documents to congress.
Thank you.

Greetings to all.
I have enjoyed reading your post,but i need some additional information on following points :

a.When Mr Libby emended the printed statement with a note ,is he still certifying that he(personally) performed the search in required manner.
b.Do the subpoenas require each individual official to actively perform the required action himself or he can leave it to a administrative official.
c.When officials in White house are subpoenaed, are the subpoenas addressed personally to those official.
c.Who normally handles the transmission of documents to congress.
Thank you.

I find Lotus Notes to be equally horrible with or without the presence of Outlook.

From the testimony given by Libby, (below is an exerpt) he acknowledges printing out a copy of documents that are typed, or as he states, Jenny Mayfield, did it for him. Which leads me to the nagging question, was all correspondence printed out? Is there a place where all the paper documents are stored? I just think if everyone focuses on the hard drive/sever issues, it may be that the old fashioned paper copies are sitting in a box somewhere collecting dust- and the fact that those copies might not be in the "possession" of the originators would leave them completely without guilt to certify that they do not have them.

It would also be interesting to know, in a follow-the-money-vein, how much paper was purchased, toner ink, and repair calls for printers in the offices of the various suspects. Surely there is a paper trail of expenditures. And also, how many shredders were purchased and when?

Libby Grand Jury testimony- see link below:

Q. Okay. Who created that document?
A. I did.
Q. Personally?
A. Yes. Well, you know, I, I didn't type it I don't
suppose, but I directed it to be done.
Q. Okay. So do you know who would have typed it?
A. Well, if I didn't type it, then I assume it would
have been Jenny Mayfield, my assistant.
Q. Do you type?
A. I do type.
Q. You're not big on e-mail I take it?
A. No. Not in this job. I was in my prior job.
Q. Okay. And when you type, do you type at a word
processor and print it out?
A. Yeah.


from: http://72.14.253.104/search?q=cache:YYQgKyEIJRAJ:www.usdoj.gov/usao/iln/osc/exhibits/0306/gx2t.txt+Jenny+Mayfield&hl=en&ct=clnk&cd=11&gl=us&client=safari

Does anybody remember the picture of the Shredding company truck parked outside the Naval Observatory. Paper copies are long gone I bet. These people have been practicing there processes for 30 years. They might not do everything right. But they are damn good. Its going to take a very lucky break to get them.

Do you think Libby would admit to making a paper copy if he also shredded it? Why even admit to making a copy? The copies may not be "in my possession," but they are somewhere, even if they are in a landfill, and someone has a record of where they are. A truck, a person, was paid.
Unless of course, Dick and Lynn took a Sunday drive and dumped them.............

I have to wonder if the Lotus Notes archive files are still on the hard drives of the users' computers... Someone familiar with Lotus Notes can easily find them. I know about this because I managed a similar project last Fall.

There should, at very least, be a large backup repository of Notes database files taken as a snapshot before the migration. Basic tech competence applies: i.e. that the people doing the migration were concerned about protecting their asses from Unforseen Circumstances.

But we need a better sense of the IT infrastructure throughout the Bush years.

This surely is not the only certification for these document production returns is it? I literally hate the mechanics of discovery, but it sure seems like there would be a multitude of certs; and, in spite of that, this one would still stick out like a sore thumb. What info, if any, is there about Fitzgerald interviewing-GJ or otherwise-Ms. Mayfield? I am sure getting the impression from both all of your recent reporting, and some of the other related information coming out of purgegate, that the government (read: White House) together with Libby, executed a cute dodge to full and complete document production in response to Fitz's investigation. I realize that is pretty much a Casablanca "shocked there is gambling going on" kind of statement, but I would think Walton would be infuriated. Fitz too. Why has there not been a bigger deal made of this to date?

bmaz

I'm not sure how much Walton has seen of this. Email discovery wasn't the central issue in teh trial. And this was submitted solely so Fitz could fend off Team Libby's attempt to claim the lies Libby told weren't material to the investigation as it existed under the FBI. Mayfield didn't testify (as I mentioned), and Fitz never entered a claim that he hadn't received everything. So with teh exception of the "In an abundance of caution" note (and Jeffress' response to it--in which he insisted it was all very normal), this wasn't an issue.

And remember, I think Fitz may have tried to put together the obstruction case. So he may have deliberately tried to keep some of this under wraps. Hell, if Team Libby were really trying to see what he had, wrt obstruction, they may well have tried the materiality claim to force him to show this hand.

Pseudonymous, I agree with what you say... and those images would be very telling ;-) In our project, our users had to have access to their Notes messages through Outlook, and it was a real pain getting them converted. In some cases, they still do not work properly, although the original archives are still on the user hard drives (and, I assume, in our image repository).

I think the consensus here is that the critical documents exist -- the powers-that-be just have not requested them in the right way or with the magic words so that they magically appear.

As one reader pointed out above, there is a lot of concentration on servers and hard drives. The only thing that has not been mentioned is a storage area network. I know that they can store a tremendous amount of information, and since the information would then be off the servers and the individual computers, voila! No problems...

This is going to be a tremendous story when it all comes out!

I've been wondering about security-related / firewall technology that presumably was in place and whether/where any useful traffic data might be stored. Quite apart from the PRA issues, the national security implications of this scandal are disturbing.

I don't get it

I can't see the whole sentence, nor can I see the whole form (acrobat dysfunctional)

but from what I CAN see, the added writing does NOTHING to change the premise of the printed words

I certify that I preformed a reasonable, diligent, and good faith search ...

and the sentence included:

I understand that you have done a central email search

whether or not there was a "central email search", by checking the line next to the aforementioned printed statement, the signee has stated that a personal search WAS conducted

this sentence does NOT change the fact that the person who signed this form has stated that he or she preformed the search as described in the certification

understanding that a central email search has been done DOES NOT absolve the signee from personally conducting a "reasonable, diligent, and good faith search", witch the signee has claimed to have done

it looks to me as if the signee claims to have conducted a search witch the signee never actually conducted

is this on a form signed "UNDER PENALTY OF PERJURY ???

if so, the signee may have committed perjury by signing a form that claims the signee conducted a search witch the signee never conducted

or am I missing something thru my Acrobat dysfunction ???

EW - Thank you. I certainly can't argue with your analysis and you are absolutely right that email documentation was not a central issue or element in the trial. Sure seems like the production of evidence in this regard looked dubious from the outset however, and I am surprised there wasn't a bigger stink about it made in the investigatory phase. As thorough as Mr. Fitzgerald is, I assume he must have been satisfied in some manner, because if I were a prosecutor I would have been screaming and raking people over the coals for this to cute by a half mendacity.

'tis obvious from comments above that everyone here is just way too honest. If we tack over to the perspective that the emails were intentionally, perhaps often, dumped and start thinking where would they be stashed (I use term loosely) and how? Can we start calling the dumper tech a thief because if this is intentional he/she/they certainly stole govt property which creates a security breach. So I wonder where emails get SENT when they need to safely disappear not to be re-discovered rather than where they get lost to. I promise to calm down now.

bmaz

I may be EPUed on this, but one thing I've been keeping in mind is that when Libby made his first appearance befoer the GJ, Fitz told him what charges he was considering. They included what we'd expect--IIPA and Espionage and obstruction. But they also included theft of government property.

EW,

I've been responsible for the certification of financial data and documents and have been involved in responding to legal requests for information and certifying that the responses met the "letter and intent" of the request.

By checking the statement, Ms. Mayfield is indeed certifying that she complied with the document request. Any information that she appended to her certification would be extraneous to the certification itself with the exception of appended statements which set forth any limits to the certification that the signee is required to append in order to make the certification statement complete and true.

If Ms. Mayfield did not perform the search as directed by the document request then she really only had two options: (1) return the certification unsigned or unchecked with a statement that she understands that "David Addington has done a central email search," or (2) return the certification with the relevant sections "lined-out" so as to make the certification complete and true. Ms. Mayfield did neither. She checked the certification and appended an extraneous statement.

So, either Ms. Mayfield performed the search according to the terms of the document request or she did not. If she did not then her actions could be construed as obstruction of an official investigation since the intent is inherent. By certifying that she complied with a document request when in fact she did not is clearly an attempt to obstruct the investigation. She could have avoided this scenario by "lining-out" sections of the certification statement and appending other statements to the certification such that the statement was true. In this case, although her actions could be construed as obstructing the investigation, it is more likely that her actions would be viewed as nonresponsive and she would be directed to comply with the original document request. Having been put on notice, then she would need to comply or her continued failure to comply would be contrued as obstruction. However, whether the investigatory powers can or are willing to apply sanctions for noncompliance or for obstruction remains to be seen. And therein lies the problem. Usually one can thwart an investigation by "gumming up the works" such as by being slow to produce relevant materials, making half-hearted efforts to comply, producing documents or materials in formats that are difficult to use, etc. But usually no one dares to certify something that is not true. That path leads one wide open to possible prosecution.

Intersting, Jon. I'm also interested if anyone (like ROve) in WH had similar notations.

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