Search Terms

by emptywheel

Over the weekend, Fred Fielding must have lost his squabble with Bush over the response to Congress on emails. That's not just because Emmet Flood (not Fielding, who had been dealing with this issue) intervened to prevent the RNC from turning over documents to Congress. But also because the Chair of the RNC (Mike Duncan) sent Congressman Waxman a giant "Cheney" on Monday, proposing the most absurd resolution to avoid turning over all the RNC emails relating to Hatch Act violations. In his response, Waxman describes the kind of resolution that the RNC proposes as fair and reasonable.

Instead of providing this information, the RNC counsel has proposed to limit the Committee's request by using narrow "search terms" to identify e-mails relevant to the Committee's investigation. On Monday, RNC counsel proposed eight search terms, such as 'political briefing," "Hatch Act," and "2008." While the "search term" approach was offered in good faith by the RNC counsel, it presents some serious problems. For example, the search terms proposed by the RNC would not have located a January 19,2007, e-mail from an official in Karl Rove's office to an official at the General Services Administration transmitting a copy of PowerPoint slides prepared by the White House that list the top 20 Democratic targets in 2008. That e-mail read: "Please do not email this out or let people see it. It is a close hold and we're not supposed to be emailing it around."

Shorter Mike Duncan: Honest, I'm sure if Scott Jennings or Karl Rove used the RNC emails to hide their illegal political activities, they would have labeled their emails, "Hatch Act Violation." That's just the kind of nice guys they are. Though maybe you should also include the search term, "super double secret background." I hear that's what Rove uses when he illegally leaks the name of a CIA NOC.

Man, what a load of horse puckey. I can't believe Waxman maintained his cool long enough to pretend this suggestion was "offered in good faith."

Also, just if you're wondering, the RNC has not yet told Waxman the names of the 50 White House staffers who had or have super double secret RNC email accounts.

Comments

[John Forde]

Search terms could be required to be conjoined. Like, "Murder plan". That would easily uncover a murder plan.

[emptywheel]

Now you're talking, John Forde. Or see if they can find all the Hatch Act violations that the RNC committed in 2008.

[Jon]

EW,

This is exactly the approach one would expect the RNC to take on this issue. They are staffed by loyal Bushies and if it is in the interests of the Bush Administration and the Republican President, in particular, for them to frustrate the process and draw it out as long as possible then that's the approach they'll use. If there are emails that would implicate the President or his closest staff and therefore the President indirectly then they will feel it necessary to protect the President at all costs. This is what political appointees do, they protect the President.

The RNC will cooperate with the White House in limiting and/or preventing anything politically damaging to the President. There are many ways to do this including ones that skate close to the obstruction line. The trick for the RNC is protect the President and his most inner circle without clearly skating over the obstruction line.

What can the Investigating Committees do? They can continue the subpoena dance back and forth eventually making the political case for obstruction with an eye toward impeachment or figure out how they can enforce their subpoenas while developing their cases for obstruction. Although many people think that the Administration must give way to the Congressional Investigating Committees, this is not necessarily true. In cases where the Administration can make a claim of executive privilege or argue that a document request/subpoena is overbroad then they do have something to stand on if the issues are litigated. They probably expect the Courts to be favorably disposed to a claim of overreaching or overly broad subpoenas by the Congress. Courts in general tend to be sympathetic to these arguments as I've hinted in previous comments. Also, Courts tend to be favorably disposed to claims of executive privilege. Although the Bush Administration has a very weak or non-existent claim with regard to the RNC emails, they can still make the claim and litigate it.

I suspect that a lot of people think that the balance of power resides with the Congress in these matters. I would respectfully disagree. I believe that the Administration has many options at its disposal to tilt the balance of power in its favor. There are two obvious limiting factors to the power of the Congressional Investigating Committees: time and their narrow majorities. It's really a giant game of chicken. Congress holds a trump card. It's called impeachment. To the extent that Congress is unwilling to use it (they appear to have taken it off the table), then they are severely limited in compelling the Administration to comply with their subpoenas. Of course the Courts are an option, but in practice, time may well run out before the Courts can settle the issue.

[P J Evans]

It will be interesting to see what Waxman does next. (Personally, I want to see the computers physically out of the custody of the RNC and the WH. Just in case someone wants to do some midnight 'repairs', you understand.)

[emptywheel]

Jon,

I agree with your assessment that the Executive holds more power in this matter (which is probably why Waxman managed to put that "good faith" in there. And of course, ultimately, DOJ holds the trump card that they've largely corrupted DOJ.

[Jon]

I am a little surprised at the weak response by the RNC. They could have easily devised a much more clever set of search terms for these emails that would have served their purposes. They're not even very good at obstructing while appearing to make a "good faith" effort to comply. It's been a rather ham-handed effort at obstruction so far. If they're this bold then perhaps they've decided that the clock will run out before the Congressional Investigating Committees can force them to comply.

The power of the purse is the wild card in this giant game of chicken. Will Congress use its power of the purse to force the Administration to comply with its subpoenas? They can defund or refuse to fund programs that the Administration wants unless the Adminstration complies with their subpoenas. It's clear that the Bush Administration is testing the limits of the Congressional Investigating Committees.

[snowbird42]

So are there any teeth? What can be done besides the Dems getting sand kicked in their faces?

[bmaz]

This appears to be but the first step by the Administration in implementing the stall plan that jon described afew threads back, which, if I were in their shoes would then be followed by interpleader to the courts as Fred in Vermont discussed. The majority of the American people do not support the Administration either on this issue or, frankly, any other. As Kagro X and I independently noted a few days ago, at this point it is really the duty of the committees to stop dithering and hit the Administration hard with subpoenas as well as using any and all enforcement and seizure tools available; the Sargeant at Arms to the extent jurisdiction permits, because that mechanism is under the committee's dominion and control and would be faster, the traditional law enforcement means if necessary. This is also exactly why a commenter earlier today was correct in stating that we should start softening the ground under DC-USA Jeff Taylor NOW. In light of the bad faith obfuscation by the Administration, and the general distrust of them by the public, there is simply no reason for continuing the slow dance.

[ab initio]

Nothing here than expected. I am sure Waxman did not expect the RNC to roll over and provide the information. As the DoJ emails showed the Bushite plan is to stall and obstruct and run out the clock. What will Waxman and Conyers do and more importantly what options do they have?

[pdaly]

Good points All.

I am not so sure "power of the purse" issues have gone unscrutinized by a corrupting republican group, however. If they have tried to unravel the DoJ, surely they have thought about off the books ways to raise money.

Maybe stories of drug running by corrupt foreign and domestic officials (see ex-FBI translator Sibel Edmonds' claims) are plans to trump Congress' trump card. The US Congress needs to find the Impeachment card and place it back on the table.

[lukery]

Speaking of Sibel & Waxman, Phil Giraldi has a new article out, speculating that Waxman won't touch SIbel's case because he is in the thrall of AIPAC/Israel.

[EH]

The Bush Administration's plan is to get this into court as soon as possible so they can play motion practice for the next 8 years until the IT Guy who threw a "maybe" backup tape away gets sentenced to probation. Once it gets to court it's all over and the Congressional investigations will effectively stop.

[tekel]

i think that Conyers faces a significant risk that the loyal Bushies can just run out the clock. Momentum is in his favor right now, but EH is right: if the RNC gets this into the courts, Conyers might just lose it on time. He's at a point where swift, decisive force might be the surest path to recovering the evidence: just have someone go and take the servers.

I'd volunteer to do it. I think a lot of people here, or at TPM, would be willing to engage in a little burglary in the name of obtaining evidence. Tree of liberty, blood of tyrants and all that, civil disobedience is good if it helps to throw off the yoke of the oppressor, etc etc. What if the servers just wound up on the floor of John Conyers's office?

But there's the trap! If someone steals the servers, we can't use them, because the Bushies can start yelling about "fruit of the poisoned tree" and "two wrongs don't make a right" and "they stormed in here like they own the place, separation of powers, partisan witch-hunt, it's just like Watergate" and shazam, Conyers is done, the investigation is over.

So the challenge is, how to walk the moral high road, and play this by the book, when you know the other guy is cheating every way he can think of, and the game itself is rigged?

I think the best answer is, start a collateral attack on the same target. The game you're playing is rigged? Don't bet all your chips on that game... try to outflank your opponent somewhere you are strong and he is weak.

The first thing I thought when I read the story about the FBI raid on Doolittle's house was "I bet he's got dirty GWB43.com emails on his home computer." The second thing I thought was, "Who is the FBI working for- are they covering dirty tracks and destroying evidence, or is Congress starting to call in their chips?"

[litigatormom]

Ah, the old "search term" scam. Remember Karl Rove explained the sudden appearance of his e-mail to Stephen Hadley by saying that it hadn't turned up earlier because of the "search terms" that had been used?

They must offer a course at Regent University on "How to Develop Completely Useless Search Terms."

[litigatormom]

Ah, the old "search term" scam. Remember Karl Rove explained the sudden appearance of his e-mail to Stephen Hadley by saying that it hadn't turned up earlier because of the "search terms" that had been used?

They must offer a course at Regent University on "How to Develop Completely Useless Search Terms."

[Ballerina X]

in my dreams...? With all the history and weirdness regarding the RNC E-mails, it occured to me today that perhaps Waxman has a good measure of the info he is requesting already. Could he be keeping some info in his vest pocket, and not disclose it,just to see how many and which hoops the administration errects to hide and delay?...IANAL just askin'

[Nick S]

The RNC can fuck the fuck off. But it just shows how much filth is in those accounts.

By setting an April 20 deadline, Waxman shows that he's sick of being treated like dirt by these people.

If someone steals the servers, we can't use them, because the Bushies can start yelling about "fruit of the poisoned tree" and "two wrongs don't make a right" and "they stormed in here like they own the place, separation of powers, partisan witch-hunt, it's just like Watergate" and shazam, Conyers is done, the investigation is over.

Right now, information in the raw is more valuable than conventional use. Were a RNC server admin to send a few DVD-Rs to the committee, I'd consider it a patriotic service. Heck, the flicker of a thought passed my mind about brute force distributed attempts to get into Rove's mailbox, but that's beyond the pale.

The RNC response was really quite pathetic: 'we won't let you scan our photo archive for the suspected thief, but we'll send you photos of anyone wearing a striped shirt, a mask and carrying a bag marked "SWAG". Oh, we checked and there's nothing there.'

[tryggth]

If they are looking for a search arbiter, maybe Fitz would fit the bill. Given his conservative approach on Plamegate... I'm pretty sure he would maintain scope and only say something about a chargeable offense in scope.

A lesser prosecutor would probably go into the weeds and come out with something about Wolfie job favors for blow jobs.

[notjonathon]

As others have hinted, the RNC cannot permit these emails to be seen by the Congress, under any circumstances. Total destruction of the entire system (and even consequent jail terms) would be preferable to revelation of the contents. A vast criminal conspiracy to take over the reins of power will be revealed if these emails are made public, and the Republican Party itself will be open (as a political party) to RICO violations and perhaps a host of other criminal activity--even treason.
In such a circumstance, the entire leadership of the party would be forcibly purged, and any members of Congress implicated would be forced to resign. Imagine a Congress in which a hundred or more members suddenly decide to spend more time with their families (or more likely, their lawyers).

[tekel]

notjonathon: that's one potential endgame. But it's not the only possible outcome. It would clearly be worth stealing the servers and going to jail if that were the price of a massive public implosion of the Republican party. You'd probably get pardoned by President Pelosi before President Obama even had a chance to take over.

But what if it's not a worst-case scenario? What if it's just a few bad apples?

I think the RNC must be in a position right now where they honestly just don't know how bad the evidence is, even though they're the ones who are stitting on top of it. It's probably at the point now where plausible deniability is more valuable to these people's future than anything else.

But Karl Rove? Dick Cheney? I bet they know exactly how bad it is.

[AZ Matt]

Henry is pissed off. He is being polite about it but reading his letter says that he is ready to rip some new assholes on some RNC dickheads. The sooner the better! And if they want to play more he can make their lives miserable with no shortage of investigations.

[pseudonymous in nc]

It departs from polite a few times, especially at the RNC's refusal even to meet with Committee staff until they accept the 'search term' principle:

The Committee staff reasonably requested a meeting tomorrow to discuss these issues, but this request was uffeasonably rejected. In fact, the RNC counsel stated that no meeting would occur until the Committee agreed to limiting search terms. This is not an acceptable proposal.

In short, 'no, fuck you.' And requesting raw numbers and details of accounts is very very smart. I suspect he'll get the latter, but they'll balk at the former. And he won't get the RNC-to-.gov details without a fight. But I think that's a fight he'll win, because of the Presidential Records Act.

[Neil]

This snip from Froomkin today link reminded me of the point you emphasize in Anatomy of Deceit.

Charlie Savage of the Boston Globe won the Pulitzer Prize for National Reporting yesterday, "for his revelations that President Bush often used 'signing statements' to assert his controversial right to bypass provisions of new laws."

The stories that won Savage his prize are certainly familiar to White House Watch readers -- and yet worth rereading.

And here's a question White House correspondents should be asking themselves today: How did an investigative reporter at a regional newspaper end up winning an award on their beat?

According to Globe Editor Martin Baron, the answer is: "What Charlie does and the reason he won this richly deserved Pulitzer is because he covered what the White House does, not just what it says."

Another thing to keep in mind: For entirely too long, Savage was a one-man band on this important national story.

[hauksdottir]

The RNC probably doesn't know what is written in those emails... or what is attached, blind-copied, deleted, etc.. They almost certainly don't want to know. Even curiosity isn't enough of a lever to persuade most people to join a criminal conspiracy and cover-up. Money and power, yes; intellectual curiosity, no.

Email accounts are almost always guarded by a password. This is often hackable if you know anything about the person. I doubt if this crew encrypted anything, even official government stuff. But suppose that you are the sysadmin, and reading these archived messages is as easy as opening the Sunday paper... do you really want to read, "X said that Y wants Z replaced before that indictment comes up" which would involve a conspiracy among four powerful people to obstruct justice? What do you do? If you say nothing, you're guilty of aiding a conspiracy.

Better to claim that the files are lost, and hope it all goes away, than to make any effort to find and organize them. Broken photocopiers and flat tires have already been used, Electro versus Magneto was suggested by the other guys, so that won't work... hmmm... sunspots? neutrinos? Can't the physicists find a rare particle that only attacks data stored under a pyramid... and the skylight just happens to be pyramid-shaped? How about floodwaters and a fallen power pole? There are all sorts of excuses left to use if you are trying to delay document production!

And any left over can be given to Condi's team. :)

[Nan]

For the last several weeks, I have been curious about the route of e-mail traffic sent via BlackBerries and whether Congressional investigators have talked to Research In Motion Ltd.

In an article about this week's e-mail disruption in today's paper, the Globe & Mail identifies the route all e-mail messages sent via BlackBerries take:

Blackout berry

Research In Motion Ltd.'s system failure disrupted e-mail service across North America through to yesterday morning.

1. Normally, a user sends a message from their BlackBerry through their employer's local mail server.

2. The message travels to the nearest cell site, and then heads for RIM's network operation centre (NOC). This is likely where the breakdown occurred. The NOC records the message and sends it to the sender's mail folder

3. Ordinarily, RIM's network operations centre picks up the message, encrypts and "pushes" it over cellular network to recipient's handset

Ground zero

RIM's network operation centre is located at RIM's headquarters in Waterloo, Ont. It's a secret facility that Carmi Levy, an analyst with InfoTech Research Group, describes as "a giant messaging traffic cop." It houses high-capacity servers that are subject to the usual temperature and environmental controls, in addition to massive security. Mr. Levy said the outage likely occurred as the operation centre's router broke down. But the messages were still waiting in the NOC and began crawling out as service was restored.

The Globe & Mail article also mentions the SEC investigation RIM executives have been dealing with:

Nevertheless, the outage was an unwanted headache for RIM executives, who already have other worries. While business is booming -- the Waterloo, Ont.-based company added another 1.02 million BlackBerry users in the most recent quarter -- its accounting is the target of a U.S. regulatory probe.

The U.S. Securities and Exchange Commission recently launched a formal investigation into how RIM awarded stock options to its employees.

RIM said last month it would have to restate results by $250-million (U.S.) because of bookkeeping errors related to the stock option grants. At the time, RIM made several changes to its board, including the resignation of co-CEO Jim Balsillie as chairman.

But those woes shifted to the back burner yesterday as RIM's executive team had their hands full getting the BlackBerry network up and running for their more than five million North American customers. The interruption started after 8 p.m. EDT Tuesday.

Globe & Mail article on RIM

[blacksheep, Pope County, Ar.]

Wonder how long it took to actually do the hardware switch to ensure that there were no messages on the servers from or to members of the administration that are suspected of dirty deeds?

[Jodi]

We call it a "Gold Level Restore."

1. A lowlevel format of all drives.
2. Load the new software.
3. Boot.

Look it is a brand new day starting off from scratch.

[Darclay]

Thanks for the hard work "EmptyWheel!
Can't they use the patriot act to seize the servers, certainly seem like it could to me.

[Maalox]

Anyone that doesn't perceive this as a textbook obfuscation is either:

a)sniffing too much spray paint
b)blinded by the majesty of king george
c)a cup of coffee short of clarity

This is just part of the Potomic Two-Step