The Case of Patrick Fitzgerald and the Missing Emails

by emptywheel

Going on weeks now, I've been inundated with questions about whether Fitzgerald knew about the GWB43.com server. If so, what can he teach Waxman, Conyers, and Leahy about its use? If not, does that mean Fitzgerald has received enough new information that the CIA Leak case will re-enter an active phase? Over two weeks ago, I wrote Fitzgerald's spokesperson to see if he could offer any enlightenment--and I got a classic non-answer in return, "there's no public record basis for me to comment so I have to decline." So what follows is my best understanding of the recent evidence that has come to light--as well as the evidence already available. Much of this is speculative--but it ought to lay out at least the overall chronology involved.

Looking back, it seems like from day one, at least one journalist covering this story suspected something was up. On October 7--the day the WH was first told to turn over materials--the reporter asked whether employees were obliged to turn over emails they had already deleted. Watch how McClellan immediately emphasizes that employees are only obliged to turn over materials "in the posession" of the White House.

Q    No, I understand that.  I'm just saying how would this work? Let's say I remember -- I'm an official, I remember sending some email about this, but I've long since deleted it.  How --

[snip]

Q    I just want to be clear, though, the White House is obligated to provide emails that may have been deleted by the individual but are still archived by the White House --

MR. McCLELLAN:  Look back -- it said what is in the possession of, I believe, in the White House, the employees and staff.

That sure sounds like the dodge of a spokesperson who is well aware of the way the RNC server is used, not to mention aware that a lot of sensitive emails reside on it. And not only did that first document request limit itself to items in the possession of the White House, but it was a request, not a subpoena. It wasn't until 2004 when those documents were formally subpoenaed. Keep in mind, by the time that formal subpoena went out in January 2004, BushCo had had the initial 11-hour gap between the time when Ashcroft informed Alberto Gonzales and the time Gonzales informed the White House to retain all relevant records, and then three more months before actually being legally subpoenaed. Abundant time to do a great deal of deleting.

It's clear that Fitzgerald was supicious about the lack of emails from key participants in Plame's outing early on in the investigation. He asked Libby about it specifically in his March 24 testimony.

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

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

But it wasn't until seven months after Fitzgerald started investigating--and at precisely the time he started getting journalists' testimony--that the RNC claims it stopped  its automatic destruction policy on White House email.

Mr. Kelner said that as a result of unspecified legal inquiries, a "hold" was placed on this e-mail destruction policy for the accounts of White House officials in August 2004.

Frankly, I'm not convinced that this hold is a response to the Plame investigation. It just as likely relates to the Abramoff investigation, which started in March 2004 with the cooperation of people--like Abramoff and Michael Scanlon--who knew about the RNC server. The Senate Indian Affairs Committee, led by Republican John McCain, issued its first subpoenas in June 2004. And we know SIAC and FBI got Susan Ralston's emails that were sent from the RNC servers--they had been printed off (from Abramoff's computer, apparently) in May 2004. If it were the Abramoff investigation--and not Fitzgerald's--it would explain why Rove would continue blithely deleting his own emails as if nothing had happened.

So it may not have been until October 2004 that Fitzgerald first discovered why there were missing emails. Hubris states that Rove first turned over his email to Hadley when he testified on October 14, 2004.

...on this day [Rove] turned over what he claimed was a recently discovered copy of the July 11, 2003, e-mail he had sent to Deputy National Security Adviser Stephen Hadley. (377)

And it describes Luskin (who can't be trusted as far as I can spit, which since I'm a lady, isn't very far) as discovering the email in October 2004.

Rove's office had given Luskin a folder full of e-mails that included the one Rove had sent to Hadley. But Luskin hadn't noticed the important Hadley e-mail until October 2004, just before Rove was about to go back to the grand jury for the third time. (402)

We honestly don't know whether the email had been turned over in original discovery (though I doubt it--otherwise, Fitzgerald probably wouldn't have agreed to limit Cooper's testimony to his conversation with Libby in August 2004). If not, October 2004 may have been Fitzgerald's first indication (besides the absence of any emails from Libby) that key emails hadn't been turned over. (Incidentally, Marc Grossman testified at the Libby trial that he discovered--and told the FBI in Fall 2003--that State Department emails are destroyed after 3 months, which is why he was unable to pin down when he had emailed Walter Kansteiner and Armitage about Libby's inquiries into Wilson. So Fitzgerald probably already had questions about suspect document retention policies.)

And frankly, I suspect it wasn't until October 2005 that Fitzgerald learned the full extent of the email gaps. We know, for example, that Fitzgerald didn't start questioning why Cooper didn't appear in the phone logs of the White House until after Cooper testified in July 2005, after which Fitzgerald interviewed Susan Ralston. By the same logic, he may not have investigated why he didn't get the email until that time. Reports claimed that Luskin offered his first explanation to Fitzgerald for the discovery--then delay--of the email in the days just before the October 2005 indictments, when Luskin first raised his conversations with Viveca Novak. This timing might explain why the Office of Administration would "discover"  in October 2005 that it wasn't archiving all emails properly.

According to CREW's sources, in October 2005, the Office of Administration ("OA") discovered a problem with this email retention process. The OA undertook a detailed analysis of the issue, which revealed that between March 2003 and October 2005, there were hundreds of days in which emails were missing for one or more of the EOP components subject to PRA. The OA estimated that roughly over five million email messages were missing.

In other words, the discovery may well have resulted from Fitzgerald's inquiries about why he didn't receive the Rove-Hadley email.

But I also think that Fitzgerald discovered GWB43.com in October 2005. In addition to hearing Luskin's story about Viveca Novak, after all, we also know that Peter Zeidenberg interviewed Adam Levine just before the indictment, ostensibly because Levine first emailed, then talked to Rove about something just before Rove left for vacation. Not only does this suggest Fitzgerald had two emails from July 11, 2003 from Rove. But Levine has been one of the more forthcoming sources on the email policies and Plame leaking of the Bush Administration. (See him, for example, serving as a named source for this Tom Hamburger article.) In other words, Fitzgerald's team was probably talking about emails with someone who has (recently at least) gone on the record about the parallel email policy.

Plus, that timing would explain why the RNC--and not just the OA--would change its email policy  in 2005.

Mr. Kelner also explained that starting in 2005, the RNC began to treat Mr. Rove's e-mails in a special fashion. At some point in 2005, the RNC commenced an authomatic archive policy for Mr. Rove, but not for any other White House officials. According to Mr. Kelner, this archive policy removed Mr. Rove's ability to personally delete his e-mails from the RNC server.

If Fitzgerald in fact pursued Rove's RNC emails in October 2005, then they likely told him precisely what they're now telling Waxman:

Although White House officials had used RNC e-mail accounts since 2001, the RNC has apparently destroyed all e-mail records from White House officials from 2001, 2002, and 2003.

And if Fitzgerald really did know about the RNC emails in October 2005, then presumably the FBI has already tried some forensic investigation of the damn thing--after all, this was criminal investigation that the Bush Administration--at least publicly--claimed to support fully.

In other words, the RNC may have done a better job of destroying Rove's tracks than we've assumed so far (though I assume no one has yet seized the servers to try some industrial-strength forensics on it.)

In any case, let's assume that Fitzgerald started hunting down the missing emails in October. He then learns, around about January 2006, that some emails were recovered:

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

Let me unpack this passage for a second. First, in January 2006, Fitzgerald doesn't appear to have the emails yet--he just knows they weren't archived properly. And the reason resembles the CREW explanation--that someone was simply eliminating entire days of emails from the archive--more than it does the GWB43.com explanation. This passage references emails from both OVP and EOP, so it would include Rove and Libby emails (plus their surrogates, like Cathie Martin and Jenny Mayfield and Susan Ralston). Also, at this point, it is unclear whether Fitzgerald believed he'd ever get the emails.

Those missing emails next show up in the February 28, 2006 hearing, when Bill Jeffress (who, having represented Nixon, knows well how bad it looks when your client's emails disappear) describes  what happened to them:

I may say we are also told that there are an additional approximately 250 pages of documents that are emails from the office of the vice president. Your Honor, may recall that in earlier filings it was represented or alluded to that certain e-mails had not been preserved in the White House. That turns out not to be true. There were some e-mails that weren't archived in the normal process but the office of the vice president or the office of administration I guess it is has been able to recover those e-mails. Gave those to special counsel I think only on February 6 and those again are going to be produced to us.

So these emails--at least the ones turned over to Fitzgerald on February 6, 2006, at least so far as we can trust Jeffress--are the ones CREW describes, entire days worth of emails that got deleted. And that, as far as we know, is what Fitzgerald went to trial with, 250 pages of OVP emails recovered from organized email deletions, but not--at least as far as descriptions suggest--the emails archived on RNC servers.

Nevertheless, Fitzgerald is still obviously suspicious about emails. At the trial Fitzgerald asked Judy about whether or not she communicated with Libby via email. Never, she responded. It's not a question he asked other people (for example, he didn't ask Woodward how he "sent over" the questions he wanted to ask Cheney). So I assume that, even as recently as January of this year, either Judy was lying about the emails and Fitzgerald knew about it--or he suspected there had been emails, but couldn't prove it.

So what does that mean for my original questions? Did Fitzgerald know about the emails? I think he did, having learned about the emails from Adam Levine, though I think the 250 missing email pages came from the deleted WH emails. So does the discussion of the missing emails impact Fitzgerald's case in any way? I don't know. It seems that, at the very least, this confusion offers Waxman (or Conyers) an opportunity to renew his request to talk to Fitzgerald, at least about the limited scope of the email evidence turned over. And possibly, if Fitzgerald didn't get to do the full forensic analysis of the GWB43 servers he might have liked to do in December 2005, this would offer a great opportunity to do so. After all, Fred Fielding can't very well claim executive privilege prevents Fitzgerald from investigating the RNC servers, since BushCo has already turned over the crown jewels, the morning Vice Presidential Daily Briefings, so as to appear to be cooperating with Fitzgerald's investigation. So by having Fitzgerald seize the RNC servers, rather than Waxman do it, you do it under the aegis of an ongoing criminal investigation.

Update (Putting this here after I finished the above because I don't want Luskin to sully my nice post.)

Gold Bars Luskin!! How I've missed your parsing ways! Here's what Gold Bar has to say. Note the absence of any and all chronology in what Luskin says, presenting the illusion that Rove was cooperative from the start:

The prosecutor probing the Valerie Plame spy case saw and copied all of Rove's e-mails from his various accounts after searching Rove's laptop, his home computer, and the handheld computer devices he used for both the White House and Republican National Committee, Luskin said.

The prosecutor, Patrick Fitzgerald, subpoenaed the e-mails from the White House, the RNC and Bush's re-election campaign, he added.

[snip]

Rove voluntarily allowed investigators in the Plame case to review his laptop and copy the entire hard drive, from which investigators could have recovered even deleted e-mails, Luskin said.

As the investigation was winding down, Luskin said, prosecutors came to his office and reviewed all the documents -- including e-mails -- he had collected to be sure both sides a complete set.

Let me point out two things. First, even the RNC says it has no emails from 2001-2003. So what Luskin isn't telling you is that Fitzgerald would have had to reconstruct the emails--they weren't sitting there on a server. He may well also be telling you that he and Fitzgerald never got the most damning emails, which were destroyed before Luskin ever got hired. I'll have more in an upcoming post. In any case, those emails Luskin did share with Fitzgerald probably explain why Zeidenberg was chatting to Adam Levine in late October 2005.

Also, if you look at the document production file from the Libby trial, you see that Libby, at least, is never asked to provide his laptop so Fitzgerald can scan the whole thing. I'm just saying--it looks like Fitzgerald may have looked more closely at Rove's hard drive than he did at Libby's.

In short, Luskin is just doing what he does best--parsing to present the illusion that his client is innocent.

Update 2

Geez. Nothing like updating a post twice before you post it. CREW has called for Fitzgerald to reopen his investigation into Rove. I don't think that particular request will go anywhere. After all, as Fitzgerald explained in his post-verdict press conference, the investigation is still open. It's just inactive until such time as Fitzgerald gets new evidence. From the looks of things, Fitzgerald knew all of the things CREW cites in its press release as new evidence--none of it is new to him. I think it more likely that Congress could call on Fitzgerald to share what he knows--and perhaps to subpoena the servers himself--than that the investigation itself will move forward solely on the basis of recent revelations. (FWIW, for a number of reasons I suspect that Fitzgerald hit a wall investigating the cover-up, including the email deletions, which was probably only indirectly Rove.)

Comments

[William Ockham]

I figured you had a post on this in the works. I'm still going through the massive document dump from today, but I think the most promising part of this is that it gives Waxman and/or Conyers a good reason to request some info from Patrick Fitzgerald.

[orionATL]

damn this is impressive.

and a good road guide to an issue that just will not die.

the u.s. attny fixing is more important to the nation, but the plame vindictiveness may yet be the overreaching that sinks the ss bush (at least that would be a more satisfying script),

simply because it is an open investigation that can be activated on reasonable suspicion(?) and might then provide a way to get access to white house/rnc documents.

i cannot imagine bush letting gonzales resign under this scenario.

the incoming attny gen would have to be a reasonably upstanding person to meet public expectations

and he would not likely keep fitzgerald tethered

or refuse to help the congress in its oversight investigations.

if i were karl rove, i would be getting really nervous about now.

wonder if he has a passport.

[SaltinWound]

The stance Fielding is taking about all requests for RNC emails having to go through the White House suggests to me that they may have already done the forensics and have some emails, perhaps in the context of one of these investigations. Maybe they've even turned certain material over to specific prosecutors, including Fitzgerald. And now they have to negotiate the whole thing all over again.

[notjonathon]

Your contributions here should be required reading for the Congress. Still on the first cup of coffee (JST), so I'm not yet ready to think. Just keep up your own great forensic work.

[mainsailset]

From NYT this morning the discussion that Rove utilized 3 accounts: WH, RNC & 'a private domain registered to the political consulting company he once owned'

http://www.nytimes.com/2007/04/13/washington/13emails.html?ref=politics

[emptywheel]

notjonathan

Are you travelling, or are you always in JST?

[freepatriot]

yo, emptywheel

thanks for the fix

an anonomous plameologist

[Isbister]

Let me begin by saying that I think Luskin would make a great bushie too (a creative "truth" teller).

Luskin was asked questions about the whole can of worms being opened up on Rove again over Plame because of the news about Rove's shady emailing. He answered, Oh no my guy co-operated fully, volunteered of all of his hard drives so Fitz and the FBI could make images in the summer of '04 (August, perhaps).

Now, Fitz and his team's having copies of Rove's drives bring a few questions/thoughts to mind (in no particular order):

1) Fitz was looking for info pertaining to his investigation, not USA firings, Hatch Act violations, election fraud, Iraq, blah, blah, blah. Would Fitz have expanded his investigation if he ran across a Hatch Act violation (for example)? One would assume he might but maybe he found pieces of the puzzle(s) we're seeing in today's light... nothing overtly criminal in '04/'05.

2) Did Fitz find info about the plan to fire all USA's in order to get at a select few or did that plan come about because of what Fitz was finding?

3) Did Fitz find any USA info related to his own self?

4) If Karl can share all of his privileged information with various non-governmental IT departments, Fitz, the FBI, and whomever else turns up over the upcoming weeks/months... why is it so difficult to share with the people's representatives in Congress?

5) Did Congress hear Luskin tell them that somebody's got copies of Rove's hard drives from the summer of '04? (And if they get a copy, can we have one too?)

[Isbister]

Let me begin by saying that I think Luskin would make a great bushie too (a creative "truth" teller).

Luskin was asked questions about the whole can of worms being opened up on Rove again over Plame because of the news about Rove's shady emailing. He answered, Oh no my guy co-operated fully, volunteered of all of his hard drives so Fitz and the FBI could make images in the summer of '04 (August, perhaps).

Now, Fitz and his team's having copies of Rove's drives bring a few questions/thoughts to mind (in no particular order):

1) Fitz was looking for info pertaining to his investigation, not USA firings, Hatch Act violations, election fraud, Iraq, blah, blah, blah. Would Fitz have expanded his investigation if he ran across a Hatch Act violation (for example)? One would assume he might but maybe he found pieces of the puzzle(s) we're seeing in today's light... nothing overtly criminal in '04/'05.

2) Did Fitz find info about the plan to fire all USA's in order to get at a select few or did that plan come about because of what Fitz was finding?

3) Did Fitz find any USA info related to his own self?

4) If Karl can share all of his privileged information with various non-governmental IT departments, Fitz, the FBI, and whomever else turns up over the upcoming weeks/months... why is it so difficult to share with the people's representatives in Congress?

5) Did Congress hear Luskin tell them that somebody's got copies of Rove's hard drives from the summer of '04? (And if they get a copy, can we have one too?)

[emptywheel]

Isbister

1) No, Fitz wouldn't expand hsi investigation. He was asked similar questions over the course of his investigation, and every time he said he would not.

2)That plan came about because of what Fitz was finding (and what Lam and Chiara was finding). But what Fitz was finding had more to do with Plame.

3) Fitz didn't need to. At the same time as he got ROve's computer, BushCo was floating firing him, because his term had expired. He knew they wanted to get rid of him.

4) Yup--that's a point I was trying to make with the post.

5) Perhaps. I do think Luskin's blabbing was about protecting Karl. But it wouldn't be the first time his blabbing got Karl in trouble (remember, it was his comment that gave Cooper an opening to testify).

[pseudonymous in nc]

The stance Fielding is taking about all requests for RNC emails having to go through the White House suggests to me that they may have already done the forensics and have some emails, perhaps in the context of one of these investigations.

Perhaps, but I think that Fielding's greatest concern is to 'bless' the RNC-mails with the magic pixie dust of executive privilege.

[lukery]

ew - if notjonathon doesn't get back to your question here, he is permanently in jst.

[anonymous]

Thanks. You are posted here, a thread with numerous links to articles on this issue:

Email-Gate FACTS: Felons, georgewbush.com, gwb43.com , et. al.
http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x523978

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