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In addition to denying any problems existed, White House officials failed to respond to mounting inquiries and was seen as stalling when requested to provide information. As one official from the National Archives wrote in an October 2007 email:
"The Office of Administration through whom we are attempting to gain detailed technical information has been extremely guarded in their responses, and all communication has been conducted under a patina of legal caution. Whenever we solicit specific technical information, they reply for the most part that they are still in the process of conducting inventories."
Meanwhile, a number of organizations took legal action to ensure that emails weren't destroyed.
On September 5, the National Security Archive sued the White House seeking the recovery and preservation of e-mail messages.
"The Bush White House broke the law and erased our history by deleting those e-mail messages," National Security Archive director Tom Blanton said at the time. "The period of the missing email starts with the invasion of Iraq and runs through the aftermath of Hurricane Katrina."
Added general counsel Meredith Fuchs said, "Without court oversight, there's no guarantee the White House will ever recover the missing e-mails or install an effective archiving system."
Soon after, the Watchdog group Citizens for Responsibility and Ethics (CREW) launched a similar suit, seeking not only to retrieve the missing emails, but charging that in the wake of the scandals involving lobbyist Jack Abramoff and eight fired U.S. attorneys, emails had been release showing that senior members of the Administration used Republican National Committee (RNC) email accounts to conduct official business.
"During the revelations about the role of the White House in the firing of eight U.S. Attorneys, it became clear that the actual practices of at least some high level officials violate this purported policy," CREW said in its "Without a Trace" report, meaning that EOP officials shouldn't use outside email accounts for official business in accordance with Hatch Act, which prohibits government officials from using official resources for political purposes. "For example, [former presidential advisor] Karl Rove reportedly uses an outside email account maintained by the Republican National Committee (RNC) for about 95 percent of his email."
"There are two White House email issues," CREW's general counsel Anne Weismann told CIOZone. "One is the missing emails. The other is the purposeful use by top officials of RNC email accounts to avoid creating an official record."
Rove could not be reached to respond to CREW's charges.
Meanwhile, the White House contends that officials used the RNC accounts to avoid violating the Hatch Act. As a result, author David Gewirtz notes, EOP has been employing two email domains, EOP.GOV for official business and GWB43. com for political purposes. GWB43 is hosted by Smartech.corp.net, a small Internet services company located in Chattanooga, Tenn.
In June 2007, the majority staff of the Oversight Committee issued an interim report of the investigation into the use of the RNC e-mail accounts by White House officials. The report found that more than 88 senior people including Karl Rove and Andrew Card, former White House Chief of Staff, had email accounts maintained by the RNC or the Bush Cheney '04 campaign. "In some cases White House personnel used RNC accounts almost exclusively," the Oversight Committee stated in a February 26, 2008, memorandum.
The memorandum went on to note that the RNC deleted most of these emails after 30 days. "One indication of the scale of the loss of White House email is the fact that the RNC has retained no email messages for 51 of the 88 White House officials with RNC accounts," the report continued.
"The case of Mr. Rove provides an example of the extent of the missing email. The RNC preserved only 130 emails sent by Mr. Rove prior to November 2003, and it preserved no emails sent to Mr. Rove during President Bush's first term. For the period RNC does have records, however, Mr. Rove was a prolific user of his RNC email account. In 2007, Rove frequently sent more than 100 emails per day and received over 200 emails."
This widespread deletion of electronic records, White House critics say is Watergate redux. In its "Without a Trace" report, Melanie Sloan, CREW's executive director, asserts:
"It's clear that the White House has been willfully violating the law, the only question now is to what extent? The ever changing excuses offered by the administration - that they didn't want to violate the Hatch Act, that staff wasn't clear on the law - are patently ridiculous. Very convenient that embarrassing - and potentially incriminating - emails have gone missing. It's the Nixon White House all over again."
Others like the former White House IT official who spoke on the condition of anonymity, disagree with this assessment. "This has been nothing but a series of hiccups and not a conspiracy," he maintains.
To date the Oversight Committee's investigation into the missing emails appear to have been largely blocked by a lack of cooperation from senior White House officials. "The White House appears to have produced only a small percentage of the documents that it believes to be responsive to the request," the Oversight Committee noted on February 26. "In addition, the White House is withholding without an assertion of Executive Privilege, an unknown number of documents that are described as being deliberate."
In a separate action from the suit it filed to retrieve missing e-mails, CREW filed a Freedom of Information Act Request to get the missing messages. To date CREW has yet to receive a single document from OA based on FOIA request, which made on March 29, 2007. This despite that fact that OA agreed to expedite CREW's request the following month. Then on June 16, U.S. District Court Judge Colleen Kollar-Kotelly ruled that the Office of Administration "is not an agency subject to the FOIA" and granted the government's motion to dismiss CREW's request.
The CREW/National Security archives suits, which have been conjoined, haven't fared much better.
On March 18, 2008, Magistrate Judge John Facciola, hearing the suits in the United States District Court for the District of Columbia, ordered EOP to show cause why it should not be required to make forensic copies of all computer hard drives and other storage media in the White House system including costs and burden of the copying process. Three days later Theresa Payton responded that most computers from the contested period had been replaced or -- if still in service would be difficult to track down. She also reveled that White House standard procedure included wiping out or destroying information on hard drives prior to decommissioning them or reissuing them to new staff.
The White House also claimed that it couldn't keep track of old hard drives because asset management for computer parts wasn't invented until sometime after 2005. Actually, author David Gewirtz notes that asset management for computer parts has been around since the early 1980s, and possibly earlier.
As for those hard drives that hadn't been destroyed, it would be extremely costly and time consuming for the White House to institute an email retrieval program that entailed pulling data off each individual work station, the White House said in a sworn declaration filed with Judge Facciola. The judge subsequently ordered EOP to provide more precise information about the costs of forensic copying to preserve emails.
Payton later confessed that the White House had no computer back-up tapes with data written before May 23, 2003, and that it couldn't track the history of individual hard drives within the White House system that might contain emails.
On July 29, Judge Facciola denied an EOP's motion to reconsider and upheld previous recommendations that the court order EOP to search and preserve e-mails from individual workstations and portable media but declined to order forensic copying of all relevant workstations. In other words, the White House didn't have to use forensic copying, or imaging, to and retrieve missing emails, thereby saving the taxpayers hundreds of thousands of dollars. Facciola noted in his decision that the use of forensic imaging to retrieve lost emails could run as much as $545,000 and take up to 1,600 hours.
"Time is running out," says Meredith Fuchs of The National Security Archive. "We have to do something now. Once the people in the White House dispense, the systems are taken out and the files are handed over to NARA. Their people aren't going to know how to analyze what's in them."
After January 2009, when a new president enters the White House, those files will begin gathering dust for 12 years in the National Archives. By the time they become public again, the brouhaha over missing emails will likely have long since been forgotten by everyone save, perhaps, a few historians who will be confronted with the daunting task of reconstructing a puzzle, the pieces of which may largely be lost or destroyed.
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