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SPECIAL REPORT
The White House email controversy: it's time for a Special Prosecutor
By David Gewirtz
These have not been good weeks in our cause to repair the systemic problems with White House email.
This week, we have a judge who's directing the White House to look in many of the wrong places. We have a White House CIO who claims that asset management is a new invention, so it's tough to keep track of those pesky hard drives.
We also have a White House who can't account for any email messages at all during the months of the initial Iraq invasion. And we have a Congress who's decided we don't need any real form of email records management for another four years.
"Fundamentally, the House Committee on Oversight and Government Reform has given the next administration, regardless of who's in office, a complete and total pass on making any change to their email record keeping practices."
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As I've been stating for nearly a year now, White House email is broken. Last week, with the Mexican theft of White House BlackBerrys, one of my more farfetched predictions came true in a very troubling way.
Sadly, neither elected nor appointed officials in Washington are making the situation any better. In fact, it's getting worse. I've reached the conclusion that it's time to call for a Special Prosecutor. We now have official White House statements that federal laws are being broken, and I don't see any way for this to be resolved without escalation.
April 24 Order to Show Cause
On April 24, 2008, United States Magistrate Judge John M. Facciola turned down the White House's claim that doing some form of forensic imaging to recover missing email messages would exceed the "jurisdictional bounds of the FRA [Federal Records Act]" or "alter the status quo".
In his April 24 Order to Show Cause, Magistrate Judge Facciola stated the White House's response lacked "precision" and ordered the Executive Office of the President (EOP) to "Response with more precise information concerning the costs of the proposed preservation order" and to answer a series of questions:
How many current EOP employees were employed at any time between March 2003 and October 2005?
How many hard drives are in the possession or custody of EOP that were in use between March 2003 and October 2005?
To resolve any ambiguities once and for all, EOP is ordered to inform the Court on or before May 5, 2008, whether all back-up tapes created between March 2003 and October 2003 have been preserved -- and, to the extent that they have not, to state the specific dates within that period for which no back-up tapes exist.
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