No Wonder Fitzgerald Never Officially Closed His Investigation

There were actually a number of notable revelations in today’s oversight hearing on the missing emails, supplemented by the report released by the committee. For example, the hearing made it clear that the National Archives has been trying to get some answers about where the missing emails went since May 2007, to no avail. And that even as late as fall 2006–a year after the White House had discovered the missing emails–the White House did not reveal the missing emails to the National Archives.

Similarly, the hearing revealed that as of yesterday, the White House has done nothing to start retrieving the missing RNC emails.

Most alarming, though, are two details that may explain why Fitzgerald never formally closed his investigation. It’s still not clear he has all the missing emails.

First, the hearing and the report revealed that until 2005, the email "archives" were available to anyone within EOP.

Until mid-2005, the system that the White House used for preserving e-mails had serious security flaws. According to Mr. McDevitt, "ln mid-2005 … a critical security issue was identified and corrected. During this period it was discovered that the file servers and the file directories used to store the retained email … were accessible by everyone on the EOP network." Mr. McDevitt informed the Committee that the "potential impact" of this security flaw was that there was "[n]o verification that data retained has not been modified."

To understand why this is important, consider the famous Rove-Hadley email recording Matt Cooper’s call. The email said,

Matt Cooper called to give me a heads-up that he’s got a welfare reform story coming, When he finished his brief heads-up he immediately launched into Niger. Isn’t this damaging? Hasn’t the president been hurt? I didn’t take the bait, but I said if I were him I wouldn’t get Time far out in front on this.

The email has been puzzling on two levels. First, why wasn’t it discovered? Since the trial, there are some potential explanations for this, not least that the White House may have searched on "Matthew Cooper" and "Joe Wilson" but not "Matt Cooper." We also know that Rove had email in a bunch of different locations, including the RNC servers. And that at least Jenny Mayfield left all official email discovery to the central search, ensuring the emails would not be found if the archives were incomplete for a given day; the same may be possible for Rove. In other words, we can explain why the email wasn’t found, though that’s not to say the fact that the email was not discovered is above suspicion.

But then there’s something suspicious about the content of the email–Rove suggests that Cooper called to talk about welfare reform, not Wilson. Given the notes back and forth between Cooper and Cathie Martin, it seems clear that Cooper was calling OVP solely about Wilson (though he may have started asking those questions after speaking with Rove–he had definitely talked to Cathie Martin once before 12:45 on July 11, and seems to have emailed someone already with questions, but he spoke to Rove around 11:00). I’ve always suspected that Rove may have added that detail later, knowing that Cooper based a September 2003 welfare reform article on a later conversation, as a way to explain why Rove wouldn’t have remembered that Cooper called about Wilson. Here’s the option I thought most likely to explain the content of the email, long before a lot of additional details became available.

The third method is to alter the content of the email at least once, to create an email that fit the search terms you know to have used, while still spinning the story like you’d want. This method probably requires the help of more people (some crack IT people). And it risks the same danger of discovery as the first option (why wasn’t this found on a Cooper search?), plus the discovery of the altered data. But it might shift the time when the first discovery might happen. That is, if the FBI didn’t find this email on its search, then it would offer the WH search some cover."Well, the FBI didn’t find it when they looked for Cooper’s name either, so it’s probably just something funky with the email."

How shocking to learn, then, that until 2005 (at least according to Steven McDevitt, then in charge of this process), altering an email after the fact would have been very easy to accomplish. Anyone on the EOP network had access to that email, and there’s no way of knowing whether it was tampered with or not.

And then there’s one more revelation that really raises questions of whether Fitzgerald could determine whether there was any funny business with the emails.

The difficulties the White House encountered in recovering e-mails for Special Counsel Patrick Fitzgerald also undermine its claim that the journaling system was adequate. According to documents provided and shown to the Committee, the journaling archive system contained no e-mails from the Office of the Vice President for important dates: September 30, 2003, to October 6,2003. In an effort to recover the e-mails, the White House restored backup tapes for these days. These backup tapes also contained no journaled e-mails or .pst files for those dates for the Office of the Vice President. The only e-mails that could be recovered and provided to the Special Counsel were e-mails that the White House was able to restore from the personal e-mail accounts of officials in the Vice President’s office.

Just for kicks, here’s a longer explanation of it.

According to this document, even after restoring backup tapes, the White House team
was unable to find any joumal files or .pst files for the Vice President’s office during this period.
The team’s first effort involved restoring from the backup tape o’the file servers that were used to store .pst filed during the target period." This search uncovered "no messages … that filled the gap." The team next restored from the backup tape the "server that contained the joumal mailboxes for the target period." According to the document, the Journal mailboxes were examined and no messages for the target period were present in the journal mailbox."83 The team then restored from the backup tape the personal mailboxes of officials in the Vice President’s office and recovered messages from 70 individual users.

According to a document dated just four days later that was shown to Committee staff, but not provided to them, the White House team recovercd 17,956 e-mails from these individual mailboxes on the backup tape and used these as their basis to search for e-mails responsive to the Special Counsel’s request. A restoration of personal mailboxes from a backup tape does not recover any e-mails deleted by the user before the backup tape was made. The fact that the White House could not find .pst files or joumal files on backup tapes from this time period raises questions about the likelihood that these files will be found during the current search.

As far as I understand it (tech wizards, please correct me) this means there was no way to cross-check whether or not the email search had found all the responsive emails. As McDevitt explained,

Mr. McDevitt also warned that without a "mechanism to reconcile against what was originally retained by the system," it was impossible to be sure "that all records are retained in their complete and unmodified state."

Given that Patrick Fitzgerald was still getting Judy Miller on the record as to whether or not she exchanged emails with Scooter Libby during the trial,

Fitzgerald: Did you ever contact Mr. Libby by e-mail?

Miller: No. I did not.

Fitzgerald: Why not?

Miller: I don’t believe I had Mr. Libby’s e-mail because I don’t believe he ever gave it to me.

I rather suspect Fitzgerald has his doubts about whether or not he had really received all the OVP emails (and note–Judy may well have emailed via Jenny Mayfield…)

But given the absence of any log for OVP email, Fitzgerald probably still has those doubts.

No wonder Fitzgerald’s investigation technically remains open. As he has said, if new evidence comes available, the investigation may go active again. And the White House is still trying to reconstruct all its missing emails.

Though given Ms. Payton’s remarkably slow pace at reconstructing the missing emails, that might never happen, even if there were incriminating emails hidden in the bowels of the White House’s ridiculous archiving practices.

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73 replies
  1. ApacheTrout says:

    When does the pace of recovery and reconstruction become obstruction of justice? Why is Waxman tolerating this pace?

  2. skdadl says:

    “Inactive.” For almost a year, I have been thinking about that word. He emphasized it so interestingly in the press conference at the end of the trial.

    • ApacheTrout says:

      I’ve been puzzled by Fitzgerald’s acceptance that the emails were missing. Did I miss the part where he made significant attempts to get the missing emails, other than to just note that as a reason that he brought no additional charges?

      • MadDog says:

        I’ve been puzzled by Fitzgerald’s acceptance that the emails were missing. Did I miss the part where he made significant attempts to get the missing emails, other than to just note that as a reason that he brought no additional charges?

        I came to see Fitz as a person who chose his words, wery, wery carefully.

        And when he made mention of anything particular thing, it was pregnant with unspoken meaning.

        • ApacheTrout says:

          I had that same impression, but it’s been diminished by time and the lack of further action. I thought that the missing emails would have warranted an obstruction of justice charge. Perhaps Fitzgerald pursued this and couldn’t find enough evidence to support it, but I don’t recall this being discussed in detail.

          • MadDog says:

            I thought that the missing emails would have warranted an obstruction of justice charge.

            But against whom?

            I suppose we could find some luckless Techie (not me, puleeeeeeze, not me! *g*), but it would be hard to convict on the basis of:

            Q: Why didn’t you archive those emails?

            A: Duh…I forgot.

        • skdadl says:

          I’m just a member of the audience, so what do I know, but I had that feeling too about that press conference. That word, “inactive,” sounded to me like a nudge, not like acceptance at all (”closed” would have been acceptance), and there were other nudges. I leave it to the experts to say who was being nudged, but I assumed it was Congress.

          • bmaz says:

            I had this same discussion to some extent last night with Jeff. I, for a couple of reasons had more hopes than many that the investigation really was still open. Time has dulled that to a large extent.

  3. MadDog says:

    As far as I understand it (tech wizards, please correct me) this means there was no way to cross-check whether or not the email search had found all the responsive emails.

    You are absolutely correct!

    If the Journal don’t exist, searching in it ain’t gonna find anything.

    More simply put, if you have one, and only one, email that has the term “doofus” in it, and you delete that email or don’t journal it, you aren’t going to be successful searching emails for “doofus”.

  4. bmaz says:

    I am willing to send over some Krispy Kreme donuts and Red Bulls to get the DC effort up and going. I didn’t donate to the currently much ballyhooed and oh so discussed by the twittering chatting heads on TV, Clinton donut fund; so I am available. Just sayin…..

  5. pseudonymousinnc says:

    On the cross-checking issue:

    The only e-mails that could be recovered and provided to the Special Counsel were e-mails that the White House was able to restore from the personal e-mail accounts of officials in the Vice President’s office.

    I think this has been discussed before, with regard to PSTs and other Outlook fun, but if that meant that the messages were stored locally — i.e. on the actual physical hard drives of computers in the OVP — then they’re not going to be indexed for search. What came out of the last thread, I think, was that there was some attempt to do local journaling that was kludged into PSTs.

    But any non-automated system is just bullshit, because it’s subject to arbitrary problems that can be attributed to human error, deliberate tampering or buggy PSTs.

    The Clinton ARMS SNAFU, related to a failure of an automated backup system that messed up case-sensitivity, was large but systematic. That, at least, meant that there was a coherent way to address it.

    One thing about the internets is that you’ll find people who’ve handled Notes-LookOut migration in all kinds of setups. (Here’s a guy who handled the WH transition.) The response you get from people of all political stripes who look at it from a strictly technical point of view tends to be the same: it just defies all credibility.

    • emptywheel says:

      I think these must have come off the server, since Libby, Martin, and Mayfield were all gone, and their computers presumably wiped, by the time the emails were found in 2006.

      • sojourner says:

        Just as an aside (and considering the lack of best practices that this administration has not used), those PST files can be copied onto CDs or thumb drives. Meaning, Scooter has a copy of his own files, as does anyone else who needed to retain their personal information or files. The files were probably wiped, as you observed, when their computers were recycled.

    • MadDog says:

      In reply to both pseudonymousinnc and EW at 15, I gotta wonder just how one conducts a search for emails on a whole lotta of PSTs acting as supposed “journals”?

      The construction of the PSTs sounds like, as you indicated pseudonymousinnc, a massively manual kludge. And the search would be a similar massively manual kludge.

      For example, if there were 3,000 PSTs (the number of WH and Executive Office email users), and one only searched on a select few folks’ PSTs, you might miss many, many instances of emails on folks you didn’t search/suspect.

      I can’t imagine that they searched all 3,000 email accounts, so the success ratio is really dependent on knowing who all the complicit parties are.

      For example, if you never suspected Steven Hadley’s involvement, you’d never search his PST.

      So if they didn’t search all 3,000 email account PSTs (highly likely), who slipped through the cracks?

  6. ApacheTrout says:

    A luckless techie surely would operated on instructions from others. Wouldn’t there be a paper trail? Wouldn’t that luckless techie be a perfect person to flip with a bit of pressure?

    • MadDog says:

      A luckless techie surely would operated on instructions from others. Wouldn’t there be a paper trail? Wouldn’t that luckless techie be a perfect person to flip with a bit of pressure?

      And if that White House Staffer/contractor was hired from Regent U with the specific intent of being a loyal Bushie?

      I find it likely that this Administration came prepared to hide their nefarious doings, and what better way than to place a few, good Computer Sci grads of Regent U in positions of “trust”.

      “Hide the Ball!” was likely one of the operative mantras and strategies foremost in the minds of these folks as they took office.

      Deadeye knew, only too well from his front row seat in Watergate, that keeping secrets was essential to committing the crimes.

  7. Hmmm says:

    Kinda have to admire the craft, in a perversely-fascinating kind of way: Put the cover-up in place — in fact, institutionalize it — before the illegal acts themselves.

    • bobschacht says:

      Kinda have to admire the craft, in a perversely-fascinating kind of way: Put the cover-up in place — in fact, institutionalize it — before the illegal acts themselves.

      Which would, kinda, y’know, make the whole thing a criminal enterprise from start to finish?

      Did I miss something here? WHO authorized this bogus system in the first place? Names, please. And dates. And documents.

      Bob in HI

      • freepatriot says:

        WHO authorized this bogus system in the first place?

        that would have to be the deciderer, wouldn’t it ???

      • readerOfTeaLeaves says:

        Which would, kinda, y’know, make the whole thing a criminal enterprise from start to finish?

        Did I miss something here? WHO authorized this bogus system in the first place? Names, please. And dates. And documents.

        My, oh my. This extends their old trick of ‘Plausible Deniability’ to a whole new level, doesn’t it?

        Missing emails?
        Feature.
        Not a bug.

  8. WilliamOckham says:

    Just got back from spending the morning without internet access, so I’m trying to catch up on this morning’s events.

    The Oversight committee’s memo makes it pretty clear that individual EOP users maintained their own .pst files (in addition to the ones that were used for backup). I had figured that out already from some of the formatting idiosyncrasies noticeable in Libby trial exhibits. I have to admit, though, that I never imagined the official WH archiving system would include some IT dude has to remember to copy off the journals… Wow, just wow.

    • skdadl says:

      Recess for voting; they haven’t finished with the first panel yet. I’m beginning to wonder whether they’ll get to Fitzgerald.

      One interesting tidbit from answers to Linda Sanchez’s opening questions: as an example of how public faith could be corroded by Mukasey’s appointment of Durham, Barry Coburn mentioned discussion on the internet, and he specifically mentioned Salon (by which I assume he means Greenwald?).

      They’re just starting up again. Cannon’s turn.

      • selise says:

        thanks.

        anyone know if the capnews folks or anyone going to be there to get video?

        sorry to be so out of if, but was gone longer than i thought and all my systems shut down while i was out.

    • selise says:

      this morning’s HJC hearing (on voting rights) was surprisingly contentious (the parts i heard anyway)… did something change in the DC water? (i hope!)

    • nomolos says:

      Huh. Dickie Durban going up against Team W on WMD on the Senate floor.

      Durby is also asking “what more can we do for Iraq? We got rid of big baddy for them, we gave them dimocracy almost 400 american lives, what more can we do for them?” Jeeze dick we also killed over 1 million Iraqis have blown their country into hell and a handbasket.

      Argue against the bushies if you will but don’t blame the bloody Iraqis for this shit.

    • MadDog says:

      Btw, the McDevitt interrogatory is up now too–it’s probably particularly meaningful to Wo, PIN, and MadDog.

      When it rains, it pours!

      I’m in 7th Heaven today, and the boss can go…well maybe I will finish that task he assigned me. Certainly by tomorrow…or the next day. *g*

        • MadDog says:

          Actually, my comment at 35 should have read:

          I haven’t finished reading/devouring the other document. *g*

          So while I’ll peruse the second critter, a finer examination would require those reverse pages. Kinda hard to go from page 1 to page 3. *g*

          Ahhh…tis feast or famine, and I’m loosening my belt.

  9. earlofhuntingdon says:

    The attributes ascribed to the early Bush years e-mail system are simply not credible. It’s as if they intentionally dismantled routinely available features of an off-the-shelf system, like a “log” system and “administrator only” access levels.

    For such tech savvy players as Rove and Ken Mehlman, this could only be intentional, because credible, if slow, archival systems were readily available (eg. both tape and hard drive systems, including an real system prominently displayed on the film set of a Tom Clancy novel). Since 2000, these systems have become steadily more capable and searchable and cheaper-by-the-byte.

    If the descriptions of this system are accurate, it shows, at best, contempt for the White House’s legal obligation to archive all presidential records – using the term as broadly as would Cheney or Fielding when attempting to assert a claim of executive privilege. It’s a huge thumb in Congress’ eye. Will Congress pull it out or just wear an eye patch?

  10. SparklestheIguana says:

    Is Fitzgerald even there today? I didn’t see him wandering around the hearing room, and things are heating up on the Rezko front.

  11. BayStateLibrul says:

    Is Fitzy’s “inactive” analagous to Romney’s “suspended”
    Can’t some press guy ask Pat for an update.
    Mukasey must know the status… ask him?

    • FrankProbst says:

      Is Fitzy’s “inactive” analagous to Romney’s “suspended”
      Can’t some press guy ask Pat for an update.
      Mukasey must know the status… ask him?

      Are you kidding? The man doesn’t talk to the press. His “spokesman” has the easiest job in the world.

      • freepatriot says:

        Fitz’ spokesman has it easy ???

        what about kkkarl rove’s fact checker ???

        dick cheney’s doctor has it pretty easy too, considering that the man died 8 years back …

  12. Hmmm says:

    Huh. If any computer in the WH really could access any of the PSTs on any of the individual machines, then Dick’s multiple man-sized safes could, perhaps, contain whatever backups Team Dick considered necessary.

  13. SparklestheIguana says:

    Sanchez seems a flutter, patting her chest and blushing.

    I was thinking the same thing…..she’s caressing her clavicle in an unseemly manner. She should get a room. (By herself.)

  14. oldtree says:

    we can hope there is a patriot among these scum that actually copied the emails when they realized they would be destroyed, or were all ready being destroyed daily.

  15. Leen says:

    EW and all, I was unable to watch the hearing. Went to C-Span to find a link. Could not. Where do I find this hearing? Thanks

  16. freepatriot says:

    wanna hear a howler ???

    kkkarl has been invited to testify (hold it)

    Dana Jill Simpson says:

    “Since Karl Rove has said that and he feels so good saying that, what I want him to do is go and swear before the United States Congress and swear what he’s saying is true.”

    (laugh now)

    silly woman

    the last time kkkarl testified under oath it took FIVE ATTEMPTS to get his story straight

    It would make for GREAT television though …

    maybe Fitz, Ambassador Wilson, and a certain blogger we all love, could “sit in” with the committee (an you know, bring donuts, suggest a few questions that kinda thing …)

    what do you say guys, I’ve got an empty barn, and bmaz has a big sheet …

  17. pseudonymousinnc says:

    Looking at the McDevitt interrogatory, I’m just gobsmacked.

    PSTs have a 2GB file limit, which is an old legacy issue that I linked to in a previous thread. Before it was automated, it appears that the PSTs were created, labelled in an ad hoc way, and packed off. There were over 5,000 PSTs. That’s over 10TB, begging for some kind of proper database system for storage.

    I’m wondering if some of these losses were just on account of a fuckwitted backup process where the person doing the backup basically shrugs when it hits 2gigs. Or whether there’s file corruption, or whether… see, there’s no way to tell cock-up from conspiracy, it’s so utterly fucking slapdash.

    In reply to both pseudonymousinnc and EW at 15, I gotta wonder just how one conducts a search for emails on a whole lotta of PSTs acting as supposed “journals”?

    Page 14 of the McDevitt answers will just make anyone involved in this stuff roll their eyes. It talks about the slapdash labelling and PSTing, and goes on as follows (my emph):

    If my recollection is correct, at that time there were over 5,000 .pst files with an average size of
    approximately 2 Gigabytes. Since each of these files contained messages one or more days and
    since it was not possible to determine what days were included in any given file, we needed to
    determine a method to perform this analysis. Prior to this effort, Microsoft had provided the
    EOP with a custom software application for performing searches on .pst files. This tool was
    commonly referred to as the “Findlt” tool.

    Microsoft was contacted and was tasked to modify the Findlt tool so that it included the
    additional functionality of providing a message count for each day represented in a given .pst
    file. This process was performed on each .pst file in the inventory and the data was aggregated
    into a single data set. This is the data set that provided the basis for the analysis.

    It took a couple week to perform the analysis on the thousands of .pst files. When the data was
    tabulated it became clear that a problem existed because there were days for which no email was
    retained. Extensive testing was performed at that time to ensure that the tools and the tabulation
    processed was performed correctly. An independent verification and validation was also
    perform by a different set of contractors to ensure that this analysis process was completed
    correctly and that the data was coffectly analyzed and the accurately represented.

    You could have actually done that in a less kludgy way on the client side with an automated task. Daily. Frigging. Archive. Timestamped and verified. It would be the sort of thing you might want to do in a mom-and-pop setting. But in the frigging White House?

  18. spy4hire says:

    Karl Rove attorney Robert Luskin gives a fresh response to Jason Leopold on Rove’s Hadley email. From a very good story published yesterday. The Luskin exchange is great.

    http://www.opednews.com/articl….._quest.htm

    In an email exchange a couple of weeks ago requesting that he clarify his position, Luskin said he “speculated that the [Hadley] email was overlooked because of a gap in search terms, but I have no direct knowledge.” That contradicts his previous statements http://www.yourbbsucks.com/for…..php?t=5345 to Newsweek in which Luskin stated unequivocally that the email was not found because the wrong search terms were used.

    “Neither Mr. Rove nor I was involved in any manner in the collection of emails or other electronic documents in response to subpoenas from the Special Counsel [Patrick Fitzgerald],” Luskin said. “Mr. Fitzgerald’s staff worked directly with the White House counsel and the IT folks from the White House. However, Mr. Fitzgerald did advise me that Mr. Rove had absolutely no responsibility for the oversight and that he has never regarded the failure to turn over the [Hadley] email as ‘culpable’ by anyone.”

    That statement, or at least part of it, does not appear to be entirely accurate. In a May 10, 2007 deposition before investigators working for the House Oversight and Government Reform Committee, Rove’s former assistant, Susan Ralston, testified that during the leak investigation she and Rove were instructed “to go and do keyword searches based on the subpoena that we got, and search all of his folders for keywords.” Ralston said during her deposition that there were “six or seven” subpoenas Rove received from Fitzgerald for documents in Plame leak. Any documents that were found were turned over to Gonzales. Yet the email Rove sent to Hadley was never turned over to Fitzgerald.

    Luskin would not provide a copy of that email, which has never been released publicly. He said the contents of the exchange have been “widely reported.” Luskin added that he had no interest in providing either the Hadley email “or any other documents,” including a copy of a letter Fitzgerald sent Luskin that purportedly cleared Rove of criminal exposure in the leak case, to me because of a story I reported two years ago that stated Rove was indicted by Fitzgerald. Luskin added that I “played a despicable role in circulating false allegations concerning an indictment of Mr. Rove and persisted with the story even after it was demonstrated to be false” and he therefore would not provide documentary evidence that could demonstrate his client’s innocence.

  19. bigbrother says:

    THE SERVERS HAVE IT.
    The Telecoms have data mined it all (the electronic communication) so it is in their archive that NSA has.
    PLEASE DISCOVER THAT SOURCE AND ALL OF THE EVIDENCE IS AVAILABLE BY SEARCH LIKE THE GOOGLE SEARCH.
    That is why telecom immunity is so so critical for BUSHCO they can’t destroy it until they get immunity.
    Just Saying.

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