The Missing Emails and the OVP Coverup


The only email introduced at the Scooter Libby trial that was among those that had been lost in the White House email purge loss was an email from Jenny Mayfield (Libby’s Assistant) to Cathie Martin highlighting the part of the October 1 gaggle where Scottie McC refused to exonerate Libby. (You can tell it was reconstructed because it was printed out on February 2, 2006, just days before Fitzgerald received the batch of reconstructed emails; also note it was printed out from David Addington’s account, not Mayfield or Martin’s–both were gone at that point.)

Fitzgerald introduced the email at the trial to prove that Libby had reason to lie in his FBI interviews and, later, his grand jury appearances. Fitzgerald argued that the gaggle transcript, along with other pieces of evidence introduced, showed that Libby was panicking about being a suspect in the Plame leak. Fitzgerald also introduced the October 12, 2003 version of the 1X2X6 article on which someone (presumably Libby) had underlined key passages, including a denial similar to one that had appeared in the Isikoff and Thomas article published on October 6 (though dated October 13). Fitzgerald also entered an October 4, 2003 Pincus and Allen article into evidence, one that had no underlines and–unlike three other Allen articles from that period, no mention of Libby. But it did note that, "FBI agents yesterday began attempts to interview journalists who may have had conversations with government sources about Plame and Wilson."

The defense introduced some of the articles from this period too: An October 27 NRO column, with notations (it’s not clear how this was printed out, but shows as pages 35 and 36 of a packet); an October 1 WSJ editorial, with markings (note, it’s not clear when this was printed out or where); and an October 1 email from Laura Mylroie to Jenny Mayfield sharing Clifford May’s October 1 column, with no markings (printed out October 1, which is presumably why it wasn’t lost).

ovp-missing-emails-coverup.jpgNot included among the articles introduced at trial and discussing OVP in regards to Plame are:

  • An October 1 Hotline mention of Libby’s and Cheney’s visits to the CIA
  • The October 1 Daily News article reporting Democrats in Congress would like Libby and Rove to testify
  • Fox, MSNBC, and CNBC transcripts from October 1 reporting McClellan’s refusal to exonerate Libby, with MSNBC also featuring Larry Johnson nodding in Libby’s direction
  • An October 2 White House Bulletin piece noting that Allen appears to know who the "2" leakers were–and that he named Libby in another article
  • An October 2 Paula Zahn transcript with this exchange:

ZAHN: I found it interesting your phraseology just now. You said people in the White House.

There are a number of reports this evening saying that there is one person being looked as the potential leaker. And that’s Vice President Cheney’s chief of staff, Scooter Libby? Can you confirm that?

[JOE] KLEIN: Right.

Well, yes, Libby is one of the names that you hear most prominently around town. Libby and Karl Rove have been the names that have been out there. And I don’t know if they are or not. But here’s why people put it together with Libby. Libby is to Dick Cheney as Paul Wolfowitz is to Donald Rumsfeld. He is a very prominent neoconservative, who has — I’ve heard and everybody knows — been very upset with the CIA’s performance leading up to Iraq.

In other words, a long list of articles and transcripts insinuating Libby was the leaker were not introduced into evidence at the trial. Significantly, this would have the been the media coverage that precipitated Cheney’s urgent call to Bush on either October 3 or at the crack of dawn (Cheney’s time) on October 4 to get Libby exonerated. And remember–at least on Friday October 3 and Saturday October 4, Libby and Cheney were together in Jackson Hole, devising a story to tell the FBI (which may be why Libby didn’t annotate the October 4 article).

Now, perhaps Libby didn’t read any of those articles. Or perhaps he didn’t collect them in his little "Get Wilson" file. Or perhaps they were turned over as evidence but they were just less interesting to Fitzgerald than the Mike Allen WaPo articles he did introduce (though of course, this list does include one Allen WaPo article). But if you look at the spreadsheet (20MB PDF) of days in which the White House–or offices within it–were missing emails, you see one other possible explanation.

Those were also the days when all of OVP’s emails disappeared.

Now, we already knew that the OVP emails had disappeared for precisely the same days as when Libby and Cheney were devising their cover story (Libby claimed to have "found" the note indicating Cheney had told him of Plame’s status on October 3, though why he found it in Jackson is beyond me). But now we know that the emails are gone from the period leading up to Cheney’s urgent call to have Libby exonerated.

47 replies
  1. GeorgeSimian says:

    Maybe o/t, but what ever happened to those GOP emails that got sent to the White House instead of Congress, when Congress asked for them? Or was it to the DOJ?

  2. SaltinWound says:

    This is an amazing series, wheel. I have to admit sometimes I feel nostalgic for the time a few years ago when we had less information and got to speculate wildly about the Plame case. Anything was possible!

  3. scory says:

    Um, isn’t intentional destruction of official government records a crime? And regardless of what “fourth branch” says, the OVP is part of the Office of the President, at least for the purpose of appropriations and for administration and management.

    There has to be some way to make an argument of some sort that leads to a prosecutable offense for someone beyond Scooter Libby. The problem with the candy-assed responses to Watergate and Iran-Contra was that consequences for those involved were never fully prosecuted — and Deadeye Dick has taken advantage of that reluctance at every turn.

    • earlofhuntingdon says:

      It’s a crime with penalties if you can make a case for obstructing a federal inquiry. Failure to retain presidential records (presumably including virtually all of Cheney’s, both because he’s really president and anything he does or has authority to do is at the behest of the president) violates the PRA, but carries no penalty. Which makes for an easy decision tree if the info in what’s lost carries greater liability than obstruction or no penalty at all.

  4. klynn says:

    Great job AGAIN!

    Wow! You must not be sleeping with all of these connections going on in your head.

    You honor your readers with your talent!

  5. techmom says:

    IIRC Fitz was only allowed to introduce articles that were marked up (presumably by Libby or Cheney) unless the journalist was a witness. I remember there were some articles he tried to introduce but was not allowed.

  6. pdaly says:

    And the story continues!

    Thanks, ew.

    BTW, I’ve forgotten again how Addington, as keeper of the records or whatever his archivist title, is able to print out Mayfield’s letter to Kathie Martin. Does he retrieve them through his computer’s email system?

    And would an email sent to Addington as a “blind carbon copy” look identical to the letter you exhibited above, if and when he printed it out? or would we see telltale signs?

    • WilliamOckham says:

      The answer to your questions is a bit complicated. First, look at the email from Mylorie. That’s how a bcc’ed email normally looks when it’s printed from Outlook. There’s is no way to be absolutely sure, but I’m confident that the email that Addington printed was in Cathie Martin’s personal .pst file that he had permissions to open. The reason I think that is the weird, non-standard formatting that you see (the text of the email is closer to the left margin than the address lines). That formatting is seen in another of Martin’s emails and nowhere else among the emails released at the trial.

      • bmaz says:

        And all that you describe, among some other things i have seen in the past, is exactly why I think Addington can be questioned in depth as a fact witness/records custodian on the emails. Maybe not on the content of any of them, but up the ying yang about the systems, who used what, all kinds of very nice background information. And, set up properly, I think Addington might realize the propriety of that line of questioning and answer honestly. Worth a shot anyway.

      • maryo2 says:

        And the Addington printout says “Message” at the top. I just tried a test print and my Outlook printout looks like Mylroie’s printout, not Addington’s. Do you know what MS standard jiggamawichee puts the word “Message” at the top? It must be a jiggamawichee that identifies and prints things other than just email messages.

    • earlofhuntingdon says:

      Addington was Cheney’s confidante, lawyer and became his chief of staff when Libby resigned. He would have had access to, and probably had a large part in designing, all OVP systems, including whatever special filing procedures apply to Cheney’s man-sized safe. That’s purportedly where he rests during daylight, in earth borne from the Wyoming oil fields, wrapped in linen from the Cattlemen’s Club.

  7. jdmckay says:

    I’ve been wondering about this as well.

    Which brings to mind… how’s Mz Payton’s “passionate” (we’re not slow walking!) team of forensic specialists doing on their data recovery project? Just wild speculation on my part, but I’ll bet they’ve accomplished…

    nothing. nada. zip. zeeerrrro.

      • jdmckay says:

        They have just recently received a protection order for whatever pst files they have.

        Is this order posted somewhere? (was it mentioned on an EW thread I may have missed?)

        Forgive me for being dense:

        a) is “they” the WH?
        b) was it issued by a court or congress?
        c) I assume “protection” means preservation… ///???

        I also find myself curious about the language… you say PST files: does this include this large body of IMG files Payton talked about?

        • emptywheel says:

          I can’t say much more, and no, there’s not a link. As I understand it, though, the WH just recently (as in, this month) got a preservation order for the PST files. I assume–but am not positive–the order came from a court.

          • WilliamOckham says:

            Well, I can say that if you go to CREW’s page about the email FOIA and read the NSA’s brief, you can see in the first footnote that the WH had until May 30 to file a reply. I assume that since CREW hasn’t posted any such reply, the WH didn’t bother. If that’s the case, then the preservation order would look very much like the one proposed by the court on April 24, which you can find here.

            • jdmckay says:

              Thanks William.

              I got’a say, the significant/obscure details you dig up & post here regularly just amaze me. A big tip-of-my-hat to you for major contributions here.

            • jdmckay says:

              the preservation order would look very much like the one proposed by the court on April 24, which you can find here.

              That doesn’t read like a preservation order to me. The judge is:

              Magistrate Judge John Facciola

              From his order:

              The magistrate judge also recommended that District Judge Henry H. Kennedy issue a series of orders that would compel the White House to search the individual workstations of White House staff, preserve the personal folders (.PST files in the Microsoft environment) where e-mail may have been stored, and secure any portable or external media that may contain e-mail from March 2003 to October 2005.

              I haven’t been able to find a record indicating Judge Kennedy has implemented Facciaola’s suggestion. Apparently, Facciaola lacks the authority to issue such an order himself? (wondering why CREW is extending resources in such a constrained forum)

              Crew’s 5/6/08 posting (on same page) titled:

              … says in part:

              (…)Chief Information Officer Theresa Payton in which the White House admitted, among other things, that it has no backup tapes for White House emails for the period March 1, 2003 through May 22, 2003.

              The White House also argued that it should not be required to save any backup tape pursuant to a court order because, according to the White House, there is no evidence that any White House emails are missing,(…)

              I see also on that page a 3/22/08 posting… WH declaration:


              There was speculation this was the case, as I recall by Payton in her congressional testimony. I hadn’t heard they confirmed it however. Which of course doesn’t answer the question: was there any backup media for those years?

              I’d be real curious to know just “who” those HDs were “tossed” to/by, as frankly I don’t believe the declaration.

              • bmaz says:

                It is fairly routine for civil matters to be referred to a Magistrate like this, that is where they would have to litigate once the designation is effective. Facciola has done a decent job, although clearly a bit deliberate and cautious, as far as I can tell/

              • WilliamOckham says:

                I’ve been out to dinner (if you want good Indian food in Houston, I can recommend Kiran’s), but someone with a PACER account (bmaz) was nice enough to send me the latest filings in the CREW v. EOP FOIA lawsuit. I’ll post an analysis as soon as I’ve had a chance to examine them.

                Thanks, Bmaz…

          • jdmckay says:

            I can’t say much more, and no, there’s not a link. As I understand it, though, the WH just recently (as in, this month) got a preservation order for the PST files. I assume–but am not positive–the order came from a court.


            I’m absolutely maximum curious why this all seems so hush hush.

  8. earlofhuntingdon says:

    One imagines the boys at OVP bet that no investigation would get far, and that none would get past the press’ right to protect its sources. Even then, they spread the manure among several news organizations, quite possibly with outliers like Armitage primed to take the fall if things got too hot.

    One suspects that they didn’t imagine that “their” DOJ would let a Fitzgerald be as effective as he was, one reason Ashcroft was not asked back for the second term.

    A “looking forward” question is what is this supine Congress doing to strengthen the PRA and to lower the odds that the burial chamber Karl is readying, in the guise of a library to honor an illiterate president, will permanently hide what the public needs to know about the CheneyBush years?

  9. JohnLopresti says:

    Cathie Martin had an RNC email account [160KB, @pp15-16], but the oversight committee grid covers only 2006-2007, at which time her account showed little activity. The report contains sporadic data from 2002-2003 for some White House employees like Rove. I am glad ew excerpted the OCIO frame for the week OVP’s emails were not archived by IT. In some places in which I worked in IT it was called MIS management, and some wags simply called it mismanagement, certainly because of features like the missing email bug.

  10. bmaz says:

    Oooh just posted by Laura at War & Piece. Diaper Dave Vitter cowboys up with Kremlin Curt!

    Must-read piece from Wired’s Sharon Weinberger and Nathan Hodge: “Lawyers, Nukes and Money: The Strange Case of Weldon’s Russia Plan,” in which they reveal the path to Weldon by the Kremlin linked Petrosyan led through the office of Sen. David Vitter (R-Louisiana), lately in the news in alleged connection to the services of the late DC Madam:

  11. WilliamOckham says:

    I’ve been taking a look at that missing email spreadsheet and I think I’ve found something very interesting. The “investigation week” missing emails for the OVP don’t really match the overall pattern for the rest of the problems. I just realized that the pdf file is actual an “image over ocr text” type pdf file. that means I can probably analyze my theory programmatically.

    Here’s an outline of why I think that particular week is suspicious. First, I’m ignoring isolated weekends and holidays with low message counts (and the PFIAB column, it has too few messages to be significant). Those are just artifacts of his classification system. Second, there are clearly a set of problems that affect a component within about two weeks of it being added to Exchange. Then there are the long stretches of 0 message days that affected individual components at various times. Then there are widespread problems mid Dec 03 to Feb 04.

    After you take those out, you have a very small set of problem areas. There are a couple of problems with WHO low email counts, a couple of random OA missing email days, and three or four OVP issues that are quite distinctive. I may be just seeing a pattern that’s not really there, but I’m hoping to have time to code up a more rigorous analysis. Perhaps I’m spending too much time at 538.

    • maryo2 says:

      (Of course you know this, but) Be careful about throwing out December 2002 because that is when the neocons were pushing to use the known forgeries even after being told not to in October.

      Waxman – “According to Mr. Hadley, the CIA sent a memo directly to the White House Situation Room addressed to you and him on October 6, 2002, that described “weakness in the evidence” and that stated “the CIA had been telling Congress that the Africa story was one of two issues where we differed with the British intelligence.”‘ Mr. Hadley also reported that the CIA sent a second memo to him a day earlier, and that George Tenet, the Director of Central Intelligence, personally telephoned him to ask that the reference be removed from a speech the President delivered in October 2002.”

  12. Leen says:

    Sure glad you folks are doing somebody’s job for them. Know there are folks out there wishing you would stop.

  13. pdaly says:

    WO and EoH, thanks.

    I’m falling behind on a busy emptywheel news day. Wish I had more time to be in front of the computer right now.

    and this brings a chuckle

    That’s purportedly where he rests during daylight, in earth borne from the Wyoming oil fields, wrapped in linen from the Cattlemen’s Club.

    When is the movie coming out? Who could play Addington?

  14. pdaly says:

    bmaz @12, I like that line of reasoning. Addington being a fact witness to his system of email archives.

  15. greenbird4751 says:

    there’s too much excitement today! first the mccain store product comments and now, this! i’m no troll; i just don’t write well. but i really can’t sleep some nights, knowing ew is in the lab…so i get up and read and post. and i probably don’t thank everyone enough. but you all are so smart. and i am so addicted to you…

  16. WilliamOckham says:

    The WH argument has not changed at all, except to become a little sillier. They still say that there is no problem because the library of tapes should contain substantially all emails sent or received from 2003 to the present.

    Then, the government makes a bizarre argument:

    In an attempt to support its request for relief, NSA, in effect, pretends that the Court never issued the November 12, 2007 Order.

    That’s just silly. What the NSA argued (and the magistrate, to his credit, accepted as blindly obvious) was that the government’s assertion that the backup tapes should contain all the emails is laughable. For much of the time in question, the .pst files where completely unsecured. There is no plausible way to assert that a backup schedule would ensure that all emails were preserved. Add to that, the government doesn’t even know what is on those tapes.

    I really don’t know how the government lawyers can put their names on this stuff, but here’s whose responsible:

    Acting Assistant Attorney General
    United States Attorney
    Assistant Branch Director

  17. WilliamOckham says:

    This sentence, buried in one of the footnotes, is the crux of the problem with the government’s case:

    Finally, EOP defendants established that even “email erased from individual mailboxes and residing in trash boxes,” is likely to be captured on back-ups.

    I don’t know how anyone who knows anything about the technologies involved could support that statement. In fact, the opposite is true; replace “likely” with “unlikely”.

    • jdmckay says:

      The mystery could be solved by restoring those backups. Payton testified her team was on such a track… what, 4 months ago? And what progress has her team made?

      This is in the theatre of the absurd AFAIC.

      I read a bunch of those CREW docs, most of gov’s pleadings as ridiculous as what you describe in #40.

      • WilliamOckham says:

        They are clearly trying to run out the clock and turn this mess over to the next Administration. They’ve known about these problems for years and have done nothing about them. In fact, they’ve taken a series of steps to make the problem worse.

        • jdmckay says:

          They are clearly trying to

          a) run out the clock and
          b) turn this mess over to the next Administration.

          Agree w/a). IMO b) is more accurately characterized as: destroy all evidence of crimes. I’ve read elsewhere that expenditures for document shredding (don’t have link) are many times greater for this bunch than any previous admin. Also in support of “destroy all evidence” notion (which I’ve suspected since early Iraq invasion days) is Cheney/Rummy on record describing their Watergate sentiments as not regret over Nixon’s actions/motives, rather betrayal by media that shone light on those actions. Or in other words, they regret only getting caught.

          The idea that they would institutionalize “coordinated deleting of emails” (as you say) was predictable… and was predicted, if only in my personal suspicions (I’m sure many others saw same writing on the wall).

          This was also predictable based on W’s “executive order” suspending release of Reagan & Bush I prez records pending “further review”. The media made some note of this for a month, 2, 3… then poof. 7 yrs later, no release/compliance.

          Wan’a bet daddy’s records have been permanently & irretrievably redacted?

          OT: a COUNTERPUNCH link “snipped” via MofA:

          SueAnn Arrigo is … a high-level CIA insider. Her title was Special Operations Advisor to the Director of Central Intelligence (DCI). She also established the Remote Viewing Defense protocols for the Pentagon … It earned her a two-star general rank in the military.

          In August 2001, DCI George Tenet told her to assemble “a moving van full of Pentagon documents showing Defense Contractor kickbacks to Pentagon officials.”

          CIA used the material to blackmail or bribe its officials “into ‘working on’ the Halliburton-Carlyle team.” Top CIA types were involved, and Tenet laid it out for Arrigo: You’ve “given me the keys to the kingdom. (These) documents will make me rich.”

          Arrigo worked at CIA for over 30 years and reported directly to Tenet. But she wasn’t prepared for what she found – a new section at the Agency without her knowledge. It employed 40 people, all working for Halliburton “while being paid by the US taxpayer as if they were CIA.”

          Arrigo knew too much, took risks to learn it, and what happened next is shocking. Halliburton’s “CIA Representative” confronted her, tore out her phone, ransacked her office, removed every shred of paper, and hauled her off bodily “to a prison cell” inside its basement offices. She was intimidated and threatened. Thought she might be killed. She survived, but the message was clear. She complained to Tenet. Showed him her bruises. He responded dismissively: “There, there, everything will be all right in the morning.”

          In 2002, Arrigo tried a new tact (sic) – ingratiating herself with “Halliburton’s Man” and using it to her advantage.

          First off, it’s pure myth that Dick Cheney stopped running the company. “He called in orders to the man I worked for almost every day and sometimes two or more times a day. He remained (Halliburton’s) functional head in all but name. No one….had the power to override his orders.” Second, Cheney never divested himself of Halliburton profits. “He merely hid how (he got them) through a series of shell companies.”

  18. WilliamOckham says:

    By the way, in her declaration of 1/22/08, here’s how Payton the WH CIO described the backup tapes:

    Similiarly, any emais sent or received after the latest back-up but prior to the disaster or catastrophic incident may not be backed up on tapes and, thus, may not be reflected in a reconstructed system. This limitation in the disaster recovery back-up process is consistent with industry standards for these types of disaster recovery systems.

    Just replace “coordinated deleting of emails” for catastrophic incident and you realize that the government’s pleadings are getting ridiculously inconsistent.

  19. Akatabi says:

    Somewhere out there Rose Mary Woods’ ghostly foot hovers over the erase pedal of her Dictaphone.

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