Darrell Issa’s Burning Concern about White House Emails? Not So Hot…

Last Thursday, Darrell Issa wrote an urgent letter to Greg Craig, expressing concern about reports that White House staffers, in the days after Bush left the White House IT system in perma-crash mode, were temporarily resorting to Gmail.

Dear Mr. Craig:

Last month, several media outlets reported the existence of Gmail accounts issued to incoming members of the White House staff.[1] According to Politico, Deputy Press Secretary Bill Burton was "rocking three BlackBerrys . . . one for his Gmail, one for the transition and one for the White House."[2]

As you know, any e-mail sent or received by White House officials may be subject to retention under the Presidential Records Act (PRA).[3]


The challenges posed by retaining e-mail as required under the PRA have proved vexing for the last two White Houses. You may recall the extraordinary problems the Clinton White House had with its e-mail archiving system.[6] Such problems have led to costly expenditures of taxpayer dollars. For example, earlier this month it was disclosed that the Bush White House reportedly spent "more than $10 million to locate 14 million e-mails reported missing."[7] These e-mails were restored after a costly search of approximately 60,000 back-up server tapes.[8]

In order to prevent similar taxpayer-funded e-mail restoration projects, it is incumbent that the new White House implement policies and processes to minimize the risk of losing e-mail subject to the Presidential Records Act. 

I ask that you answer the following questions for the Committee by March 4, 2009. 

One day after Issa sent that urgent letter calling for strict adherence to the Presidential Records Act, the National Security Archive and CREW announced that the Obama Administration would not deviate from Bush’s legal strategy on lost White House emails, which was basically to argue that the Federal Records Act requires only that an agency found to have allowed destruction of Federal Records must initiate efforts to restore those records. Neither a court nor an NGO can force an agency to completely restore records, Bush (and now Obama) argued, they can only order an agency to initiate attempts to restore them.

This administrative scheme is exclusive; a court cannot itself order the recovery or retrieval of records that may have been removed or destroyed, but must instead rely on the detailed processes set forth in the FRA and initiated by the agency heads, Archivist and Attorney General. See Armstrong, 924 F.2d at 294 (“Because it would clearly contravene this system of administrative enforcement to authorize private litigants to invoke federal courts to prevent an agency official from improperly destroying or removing records, we hold that the FRA precludes judicial review of such actions.”). Thus, relief under the FRA would trigger, at most, obligations for defendants to initiate action through the Attorney General, who would, in turn, determine what action was appropriate under the circumstances. 44 U.S.C. § 3106; see also Armstrong, 924 F.2d at 296. A court, therefore, cannot order the recovery or retrieval of any records.

And, as NSA and CREW pointed out in their response, the Bush (and now Obama) Administration were effectively sticking their fingers in their ears and chanting "you can’t make me … lalalalalalalala … you can’t make me completely restore the emails I lost" all while admitting that some of the emails remained lost.

First, Defendants claim they studied the 2005 Statistical Analysis and recreated that study with “better” technology. Id. at 17-20. In this first Phase, Defendants claim to have located millions of emails previously rendered effectively lost because they had been mislabeled or misallocated to the wrong EOP components, but provide no explanation of what caused the mislabeling or misallocation, or any facts that would establish the accuracy or completeness of their claim.

In Phase II, Defendants claim they analyzed the .PST file inventory contained in the email archive by using a new scanning and indexing tool that reallocated messages to their respective EOP components. Id. at 20-21. Defendants state they also used a new statistical model in Phase II, ARIMA, to calculate days that were “low,” that is, that had fewer emails compared to other days for which ARIMA had data. Id. at 22-23. At the end of Phase II, despite the reallocation and new statistical model, there were still 7 “zero” message days in the email archive and 76 “low” message days in the Archive. Id. Defendants provide no explanation in their motion for what caused this now-acknowledged loss of emails from the servers.

In Phase III, Defendants claim they identified and restored 125 additional .PST files which “had been identified in previous work as existing at one point,” but which then could not be located in Phase II. Id. at 24. This restoration resulted in an increase in the number of “low” days to 106. Id. No explanation is offered as to why Defendants did not locate these 125 additional .PST files during phases I and II. Moreover, while Defendants contend that they searched “other repositories” of emails that resulted from “searches or mailbox restorations due to file corruption,” id. at 21, no explanation is given as to whether all such “other repositories” have been searched. Furthermore, at the end of Phase III, Defendants claim they had identified 106 “low” and 7 “zero” days.8 Id. at 24. Defendants then used the backup tapes to restore only 21 calendar days, covering only 48 of the “low” or “zero” component days. Id. at 24-25. Inexplicably, Defendants did not restore the remaining 65 “low” or “zero” days. This decision not to restore all “low” or “zero” days is not explained by Defendants. [my emphasis]

On Sunday, the AP covered the Obama stance, declaring,

The Obama administration, siding with former President George W. Bush, is trying to kill a lawsuit that seeks to recover what could be millions of missing White House e-mails.

While the Obama White House maintains that its adherence to Bush’s strategy does not mean it really wants to "kill" this lawsuit, that’s effectively a distinction without a difference until such time as Obama’s White House either restores the still missing emails or at least admits that "initiate" is not the same as "restore." For now, at least, Obama maintains that if a White House somehow loses massive amounts of email (some of them pertinent to a criminal investigation) the no one–not CREW, not the Courts, and not Darrell Issa–can make them fully restore those emails.

Given Congressman Issa’s documented concern about the potential for lost White House emails, I contacted his office to get a statement on the Obama support for the Bush position. I spoke with Kurt Bardella, Issa’s press person, and emailed more details on the Obama stance. I called back to follow-up.


Darrell Issa apparently has nothing to say about Obama’s refusal (thus far) to restore all those emails Bush lost.

Gosh. The deadline Issa gave Craig to answer all those questions hasn’t even passed, and already Congressman Issa has lost his interest in White House emails. 

28 replies
  1. sojourner says:

    You know something? I am VERY tired of these Republican hypocrites… They are just coming out of the woodwork. I think it is time to call the local pest extermination company

    • earlofhuntingdon says:

      That’s the Republican game plan. Wars of attrition are their briar patch. Trench warfare like this is not something the Dems do well; they lose too many troops to the GOP’s political sharpshooters.

  2. BayStateLibrul says:

    Is there some other avenue this e-mail fuck-up can take?
    I mean we are talking criminality (the willful destruction of evidence)
    rather than normal screwing up of procedures.
    I have said long ago that the court should hire a “forensic” expert, at a modest cost to find out what happened?

  3. Waccamaw says:

    ew –

    You’ve probably already detailed your Aville holiday* but I’ve had limited ‘puter access for six days and just wanted to find out how the trip went.

    *If so, just leave a linky to the appropriate post.

  4. Leen says:

    Is this basically a “what’s good for the goose is good for the gander” argument?

    Does not sound like they are concerned about what is good for the American people, the constitution, or truth

  5. JTMinIA says:

    Given who you are, ew, and what state you’re from (as opposed to what state Issa represents), is it really fair to interpret the “crickets” as evidence that Issa no longer cares about this issue?

    Don’t get me wrong, along with my own state’s King, Issa is near the top of my sh*t-list of critters. But this doesn’t add much more reason (for me) to feel this way

    • emptywheel says:

      Um, I was never asked what state I was from. Which is rather appropriate because,

      1) I was speaking to Issa’s press secretary (and he said he’d get back to me), not his constituent relations guy.
      2) Issa sent his letter to Craig in his role as Oversight Ranking Member, not Congressman from SoCal.

      So, no, Issa’s CA address doesn’t explain the crickets in the least.

    • Loo Hoo. says:

      Maybe the emails were stolen, and Issa wants to learn the tricks.

      Seriously, why would Obama not want the emails recovered? I makes no sense.

  6. Peterr says:

    If we were talking about memos instead of emails, there’d be no question about this case brought by CREW.

    Telling the court “Gosh, our filing system is so bad, we think we lost them — or at best, they’re somewhere in this huge warehouse of unfiled and unlabeled papers, and it really is beyond our capacity and not worth the cost to find them — so let’s just drop this whole thing” would get a lawyer laughed out of court, and his/her clients a court order mandating that the memos be produced.

    Why Fitz hasn’t pushed harder for production of emails he has reason to believe exist is a mystery to me.

  7. freepatriot says:

    on the bright side, we got bobby jindal telling people if you think Katrina was a clusterfuck, you should vote for repuglitards, cuz they always knew that any government efforts would be a disaster

    and if you didn’t like the abramoff corruption, you should vote for repuglitards to end that kind of corruption

    Obama has enormous powers as long as the so called opposition is a bunch of batshit insane sophists and hypoctites

    did anybody read bloddy bill kristol’s whinny rant decrying Obama’s apparent lack of preparation to invade Iran

    the repuglitards have found a way to defang the Progressives, by embracing teh STUPID

    tricky bastids

    • readerOfTeaLeaves says:

      Obama has enormous powers as long as the so called opposition is a bunch of batshit insane sophists and hypoctites…embracing teh STUPID…tricky bastids

      Great synopsis.

      But Obama, Biden, & Rahm still need at least the caliber of email retrieval that it expected of school districts across the nation.

  8. Mary says:

    OT –
    I did a bad thing. I went over to the Corner, thinking that I could discover from the most recent McCarthy post which old terrorist geezer ghosted Obama’s speech. Before I could get that far, I found this piece titled, “What Obama Should Do”

    By Conrad Black.

    Note to self – do not go breezing through the Corner while clenching gauze to stop the bloodflow on dental work.

  9. JohnLopresti says:

    The disputes in the MTD, and the Opposition to MTD, with respect to statistics of backup and restoration are fascinating, but separating the arguments from fiction would be easier with access to ancillary documents such as the Everett Declaration, which is an exhibit from last month’s lameducker filed MTD. Both the MTD and the Opposition to MTD reference the Everett materials in numerous passages. I guess the best refutation of the usual Issa sham argumentation is made by people with Pacer paid subscriptions, like the old days of Electronic Data Interchange, pay by the byte fee structure, or folks who have membership in the bar, or some other VIP sort of access to DCDC’s ECF structure for viewing documents. Usually there is an access alternative if HowAppealing has posted a free link, in instances like these, though I think the case is insignificant on Howard’s usual priority lists.

    OT, I checked Issa’s map of district; Chapman U is in a different congressperson’s constituency, but his argumentation is about as chimerical as the infamous writings of the visiting prof there.

    Obama folks still trying to program websites may have this as a low priority now, and likely the new administration’s IT would be relieved if WHC asks for a delay in court date. Meanwhile, if some Democratic politician has access to restored Republican emails, there might be strategic hay to be made before the restored communications become public.

    As I recall, about mid 2007 one news report I read described a committee in the Bush administration which was planning the lameduckery tricks, like this matter, for which Issa has faked an attempt to serve as front person talking to an ostensibly marginally informed media.

    • readerOfTeaLeaves says:

      …about mid 2007 one news report I read described a committee in the Bush administration which was planning the lameduckery tricks, like this matter, for which Issa has faked an attempt to serve as front person talking to an ostensibly marginally informed media.

      All the more reason to respect the way David Shuster called Issa’s attempted deceptions the other evening on MSNBC.com.

      The culture is changing very slowly, but from Katie Couric to Shuster to KO to Maddow, it does appear that some in the news are signaling that they don’t get paid to sit back to pass along b.s. Joe Klein seems to have started hopping on this wagon back around July 2008, and it’s striking to see that the news becomes more interesting when journalists draw some boundaries by calling out misinformation from tools like Issa.

      Issa will blame the ‘librul media.’
      It’s the market driving the ratings at MSNBC, and the market is driven by so many of us wanting to know WTF is going on.

      Hope Mary recovers today… ewwwwwwwww Conrad Black?! Speaking of people responsible for killing old media…

  10. Mary says:

    As embarassing as that novocained face thing is, it is far more embarassing to be choking on gauze in your office, trying to use your chair for a heimlich.

  11. Mary says:

    23 -not on your life
    24 – you bet your life *g* Actually, after my doubletake, I thought, naw, can’t be. So I looked at the end of the post for some kind of bio reference on the writer.

    There, NRO discloses that “— Conrad Black is the author of Franklin Delano Roosevelt: Champion of Freedom and Richard M. Nixon: A Life in Full.”

    No mention of Hollinger or fraud and I’m not a Black, FDR or Nixon groupie, so I’m still thinking – naw. Then I google Black and the books and yes, it is Lord St. Black.

    And lookie:


    Prosecutors asked St. Eve for permission to tell jurors about a 1982 Ohio case in which a judge found Black in violation of securities law.

    They also want to tell how Black used $9.6 million in Hollinger International funds to buy Franklin D. Roosevelt memorabilia at a time when he was writing a Roosevelt biography. In addition, the are asking the court to let them tell jurors about an insider trading case, Black charitable contributions using company funds and other matters.

    I’m so glad David Frum has someone he can be pals with at NRO.

Comments are closed.