Legal Worries Over Missing Emails Grow

White House May Face Questions Over Past Probes

14 Apr 2007 // WASHINGTON -- The revelation of missing emails at the White House and Republican National Committee could become a legal headache as well as a political problem for President Bush.

The clock already is ticking on the administration's promise to Congress to find out what happened. Senate Judiciary Committee leaders plan to meet with White House Counsel Fred Fielding today to "get this matter moving forward...so that we can figure out whether anything wrong was done," Sen. Arlen Specter (R., Pa.) said on ABC's "This Week."

Critics say the White House has violated the Presidential Records Act, a 1978 law that requires each administration to maintain an adequate record of its deliberations. White House spokeswoman Dana Perino acknowledged on Thursday that "We screwed up."

What's of equal concern, potentially, are the legal obligations that arose for the White House because of federal investigations into the leaking of the identity of a CIA agent, Valerie Plame Wilson, and into Republican lobbyist Jack Abramoff. Once those investigations began, the legal burden on the White House to preserve emails grew. The key issue for the White House is whether people involved in the erasures intended to impede an investigation.

The risks for the White House are potentially even greater because of the 2002 Sarbanes-Oxley Act, which applies to government officials as well as corporate executives. That law makes it a crime to destroy records if an individual is aware of a pending investigation and knows the material might be relevant.

Adding to the problems for the White House, it appears that the email losses occurred in two separate email systems: one an internal system, and an outside set of domains operated by the Republican National Committee for Bush political aides.

The problems go back to the start of the Bush administration. After the 2000 election, several top political operatives who were moving to the White House, including Karl Rove, were allowed to keep their campaign accounts. The White House says the purpose was to avoid violating the Hatch Act, which prohibits federal officials from using government resources for political work.

But some Bush officials began using their RNC equipment for official work, too. Under the administration's own policy, those records should have been archived. Instead, the RNC was deleting them after 30 days.

Court records in the CIA leak case show that federal investigators first asked the White House to preserve records related to that investigation in September 2003. RNC lawyers have told Democratic lawmakers that the RNC ended its policy of deleting White House-related emails in August 2004.

Even after the change, Mr. Rove kept deleting emails from his own account, and the RNC now has no Rove emails dating before 2005, according to a letter last week from Rep. Henry Waxman (D., Calif.), who's looking into the problems. At some point in 2005, the RNC started automatically archiving Mr. Rove's emails, removing his ability to delete. One factor in the change was "investigative or discovery requests or other legal concerns," according to Mr. Waxman's letter to various federal agencies.

Mr. Rove's lawyer, Robert Luskin, said he saw "volumes" of email material provided to the special prosecutor, Patrick Fitzgerald, who "never expressed any concerns that relevant Rove emails were missing."