David Gewirtz | BIO
Editor-in-Chief, ZATZ Publishing
Magistrate Judge John Facciola issued an emergency order Thursday for the preservation of White House emails. In his groundbreaking opinion, he definitively affirms that White House email messages are documents of major historical importance:
"I have always begun with the premise that, as just indicated, the emails that are said to be missing are the very heart of this lawsuit and there is a profound societal interest in their preservation. They are, after all, the most fundamental and useful contemporary records of the recent history of the President's office. If Napoleon was right when he said that he did not care who wrote France's laws if he could write its history, then the importance of preserving the emails cannot be exaggerated."
The lawsuit he's talking about has been going on for a few years now, with the Executive Office of the President as defendant. This is the lawsuit that originally brought out the story of missing email messages at the White House and the claim that there were at least 5 million missing.
Two organizations, the Citizens for Ethics and Responsibility in Washington (CREW) and the National Security Archive of George Washington University sued the White House in an attempt to force the EOP to preserve White House email records and turn them over to the National Archives and Records Administration.
It's been a bizarre experience, resulting in Congressional hearings last spring. The issue that's making both the plaintiffs and the judge nuts is the White House has responded with wildly inconsistent answers to each order on the part of the judge, at one time claiming there are missing messages, later claiming no messages are missing, and still later claiming that all the hard drives used to store them were destroyed as a matter of practice, and so on.
This claim of missing messages is what inspired me to begin the forensic analysis that led to the book, "Where Have All The Emails Gone?" which goes into the messaging at the White House in depth, and has led to multiple other reports with more revelations.
The thing is, because the time to transition between Presidents is running down to zero, this topic is getting very hot. Every President since Reagan, in the last days of his administration, has fought the courts to prevent turning over email messages to NARA, some down to midnight on the 19th of January.
This time, it's District Judge Henry Kennedy and Magistrate Judge John Facciola who are trying to compel the White House to turn over email records before the clock runs out. But what's making everyone nuts is that it's extremely hard to tell exactly what can be turned over to NARA and what might be missing, because the various responses by the EOP to Congress and the courts have been so inconsistent.
Between White House opposition filings, orders from various senior judges, complaints from plaintiffs, and yada yada yada, the technical and legal mumbo-jumbo is enough to make your head spin. At the core, however, is a simple need: to preserve the historical record.
The White House had a nearly instant opposition motion, a detailed 13-page document. In it, Justice Department attorney Helen C. Hong argues that the White House had all the email messages all along, it's just that due to a technical snafu, the counting process implied messages were missing.
What's particularly strange about this is it appears to be in direct contradiction of testimony by White House Chief Information Officer Theresa Payton where she variously claimed that the White House didn't have asset management in place to track the disposition of hard drives containing email messages and that they had a practice in place to destroy or recycle hard drives every three years.
Hong claims, however, that at the cost of $10 million, they were able to recover messages from backups. This is certainly technically possible, there was no discussion of the process or methodology. Of more import, Ms. Hong didn't identify whether the 14 million messages she claims were recovered were from the time frame that the White House previously identified as missing.
It's all enough to make you slightly crazy.
What's fascinating is you can start to see the frustration level of a United States Magistrate Judge if you read his opinion. He states:
The issues that have now arisen are now confronted in true emergency conditions. As this is being written, there are two business days before the new President takes office and this case deals with the records created by the administration that is leaving office.
When you see a magistrate judge, whose role is to advise a presidentially appointed district court judge on judicial matters, get frustrated, it's not a pretty sight:
To further complicate the matter, the records at issue are not paper records that can be stored but electronically stored information that can be deleted with a keystroke. Additionally, I have no way of knowing what happens to computers and to hard drives in them when one administration replaces another.
Who's emailing whom?
Part of the question here is what email messages fall under the jurisdiction of the Federal Records Act (FRA) and what fall under the Presidential Records Act (PRA). Both require records to be kept, but the different laws require different actions. Even this discrepancy appears to be giving Magistrate Judge Facciola heartburn:
Moreover, at this point I am between a rock and a hard place. If, despite the defendants' representations, emails were transmitted from PRA to FRA agencies and back but I preclude a search for them in the PRA agencies, I will be honoring a representation without having any opportunity to test its correctness. I may therefore fail miserably to preserve the res of this lawsuit based on an untested assertion.
If, on the other hand, I do not honor the representation and order all computers to be searched, I am at least doing all I can to preserve the res in the only way possible. The importance of doing so easily trumps the costs involved.
Therefore, defendants must appreciate that the Order I am issuing requires them to search for emails in the specified period in both PRA and FRA agencies.
So, what's it all mean?
Let's not lose track of the key issues. First, the Bush Administration leaves the White House at 11:59AM on Tuesday. All the Presidential records need to be turned over to the National Archives before then.
The gotcha is that we're running out of time. The Bush Administration now claims they've recovered all the records (expect to see Judges Facciola and Kennedy comment on that in the next day!) and the district court has ordered a massive records search - all which must occur before Tuesday.
As I said yesterday, this isn't technically practical, except now it's one day less practical. We're talking about searching terabytes and terabytes of computer files for email messages, all stored in Outlook files not known for their ease of management.
Simply the time necessary to transfer thousands of multi-gigabyte files between computers and hard drives will take longer than the hundred or so hours we have left before President-elect Obama is sworn in.
At the risk of repeating myself, what I said yesterday still holds, even more so. The only way to preserve these records now is to put all the computer gear onto trucks and send everything to the National Archives for later processing.
There's precedent here, at least if you watch crime shows. How many times have we seen the feds go into a home or an office and simply cart everything away? If it works on TV, certainly it'll work in real life. Right?
Editor’s note: David Gewirtz is Editor-in-Chief, ZATZ Magazines, including OutlookPower Magazine. He is a leading Presidential scholar specializing in White House email. He is a member of FBI InfraGard, the Cyberterrorism Advisor for the International Association for Counterterrorism & Security Professionals, a columnist for The Journal of Counterterrorism and Homeland Security, and has been a guest commentator for the Nieman Watchdog of the Nieman Foundation for Journalism at Harvard University. He is a faculty member at the University of California, Berkeley extension, a recipient of the Sigma Xi Research Award in Engineering and was a candidate for the 2008 Pulitzer Prize in Letters.