Union Calendar No. 593

106th Congress, 2d Session – – – – – – – – – – – – House Report 106–1023

THE FAILURE TO PRODUCE WHITE HOUSE

E-MAILS: THREATS, OBSTRUCTION, AND

UNANSWERED QUESTIONS

EIGHTH REPORT

BY THE

COMMITTEE ON GOVERNMENT REFORM

together with

MINORITY AND ADDITIONAL VIEWS

Volume 2 of 2

Available via the World Wide Web: http://www.gpo.gov/congress/house

http://www.house.gov/reform

DECEMBER 4, 2000.—Committed to the Committee of the Whole House

on the State of the Union and ordered to be printed

 TO PRODUCE WHITE HOUSE E-MAILS: THREATS, OBSTRUCTION, AND UNANSWERED QUESTIONS

ODUCE WHITE HOUSE E-MAILS: THREATS, OBSTRUCTION, AND UNANSWERED QUESTIONS

ODUCE WHITE HOUSE E-MAILS: THREATS, OBSTRUCTION, AND UNANSWERED

QUESTIONS

PRODUCE WHITE HOUSE E-MAILS: THREATS, OBSTRUCTION, AND

UNANSWERED QUESTIONS

E TO PRODUCE WHITE HOUSE E-MAILS: THREATS,

TRUCTION, AND UNANSWERED QUESTIONS

RE TO PRODUCE WHITE HOUSE E-MAILS:

TS, OBSTRUCTION, AND UNANSWERED

ONS

U.S. GOVERNMENT PRINTING OFFICE

67–962 WASHINGTON : 2000

Union Calendar No. 593

106th Congress, 2d Session – – – – – – – – – – – – House Report 106–1023

THE FAILURE TO PRODUCE WHITE HOUSE

E-MAILS: THREATS, OBSTRUCTION, AND

UNANSWERED QUESTIONS

EIGHTH REPORT

BY THE

COMMITTEE ON GOVERNMENT REFORM

together with

MINORITY AND ADDITIONAL VIEWS

Volume 2 of 2

Available via the World Wide Web: http://www.gpo.gov/congress/house

http://www.house.gov/reform

DECEMBER 4, 2000.—Committed to the Committee of the Whole House

on the State of the Union and ordered to be printed

(II)

COMMITTEE ON GOVERNMENT REFORM

DAN BURTON, Indiana, Chairman

BENJAMIN A. GILMAN, New York

CONSTANCE A. MORELLA, Maryland

CHRISTOPHER SHAYS, Connecticut

ILEANA ROS-LEHTINEN, Florida

JOHN M. MCHUGH, New York

STEPHEN HORN, California

JOHN L. MICA, Florida

THOMAS M. DAVIS III, Virginia

DAVID M. MCINTOSH, Indiana

MARK E. SOUDER, Indiana

JOE SCARBOROUGH, Florida

STEVEN C. LATOURETTE, Ohio

MARSHALL ‘‘MARK’’ SANFORD, South

Carolina

BOB BARR, Georgia

DAN MILLER, Florida

ASA HUTCHINSON, Arkansas

LEE TERRY, Nebraska

JUDY BIGGERT, Illinois

GREG WALDEN, Oregon

DOUG OSE, California

PAUL RYAN, Wisconsin

HELEN CHENOWETH-HAGE, Idaho

DAVID VITTER, Louisiana

HENRY A. WAXMAN, California

TOM LANTOS, California

ROBERT E. WISE, JR., West Virginia

MAJOR R. OWENS, New York

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

PATSY T. MINK, Hawaii

CAROLYN B. MALONEY, New York

ELEANOR HOLMES NORTON, District of

Columbia

CHAKA FATTAH, Pennsylvania

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

ROD R. BLAGOJEVICH, Illinois

DANNY K. DAVIS, Illinois

JOHN F. TIERNEY, Massachusetts

JIM TURNER, Texas

THOMAS H. ALLEN, Maine

HAROLD E. FORD, Jr., Tennessee

JANICE D. SCHAKOWSKY, Illinois

———

BERNARD SANDERS, Vermont

(Independent)

KEVIN BINGER, Staff Director

JAMES C. WILSON, Chief Counsel

DAVID A. KASS, Deputy Counsel and Parliamentarian

M. SCOTT BILLINGSLEY, Counsel

PABLO E. CARRILLO, Counsel

JASON A. FOSTER, Counsel

KIMBERLY A. REED, Counsel

ROBERT A. BRIGGS, Chief Clerk

PHILIP M. SCHILIRO, Minority Staff Director

PHILIP S. BARNETT, Minority Chief Counsel

KRISTIN AMERLING, Minority Deputy Chief Counsel

PAUL WEINBERGER, Minority Counsel

LETTER OF TRANSMITTAL

HOUSE OF REPRESENTATIVES,

Washington, DC, December 4, 2000.

Hon. J. DENNIS HASTERT,

Speaker of the House of Representatives,

Washington, DC.

DEAR MR. SPEAKER: By direction of the Committee on Government Reform, I submit herewith the committee’s eighth report to

the 106th Congress.

DAN BURTON,

Chairman.

(III)

(V)

C O N T E N T S

Page

Table of names ......................................................................................................... VIII

Key dates .................................................................................................................. X

Findings .................................................................................................................... XV

I. Why the committee investigated the White House failure to manage

e-mail records ................................................................................................ 1

A. White House document production: a pattern of delay and omission ...................................................................................................... 3

B. The significance of e-mail records to this committee’s investigations ..................................................................................................... 9

II. The e-mail problems explained: a brief summary ......................................... 12

A. The Mail2 problem ............................................................................. 14

B. The D-User problem ........................................................................... 17

C. The Office of the Vice President problems ....................................... 18

III. The White House concealed the e-mail problems .......................................... 20

A. Mark Lindsay and Laura Callahan threatened contract employees ........................................................................................................ 20

B. The Office of Administration repeatedly informed the White

House about the e-mail problem ....................................................... 41

C. The White House Counsel failed to address the e-mail problem ... 48

D. Additional problems hampered efforts to repair the e-mail system ....................................................................................................... 62

E. Office of Administration management failed to act ........................ 70

IV. The White House has misled Congress and the public about the e-mail

problem .......................................................................................................... 88

A. The White House response ................................................................ 88

B. The White House’s attempts to impede the investigation .............. 96

C. The White House’s gamesmanship with the production of the

missing e-mails ................................................................................... 105

V. Concerns regarding the joint e-mail investigation undertaken by Department of Justice and the Office of Independent Counsel ............................ 112

A. The Attorney General’s refusal to appoint a special counsel ......... 116

B. Tony Barry’s false statements to the Alexander court underscore

the Justice Department’s conflict of interest ................................... 117

C. The Department of Justice’s failure to interview material witnesses in a timely fashion ................................................................. 124

D. The Department of Justice’s failure to devote adequate resources

to the e-mail investigation ................................................................. 128

Exhibits .................................................................................................................... 130

APPENDICES

Appendix 1.—Committee correspondence .............................................................. 874

Appendix 2.—Document subpoenas issued to the White House .......................... 1119

Appendix 3.—Subpoenas to testify issued to the White House ........................... 1283

VIEWS

Minority Views of Hon. Henry A. Waxman, Hon. Tom Lantos, Hon. Major

R. Owens, Hon. Edolphus Towns, Hon. Paul E. Kanjorski, Hon. Patsy

T. Mink, Hon. Carolyn B. Maloney, Hon. Eleanor Holmes Norton, Hon.

Chaka Fattah, Hon. Elijah E. Cummings, Hon. Dennis J. Kucinich, Hon.

Rod R. Blagojevich, Hon. Danny K. Davis, Hon. Jim Turner, Hon. Harold

E. Ford, Jr., and Hon. Janice D. Schakowsky ................................................... 1285

I. Executive summary .......................................................................................... 1285

Page

VI

Minority Views of Hon. Henry A. Waxman, Hon. Tom Lantos, Hon. Major

R. Owens, Hon. Edolphus Towns, Hon. Paul E. Kanjorski, Hon. Patsy

T. Mink, Hon. Carolyn B. Maloney, Hon. Eleanor Holmes Norton, Hon.

Chaka Fattah, Hon. Elijah E. Cummings, Hon. Dennis J. Kucinich, Hon.

Rod R. Blagojevich, Hon. Danny K. Davis, Hon. Jim Turner, Hon. Harold

E. Ford, Jr., and Hon. Janice D. Schakowsky—Continued

A. Background ......................................................................................... 1286

B. Allegations .......................................................................................... 1287

C. The majority’s version of Events ....................................................... 1293

II. Background ....................................................................................................... 1294

A. The Automated Records Management System ................................ 1295

B. The Mail2 problem ............................................................................. 1297

C. Other e-mail problems ....................................................................... 1302

D. Committe knowledge of the e-mail matter ...................................... 1304

III. Allegations regarding the Mail2 problem ....................................................... 1305

A. Allegation that e-mails relevant to investigations have not been

produced .............................................................................................. 1305

B. Allegation that Northrop Grumman employees were threatened

with jail if they discussed the Mail2 problem .................................. 1306

C. Allegation that Northrop Grumman employees were told not to

tell others about the Mail2 problem ................................................. 1310

1. The OA instructions not to discuss ............................................ 1310

2. The OA instructions regarding Northrop Grumman management ............................................................................................. 1313

D. Allegation that the White House concealed information about

the Mail2 problem from Congress and various independent counsels ....................................................................................................... 1314

E. Allegation that Earl Silbert told the White House about the

alleged threats and problems with subpoena compliance ............... 1316

F. Allegation that the White House failed to disclose a computer

disk containing non-produced Monica Lewinsky e-mails ................ 1319

G. Allegation that an OA employee filed a false and misleading

affidavit about the Mail2 problem .................................................... 1320

H. Allegation that an OA employee attempted to hide information

about the Mail2 problem from Congress .......................................... 1321

I. Allegation that Cheryl Mills was responsible for the failure to

disclose the Mail2 problem ................................................................ 1322

J. Allegation that the Justice Department has failed to investigate,

or to appoint a special counsel to investigate, the e-mail matter .. 1323

K. Other allegations ................................................................................ 1325

1. Allegation that the White House has delayed reconstruction

of the e-mails ............................................................................... 1325

2. Allegation that the White House has impeded the committee’s investigation ....................................................................... 1326

3. Allegation that OA briefing materials are evidence of a conspiracy to hide the Mail2 problem from Congress ................... 1327

4. Allegation that Sidney Blumenthal tried to prevent his emails from being archived .......................................................... 1327

IV. Allegations concerning the Office of the Vice President ............................... 1328

A. Allegation that the OVP deliberately attempted to circumvent

subpoena compliance ......................................................................... 1328

B. Allegation that the reconstructed OVP e-mails contain significant

information ......................................................................................... 1330

C. Allegation that Vice President Gore sought to hide e-mails from

investigators ....................................................................................... 1331

D. Allegation that the Vice President was aware of records management problems in the OVP ................................................................ 1332

V. The costs of the investigation and the reconstruction effort ......................... 1333

Exhibits .................................................................................................................... 1336

Additional views of Hon. Dan Burton .................................................................... 1460

I. Further evidence that Northrop Grumman employees were threatened

into secrecy about the e-mail problem ...................................................... 1460

A. Robert Haas told Joseph Vasta about the threats .......................... 1460

B. Northrop Grumman Director of Contracts Joseph Lucente’s letter

to the contractor was prompted by the allegations of threats ........ 1461

Page

VII

Additional views of Hon. Dan Burton—Continued

C. Earl Silbert’s law firm has additional documents related to his

contacts with the White House and representation of Northrop

Grumman ............................................................................................ 1462

D. Telephone message slip confirmed contact between Earl Silbert

and Special Counsel to the President Lanny Breuer in December

1998 ..................................................................................................... 1464

E. Earl Silbert was not Northrop Grumman’s natural choice for

outside counsel on a contracts matter .............................................. 1464

F. Lanny Breuer’s recollection of the contact with Earl Silbert ......... 1465

G. Lucente confirmed the extraordinary nature of OA Director Ada

Posey’s ‘‘special task order’’ request ................................................. 1465

II. Northrop Grumman’s recent failure to cooperate with the investigation 1466

A. Northrop Grumman’s specious assertions of privilege .................... 1466

B. Northrop Grumman’s refusal to waive attorney-client privilege ... 1471

C. Northrop Grumman’s failure to provide documents in a timely

manner ................................................................................................ 1473

III. Further evidence of the insufficiency of the test search and the unraveling of the ‘‘disconnect’’ defense .................................................................. 1474

A. The attorney who performed the comparison changed her story ... 1474

B. Mark Lindsay failed to act after learning of the comparison

results ................................................................................................. 1476

IV. The Justice Department’s questionable handling of the e-mail matter 1477

A. Examples of advocacy in Alexander v. FBI that undermine confidence in the purported criminal investigation .............................. 1477

B. The Attorney General’s failure to allocate adequate resources

to the e-mail investigation ................................................................. 1480

V. The critics of the investigation have utterly failed to address the facts

on their merits ............................................................................................ 1481

A. Response to the minority staff rebuttal ........................................... 1481

B. Judge Todd Campbell’s comments on the report ............................. 1487

C. Cheryl Mills’ opening statement at the committee’s March 4,

2000 hearing ....................................................................................... 1488

Exhibits .................................................................................................................... 1491

APPENDICES

Appendix 1.—Committee correspondence since September 27, 2000 .................. 1567

Appendix 2.—Detailed chronologies ....................................................................... 1635

Appendix 3.—Office of the Vice President documents .......................................... 1653

Union Calendar No. 593

106TH CONGRESS REPT. 106–1023 " ! HOUSE OF REPRESENTATIVES 2d Session Vol. 2 of 2

THE FAILURE TO PRODUCE WHITE HOUSE E-MAILS:

THREATS, OBSTRUCTION, AND UNANSWERED QUESTIONS

DECEMBER 4, 2000.—Committed to the Committee of the Whole House on the State

of the Union and ordered to be printed

Mr. BURTON, from the Committee on Government Reform

submitted the following

EIGHTH REPORT

On October 5, 2000, the Committee on Government Reform approved and adopted a report entitled, ‘‘The Failure to Produce

White House E-Mails: Threats, Obstruction, and Unanswered

Questions.’’ The chairman was directed to transmit a copy to the

Speaker of the House.

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(1285)

1Minority Staff Report of the House Committee on Government Reform, ‘‘Unsubstantiated Allegations of Wrongdoing Involving the Clinton Administration’’ (October 2000) (attached as exhibit 1). 2 ‘‘The NewsHour with Jim Lehrer,’’ PBS (Feb. 25, 1997).

MINORITY VIEWS OF HON. HENRY A. WAXMAN, HON. TOM

LANTOS, HON. MAJOR R. OWENS, HON. EDOLPHUS

TOWNS, HON. PAUL E. KANJORSKI, HON. PATSY T. MINK,

HON. CAROLYN B. MALONEY, HON. ELEANOR HOLMES

NORTON, HON. CHAKA FATTAH, HON. ELIJAH E.

CUMMINGS, HON. DENNIS J. KUCINICH, HON. ROD R.

BLAGOJEVICH, HON. DANNY K. DAVIS, HON. JIM TURNER,

HON. HAROLD E. FORD, JR., AND HON. JANICE D.

SCHAKOWSKY

I. EXECUTIVE SUMMARY

This committee has a long history of making unsubstantiated allegations. Many of these allegations are summarized in a report recently released by the ranking minority member, Representative

Henry A. Waxman.1 The majority has alleged that Deputy White

House Counsel Vince Foster was murdered as part of a coverup of

the Whitewater land deal, that the White House intentionally

maintained an ‘‘enemies list’’ of sensitive FBI files, that the IRS

targeted the President’s enemies for tax audits, that the White

House may have been involved in ‘‘selling or giving information to

the Chinese in exchange for political contributions,’’ and that the

White House ‘‘altered’’ videotapes of White House coffees to conceal

wrongdoing, among numerous other unfounded allegations.

One theme in the majority’s allegations is that the wrongdoing

by the Clinton administration exceeds the wrongdoing exposed in

the Watergate scandal. As early as 1997, Representative Burton

described his campaign fundraising investigation as follows: ‘‘I

think this thing could end up being much bigger than Watergate

ever was.’’2

The majority’s report on e-mails again asserts that the majority

has uncovered a scandal bigger than Watergate:

The implications of these revelations are profound. When

the Nixon White House was forced to admit that there was

an eighteen-and-a-half minute gap on a recorded tape,

there was a firestorm of criticism. The ‘‘gap’’ created by

hundreds of thousands of missing e-mails, and by a Vice

Presidential staff decision to manage records so they could

not be searched, is of no less consequence. If senior White

House personnel were aware of these problems, and if they

failed to take effective measures to recover the withheld

information—or inform those with outstanding document

requests—then the e-mail matter can fairly be called the

most significant obstruction of Congressional investigations

1286

3 House Committee on Government Reform, ‘‘The Failure to Produce White House E-Mails:

Threats, Obstruction and Unanswered Questions,’’ 106th Cong., viii (2000) (emphasis added)

(hereinafter ‘‘majority report’’). 4 1 F.3d 1274 (D.C. Cir. 1993).

5Testimony of Beth Nolan, House Committee on Government Reform, hearing on ‘‘Missing

White House E-Mails: Mismanagement of Subpoenaed Records (continued),’’ 85 (Mar. 30, 2000)

(stenographic record) (stating that ‘‘ARMS was set up in order for the executive office of the

President to comply with the Federal Records Act’’) (hereinafter ‘‘March 30 hearing’’). The Executive Office of the President (EOP) consists of a group of 11 Federal agencies immediately serving the President. These agencies include the White House Office, where many of the President’s

closest advisors are located; the Office of Management and Budget; the National Security Council; and the Office of Administration. The White House Office is legally exempt from the Federal

Records Act, but was nonetheless included in ARMS. 6Statement of Counsel to the President Beth Nolan (Mar. 23, 2000); testimony of Daniel A.

‘‘Tony’’ Barry, House Committee on Government Reform, hearing on ‘‘Missing White House EMails: Mismanagement of Subpoenaed Records,’’ 78–79 (Mar. 23, 2000) (stenographic record)

(hereinafter ‘‘Mar. 23 hearing’’). 7When the White House counsel’s office responds to subpoenas, in addition to searching

ARMS it ‘‘instructs individuals within the relevant EOP offices to search for responsive matein U.S. history. While the White House’s obstruction in Watergate related only to the Watergate break-in, the potential

obstruction of justice by the Clinton White House reaches

much further. The e-mail problem effects [sic] almost every

investigation of the Administration, from campaign finance

to Monica Lewinsky.3

As these views will demonstrate, the committee’s e-mail investigation has followed the same pattern as its previous ‘‘scandal’’ investigations. Many sensational allegations have been made, but

none have been proven.

A. BACKGROUND

In July 1994, the White House created a central electronic database, called the Automated Records Management System (ARMS),

to archive official Presidential and Federal records, including emails. ARMS was created to comply with the court decision Armstrong v. Executive Office of the President,4 which interpreted the

Federal Records Act as requiring the preservation of e-mail messages by parts of the Executive Office of the President.5 In June

1998, contractors working for Northrop Grumman discovered a

technical problem affecting a White House e-mail server (named

‘‘Mail2’’) which prevented incoming e-mail to accounts on that server from being archived in ARMS. The problem, which dated back

to August 1996, was fixed prospectively in November 1998.

The number of e-mails affected by the Mail2 problem is relatively

small compared to the total number of e-mails properly recorded in

ARMS. The Mail2 problem affected only incoming e-mail sent to

526 accounts on the Mail2 server; the problem did not affect any

e-mails sent from those 526 accounts. Furthermore, any incoming

e-mails that were replied to or forwarded by the recipient (or that

were copied to a nonaffected user) were archived in ARMS.6

The Mail2 problem may have had some limited impact on White

House document production. Because the White House conducted

searches of ARMS to respond to information requests, some of the

narrow subset of e-mails affected by the Mail2 problem may not

have been supplied to independent counsels and congressional committees investigating the White House. Some of the e-mails affected by the Mail2 problem, however, were likely to have been

captured by other search means and given to the investigators.7

1287

rials. This directive explicitly states that each individual should search computer records as well

as hard copies.’’ Statement of Counsel to the President Beth Nolan (Mar. 23, 2000) (attached

as exhibit 2). Thus, any responsive e-mails that were saved by the sender or recipient should

have been produced, regardless of whether or not they were recorded in ARMS. In addition, emails that were not retrieved by the White House may have been provided to investigators by

other sources that sent e-mails to the White House. These potential sources include Federal

agencies and the Democratic National Committee. 8Letter from Michael K. Bartosz, general counsel to the Office of Administration, to James

C. Wilson, chief counsel (Sept. 29, 2000) (attached as exhibit 3). 9Declaration of Betty Lambuth, Alexander v. FBI, No. 96–2123 (Feb. 24, 2000). See also third

declaration of Sheryl Hall, Alexander v. FBI, No. 96–2123 (Feb. 19, 2000). 10Third declaration of Sheryl Hall, Alexander v. FBI, No. 96–2123 (Feb. 19, 2000). 11 A member of the Office of White House Counsel, Michelle Peterson, compared the e-mails

retrieved by Mr. Haas with previously produced e-mails and determined that they were duplicative. Interview of Michelle Peterson by majority and minority staff, House Committee on Government Reform (June 8, 2000). Ms. Peterson recently filed a declaration indicating that she

Continued

In the course of responding to committee inquiries regarding the

Mail2 problem, the White House also discovered information about

other e-mail problems, including a problem that prevented incoming e-mail sent between approximately November 1998 and April

1999 to users whose account names began with the letter ‘‘d’’ from

being archived; a problem that caused a small, random assortment

of e-mails from June 1997 to August 1999 not to be archived on the

National Security Council’s classified computer system; and a problem that prevented e-mails on the server of the Office of the Vice

President (OVP) from being fully managed by ARMS.

The White House is in the process of reconstructing the e-mails

that were not initially searched due to these computer glitches. As

of September 29, 2000, the White House had committed or spent

approximately $6.9 million on this project, and had expended

39,157 hours of work (34,822 hours by contract employees, 3,795

hours by employees of the Executive Office of the President, and

540 hours by security personnel). Overall, the cost of the project

has been estimated at $11.7 million.8

B. ALLEGATIONS

The e-mail problems in the White House are highly technical.

They do not involve any conscious effort to withhold subpoenaed

materials from the committee. Nevertheless, during the course of

the committee’s investigation, they have spawned a series of inflammatory accusations. The principal allegations and the actual

facts uncovered during the investigation are described below:

• Allegation: The missing White House e-mails contain ‘‘information relating to Filegate, concerning the Monica Lewinsky scandal, the sale of Clinton Commerce Department trade mission

seats in exchange for campaign contributions, and Vice President

Al Gore’s involvement in campaign fundraising controversies.’’ 9

If the contents of these e-mails become known, ‘‘there would be

different outcomes to these scandals, as the e-mails were incriminating and could cause people to go to jail.’’ 10

The Facts: The only witness to view the contents of any of the

‘‘missing’’ e-mails was a Northrop Grumman employee, Robert

Haas, who had the responsibility of searching for missing e-mails

relating to Monica Lewinsky. Mr. Haas found a few Lewinsky-related e-mails that turned out to have been previously provided to

Independent Counsel Kenneth Starr.11 He testified under oath: ‘‘I

1288

may have overlooked two nonsubstantive differences between the Haas e-mails and previously

produced e-mails. Ms. Peterson stated that the Office of Independent Counsel Robert Ray

showed her an e-mail allegedly retrieved by Mr. Haas which was substantively identical to an

e-mail that had previously been produced ‘‘but had a different time and a different spelling of

the e-mail addressee.’’ Third declaration of Michelle Peterson at ¶ 7, Alexander v. FBI, No. 96–

2123 (Sept. 27, 2000). Ms. Peterson also was shown an e-mail allegedly retrieved by Mr. Haas

which was identical to an already-produced e-mail but which contained a ‘‘cc’’ list that the earlier e-mail lacked. Id. at ¶ 8. Ms. Peterson reaffirmed that she believed at the time that all of

the e-mails retrieved by Mr. Haas had been produced, but allowed that she may have overlooked

the two technical differences discussed above (although she could not confirm this fact herself,

as she did not have access to any of the sets of e-mails produced or retrieved by the White

House). Id. at ¶ 9. 12Testimony of Robert Haas, March 23 hearing at 89, 61. 13Majority report at viii–x. 14 E-mail from Karen Skelton to Ellen L. Ochs (Apr. 23, 1996) (E 8862) (discussed in majority

report at x). 15See, e.g., Senate Committee on Governmental Affairs, ‘‘Investigation of Illegal or Improper

Activities in Connection with 1996 Federal Election Campaigns,’’ 105th Cong., 2d sess., vol. 1,

196 (March 1998) (stating that ‘‘[a] number of White House and DNC documents underline the

importance of the coffees as fundraising events’’ and citing to documents). 16The Vice President told investigators that the coffees ‘‘allowed the President to spend time

with influential people who wanted to talk about policy, who would at some later time possibly

be asked to financially support the DNC.’’ He further stated that ‘‘[i]t was contemplated at the

time when they were set up that some or many of those who participated in those sessions

would later on be likely to contribute.’’ Interview of Vice President Gore with Robert J. Conrad,

Jr., Head of the Department of Justice Campaign Financing Task Force (Apr. 18, 2000).

never . . . intimated in any way, shape, or form that I knew any

content of any e-mails other than the two Monica Lewinsky documents’’ and ‘‘[a]t no time did I look at any other documents in any

other mail files.’’ 12

• Allegation: Recently retrieved e-mails produced by the White

House ‘‘are highly relevant to the committee’s investigation of

campaign finance matters;’’ the information in these e-mails is

‘‘important for evaluating whether the Vice President committed

perjury’’ and ‘‘shows that it is impossible to come to a final conclusion about underlying campaign finance matters without a

complete review of all the previously withheld information.’’ 13

The Facts: So far, between 180,000 and 200,000 e-mails have

been reconstructed and reviewed, and any responsive e-mails have

been produced to the Office of Independent Counsel Robert Ray or

the Justice Department’s campaign finance task force. Only 56 of

the e-mails produced to the Independent Counsel or the task force

were responsive to this committee’s subpoenas, and several of those

had already been produced in similar form (e.g., with a different recipient or sender). None of these 56 e-mails provided significant

new evidence.

The majority cites as significant new information one e-mail between two Vice Presidential staffers that refers to ‘‘FR coffees’’ at

the White House, which the majority asserts is evidence that the

coffees were used for fundraising purposes.14 It is not clear whether the term ‘‘FR’’ refers to ‘‘fundraising’’ or ‘‘finance-related.’’ Even

if the term ‘‘FR’’ is construed to refer to fundraising, however, the

e-mail does not add new evidence. Other internal communications

in the Vice President’s office have described these coffees as ‘‘fundraising’’ events.15 Even the Vice President has repeatedly said that

attendees at White House coffees would likely be solicited for contributions later on.16

Another e-mail relied upon by the majority is an e-mail from a

scheduler that refers to a fundraising event in Los Angeles and

1289

17 E-mail from Jackie A. Dycke to R. Martinez (Apr. 9, 1996) (E 8747–54) (discussed in majority report at x). 18For example, the document indicates that the Vice President will attend a DNC reception

at the Hsi Lai Temple both in Los Angeles and San Jose. Id. 19 E.g., document labeled ‘‘Current Schedule for April 29’’ (EOP 056497) (referring to a ‘‘DNC

luncheon in LA/Hacienda Heights’’) (attached as exhibit 4); e-mail from Jackie A. Dycke to R.

Martinez (Apr. 10, 1996) (EOP 053292) (noting that ‘‘the VP is going to San Jose and LA for

DNC fundraising events on April 29’’) (attached as exhibit 5). 20Senate Committee on Governmental Affairs, ‘‘Investigation of Illegal or Improper Activities

in Connection with 1996 Federal Election Campaigns,’’ 105th Cong., 2d sess., vol. 2, 1793–94,

vol. 4, 4818–31 (March 1998). The Vice President’s staff testified that they were sloppy in their

use of the term ‘‘fundraiser.’’ Id. at 4822–26. 21Statement of Representative Dan Burton, House Committee on Government Reform, hearing on ‘‘Contacts Between Northrop Grumman Corporation and the White House Regarding

Missing White House E-Mails,’’ 8 (Sept. 26, 2000) (hereinafter ‘‘Sept. 26 hearing’’). 22Letter from Representative Dan Burton to Counsel to the President Beth Nolan (Mar. 8,

2000). 23Statement of Counsel to the President Beth Nolan (Mar. 23, 2000). 24For example, the White House produced an e-mail to this committee from the National Security Council describing Democratic fundraiser Johnny Chung as a ‘‘hustler’’ and expressing

concern over Mr. Chung’s efforts to bring Chinese businessmen into the White House. That email was referred to repeatedly during the committee’s two hearings on Mr. Chung, and received extensive coverage in the press. See, e.g, ‘‘An Investigative Report: What Clinton Knew—

How a Push for New Fund-Raising Led to Foreign Access, Bad Money and Questionable Ties,’’

Los Angeles Times (Dec. 21, 1997); ‘‘Democratic Donor Chung Invokes 5th Amendment; House

Members Informally Interview Businessman,’’ Washington Post (Nov. 15, 1997); ‘‘Donors Allege

Laundered Contributions to Clinton-Gore Campaign,’’ Associated Press (Nov. 11, 1997).

lists an event at the Hsi Lai Buddhist Temple.17 This e-mail is a

draft schedule and it is incomplete and inaccurate in several

places.18 It adds little to what is already known about the Hsi Lai

Temple event. Internal communications in which the Vice President’s staff apparently used the term ‘‘fundraiser’’ to describe the

Hsi Lai Temple event were produced and investigated long ago.19

Three years ago, the Senate Governmental Affairs Committee

talked with the Vice President’s scheduling staff about such internal communications and thoroughly explored whether staff viewed

the event as a fundraiser and how the Vice President was briefed

about the event.20 The newly reconstructed e-mails contain no email either to or from the Vice President regarding the Temple

event.

• Allegation: ‘‘As a result of the White House cover-up, information

was kept from this committee.’’ 21 There was ‘‘in effect, a purposeful effort to keep documents from Congress, the Department of

Justice, and various Independent Counsels.’’ 22

The Facts: The evidence shows that at the time the Mail2 problem was first discovered, the Office of Administration (OA) employees responsible for managing the e-mail system did not want any

public discussion of the problem until the scope of the problem was

identified and senior White House officials could be informed. This

was an appropriate response given that the problem was discovered

around June 1998, when the White House was the subject of intense media scrutiny generated by Independent Counsel Ken

Starr’s investigation of the Monica Lewinsky affair.

There is no evidence, however, that the White House deliberately

kept any e-mails from Federal or congressional investigators. In

fact, in 1997 the White House provided approximately 7,700 pages

of e-mails to this committee on campaign finance matters alone,23

many of which the majority has cited in its investigation.24

The OA employees who were first informed of the e-mail problem

promptly brought the problem to the attention of the White House

1290

25Testimony of Mark Lindsay, March 23 hearing at 246. 26Statement of Counsel to the President Beth Nolan (Mar. 23, 2000); testimony of Robert

Haas, March 23 hearing at 60, 80–81; testimony of Mark Lindsay, March 23 hearing at 247. 27Statement of Counsel to the President Beth Nolan (Mar. 23, 2000). 28 Id.; testimony of Counsel to the President Beth Nolan, March 30 hearing at 25–26. According to Ms. Nolan, steps in the reconstruction process included selecting and contracting with

a private entity with the appropriate technical expertise and resources, putting in place and

testing the requisite equipment, and engaging a separate private contractor for independent validation and verification. Testimony of Counsel to the President Beth Nolan, March 30 hearing

at 25–26. 29See letter from Counsel to the President Beth Nolan to Representative Dan Burton (Sept.

26, 2000) (attached as exhibit 6). According to the White House, with about 3 weeks of computer

staff time, it would be able to conduct targeted searches using 100 backup tapes, 70 e-mail accounts, and 70 search terms. Id. 30Letter from Associate Counsel to the President Lisa Klem to Chief Counsel James C. Wilson

(Oct. 4, 2000) (attached as exhibit 7). 31Statement of Representative Helen Chenoweth-Hage, March 23 hearing. 32Testimony of Laura Callahan, March 23 hearing at 216, 226–27; testimony of Mark Lindsay, March 23 hearing at 199. 33Testimony of Yiman Salim, March 23 hearing at 21; testimony of John Spriggs, March 23

hearing at 47; statement of Paulette Cichon (Mar. 29, 2000) (attached as exhibit 8). 34Testimony of Robert Haas, March 23 hearing at 32. 35Testimony of Sandra Golas, March 23 hearing at 45.

Deputy Chief of Staff and the Office of White House Counsel.25 The

counsel’s office then directed that a ‘‘test’’ be performed to determine whether the e-mail problem had affected the production of

documents to Independent Counsel Starr.26 This test turned up no

new documents, leading the counsel’s office to believe that the email problem did not affect document production.27 Although it

now appears that this belief was mistaken, there is no evidence

that White House counsel acted in bad faith.

After White House counsel became aware of the significance of

the e-mails problems in 2000, the White House began the process

of restoring backup tapes of the affected e-mails.28 On September

14, 2000, White House counsel informed committee staff that the

reconstruction effort had reached the stage where the White House

could search and produce batches of e-mails on an expedited basis

and offered to conduct searches specified by the committee.29 The

White House repeated the offer on October 4.30 To date, the majority has failed to take the White House up on its offer.

• Allegation: ‘‘[E]vidence suggests that contracted staffers were personally threatened with repercussions and even jail should they

mention the very existence of the server problem to anyone, even

their bosses. This occurred while these e-mails were under

subpoenae. This is inexcusable. This is criminal. If this is not obstruction of justice, I don’t know what is.’’ 31

The Facts: The evidence regarding alleged jail threats is inconclusive and contradictory. In total, eight individuals were present

at meetings when the alleged threats were made. Of these eight individuals, two deny making any jail threats; 32 three have no recollection of any jail threats; 33 one recalls a jail threat being made in

response to a ‘‘flippant’’ question; 34 and one recalls the word ‘‘jail’’

being mentioned but cannot remember who said it.35 Moreover, the

individuals who allegedly made the jail threats, Mark Lindsay and

Laura Callahan, were not even White House employees; both

worked in the Office of Administration, which provides support

services to the White House, and Mrs. Callahan is a career civil

1291

36Testimony of Laura Callahan, March 23 hearing at 206. 37Statement of Representative Dan Burton (Sept. 26, 2000). 38Memorandum from Representative Dan Burton to members of the Government Reform

Committee (Sept. 21, 2000). 39There was a difference of opinion between Northrop Grumman and the White House over

whether work on the e-mail problem was within the scope of the company’s contract. Testimony

of Mark Lindsay, March 23 hearing at 261–63. See also letter from Joseph F. Lucente, director,

contracts and subcontracts, Northrop Grumman, to Dale Helms, Executive Office of the President (Sept. 14, 1998) (NGL 00503) (stating that ‘‘the level of effort required to remedy the [email] dysfunction will substantially exceed the scope of work contemplated under the referenced

contract’’) (attached as exhibit 9). 40Majority report at viii. 41 Id. at xviii. 42 Interview of Michael Gill by majority and minority staff, House Committee on Government

Reform (July 24, 2000). According to Mr. Gill, who handled information technology matters in

the OVP, in order for the OVP to connect to ARMS, it would have had to take a giant technological step backwards by converting its windows-based e-mail system to a character-based system which Mr. Gill considered to be less user-friendly. Id. 43 Interview of Michael Gill by majority and minority staff, House Committee on Government

Reform (July 24, 2000); interview of Hon. Todd Campbell by majority and minority staff, House

Committee on Government Reform (Aug. 18, 2000).

servant.36 There is no evidence that White House officials had any

knowledge of—or participated in—any threats.

• Allegation: Earl Silbert, a ‘‘high-priced Washington fixer,’’ was

hired by Northrop Grumman and told ‘‘about possible law breaking and threats to his client’s employees.’’ 37 Evidence of contacts

between Mr. Silbert and the White House ‘‘may dramatically undermine White House claims of a ‘disconnect’ that prevented

them from understanding the e-mail problem.’’ 38

The Facts: This allegation is wholly speculative. Mr. Silbert’s two

brief phone calls with White House counsel may have involved

nothing more than contractual disputes then being discussed by

Northrop Grumman and the White House.39 There is no evidence

that Mr. Silbert was aware of or communicated information about

threats or subpoena compliance. These issues were peripheral, if

not irrelevant, to the contractual matter at stake.

• Allegation: The Vice President’s office ‘‘took affirmative steps to

keep from storing its e-mail records in the only system that

would permit full and accurate subpoena compliance.’’ 40 A counsel to the Vice President ‘‘personally decided that the Vice President would not store his records in a way that would permit

compliance with document requests’’ and there ‘‘can be little

doubt that the Vice President’s advisors knew that their actions

would permit his office to operate in a manner that would make

it less susceptible to oversight.’’ 41

The Facts: In 1994, the Office of the Vice President opted not to

archive its e-mails electronically via ARMS. There is no evidence

whatsoever that this decision was seen, or could have been seen,

as affecting subpoena compliance. At the time, ARMS was intended

to be strictly a way of archiving electronic records for posterity, not

a tool for subpoena compliance. The Office of the Vice President,

which was under no legal or ethical obligation to archive its e-mail

electronically, opted not to use ARMS because of apparent technical

concerns about connecting the OVP computer system to ARMS.42

Instead of using ARMS, the office preserved its records by instructing personnel to print out and save work-related e-mails, and by

regularly backing up the system and saving the backup tapes.43

1292

44Letter from Representative Dan Burton to Attorney General Janet Reno (Sept. 7, 2000). 45Letter from Representative Dan Burton to Attorney General Janet Reno (Mar. 30, 2000). 46Declaration of Daniel A. Barry, Alexander v. FBI, No. 96–2123 (July 9, 1999), ¶ 4. 47Statement of Representative Dan Burton, House Committee on Government Reform, hearing on ‘‘Missing White House E-Mails: Mismanagement of Subpoenaed Records—Day Three,’’ 13

(May 3, 2000) (stenographic record) (hereinafter ‘‘May 3 hearing’’). 48Statement of Representative Bob Barr, May 3 hearing at 35. 49Testimony of Karl Heissner, May 3 hearing at 49–50. 50 Id. at 50–51. 51 ‘‘White House Has Disk With Lewinsky E-Mail,’’ Washington Times (Mar. 29, 2000). 52Testimony of Beth Nolan, March 30 hearing at 26; see also supra note 11.

• Allegation: ‘‘[A] White House employee, aided and counseled by

Justice Department lawyers, submitted a false affidavit to a Federal court that concealed the failure of the White House to search

for all e-mails responsive to subpoenas.’’ 44 The affidavit contains

an assertion about ARMS that is ‘‘utterly false.’’ 45

The Facts: The affidavit was filed in 1999 by a career civil servant, Daniel A. ‘‘Tony’’ Barry, as part of the government’s efforts to

convince a judge hearing a civil lawsuit that ARMS searches were

not necessary for discovery purposes. In the course of describing

the cost and difficulty of conducting e-mail searches, the affidavit

states: ‘‘Since July 14, 1994, e-mail within the EOP system administered by the Office of Administration has been archived in the

EOP Automated Records Management System (ARMS).’’ 46 Read in

context, the affidavit was simply and accurately attempting to describe the basic function of ARMS—namely, that it archives e-mail

and that it has been in effect since July 14, 1994.

• Allegation: An e-mail written by a mid-level OA employee ‘‘concludes by saying, ‘Let sleeping dogs lie.’ I think translated that

means let’s keep a lid on this, and don’t let Congress and the

independent counsels know about it.’’ 47 This e-mail ‘‘would be

considered evidence of obstruction of justice.’’ 48

The Facts: The employee who wrote the e-mail in question is

Karl Heissner, a 25-year career civil servant. He testified that his

e-mail memo addressed two separate and unrelated issues.49 One

part of the e-mail is entitled ‘‘Mail2 Reconstruction,’’ and it provides a summary of the Mail2 problem, its discovery, and subsequent efforts to fix it. The other part of the e-mail, entitled, ‘‘Information Requests,’’ discusses the number of information requests received by the White House. Mr. Heissner testified that his reference to letting ‘‘sleeping dogs lie’’ referred to the declining number of information requests received by the White House, and that

it had nothing to do with the Mail2 problem.50

• Allegation: ‘‘The White House has in its possession a previously

undisclosed computer disk with e-mails by former intern Monica

Lewinsky’’ that were sought ‘‘by a Federal grand jury and three

congressional committees, but never turned over.’’ 51

The Facts: The computer disk was a copy of a file belonging to

a computer contractor. It did not contain any previously undisclosed e-mail. The Lewinsky-related e-mail on the disk had been

examined and determined to be duplicative of material that had already been produced.52

1293

53Letter from Representative Dan Burton to Judge Royce C. Lamberth (Mar. 29, 2000). 54Statement of Representative Dan Burton, March 30 hearing at 14. 55Testimony of Alan Gershel, Sept. 26 hearing at 35, 48.

• Allegation: The Justice Department ‘‘took no steps to determine

whether reports about the e-mail problem were true.’’ 53 ‘‘The only

answer is to appoint a Special Counsel to do the job.’’ 54

The Facts: The e-mail matter is already being investigated by

Independent Counsel Robert Ray, who is working in coordination

with the Justice Department.55 The independent counsel’s investigation is focused on examining e-mail glitches as they relate to

the production of documents to his office, which means that all of

the issues explored by the committee—including allegations of

threats and a cover-up—are relevant to his inquiry. There is no

evidence that the Department has hindered Mr. Ray’s investigation. Nor is there any evidence that the Department’s investigation

is less complete than that of Mr. Ray or that the Department has

failed to consult with Mr. Ray before making any investigative decisions.

C. THE MAJORITY’S VERSION OF EVENTS

The majority has woven a tale of massive coverup and subterfuge

conducted to prevent investigators from learning about White

House e-mail glitches. Under the majority’s theory, numerous individuals, from computer specialists, to administrators, to White

House lawyers, to individuals outside the White House, have either

been dishonest with the committee about the e-mails matter or

have purposely attempted to impede the work of investigators.

The individuals implicated by the majority include:

• Charles F.C. Ruff, currently a member of the law firm Covington & Burling. Mr. Ruff’s public service spans three decades.

He has served as Counsel to the President; Corporation Counsel, District of Columbia; U.S. Attorney, District of Columbia;

Special Prosecutor, Watergate Special Prosecution Force; Principal Associate Deputy Attorney General; Acting Deputy Attorney General; and Deputy Inspector General, Department of

Health, Education and Welfare;

• Beth Nolan, currently Counsel to the President. Ms. Nolan previously served as Deputy Assistant Attorney General in the Office of Legal Counsel at the Department of Justice, and as an

Attorney-Advisor in the Office of Legal Counsel. She also was a

law professor at George Washington University from 1985–1997,

where she taught courses in constitutional law, legal ethics, government ethics, and government lawyering;

• Todd Campbell, a Federal judge in Tennessee since 1996. Judge

Campbell’s public service includes 2 years as legal counsel for

Vice President Gore;

• Earl J. Silbert, currently a member of the law firm Piper

Marbury Rudnick & Wolfe. Mr. Silbert has a long history of

public service, including work as Assistant U.S. Attorney at the

Department of Justice, and Principal Assistant U.S. Attorney

and then U.S. Attorney for the District of Columbia;

1294

56Those three people are Mark Lindsay, Beth Nolan, and Robert Raben.

• Mark Lindsay, currently Assistant to the President for Management and Administration. Mark Lindsay’s public service includes serving as Deputy Assistant to the President for Management and Administration, Director of the Office of Administration, General Counsel for the Office of Administration, and senior counsel to Representative Louis Stokes;

• Cheryl Mills, currently senior vice president for corporate policy

and public programming at Oxygen Media. Ms. Mills’s public

service includes nearly 7 years in the Office of White House

Counsel, first as Associate Counsel and later as Deputy Counsel;

• Laura Callahan, currently special assistant for information

technology at the Department of Labor. Mrs. Callahan is a career Federal civil servant whose service dates back to 1984, and

she is also a registered Republican;

• Karl Heissner, currently a computer specialist at the Office of

Administration. Mr. Heissner is a career Federal civil servant

who served as a computer specialist during the Ford, Carter,

Reagan, Bush, and Clinton administrations; and

• Daniel A. ‘‘Tony’’ Barry, currently Deputy Data Center Manager/Electronic Records Manager at the Office of Administration. Mr. Barry has worked as a computer specialist in the Office of Administration in both the Bush and Clinton administrations.

As support for their allegations involving these individuals, the

majority relies heavily on speculation, presents evidence selectively, cites authority which does not support the proposition stated, disregards sworn testimony of White House officials and career

civil servants, and interprets gaps in the evidence as opposed to objectively analyzing the evidence before the committee. The majority’s theories are based on the premise that all of the individuals

implicated cast their integrity aside to conceal a subset of e-mails

whose content was entirely unknown to them. This premise is

wholly implausible and amounts to a smear on the reputations of

many distinguished individuals.

In sum, the majority’s comparison of the e-mails matter to Watergate is ludicrous. The committee has received no information

that any White House official or Office of Administration employee

intentionally created the e-mail problems, made any attempt to impede investigation of the problems, or had any knowledge of the

content of e-mails that may not have been captured.

II. BACKGROUND

The committee has devoted considerable resources to investigating the e-mail matter. The committee has held 5 days of hearings on this topic—on March 23, March 30, May 3, May 4, and September 26—at which it received testimony from 17 people (3 of

whom each testified twice).56 Committee staff also privately interviewed 36 people in connection with the e-mail investigation, and

1295

57This report follows the convention of collectively referring to the statutory regime governing

Federal records as the ‘‘Federal Records Act.’’ 58 44 U.S.C. § 3301. 59 44 U.S.C. § 3102. 60 44 U.S.C. § 2905. 61Public Law No. 95–591, 92 Stat. 2523 (1978). 62 44 U.S.C. § 2201. 63 Armstrong v. Executive Office of the President, 1 F.3d at 1290–91 (citation omitted). 64 44 U.S.C. § 2203(f)(1). 65 44 U.S.C. § 2204(a).

the committee has requested and received 10,676 pages of documents.

The following discussion summarizes what the committee

learned about the origin and nature of the White House e-mail

problems during the investigation.

A. THE AUTOMATED RECORDS MANAGEMENT SYSTEM

Beginning in 1950, Congress has passed several statutes regulating the process by which Federal agencies and the White House

create, manage, and maintain official records. These recordkeeping

laws distinguish between Federal and Presidential records.

The Federal Records Act 57 (FRA) covers:

documentary materials, regardless of physical form or characteristics, made or received by an agency of the United States

Government under Federal law or in connection with the

transaction of public business and preserved or appropriate for

preservation by that agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the Government or because of the informational value of data in them.58

Under the FRA, agency heads are required to ‘‘establish and maintain an active, continuing program for the economical and efficient

management of the records of the agency.’’ 59 In addition, the Archivist of the United States is required to ‘‘establish standards for the

selective retention of records of continuing value, and assist Federal agencies in applying the standards to records in their custody.’’ 60

Presidential records are regulated under the Presidential Records

Act (PRA).61 They are defined as:

documentary materials, or any reasonably segregable portion

thereof, created or received by the President, his immediate

staff, or a unit or individual of the Executive Office of the

President whose function is to advise and assist the President,

in the course of conducting activities which relate to or have

an effect upon the carrying out of the constitutional, statutory,

or other official or ceremonial duties of the President.62

While Federal records are regulated by a ‘‘strict document management regime . . . the PRA ‘accords the President virtually complete control over his records during his term of office.’ ’’ 63 The PRA

stipulates that, once the President leaves office, responsibility for

the custody and control over that President’s official records is assigned to the Archivist of the United States,64 but even then the

President may still designate a period of up to 12 years during

which access to his Presidential records is restricted.65

In January 1989, in the waning days of the Reagan administration, several researchers and nonprofit organizations filed a lawsuit

1296

66The decision explained that ‘‘important information present in the e-mail system, such as

who sent a document, who received it, and when that person received it, will not always appear

on the computer screen and so will not be preserved on the paper print-out.’’ 1 F.3d at 1284. 67Letter from Counsel to the President Beth Nolan to Representative Dan Burton (Mar. 17,

2000) (attached as exhibit 10). 68 Id. 69 Id. 70 Id. 71 Id.

seeking to prevent the destruction of electronic data stored on the

computer systems of the Executive Office of the President (EOP)

and the National Security Council (NSC). The suit sought a declaration that such data were Federal and Presidential records and

thus subject to the statutory provisions cited above. On August 13,

1993, the D.C. Circuit Court of Appeals issued a decision in the

case, Armstrong v. Executive Office of the President, which affirmed

that the FRA applies to electronic mail (e-mail) and that existing

EOP guidelines for managing e-mail—which required employees to

print and save hard copies of e-mails—were not in compliance with

FRA requirements.66

Following the Armstrong decision, the White House authorized

the creation of a database known as the Automated Records Management System (ARMS) to manage electronic records.67 While the

Armstrong decision applied only to Federal records, the White

House opted to use ARMS to manage both Federal and Presidential

records generated within the EOP. All internally generated emails—meaning e-mails sent from ARMS-managed accounts within

the EOP—would be automatically copied and sent to ARMS at the

time they were sent.68 In addition, software was written that would

regularly scan user accounts on the EOP’s computer servers for incoming e-mail, which would then be copied and archived in

ARMS.69

ARMS went into operation in July 1994.70 In order to comply

with Armstrong, the White House also launched a reconstruction

effort to ensure that e-mails dating from before July 1994 back to

the beginning of the Clinton administration were entered into the

new system. That reconstruction effort was completed in 1999.71

Responsibility for the pre-1994 reconstruction effort, and for general maintenance of ARMS, lay with the Office of Administration

(OA), which provides administrative support services, including

data processing and records maintenance, to all units within the

EOP. OA is headed by a Presidentially appointed director and has

approximately 180 staff, the vast majority of whom are career civil

servants. In order to assist OA with its responsibilities, the EOP

has contracted with private companies. Prior to 1997, the EOP had

a contract with PRC Inc., a wholly owned subsidiary of Litton PRC,

to provide information technology (IT) services. Upon the contract’s

expiration in late 1997, a new contract was signed with Northrop

Grumman, and Northrop Grumman’s contract and subcontract employees continue to provide onsite assistance to OA personnel.

While ARMS was originally designed to comply with the Armstrong decision, the White House later opted to use ARMS’s wordsearch capabilities to assist it in responding to subpoenas and

other information requests. Upon receipt of a request for documents, the White House Counsel’s office will instruct individuals

within the relevant EOP offices to search for responsive materials,

1297

72 Id. 73 Id. 74Letter from then-Counsel to the President Charles F.C. Ruff to Representative Dan Burton

(Sept. 11, 1997) (attached as exhibit 11). 75Testimony of Daniel A. Barry, March 23 hearing at 103. 76 Undated, type-written notes (E 2496). While this document contains no indication on its

face as to its author or recipient, OA Counsel John H. Young identified it as Mr. Barry’s anomaly report for the committee. Testimony of John H. Young, March 23 hearing at 190. The majority report states that Mr. Barry hand-delivered the report to Mr. Wright, contrary to his ‘‘general practice’’ of e-mailing weekly reports. Majority report at 16. The majority also states that

Mr. Barry did not refer to the names of the account users in his incident report, contrary to

his ‘‘general practice.’’ Majority report at 16–17. These assertions about Mr. Barry’s ‘‘general

practice’’ are not substantiated, however. Moreover, their significance is questionable, even if

they were accurate. 77Mr. Barry testified that ‘‘there have been problems in the past with the [Lotus] Notes [email network]-ARMS interface.’’ Testimony of Daniel A. Barry, March 23 hearing at 110. OA

employee Laura Callahan told the committee that ‘‘[w]e’ve had numerous problems with the email system. It was very poorly designed and very poorly constructed by a contractor prior to

Northrop Grumman. So, as a result, anomalies were fairly common.’’ Testimony of Laura Callahan, March 23 hearing at 212–13. Assistant to the President for Management and Administration Mark Lindsay testified that ‘‘I had potential problems with computer systems and with email issues frequently. We had an antiquated system that we are working very diligently to

make improvements on.’’ Testimony of Mark Lindsay, House Committee on Government Reform,

hearing on ‘‘Missing White House E-Mails: Mismanagement of Subpoenaed Records—Day Four,’’

108 (May 4, 2000) (stenographic record) (hereinafter ‘‘May 4 hearing’’).

including computer records.72 In addition, the White House will instruct OA personnel to do a computerized search of ARMS.73 While

it is not clear when the White House first used ARMS to respond

to information requests, a letter sent by then-Counsel to the President Charles F.C. Ruff to Representative Burton in September

1997 indicates that the White House informed this committee in

the spring of 1997 that White House e-mails were stored in a central archive which was capable of being searched (albeit by a costly

and time-consuming procedure).74

B. THE MAIL2 PROBLEM

Daniel A. ‘‘Tony’’ Barry, an OA computer specialist who is responsible for the overall system administration of ARMS, was performing an ARMS search in January 1998 for documents relating

to Monica Lewinsky when he found what appeared to be a gap in

the e-mail correspondence between Ms. Lewinsky and Ashley

Raines. As Mr. Barry explained to the Committee, ‘‘I discovered

what looked like conversational e-mail between two people and I

only saw one side of the conversation.’’ 75 Mr. Barry enlisted the

help of a Northrop Grumman contract employee named John

Spriggs but the two men were unable to figure out the cause of the

problem. Mr. Barry then filed a report with his superior, Jim

Wright, describing the incident. In this report, Mr. Barry noted

that he could not determine if the incident reflected a systemic

problem or a one-time problem.76 This was apparently not the first

time that problems with ARMS had been discovered; testimony

from several government employees indicated that e-mail-related

problems were not uncommon.77

It was several more months before OA and Northrop Grumman

personnel were able to identify the cause of the problem noted by

Mr. Barry. Around June 1998, two systems administrators at the

EOP under contract to Northrop Grumman—Yiman Salim and

Robert Haas—discovered a problem which was preventing some inVerDate 11-MAY-2000 22:54 Dec 08, 2000 Jkt 067962 PO 00000 Frm 00435 Fmt 6604 Sfmt 6604 E:\HR\OC\HR1023V2.XXX pfrm11 PsN: HR1023V2
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78There is some disagreement about when exactly this occurred. Mr. Haas and Ms. Salim are

in general agreement on the date. He testified that it was June 12. Testimony of Robert Haas

at March 23 hearing. Ms. Salim testified that it was a ‘‘few days’’ prior to June 15. Testimony

of Yiman Salim, March 23 hearing at 20. According to Northrop Grumman employee Betty

Lambuth, however, the problem was discovered in May 1998, while Counsel to the President

Beth Nolan suggested that it was discovered in May or June. Testimony of Betty Lambuth at

March 23 hearing; statement of Counsel to the President Beth Nolan (Mar. 23, 2000). 79Testimony of Yiman Salim, March 23 hearing at 19. 80 Id. at 20. 81Mr. Barry, OA’s ARMS expert, testified that the number of documents being archived in

ARMS did not appear to increase after the Mail2 problem was fixed in November 1998, thus

suggesting that the problem was not as serious he had thought. According to Mr. Barry, ‘‘[W]hen

I went back and looked at the growth numbers between November 1998 and December 1998,

which would be the significant ones in this case, I saw nothing other than what I would normally expect in the growth between one month and the other, given the trend line that we have

in place.’’ Testimony of Daniel A. Barry, March 23 hearing at 105. 82Letter from Counsel to the President Beth Nolan to Representative Dan Burton (Mar. 17,

2000). Of the remaining Mail2 accounts, 58 belonged to employees of the Office of Policy Development—which is also located in the EOP—and 4 belonged to OA employees. 83 Currently, there are approximately 1,650 EOP employees. Since this number does not include detailees, and does not account for turnover, the proportion of EOP e-mail accounts affected by the Mail2 problem can be expected to be even lower than one-third. Some of the affected accounts apparently dated back to the creation of the Mail2 server in August 1996; in

other cases, as new EOP employees were hired they may have been assigned to the Mail2 server

and, depending on whether or not the name of the server was written in the correct case, their

incoming e-mails may or may not have been sent to ARMS.

coming e-mails from being properly processed by ARMS.78 According to Ms. Salim, ‘‘[i]t was a very technical typographical-type error

committed by a prior contractor before Northrop Grumman.’’ 79 Mr.

Haas and Ms. Salim immediately notified their direct supervisor,

Betty Lambuth, about the problem, which they continued to investigate.

In the days that followed, it was determined that the problem

was specific only to one computer server, created in August 1996,

and that it affected only e-mails sent from outside the EOP. Ms.

Salim explained that the problem began:

when the contractors prior to Northrop Grumman built a

new e-mail server called ‘‘Mail2.’’ When the contractors

[sic] personnel named the Mail2 server, they used an

upper-case ‘‘M’’ and lower-case letters for the rest of the

name. Following its creation, however, the individual

name accounts on the Mail2 server were assigned the

name ‘‘MAIL2’’ using all capital letters.

When the case-sensitive ARMS scanner process ran on the

Mail2 server to perform its comparison of the names, the

comparison failed, since the names did not appear in the

exact same case; therefore, none of those accounts from

Mail2 were scanned. . . . [A]s a result, inbound e-mails

were not records managed.

Outbound e-mails were automatically records managed

without the need for such scanning. That is why outbound

White House e-mails were not affected by this error.80

As Ms. Salim and the others working on the Mail2 problem

learned, the problem affected a relatively small subset of EOP emails.81 The problem only affected incoming e-mails sent to 526 individuals with accounts on the Mail2 server, 464 of whom worked

in the White House.82 The total number of affected users, 526, represents less than one-third of the number of employees in the entire EOP.83 Furthermore, e-mails that were copied to non-affected

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84Mr. Barry’s testimony confirmed this fact:

Mr. WAXMAN. What we’re talking about were e-mails from outside of the [EOP] system

to somebody in the system . . . [If] one of those e-mails were sent to somebody inside,

and there was a carbon copy or copy directed to somebody else, then that would have

been picked up, as well, in the ARMS system, wouldn’t it?

Mr. BARRY. That’s correct.

March 23 hearing at 78. 85 If ‘‘an affected user received an incoming e-mail and forwarded it or replied to it with history (sending back the original incoming e-mail) then ARMS should have recorded the incoming

e-mail.’’ Statement of Counsel to the President Beth Nolan (Mar. 23, 2000). Mr. Barry confirmed

that the text of a message would be in ARMS ‘‘[i]f the user had done a reply with history.’’ Testimony of Daniel A. Barry, March 23 hearing at 79. 86Statement of Counsel to the President Beth Nolan (Mar. 23, 2000). The majority asserts

that reliance on manual searches is ‘‘woefully inadequate’’ and states that Mr. Ruff was ‘‘at a

complete loss’’ when asked how he conducted searches of his own e-mail. Majority report at 105.

In fact, Mr. Ruff explained that ‘‘I rarely used my E-mail for any substantive business. Indeed,

I’m not sure that I ever did.’’ Transcript of Interview of Charles F.C. Ruff, House Committee

on Government Reform, 6 (Apr. 6, 2000). 87 In addition, e-mails that were not retrieved by the White House may have been provided

to investigators by other sources that sent e-mails to the White House and that were subpoenaed for documents including e-mails. These potential sources include Federal agencies and the

Democratic National Committee. 88See, e.g., ‘‘Starr Hints He May File Impeachment Report,’’ New York Times (June 3, 1998);

‘‘Political Clock Ticking on Interim Starr Report,’’ Washington Post (June 6, 1998). 89Testimony of Laura Callahan, March 23 hearing at 216. 90Testimony of Yiman Salim, March 23 hearing at 20; testimony of Robert Haas, March 23

hearing at 31. 91 According to Mr. Haas (who referred to Mrs. Callahan by her maiden name of ‘‘Crabtree’’),

‘‘Mr. Lindsay told us that the discovery of the Mail2 problem was to be treated as top secret

and that only Ms. Crabtree, Ada Posey, and Mr. Lindsay, himself, could authorize the group

to talk to anyone else.’’ Testimony of Robert Haas, March 23 hearing at 31–32. Ms. Golas testiContinued

employees would have been archived in ARMS,84 as would e-mails

which the recipient responded to ‘‘with history’’ or forwarded.85

Furthermore, even if an e-mail was not archived by ARMS at all,

it nevertheless could have been produced to investigators by the

White House. Ms. Nolan informed the committee that when the

White House counsel’s office responds to subpoenas, in addition to

searching ARMS it ‘‘instructs individuals within the relevant EOP

offices to search for responsive materials. This directive explicitly

states that each individual should search computer records as well

as hard copies.’’ 86 Thus, any responsive e-mails that were saved by

the sender or recipient should have been produced, regardless of

whether or not they were recorded in ARMS.87

At the time of the discovery of the Mail2 problem, there was

widespread discussion in the press about the ongoing Monica

Lewinsky investigation being conducted by Independent Counsel

Kenneth Starr.88 Laura Crabtree Callahan, a career civil servant

in OA, and Mark Lindsay, then OA’s General Counsel, discussed

the Mail2 problem and agreed that this was a sensitive issue, given

the ‘‘other events going on’’ reported in ‘‘newspapers and the

media.’’ 89 Within days of the discovery of the Mail2 problem, a

meeting was held in the office of Mrs. Callahan. Ms. Lambuth, Mr.

Spriggs, Mr. Haas, Ms. Salim, and Sandra Golas—all of whom

were Northrop Grumman contract or subcontract employees—attended.90 Although accounts of this meeting conflict in some of

their particulars, the testimony of those present at the meeting is

in general agreement on two points. The first point is that Mr.

Lindsay spoke with those present by speaker-phone and instructed

them to avoid discussing the e-mail problem with anyone else as

it was a sensitive matter.91 The second point is that, after Mr.

1300

fied that she remembered Mr. Lindsay ‘‘talking to us and telling us that it was very important

that we didn’t take the information out of the room, that we shouldn’t discuss it with anyone.’’

Testimony of Sandra Golas, March 23 hearing at 45. Mr. Lindsay, however, while he did not

contest this point, told the committee that he did not recall having addressed the group by

speaker-phone. Testimony of Mark Lindsay, March 23 hearing at 217. 92Testimony of Yiman Salim, March 23 hearing at 20–21, 46; testimony of Robert Haas,

March 23 hearing at 32; testimony of John Spriggs, March 23 hearing at 47–48. 93Testimony of Robert Haas, March 23 hearing at 83. 94The document compiled by Mr. Haas (NGL 00291–365) also indicates that an additional

nine e-mail accounts had been deleted, and thus did not contain any e-mails. 95Memorandum from Virginia M. Apuzzo to John D. Podesta (June 19, 1998) (E 3234–36, E

3373–76). 96See testimony of Mark Lindsay, March 23 hearing at 246. The majority questions Mr.

Podesta’s ‘‘complete failure to follow-up at all on how the problem was handled.’’ Majority report

at 49, note 282. In fact, it appears that Mr. Podesta acted responsibly by making sure that Mr.

Ruff was briefed immediately about the problem. Interview of John Podesta by majority and minority staff, House Committee on Government Reform (May 30, 2000) (stating that he either

instructed Mr. Lindsay to brief Mr. Ruff or was told by Mr. Lindsay that Mr. Lindsay was going

to brief Mr. Ruff); testimony of Mark Lindsay, March 30 hearing at 246 (stating that ‘‘Mr.

Podesta’s response was just to ask if I had had any conversation with Mr. Ruff’’). 97Mr. Ruff’s calendar for June 19, 1998 (E 3445) contains a 4:30 p.m. entry for ‘‘Lindsay,

Mills.’’ It is not clear if this entry refers to Mr. Lindsay’s Mail2 briefing, nor is it clear that

Ms. Mills actually attended the meeting. Ms. Mills testified that her best recollection was that

she did not attend the meeting. Testimony of Cheryl Mills, May 4 hearing at 32. Mr. Lindsay

did not recall Ms. Mills being present at the meeting, while Mr. Ruff did not recall whether

or not she was present. Testimony of Mark Lindsay, May 4 hearing at 29; testimony of Charles

Ruff, May 4 hearing at 42, 121.

Lindsay had spoken, Mrs. Callahan then reiterated to the contractors that they should not talk about the e-mail problem.92

After this meeting, the contractors continued investigating the

technical issues at stake. Mr. Haas was charged with determining

how many e-mails had not been records-managed (i.e., had not

been archived into ARMS) because of the Mail2 problem. He spent

several weeks examining the mail files of Mail2 users and determining how many of the e-mails in each file had not been recordsmanaged. Because Mr. Haas was only able to examine e-mails that

still remained on the server (i.e., that had not been deleted by their

recipient), he was not able to identify how many e-mails had been

affected by the Mail2 problem since its inception in August 1996.

Nor was Mr. Haas able to determine whether the non-records-managed e-mails he located had been archived into ARMS ‘‘through a

secondary process.’’ 93 Nonetheless, the results of Mr. Haas’s survey

did provide a rough sense of the magnitude of the problem. As recorded in a 75-page document that Northrop Grumman provided to

the committee, Mr. Haas’s survey extended to 501 accounts and

found that 246,053 e-mails out of a total of 1,353,641 e-mails (18

percent) had not been sent directly to ARMS.94

Meanwhile, OA quickly notified the White House about the Mail2

problem. A two-page memo dated June 19, 1998, was sent from

Virginia Apuzzo, then the Assistant to the President for Management and Administration, to then-Deputy Chief of Staff John Podesta outlining the problem. The memo noted that an ‘‘important

function’’ of the ARMS system was the ‘‘identification and retrieval

of documents in response to information requests.’’ 95 Mark Lindsay

then separately briefed Mr. Podesta and then-White House Counsel

Charles Ruff about the Mail2 problem.96 Former White House Deputy Counsel Cheryl Mills may also have attended the briefing of

Mr. Ruff.97

As the Northrop Grumman contractors continued to investigate

the e-mail problem, tensions arose between them and Steven Hawkins, Northrop Grumman’s program manager. These tensions conVerDate 11-MAY-2000 22:54 Dec 08, 2000 Jkt 067962 PO 00000 Frm 00438 Fmt 6604 Sfmt 6602 E:\HR\OC\HR1023V2.XXX pfrm11 PsN: HR1023V2
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98Letter from Joseph F. Lucente to Dale Helms (Sept. 14, 1998) (NGL 00503). 99 Interview of John Spriggs by majority and minority staff, House Committee on Government

Reform (Mar. 7, 2000). 100 E-mail from Tracey A. Breeding to Joseph A. Vasta (Dec. 2, 1998) (NGL 00609–11). 101Testimony of Yiman Salim, March 23 hearing at 21.

tributed to Ms. Lambuth’s being removed from the Northrop Grumman contract around the end of July.

Several Northrop Grumman contract employees contacted and

met with company executives and lawyers around early September

1998. Subsequent to these meetings, Northrop Grumman executives determined that fixing the Mail2 problem was outside of the

scope of their contract with the EOP. Northrop Grumman communicated its determination to the EOP in a letter dated September

14, 1998, which stated:

the level of effort required to remedy the dysfunction will

substantially exceed the scope of the work contemplated

under the referenced contract. As a consequence we are

not proceeding with our efforts to remedy the dysfunction

until we have received further contractual direction.98

After the Northrop Grumman letter, employees of OA and Northrop Grumman discussed how to fix the Mail2 problem and reconstruct the ‘‘missing’’ e-mails. Mr. Haas’s study had suggested that

there were many non-archived e-mails still on the Mail2 server.

The problem lay in retrieving e-mails that had been deleted from

the server without being archived into ARMS. The solution to this

problem lay in the fact that the EOP regularly backs up its servers

and generally maintains its backup tapes. It soon became apparent,

however, that actually cataloguing and accessing these backup

tapes—which are essentially snapshots of what was on the entire

computer system at a given point in time—would be a difficult and

time-consuming process at best.99 There was also the problem of

entering the recovered e-mails into the ARMS system in such a

way that they could be accessed and searched in the future.

Northrop Grumman employees prepared a detailed proposal for

a work order authorizing contract work by Northrop Grumman to

retrieve the non-archived e-mails from the backup tapes. The proposal did not provide a solution to the Mail2 server problem but

rather a detailed plan for how to come up with a solution to the

problem. The proposal, which was completed and provided to the

EOP in October 1998, estimated that the process of reconstructing

the ‘‘missing’’ e-mails would take 6 to 9 months, at a cost of around

$602,000.100

The EOP apparently rejected the draft work order for cost reasons. A decision was then made to ‘‘stop the bleeding,’’ and on November 22, 1998, the Mail2 problem was fixed prospectively.101

From that date forward, the Mail2 error ceased to prevent e-mails

from being processed by ARMS. The problem remained, however,

of reconstructing non-archived e-mails from before November 22,

dating back to the origins of the Mail2 problem in August 1996.

Having ‘‘stopped the bleeding,’’ OA deferred action on this reconVerDate 11-MAY-2000 22:54 Dec 08, 2000 Jkt 067962 PO 00000 Frm 00439 Fmt 6604 Sfmt 6602 E:\HR\OC\HR1023V2.XXX pfrm11 PsN: HR1023V2
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102Testimony of Mr. Lindsay, March 23 hearing at 202 (‘‘Because of that requirement to address the Y2K glitch . . . the reconstruction of the e-mail was a matter which had to be placed

in the context of maintaining the total e-mail situation. What we did after we were able to address the Y2K problem, a[t] the end of February 29th of 2000, is we were able to then continue

the efforts’’). See also testimony of OA Director Michael Lyle, May 3 hearing at 55–58. 103Statement of Counsel to the President Beth Nolan (Mar. 23, 2000). The committee received

briefing papers for the meeting which suggest that the Mail2 and letter ‘‘d’’ issues were discussed in the context of records management issues relating to Armstrong (E 3412–17). Michael

Lyle, OA’s Director, who also attended the briefing, confirmed that the purpose of the meeting

was to prepare for another meeting, with the National Archives and Records Administration,

regarding the Presidential transition. Testimony of Michael Lyle, May 3 hearing at 59. 104 According to OA Director Michael Lyle, Ms. Nolan inquired at the meeting about whether

the problems had affected subpoena compliance. Testimony of Michael Lyle, May 3 hearing at

103–04. Mr. Lyle said that he assured her that ‘‘the question that she was asking had been dealt

with prior by Mr. Lindsay and Mr. Ruff.’’ Id. at 104. Mr. Lyle then checked with Mr. Lindsay,

who confirmed that he had indeed handled the issue with Mr. Ruff. Id. 105 According to Ms. Nolan, this problem occurred when the Mail2 problem was fixed in November 1998. Letter from Counsel to the President Beth Nolan to Representative Dan Burton

(Mar. 17, 2000). 106Testimony of Mark Lindsay, May 4 hearing at 177. Mr. Lindsay could not recall whom he

spoke to in the counsel’s office. Id. at 178. 107Testimony of Charles Ruff and Cheryl Mills, May 4 hearing at 184. 108Letter from Counsel to the President Beth Nolan to Representative Dan Burton (Mar. 17,

2000). 109Statement of Counsel to the President Beth Nolan (Mar. 23, 2000). OA took over responsibility for the OVP’s computer system in approximately March 1997.

struction project in 1999 as it focused on addressing Y2K concerns.102

It was only in 2000, with the Y2K concerns over and the end of

the administration approaching, that the EOP focused again on the

Mail2 reconstruction project. Ms. Nolan testified that she was first

informed of the Mail2 problem during a January 18, 2000, briefing

by OA on post-Presidency records management issues.103 At the

briefing, Ms. Nolan was informed that the White House had previously made sure that these technical problems did not affect the

White House’s responses to information requests.104

C. OTHER E-MAIL PROBLEMS

In April 1999, Northrop Grumman personnel discovered an additional ARMS problem. This problem prevented incoming mail to

persons whose account names began with the letter ‘‘d’’ from being

recorded by ARMS. Approximately 200 accounts within the EOP

were affected, including 54 accounts in OMB, 42 accounts in the

White House Office, 32 accounts in OA, and 21 accounts in the

NSC. The so-called ‘‘letter ‘d’ ’’ problem had apparently been caused

accidentally by Northrop Grumman employees in the fall of

1998.105 This problem was fixed prospectively around May or June

1999. Mr. Lindsay testified that he informed the Office of White

House Counsel about the letter ‘‘d’’ problem,106 but Mr. Ruff had

no recollection of being informed of the letter ‘‘d’’ problem and Ms.

Mills testified that she did not learn about the problem.107

Since the Mail2 problem was publicly revealed in February 2000,

the White House has also discovered and disclosed several additional problems relating to the archiving of e-mails. Ms. Nolan informed the committee on March 17, 2000, that e-mails on the server of the Office of the Vice President (OVP) have not been fully

managed by ARMS.108 As explained by Ms. Nolan—and as confirmed by the committee’s own investigation—the OVP apparently

opted not to be connected to ARMS when the latter went into effect

in 1994. Instead, it appears that the OVP maintained its own computer system, serviced by a contractor rather than by OA.109

1303

110 Id. 111Letter from Senior Associate Counsel to the President Steven F. Reich to Chief Counsel

James C. Wilson (June 7, 2000). The letter noted that OA was developing a way to records-manage OVP accounts on the Senate e-mail system. Id. 112 Interview of Hon. Todd Campbell by majority and minority staff, House Committee on Government Reform (Aug. 18, 2000). 113Letter from Senior Associate Counsel to the President Steven F. Reich to Chief Counsel

James C. Wilson (June 7, 2000). 114Memorandum from Dorothy E. Cleal, Associate Director for Information Systems and Technology, Office of Administration, to Virginia Apuzzo, Assistant to the President for Management

and Administration (May 13, 2000) (E 5201–03, E 6956–58). 115Letter from Counsel to the President Beth Nolan to Representative Dan Burton (July 26,

2000). According to a memorandum attached to the letter, the software error affected approximately 0.15 percent of NSC e-mails sent during the relevant timeframe. Memorandum from

Robert A. Bradtke to Counsel to the President Beth Nolan (July 21, 2000). 116Letter from Associate Counsel to the President Lisa J. Klem to Representative Dan Burton

(Aug. 31, 2000) attaching memorandum from Alberto Feraren to Daniel Barry (Aug. 31, 2000)

(EOPNG–00–0297). 117 Id.; memorandum from Alberto Feraren to Conrad Ribeiro and Robert Helms (Sept. 1,

2000) (EOPNG–00–0299). While the problem only affects e-mails processed since May 4, there

was a 2-week backlog of e-mails in the Lotus Notes/ARMS interface queue at the time. Memorandum from Alberto Feraren to Conrad Ribeiro and Robert Helms (Sept. 1, 2000) (EOPNG–

00–0299).

Because the OVP server was not linked to ARMS, incoming and

outgoing e-mails to or from OVP e-mail accounts created before

March 1997 were not sent directly to ARMS (although, for the reasons explained above with respect to the Mail2 problem, some of

those e-mails may nonetheless have been sent to ARMS by other

means). Outgoing e-mail from OVP accounts created after March

1997 was apparently records-managed, but incoming e-mail to

those OVP accounts was not sent to ARMS.110 The White House

informed the committee on June 7, 2000, that all OVP accounts in

the White House were now records-managed.111

Although OVP e-mail accounts were not records-managed by

ARMS, OVP personnel were instructed to print out and save emails, and the OVP system was regularly backed up and the

backup tapes saved.112 However, a technical configuration error apparently prevented e-mail on the OVP server from being backed up

from the end of March 1998 through early April 1999.113 The error

apparently resulted in 3 days’ worth of Vice President Gore’s e-mail

being deleted.114

In addition, on July 26, 2000, Ms. Nolan informed the committee

of a computer software problem that affected the National Security

Council classified computer system from June 1997 until August

1999. According to Ms. Nolan, ‘‘[a]s a result of this error, a small

percentage of e-mails on a random basis were not recorded by the

NSC’s classified Electronic Records Management Database

(ERMS).’’ 115

The Office of White House Counsel also informed the committee

on August 31, 2000, of a recently discovered problem which caused

a small percentage of e-mail messages processed since May 4, 2000,

to be improperly archived in ARMS.116 The problem apparently

caused some e-mails to be archived with mismatched headers and

messages; because there is no way of distinguishing yet between

properly and improperly archived e-mails, all e-mails sent between

April 15, 2000, and August 30, 2000, are potentially unreliable.117

Finally, on September 29, 2000, White House counsel informed

the committee that it had learned of a new anomaly which ‘‘causes

1304

118Letter from Associate Counsel to the President Gregory S. Smith to Chief Counsel James

C. Wilson (Sept. 29, 2000). 119 Id. 120Transcript of Evidentiary Hearing at 124, 149, 186–88, Alexander v. FBI, No. 96–2123

(July 31, 2000). According to a news article, Ms. Hall said that she told the staff attorney that

the computer problem had caused over 100,000 e-mails to be missing. ‘‘Congress Told of Project

X in 1998,’’ WorldNetDaily (Aug. 1, 2000) (on line at http://www.worldnetdaily.com/bluesky—

sperry—news/20000801—xnspy—congress—t.shtml) (attached as exhibit 12). 121 ‘‘Congress Told of Project X in 1998,’’ WorldNetDaily (Aug. 1, 2000) (on line at http://

www.worldnetdaily.com/bluesky—sperry—news/20000801—xnspy—congress—t.shtml). 122 ‘‘Computer Glitch Leads to Trove of ‘Lost’ E-Mails at White House,’’ Insight, 6 (Dec. 28,

1998). 123 Id. The nickname ‘‘Project X’’ was apparently coined by Mr. Haas as a joking reference to

the ‘‘X-Files’’ TV show, and was used informally to refer to the Mail2 project. Interview of Robert

Haas by majority and minority staff, House Committee on Government Reform (Mar. 7, 2000);

see interview with Yiman Salim by majority and minority staff, House Committee on Government Reform (Mar. 7, 2000). 124 ‘‘White House Accused of Cover-Up,’’ Washington Times (Feb. 15, 2000). Ms. Hall repeated

her allegations in a declaration that she filed on Feb. 19, 2000. Third declaration of Sheryl Hall,

Alexander v. FBI, No. 96–2123 (Feb. 19, 2000).

problems with at least certain electronic pager records.’’ 118 According to White House counsel, the problem is still under investigation

but ‘‘pager confirmation documents bearing the phrase ‘unable to

convert’ are the most likely documents to be affected.’’ 119

D. COMMITTEE KNOWLEDGE OF THE E-MAIL MATTER

The record is unclear regarding when the committee was first

aware of the Mail2 problem. There is evidence that the committee

received information about the e-mail problem in 1998 but failed

to act on that information. In courtroom testimony in an evidentiary hearing concerning the White House e-mail problems,

Sheryl Hall, a former OA employee, stated under oath that she personally informed one of the committee’s majority staff attorneys investigating the White House database about the White House email problem in November 1998—over 15 months before the committee’s e-mail investigation began.120 According to a press report,

the majority staff attorney in question, who is currently working

for Independent Counsel Robert Ray, admitted that he talked to

Ms. Hall ‘‘a couple of times’’ and that he ‘‘might have met with her

once,’’ but does not recall her telling him about the e-mail problem.121

The majority could also have learned about the problems through

the news media in 1998. In December 1998, Insight magazine published a short article about contractors in the White House investigating ‘‘problems with a server in a West Wing computer system’’

and discovering a ‘‘blockage caused by about 100,000 e-mails.’’ 122

The article referred to efforts to investigate the e-mail problem as

‘‘Project X.’’ 123

The majority apparently overlooked these early indications of email problems. The committee’s investigation did not begin until

the Washington Times reported on February 15, 2000, that Sheryl

Hall had accused the White House of ‘‘hid[ing] thousands of e-mails

containing information on Filegate, Chinagate, campaign finance

abuses and Monica Lewinsky, all of which were under subpoena.’’ 124 Judicial Watch had previously filed a lawsuit on Ms.

Hall’s behalf in which Ms. Hall alleged that White House employees and the First Lady retaliated against her after she accused the

administration of using a White House database for political purposes. The day after the Washington Times article appeared, RepVerDate 11-MAY-2000 22:54 Dec 08, 2000 Jkt 067962 PO 00000 Frm 00442 Fmt 6604 Sfmt 6602 E:\HR\OC\HR1023V2.XXX pfrm11 PsN: HR1023V2
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125Letter from Representative Dan Burton to Counsel to the President Beth Nolan (Feb. 16,

2000). 126Statement of Representative Dan Burton, March 23 hearing at 4–5. 127Statement of Representative Dan Burton, May 3 at 15–16. See also statement of Representative Dan Burton, Sept. 26 hearing at 24; majority report at viii. 128Statement of Representative Christopher Shays, May 3 hearing at 137. 129Statement of Representative Chenoweth-Hage at March 23 hearing. 130Third declaration of Sheryl Hall, Alexander v. FBI, No. 96–2123 (Feb. 19, 2000).

resentative Burton issued a letter to Ms. Nolan citing ‘‘recent

media reports that certain e-mail systems were not searched for

materials responsive to subpoenas,’’ thus marking the beginning of

the committee’s investigation.125

III. ALLEGATIONS REGARDING THE MAIL2 PROBLEM

The majority has made numerous exaggerated allegations about

the Mail2 issue, including allegations of a ‘‘cover-up,’’ ‘‘obstruction

of justice,’’ and a ‘‘criminal conspiracy.’’ Representative Burton has

charged that ‘‘[t]he big deal is how the White House reacted to’’ the

Mail2 problem and ‘‘it looks like they chose to cover it up.’’ 126 He

even compared the missing e-mails to the 181⁄2-minute gap in

President Nixon’s audiotapes, stating that ‘‘[w]e had a President

run out of office because of the missing tapes, 181⁄2 minutes. Here

we have hundreds of thousands of e-mails, and the White House

has stonewalled the Justice Department, the Congress, several

independent counsels.’’ 127 Representative Christopher Shays stated, ‘‘the White House obstructed justice, and we’re just trying to

see who did it.’’ 128 Representative Chenoweth-Hage has accused

the White House of engaging in ‘‘an ongoing criminal conspiracy.’’ 129

As discussed below, however, the evidence simply does not support these allegations.

A. ALLEGATION THAT E-MAILS RELEVANT TO INVESTIGATIONS HAVE

NOT BEEN PRODUCED

There have been numerous allegations that the missing e-mails

contain ‘‘smoking guns’’ that would change the outcome of Clinton

administration scandals. The source of many of these allegations

appears to be two persons formerly affiliated with OA, Sheryl Hall

and Betty Lambuth. Ms. Hall, a former OA employee, filed a declaration asserting that:

A contractor for Northrop-Grumman assigned to the Clinton White House who examined this group of 100,000 emails told me the documents contained information relating to Filegate, concerning the Monica Lewinsky scandal,

the sale of Clinton Commerce Department trade mission

seats in exchange for campaign contributions, and Vice

President Al Gore’s involvement in campaign fundraising

controversies. . . . I was also told by this contractor that

if the contents of the e-mails became known, then there

would be different outcomes to these scandals, as the emails were incriminating and could cause people to go to

jail.130

Ms. Lambuth has made similar accusations:

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131Declaration of Betty Lambuth, Alexander v. FBI, No. 96–2123 (Feb. 24, 2000). Ms.

Lambuth repeated this claim in her testimony before the committee. Testimony of Betty

Lambuth at March 23 hearing. 132 ‘‘Hillary, White House Officials Cleared by Counsel on FBI Files,’’ Washington Times (Mar.

17, 2000). 133 ‘‘Former White House Employees Say They Were Told to Keep Quiet on E-Mail Glitch,’’

CNN.com (Mar. 23, 2000). 134Testimony of Betty Lambuth, March 23 hearing at 58, 88; testimony of Sheryl Hall, Transcript of Evidentiary Hearing at 24–26, Alexander v. FBI, No. 96–2123 (July 13, 2000). 135Testimony of Robert Haas, March 23 hearing at 89, 61. 136Statement of Representative Dan Burton, March 23 hearing at 12.

[a] contractor for Northrop-Grumman whom I supervised,

and who examined this group of e-mail, told me the e-mail

contained information relating to Filegate, concerning the

Monica Lewinsky scandal, the sale of Clinton Commerce

Department trade mission seats in exchange for campaign

contributions, and Vice President Al Gore’s involvement in

campaign fundraising controversies.131

These allegations have been widely reported. According to the

Washington Times, a ‘‘former White House computer manager has

said that more than 100,000 White House e-mails containing information on Filegate, ‘Chinagate,’ campaign finance abuses and

Monica Lewinsky were missing, all of which were under subpoena

by a federal grand jury and three congressional committees.’’ 132

Similarly, CNN reported that contractors testified that they were

told ‘‘not to discuss an ongoing e-mail server problem that resulted

in hundreds of unrecorded messages that may have pertained to investigations such as the Monica Lewinsky matter.’’ 133

Ms. Lambuth and Ms. Hall both claimed that the person who

told them about incriminating material in the e-mails was Robert

Haas.134 Mr. Haas, however, specifically denied that he knew or

had said anything about what was in the ‘‘missing’’ e-mails. Mr.

Haas testified that ‘‘I never . . . intimated in any way, shape, or

form that I knew any content of any e-mails’’ other than two

Monica Lewinsky-related e-mails that he looked at in an attempt

to understand the Mail2 problem, and ‘‘[a]t no time did I look at

any other documents in any other mail files.’’ 135

Moreover, the committee’s investigation has revealed that it is

not presently possible to determine the content of the e-mails that

were not archived or produced because of the Mail2 problem (or

any of the other technical problems discussed above). The White

House is currently reconstructing, or retrieving, those e-mails from

backup tapes, and until that process is complete, speculation about

information in the ‘‘missing’’ e-mails is just that—speculation. Representative Burton apparently conceded this point when he remarked at the first e-mail hearing that, ‘‘At this point, I don’t think

anyone has any idea what is in these e-mails.’’ 136

B. ALLEGATION THAT NORTHROP GRUMMAN EMPLOYEES WERE

THREATENED WITH JAIL IF THEY DISCUSSED THE MAIL2 PROBLEM

Several members of the committee have alleged that Northrop

Grumman contractors were threatened with jail if they disclosed

the Mail2 problem, and that these threats constituted an attempt

to obstruct justice. Representative Bob Barr said with respect to

the allegations of threats, ‘‘My concern is . . . with regard to obVerDate 11-MAY-2000 22:54 Dec 08, 2000 Jkt 067962 PO 00000 Frm 00444 Fmt 6604 Sfmt 6602 E:\HR\OC\HR1023V2.XXX pfrm11 PsN: HR1023V2
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137Statement of Representative Bob Barr, March 23 hearing at 123. Representative Barr also

referred to ‘‘the obstruction that we went into last week with regard to witnesses testifying

under oath that they were intimidated into not disclosing evidence that they had about this particular problem.’’ Statement of Representative Bob Barr, March 30 hearing at 108. 138Statement of Representative Chenoweth-Hage at March 23 hearing. 139Testimony of Laura Callahan, March 23 hearing at 216, 226–27; testimony of Mark Lindsay, March 23 hearing at 199. 140Testimony of Yiman Salim, March 23 hearing at 21; testimony of John Spriggs, March 23

hearing at 47; statement of Paulette Cichon (Mar. 29, 2000). 141Testimony of Robert Haas, March 23 hearing at 32. 142Testimony of Sandra Golas, March 23 hearing at 45. 143Testimony of Yiman Salim, March 23 hearing at 21. 144Testimony of John Spriggs, March 23 hearing at 47. 145Mr. Spriggs engaged in the following exchange with Representative Barr:

Mr. SPRIGGS. When I was called into that office and Ms. Crabtree and Mr. Lindsay were

giving me instructions, I perceived that those instructions were reasonable instructions.

Mr. BARR. OK. That’s not what I’m asking you, Mr. Spriggs.

Mr. SPRIGGS. Were they threatening—I know, sir. I’m trying to get at your question.

Were they threatening to me?

Mr. BARR. Get at it quickly.

Continued

struction of justice, which includes intimidation of witnesses.’’ 137

Representative Chenoweth-Hage stated:

evidence suggests that contracted staffers were personally

threatened with repercussions and even jail should they

mention the very existence of the server problem to anyone, even their bosses. This occurred while these emails

were under subpoenae. This is inexcusable. This is criminal. If this is not obstruction of justice, I don’t know what

is.138

In fact, witnesses provided conflicting testimony about whether

or not these alleged threats were made. In total, eight individuals

were present at meetings when the alleged threats were made. Of

these eight individuals, two deny making any jail threats; 139 three

have no recollection of any jail threats; 140 one recalls a jail threat

being made in response to a ‘‘flippant’’ question; 141 and one recalls

the word ‘‘jail’’ being mentioned but cannot remember who said

it.142 Moreover, the individuals who allegedly made the jail threats

were not even White House employees; both worked in the Office

of Administration, which provides support services to the White

House, and one was a career civil servant. There is no evidence

that White House officials had any knowledge of—or participated

in—any threats.

With one exception, discussed below, the allegations of jail

threats focus on a single remark allegedly made by Laura Crabtree

Callahan, who served as the Branch Chief for Desktop Systems in

OA’s Information Systems and Technology Division (IS&T), in a

meeting with six Northrop Grumman contract or subcontract employees that was held shortly after the discovery of the Mail2 problem. The committee heard testimony from Mrs. Callahan, as well

as from the Northrop Grumman employees who attended the meeting (Betty Lambuth, John Spriggs, Robert Haas, Yiman Salim, and

Sandra Golas).

Ms. Salim said of the meeting with Mrs. Callahan, ‘‘I do not remember hearing the word ‘jail,’ and I never felt threatened.’’ 143 Mr.

Spriggs also said that he ‘‘did not hear the word ‘jail,’ ’’ 144 although

he did concede that he felt threatened ‘‘in narrow context.’’ 145 Mr.

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Mr. SPRIGGS. Were they threatening to me? Yes, they were threatening to me, in——

Mr. BARR. That’s my only question.

Mr. SPRIGGS [continuing]. In narrow context.

March 23 hearing at 100.

While Mr. Spriggs was not asked to explain these comments, it appears that he was referring

to the instructions made by Ms. Crabtree and Mr. Lindsay that the contractors not discuss the

Mail2 issue. That issue is considered below. 146Testimony of Robert Haas, March 23 hearing at 32. 147 Id. at 32, 90. Confirmation of this point was provided by Mr. Hawkins, who testified that

he met with Mr. Haas, Mr. Spriggs, and Ms. Golas shortly thereafter and Mr. Haas said that

he had been threatened. Testimony of Steven Hawkins, March 23 hearing at 55. 148Testimony of Sandra Golas, March 23 hearing at 45. 149 Id. at 45. See also testimony of Sandra Golas, March 23 hearing at 142. 150Testimony of Laura Callahan, March 23 hearing at 226–-27. 151Testimony of Betty Lambuth, March 23 hearing at 24. 152 Id. at 25. 153Statement of Paulette Cichon (Mar. 29, 2000). 154 Interview of Paulette Cichon by majority and minority staff, House Committee on Government Reform (Apr. 14, 2000). The majority asserts that ‘‘Cichon has reason to be supportive of

Lindsay and Callahan because she may in part be accountable for the failure to take effective

Haas, however, testified that he asked Mrs. Callahan ‘‘[i]n a somewhat flippant way’’ what would happen if he told his wife or thenAssistant to the President for Management and Administration

Virginia Apuzzo about the Mail2 problem, to which she ‘‘responded

that there would be a jail cell with my name on it.’’ 146 Mr. Haas

testified that despite the flippancy of his question, he took the response seriously.147

Ms. Golas, who also attended the meeting, testified that she recalls a mention of jail in the meeting, but doesn’t recall who said

it.148 Ms. Golas further testified that when, shortly after the meeting, her supervisor Steve Hawkins accused her of being insubordinate by not telling him about the Mail2 problem, she replied, ‘‘If

it’s a choice of being insubordinate or going to jail, I guess I’ll have

to be insubordinate.’’ 149

Mrs. Callahan denied Mr. Haas’s allegation:

I do not ever remember, nor would I have ever said anything about a jail cell. And, quite frankly, I think Mr.

Haas characterized himself with his flippant comments. I

would suggest that he may be either having [a] bad recollection or may have an overactive imagination with regards to the threat being made to him.150

Other than Mr. Haas’s and Ms. Golas’s testimony about Mrs.

Callahan’s alleged reference to a jail cell, the only other testimony

alleging that threats were made comes from Betty Lambuth. Ms.

Lambuth accused Mrs. Callahan of threatening her with jail if she

talked about the e-mail problem.151 Afterwards, according to Ms.

Lambuth’s testimony, she asked for and received a meeting with

then-OA General Counsel Mark Lindsay and Paulette Cichon, then

the Deputy Director for Information Management at OA, at which

Mr. Lindsay told Ms. Lambuth that if she and other Northrop

Grumman workers told anyone about the Mail2 problem, ‘‘we

would all lose our jobs, we would be arrested, and we would be put

in jail.’’ 152

Ms. Cichon, however, signed a written statement stating that

Mr. Lindsay did not threaten Ms. Lambuth or anyone else in her

presence.153 Ms. Cichon confirmed the accuracy of her statement in

a subsequent interview with committee staff.154 Mr. Lindsay also

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steps to cure the problem or notify Congress.’’ Majority report at 38. However, the majority fails

to substantiate this allegation. 155Testimony of Mark Lindsay, March 23 hearing at 199. 156Testimony of Betty Lambuth, March 23 hearing at 24. 157 Id. at 50. 158 Id. at 50–51. 159Statement of Betty Lambuth at March 23 hearing; declaration of Betty Lambuth, Alexander v. FBI, No. 96–2123 (Feb. 24, 2000). 160 Id. (emphasis added). 161Transcript of Evidentiary Hearing at 28–29, Alexander v. FBI, No. 96–2123 (Aug. 1, 2000). 162 Id. at 34–35.

denied making any threats.155 Furthermore, Ms. Lambuth’s testimony may be viewed with a degree of skepticism, given that the

committee also received evidence—discussed above—directly contradicting her allegation about the content of the ‘‘missing’’ e-mails.

In addition, Ms. Lambuth’s testimony about the threats is confused and inconsistent. Ms. Lambuth initially testified that Mrs.

Callahan ‘‘relayed those messages on to my staff, which had been

relayed to her by Mr. Lindsay.’’ 156 However, asked by Mr. Burton

‘‘what went on in that meeting, what went on in the conversations

between you and Ms. Crabtree and Mr. Lindsay,’’ Ms. Lambuth replied, ‘‘I had more than one conversation that my staff was in, so

some of this is going to mold in together.’’ 157 Ms. Lambuth then

repeated her two allegations about Mr. Lindsay and Mrs. Callahan

threatening her separately, but made no mention of the contractors

being personally threatened by Mrs. Callahan.158 Nor do Ms.

Lambuth’s detailed opening statement or her affidavit mention the

contractors being threatened.159 In fact, in both her opening statement and her declaration Ms. Lambuth states, ‘‘I conveyed

Lindsay’s threats to my staff.’’ 160

In her courtroom testimony, Ms. Lambuth alleged that Mr. Lindsay—not Mrs. Callahan—threatened the contractors with jail and

loss of job when he addressed the group by speaker-phone.161 None

of the others present have corroborated this allegation. Ms.

Lambuth also testified that Mr. Haas informed her that Mrs. Callahan had threatened him with a ‘‘jail cell with his name on it’’—

indicating that she was not present for the exchange.162

In sum, then, the evidence is inconclusive. Mr. Haas has a clear

memory of Mrs. Callahan threatening him with jail in response to

his ‘‘flippant’’ question. Ms. Golas recalls someone mentioning the

word ‘‘jail’’ but does not know who. Neither Ms. Salim nor Mr.

Spriggs recall the jail threat, however, and Mrs. Callahan emphatically denies the allegation. Ms. Lambuth recalls being threatened

with jail by Mr. Lindsay and Mrs. Callahan separately, but apparently could not recall whether a threat was made in the meeting

described by the other contractors. Her statements are also filled

with internal inconsistencies. Ms. Cichon—who attended the meeting at which Mr. Lindsay allegedly threatened Ms. Lambuth—does

not believe that threats were made in her presence.

Moreover, no one has alleged that anyone in the White House (as

distinct from OA) made any threats. There is simply no evidence

that any White House officials had any knowledge of—or participated in—any threats.

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163Statement of Representative Bob Barr, March 23 hearing at 277–79. 164 According to Ms. Lambuth, ‘‘We did meet privately. We did go to the park. We did sometimes go across the street to Starbuck’s [sic] and speak in generalities.’’ Testimony of Betty

Lambuth, March 23 hearing at 26. Mr. Spriggs explained that ‘‘if we’re going to talk about this

stuff and keep it under wraps, then we have to be careful as to where we are.’’ Testimony of

John Spriggs, March 23 hearing at 52. According to Mr. Vasta’s notes, the contractors were further instructed not to take any notes about the Mail2 matter. Document entitled, ‘‘Summary

of Project X Discussions’’ (Sept. 9, 1998). 165Testimony of Laura Callahan, March 23 hearing at 216. 166 Id. at 253.

C. ALLEGATION THAT NORTHROP GRUMMAN EMPLOYEES WERE TOLD

NOT TO TELL OTHERS ABOUT THE MAIL2 PROBLEM

The evidence clearly indicates that Northrop Grumman employees were instructed not to tell others about the Mail2 problem

when it was first discovered. The majority has claimed that this is

evidence of a White House cover-up. Representative Barr stated:

we do have evidence that you all indicated to persons not

to share information, not to disclose information, to withhold information. . . . The fact of the matter is that it does

appear that steps were taken to limit very severely information surrounding a very serious glitch in the White

House computer system that related specifically [to] the

matters well known to be under investigation by at least

three different bodies—namely, the Office of Independent

Counsel, this committee, and the Judiciary Committee.163

However, the evidence suggests that the instructions not to discuss the matter were an appropriate attempt to prevent disclosure

of the e-mail problem pending further investigation and did not

constitute a ‘‘cover-up.’’

1. The OA Instructions Not to Discuss

The testimony of Mr. Haas, Ms. Golas, Mr. Spriggs, Ms. Salim,

and Ms. Lambuth is in general agreement that they were told by

Mr. Lindsay and Mrs. Callahan to treat the Mail2 matter as sensitive and not to discuss it. The contractors evidently took these instructions seriously; several of them testified that they subsequently took steps, such as holding meetings outside the office, to

keep the e-mail problem confidential.164 Mr. Lindsay and Mrs. Callahan also agreed that they were concerned about the e-mail matter being widely discussed. Mrs. Callahan testified that she discussed the e-mail problem with Mr. Lindsay shortly after its discovery, and they agreed that this was a sensitive issue, given the

‘‘other events going on’’ reported in ‘‘newspapers and the media.’’ 165

Mrs. Callahan testified that she ‘‘instructed the contract employees at the meeting that this was an extremely sensitive situation.’’ 166 According to her testimony, she and Mr. Lindsay:

concurred that this was a situation that we needed to be

careful of because it was sensitive. And, as such, Mr. Lindsay participated in the team conference call meeting in

which all of the members of the team were present and

Mr. Lindsay was there via conference call, and re-articulated the standard operating procedure. And in absolutely

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167 Id. at 216. 168 Id. at 215. 169Testimony of Yiman Salim, March 23 hearing at 91. 170Testimony of John Spriggs, March 23 hearing at 100. 171Testimony of Yiman Salim, March 23 hearing at 21.

no way did I ever make any personal threats to any individuals during that time frame.167

Mrs. Callahan explained:

what I mean by that, as far as the ‘‘standard procedures,’’

and what they were advised at the meeting was the fact

that the normal procedures are, if you are receiving any

inquiries from folks such as the press, to please refer them

to the Office of Public Affairs, and if anyone else had any

particular questions or had a need to know, to please refer

them to either myself or Mr. Lindsay.168

There was nothing inappropriate about Mrs. Callahan’s and Mr.

Lindsay’s instructions not to discuss the matter. At the time of the

discovery of the Mail2 problem, Independent Counsel Starr was

conducting a widely publicized investigation into matters concerning Ms. Lewinsky. Given the circumstances—a potential document production issue arising in the midst of a high-profile and

widely reported-on investigation—it is not difficult to understand

why Mr. Lindsay and Mrs. Callahan may have wanted to avoid

widespread discussions about the matter pending further investigation.

Moreover, several of the contractors explained that they did not

find these requests for confidentiality to be unreasonable or suspicious. Ms. Salim testified that she believed that it ‘‘was a reasonable request for them to ask us to keep a lid on this until they

could manage the situation.’’ 169 Mr. Spriggs testified, ‘‘When I was

called into that office and Ms. Crabtree and Mr. Lindsay were giving me instructions, I perceived that those instructions were reasonable instructions.’’ 170

The majority’s allegation that Mr. Lindsay and Mrs. Callahan’s

instructions constituted a ‘‘cover-up’’ are apparently based on the

assumption that those instructions were supposed to prevent further investigation into or the eventual disclosure of the Mail2 problem. Ms. Salim, however, testified that she did not understand Mr.

Lindsay and Mrs. Callahan’s instructions to mean that the problem

would be kept permanently under wraps:

My understanding was that this issue would remain with

this small group only temporarily until the Office of Administration had a chance to manage the situation.171

Mr. Spriggs’s testimony reaffirmed that far from being impeded

in their attempts to investigate the Mail2 problem, the contractors

were encouraged to complete their work. According to Mr. Spriggs:

the reality was we needed to figure out what the problem

was and how were we going to deal with getting these in

the records management system. . . . There was no, from

my point of view, any kind of question that we were not

going to proceed forward with this and resolve this question. We were trying to get all of the information so that

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172Testimony of John Spriggs, March 23 hearing at 91–92. 173March 23 hearing at 90–91. When pressed on this point later in the hearing, Ms. Lambuth

reaffirmed that ‘‘I didn’t feel that it was unusual, knowing the circumstances of all the subpoenas.’’ Testimony of Betty Lambuth, March 23 hearing at 175. 174Testimony of Betty Lambuth, March 23 hearing at 93. 175Testimony of Steven Hawkins, March 23 hearing at 93. 176Testimony of Betty Lambuth, March 23 hearing at 132. 177Testimony of Betty Lambuth at March 23 hearing. 178 Interview of Steven Hawkins by majority and minority staff, House Committee on Government Reform (Mar. 7, 2000). 179Testimony of John Spriggs, March 23 hearing at 96.

whomever—OA counsel or White House Counsel—would

have sufficient information to be able to judge the import

of the information that they had. As far as I knew personally—and my colleagues can speak to what they knew—I

had no knowledge of anyone trying to stop us from doing

any of that or trying to keep any information away from

[Kenneth] Starr or anyone else at that point.172

Even Ms. Lambuth believed that the request for confidentiality

was reasonable:

Mr. WAXMAN. I’d like to ask whether you think this was

an unreasonable request? Anybody think it was an unreasonable request?

Ms. LAMBUTH. I think in the beginning that’s the way we

all felt.173

Ms. Lambuth did testify that the delay in fixing the Mail2 problem caused her to change her mind:

I think in the beginning we all felt that they just wanted

to get their act together, basically, how they were going to

let the public know about this. But as time went on and

we couldn’t get any decisions of how they wanted us to

handle it, what the next step was going to be, etc., it became very obvious to us, and we had some discussions on

this that they did not want this to come forth.174

Mr. Hawkins concurred with Ms. Lambuth, citing his dealings

with Mr. Lindsay as justifying his own belief ‘‘that they did try to

cover up the fact that they had a computer glitch.’’ 175

Neither Ms. Lambuth nor Mr. Hawkins played a significant role

in the e-mail project, however. Ms. Lambuth, by her own account,

‘‘was only on this [e-mail] project for a short period of time.’’ 176 She

left the White House in July 1998,177 1 month after the discovery

of the Mail2 problem. Mr. Hawkins told committee staffers that he

left Northrop Grumman on October 9, 1998, and by his own account he played little if any role in the e-mail project prior to his

departure.178 Mr. Spriggs, who played a significant role in the email project, had a more judicious assessment. Asked if he agreed

with Ms. Lambuth’s conclusion, he testified that ‘‘from my point of

view, we didn’t know enough about what was going on to say that

the White House had stopped anything.’’ 179

The committee has received documentary evidence which further

suggests that the contractors did not think that the requests were

improper. According to notes taken by Northrop Grumman employee Joe Vasta about a meeting he had with the contractors on

August 28, 1998, Mr. Vasta ‘‘questioned the team to determine

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180Document entitled, ‘‘Summary of Project X Discussions’’ (Sept. 9, 1998). 181 Id. According to Mr. Vasta’s notes, the contractors were ‘‘uncomfortable because the project

leader giving them direction was a non-Northrop Grumman employee’’ and were ‘‘concerned that

decisions could be made concerning the project that were not in the best interests of Northrop

Grumman.’’ Id. 182Testimony of Robert Haas, March 23 hearing at 32; testimony of John Spriggs, March 23

hearing at 48–49; testimony of Betty Lambuth, March 23 hearing at 50. 183Testimony of Mark Lindsay, March 23 hearing at 245; testimony of Laura Callahan, March

23 hearing at 254. 184Testimony of Laura Callahan, March 23 hearing at 254. 185See testimony of Steven Hawkins, March 23 hearing at 93. 186Testimony of Mark Lindsay, March 23 hearing at 256. 187 Id. at 245. 188 Interview of James DeWire by majority and minority staff, House Committee on Government Reform (June 15, 2000). 189 Id.

whether they felt they were being asked to do anything that was

illegal or unethical. They replied in the negative.’’ 180 A few days

later, Mr. Hawkins also met with the contractors, who ‘‘reiterated

they believed they were not doing anything illegal.’’ 181

2. The OA Instructions Regarding Northrop Grumman Management

While Mr. Lindsay and Mrs. Callahan’s requests for confidentiality do not appear to have been, on their face, unreasonable, Mr.

Haas, Mr. Spriggs, and Ms. Lambuth further testified that they

were specifically told not to tell their supervisor, Steve Hawkins,

about the e-mail matter.182 Although Mr. Lindsay and Mrs. Callahan denied this allegation,183 Mrs. Callahan stated that she

wanted information about the Mail2 matter limited to ‘‘[t]hose in

the room’’ at the Mail2 meeting, which would by implication exclude the absent Mr. Hawkins.184 Certainly, the weight of the evidence suggests that the contract employees felt that they were not

allowed to discuss their work with their supervisor, and this put

them in a difficult and unfair position.

The testimony regarding Mr. Hawkins’s involvement is inconclusive. Mr. Hawkins indicated that he believed there was an effort

to limit his understanding of the Mail2 problem.185 On the other

hand, Mr. Lindsay testified that it ‘‘didn’t matter’’ to him ‘‘whether

or not Hawkins was involved with’’ the Mail2 investigation; 186 indeed, Mr. Lindsay said that he himself briefed Mr. Hawkins about

the Mail2 problem.187

After the March 23 hearing at which both Mr. Hawkins and Mr.

Lindsay testified, the committee received information that casts

their testimony in a different light. The new evidence indicates

that Northrop Grumman management above Mr. Hawkins’s level

was informed about the e-mail problem.

James DeWire, currently a program manager with Logicon, a

wholly owned subsidiary of Northrop Grumman, managed Northrop Grumman’s EOP contract for approximately the last 7

months of 1998. Mr. DeWire told committee staff that he received

a phone call from Mr. Hawkins in early or mid-June 1998, in which

Mr. Hawkins said that employees had told him that they had been

given instructions not to tell him what they were working on.188

Shortly after this phone call—possibly within minutes of his hanging up—Mr. DeWire received another phone call, this one from

then-OA Director Ada Posey.189 According to Mr. DeWire, Ms.

Posey explained that she had a very sensitive task which she wanted to be handled in a limited environment, with the Northrop

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190 Id. 191 Id. 192 Id. 193Letter from Representative Dan Burton to Counsel to the President Beth Nolan (Mar. 8,

2000). 194Statement of Representative Dan Burton, May 3 hearing at 65. 195Testimony of Mark Lindsay, Cheryl Mills, and Charles Ruff, May 4 hearing at 54–57. 196Testimony of Charles Ruff, May 4 hearing at 57.

Grumman employees reporting directly to a government employee

without the intervening involvement of Northrop Grumman management.190

Mr. DeWire said that after Ms. Posey assured him that the work

was both within the scope of the contract and not illegal, he agreed

to her request.191 Mr. DeWire said that he immediately informed

Mr. Hawkins of the arrangement and instructed him not to try to

find out the nature of the work being done by the contract employees.192

According to Mr. DeWire, then, within a short period of the discovery of the Mail2 problem, he was informed of, and he approved

of, a scheme whereby the contract employees reported directly to

EOP personnel as they investigated the Mail2 problem. Mr.

DeWire’s statements indicate that the actions of OA management

toward Northrop Grumman management and contract personnel

were appropriate and above-board.

D. ALLEGATION THAT THE WHITE HOUSE CONCEALED INFORMATION

ABOUT THE MAIL2 PROBLEM FROM CONGRESS AND VARIOUS INDEPENDENT COUNSELS

Representative Burton has alleged that the White House intentionally failed to notify investigators about the Mail2 problem, and

its potential impact on past and future subpoena compliance. Representative Burton stated that there is ‘‘in effect, a purposeful effort to keep documents from Congress, the Department of Justice,

and various Independent Counsels.’’ 193 Representative Burton also

said that the White House ‘‘knew about [the e-mail problem] in

1998, and they kept it under wraps from the Congress.’’ 194

Representative Burton’s allegations are contradicted by the testimony of White House and OA lawyers that they did not notify Congress or any independent counsels of subpoena compliance problems because they did not believe that any such problems existed.

Former White House Counsel Charles F.C. Ruff, former White

House Deputy Counsel Cheryl Mills, and former OA General Counsel Mark Lindsay all testified that they did not cover up, or have

any knowledge of others covering up, the e-mail problem.195 Mr.

Ruff testified emphatically that ‘‘[n]ever, not once, did anyone on

my staff seek to conceal, delay production of or otherwise cover up

any document production whether it be electronic or paper.’’ 196

White House counsel explained that their failure to inform investigators about the Mail2 problem resulted from their own (mistaken) belief that the problem had not affected document production. After the Mail2 problem was discovered, Mr. Haas was directed to perform a test search for non-records-managed e-mails relating to Monica Lewinsky. According to Ms. Nolan, the White

House Counsel’s office compared the results of Mr. Haas’s search:

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197Statement of Counsel to the President Beth Nolan (Mar. 23, 2000). 198Testimony of Charles Ruff, May 4 hearing at 50. 199Testimony of Mark Lindsay, March 23 hearing at 248. 200 Id. at 259. 201Statement of Representative Dan Burton, March 30 hearing at 9. 202Transcript of interview of Charles F.C. Ruff, House Committee on Government Reform, 27

(Apr. 6, 2000).

against previously produced documents and determined

that they were duplicative. The Counsel’s Office believed

that all necessary steps to make a complete search had

been taken. They did not know that there was any remaining problem—prospective or retrospective.

Thus, as Mr. Ruff understood the technical problem at the

time, he did not think that the error had an effect on previous searches or that it might affect future searches of email records. As a result, Mr. Ruff had no reason to believe

there was any need to notify investigative bodies of this

error.197

Mr. Ruff confirmed that ‘‘at the point where the word came back

to me that the Lewinsky e-mails had in fact been collected and it

turned out they were duplicative of what we had already found, I

believed that the problem did not, in fact, retrospectively affect our

compliance.’’ 198

Similarly, Mr. Lindsay testified that, after the test search was

performed, ‘‘the word that I got back was that ‘Hey, these are duplicates. It probably isn’t that big of a problem because this information has already been produced.’ ’’ 199 Thus, Mr. Lindsay concluded:

there may not have been a legal problem in terms of

whether or not documents were produced or whether or

not that was completed, but I still had a problem, and that

was I still had a technical staff that reported to me that

there was a glitch. Even if that test came back in a positive way, I may not have had a production problem, but I

had a technical problem with my e-mail system and my

ARMS system and how they worked together. If that—that

was the issue that I needed to resolve.200

Mr. Burton has dismissed Mr. Ruff’s explanation, saying, ‘‘The

President’s counsel never understood the full extent of the problem? I seriously doubt that explanation. This issue isn’t very complicated.’’ 201 But the committee’s investigation has demonstrated

the extremely technical and complicated nature of the e-mail problems at the White House. It took the Northrop Grumman team of

computer experts many months to investigate and fix the Mail2

problem. Even a technically adept observer could be excused for

failing to grasp the intricacies of ARMS, and Mr. Ruff, by his own

admission, ‘‘didn’t understand the scope or the details of the technology involved.’’ 202 Indeed, as discussed above in part II.D, there

is evidence that the committee’s own staff may have been informed

of the Mail2 problem in 1998 and failed to understand its significance.

The alternative is to suppose that White House counsel embarked on a systematic conspiracy to avoid telling investigators

1316

203The majority also alleges that it is ‘‘difficult to understand why [White House Counsel

Beth] Nolan did not understand that the e-mail problems had ongoing subpoena compliance consequences’’ when she was told of the problems at a Jan. 18, 2000, briefing on records management issues, and accuses Ms. Nolan of failing to exercise ‘‘minimal due diligence.’’ Majority report at 51–52. In fact, OA Director Michael Lyle, who attended the meeting, testified that Ms.

Nolan inquired about whether the e-mail problems had affected subpoena compliance. Testimony of Michael Lyle, May 3 hearing at 103–04. Mr. Lyle told Ms. Nolan that this question

‘‘had been dealt with prior by Mr. Lindsay and Mr. Ruff.’’ Id. at 104. Mr. Lyle further testified

that he checked with Mr. Lindsay, who assured him that he had indeed handled the matter

with Mr. Ruff. Id. 204Statement of Representative Dan Burton at Sept. 26 hearing. 205Memorandum from Representative Dan Burton to members of the Committee on Government Reform (Sept. 21, 2000). 206Statement of Representative Dan Burton at Sept. 26 hearing. 207 Billing records of Earl J. Silbert (Nov. 19, 1998, Jan. 27, 1999, Mar. 31, 1999). Logicon

is a wholly owned Northrop Grumman subsidiary. 208See letter from Joseph F. Lucente to Dale Helms (Sept. 14, 1998) (NGL 00503). Mr. Lindsay testified before the committee about the difference of opinion between Northrop Grumman

and the White House over whether work on the e-mail problem was within the scope of the company’s contract. Testimony of Mark Lindsay, March 23 hearing at 261–63.

about a technical problem affecting document production, all in an

effort to avoid producing documents whose content they did not—

could not—have known.203 There is no evidence to support this farfetched supposition.

E. ALLEGATION THAT EARL SILBERT TOLD THE WHITE HOUSE ABOUT

THE ALLEGED THREATS AND PROBLEMS WITH SUBPOENA COMPLIANCE

The majority apparently believes that they have found the

‘‘smoking gun’’ which demonstrates that the White House was

aware of (1) the alleged threats against Northrop Grumman contractors, and (2) the possibility that the Mail2 problem had affected

information requests from investigative bodies. That ‘‘smoking gun’’

involves contacts in 1998 between White House counsel and an attorney representing Northrop Grumman, Earl Silbert. Representative Burton has described Mr. Silbert as ‘‘a high-priced Washington

fixer’’ 204 and charged that ‘‘Silbert’s contacts may dramatically undermine White House claims of a ‘disconnect’ that prevented them

from understanding the e-mail problem.’’ 205 Representative Burton

further asserted that ‘‘Silbert’s two separate contacts with the

White House cast even more doubt on the White House claim that

they weren’t actively covering up the problem.’’ 206

Representative Burton’s allegations about Mr. Silbert are wholly

speculative and overlook the most obvious explanation for Mr.

Silbert’s contacts with White House counsel—namely, that Mr.

Silbert was hired to assist Northrop Grumman in its attempt to resolve the question of whether work on the Mail2 project was within

the scope of the company’s contract with the EOP. Mr. Silbert’s

billing records indicate that he was hired to give ‘‘advice to Logicon

re: Executive Office of the President Contract’’ or simply ‘‘Contract

Advice.’’ 207 Furthermore, it is clear that Northrop Grumman executives believed that work on the e-mail project was outside the

scope of the EOP contract and that they communicated their belief

to the EOP.208 Given the time and expense involved in fixing the

problem retrospectively, their concern on this point is understandable.

The committee has obtained no evidence that Mr. Silbert was

even aware of allegations concerning threats or subpoena compliance—issues that were peripheral, if not irrelevant, to the contracVerDate 11-MAY-2000 22:54 Dec 08, 2000 Jkt 067962 PO 00000 Frm 00454 Fmt 6604 Sfmt 5602 E:\HR\OC\HR1023V2.XXX pfrm11 PsN: HR1023V2
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209Subsequent to the committee vote on the majority’s e-mail report, the majority issued a

document that purports to address the draft minority views that were circulated before the committee vote. ‘‘Inaccuracies, Misrepresentations, and Omissions in the Democrats’ E-Mail Report

Rebuttal,’’ House Committee on Government Reform (undated). In this ‘‘rebuttal,’’ the majority

states that the committee has learned that Mr. Silbert took notes of his conversations with Northrop Grumman counsel and a Northrop Grumman employee. Noting that these documents have

not been available to the committee, the majority asserts:

Until Mr. Silbert either explains the substance of the meeting or produces the notes,

it is simply premature for the Minority to claim that ‘‘[t]here is no evidence’’ related

to Mr. Silbert’s communications concerning threats or subpoena compliance.

Id. at 4.

In essence, the majority is asserting that notes that the majority has never seen—and does

not know the content of—constitute ‘‘evidence’’ of White House wrongdoing.

As additional support for its critique, the majority asserts that Mr. Haas ‘‘testified that he recounted the threats to an outside counsel described to him as a ‘gray beard,’ ’’ and that Mr.

Silbert’s billing records suggest that he was the ‘‘grey beard’’ to whom Mr. Haas spoke. Id. This

statement mischaracterizes the evidence before the committee. As discussed infra at note 210,

even assuming that Mr. Silbert was the ‘‘grey beard’’ in question, the committee simply does

not know what Mr. Haas told him. 210There is evidence to indicate that the employee in question was Mr. Haas. Mr. Haas provided courtroom testimony in a lawsuit relating to the White House’s handling of confidential

FBI files about a meeting he attended with Northrop Grumman executives in September 1998.

Mr. Haas said that during the meeting there ‘‘was a phone conversation from the Northrop

Grumman lawyer’s office. He called a person he referred to as a Grey Beard. And I recanted

[sic] my story to him.’’ Transcript of Evidentiary Hearing at 56–57, Alexander v. FBI, No. 96–

2123 (Aug. 14, 2000). Mr. Haas did not further identify the ‘‘grey beard,’’ nor did he provide

any information about what he relayed to the ‘‘grey beard.’’

Representative Burton has alleged that ‘‘Haas told the outside counsel about the threats he

had encountered, as well as his concerns about the legal ramifications of the e-mail problem.’’

Letter from Representative Dan Burton to Judge Royce Lamberth, note 1 (Sept. 26, 2000). A

careful reading of Mr. Haas’s testimony makes clear, however, that Mr. Haas was describing

what he said at the meeting with Northrop Grumman counsel and that he did not describe or

characterize his statements to the ‘‘grey beard.’’ Transcript of Evidentiary Hearing at 56–61, Alexander v. FBI, No. 96–2123 (Aug. 14, 2000). Thus, even if Mr. Haas’s testimony is accurate,

and even if Mr. Silbert was the ‘‘grey beard’’ in question, the committee does not know exactly

what Mr. Haas told Mr. Silbert. 211Mr. Silbert redacted information in the billing records about the nature of the work he performed for Northrop Grumman, claiming attorney-client and attorney work product privileges. 212 Representative Burton questioned Mr. Silbert’s veracity on this point, stating that Mr.

Silbert:

told our staff that he didn’t remember who he called or what he discussed. We’ve had

an epidemic of memory loss in this town. Significant things, an absolute epidemic. I

can’t believe it. Must be something in the water. He didn’t remember who called him

or what he discussed or who he had called at the White House or what he had discussed. Imagine that. He hears a story about possible law breaking and threats to his

client’s employees and he doesn’t even remember who he talked to at the White House.

Statement of Representative Dan Burton, Sept. 26 hearing at 13–14.

Continued

tual matter at stake.209 Mr. Silbert’s billing records contain an

entry of 1.25 hours on September 11, 1998, for a ‘‘teleconference

with Northrop Grumman counsel and a company employee.’’ Mr.

Silbert claimed that the identity of the employee was protected by

the work product privilege, but said that he did not recall the substance of this conversation.210

Nor is there any evidence that Mr. Silbert communicated information about the alleged threats or subpoena compliance issues to

the White House. A privilege log accompanying his billing records

indicates that on September 28, 1998, and December 30, 1998, Mr.

Silbert billed Northrop Grumman for a ‘‘teleconference with White

House counsel.’’ 211 Each of the teleconferences lasted 0.25 hours

each; since this is apparently the smallest increment of time for

which Mr. Silbert’s firm bills its clients, the calls may have been

considerably less than 15 minutes long. Mr. Silbert informed committee staff that he has no recollection of whom he spoke to or the

subject matter of the brief discussions.212

1318

Mr. Burton, however, overlooks a more mundane explanation—namely, that Mr. Silbert does

not recall his contacts because they were (1) brief, (2) related to a matter that he worked on

2 years ago for less than 5 hours, and (3) solely related to contractual matters and not to allegations ‘‘about possible law breaking and threats to his client’s employees.’’ 213Transcript of Evidentiary Hearing at 139, Alexander v. FBI, No. 96–2123 (Aug. 23, 2000).

Mr. Lindsay said that he thought the person in the counsel’s office who contacted him was

Lanny Breuer. Id. 214 Id. at 140–41. 215Letter from Joseph F. Lucente to Dale Helms (Sept. 14, 1998) (NGL 00503). 216The majority has alleged that ‘‘Lucente told the Committee that ‘[t]he threats were the inspiration for sending the letter,’ ’’ citing an interview of Joseph Lucente by majority and minority

staff on May 1, 2000. ‘‘Inaccuracies, Misrepresentations, and Omissions in the Democrats’ EMail Report Rebuttal,’’ House Committee on Government Reform, 4 (undated). However, in a

subsequent interview, Mr. Lucente told committee staffers that the threats were not ‘‘the’’ inspiration but ‘‘an’’ inspiration for the letter, and that the letter makes no mention of threats, veiled

or otherwise. Interview of Joseph Lucente by majority and minority staff, House Committee on

Government Reform (Oct. 17, 2000). More importantly, Mr. Lucente did not say—and there is

no evidence to suggest—that he talked to Mr. Silbert about the alleged threats.

Testimony provided by Mark Lindsay in the Alexander case reinforces the likelihood that Mr. Silbert’s contacts with White House

counsel were limited to contractual matters and did not concern

threats or subpoena compliance. Mr. Lindsay testified that he

heard mention of Mr. Silbert’s name in the context of Northrop

Grumman:

there was a concern about the scope of the contract and I

believe that someone in the counsel’s office knew this person [Mr. Silbert] and they raised a concern, and he called

me to say is this something we should be worried about?

I didn’t talk to the Northrop Grumman person. This is

someone in the White House counsel’s office, and I said,

no, I don’t think so.213

Mr. Lindsay testified that ‘‘it was a very, very general reference

about scope of work,’’ and that he was not aware of Mr. Silbert

raising with the White House counsel’s office the alleged threats

against the Northrop Grumman employees.214

Furthermore, Mr. Silbert explained that the entry in his billing

records for 0.25 hours for ‘‘document review’’ on September 12,

1998, related to a letter that was sent by Northrop Grumman’s Joseph Lucente to Dale Helms of OA. That letter makes clear that

Northrop Grumman had determined that work on the e-mail dysfunction would ‘‘substantially exceed the scope of work contemplated under the’’ EOP contract.215 The letter makes no mention of threats or issues regarding compliance with information requests. Nor is there any reason to think that those matters would

have been relevant to Mr. Silbert if, as the evidence indicates, his

role was simply to mediate or advise with respect to a straight-forward contractual discussion.216

Representative Burton has also suggested that Mr. Silbert had

reason to be less than forthcoming about the e-mail problem in his

discussions with the White House. Noting that Mr. Silbert has represented Indonesian businessman James Riady (who has been accused of orchestrating conduit contributions to President Clinton in

the 1992 election), Peter Knight (a former aide to Vice President

Gore investigated for his involvement in the Portals matter), and

former White House Chief of Staff Erskine Bowles, Representative

Burton stated that Mr. Silbert’s clients ‘‘have many reasons to be

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217Statement of Representative Dan Burton at Sept. 26 hearing. See majority report at 64,

note 362. 218Letter from Representative Dan Burton to Judge Royce Lamberth (Sept. 26, 2000). 219Transcript of Evidentiary Hearing at 229, Alexander v. FBI, No. 96–2123 (Aug. 16, 2000). 220Letter from Representative Dan Burton to Judge Royce Lamberth (Sept. 26, 2000). 221Letter from Richard J. Oparil to Judge Royce C. Lamberth (Sept. 27, 2000) (attached as

exhibit 13). 222Letter from Richard J. Oparil to Judge Royce C. Lamberth (Sept. 13, 2000) (attached as

exhibit 14). 223 ‘‘White House Has Disk With Lewinsky E-Mail,’’ Washington Times (Mar. 29, 2000).

worried about what will come out when all the White House emails are reconstructed.’’ 217

The insinuation that Mr. Silbert shaded the truth in his dealings

with the White House is wholly unsubstantiated. Mr. Silbert is a

well-respected attorney with a distinguished career in public service, including 5 years as the U.S. Attorney for the District of Columbia. The allegation also directly contradicts Representative Burton’s assertion that Mr. Silbert may have told the White House

about the Mail2 problem. It is impossible to reconcile Mr. Burton’s

speculation that Mr. Silbert fully briefed White House counsel

about the Mail2 problem with his speculation that Mr. Silbert obscured the truth about the Mail2 problem in an effort to protect

other clients.

Mr. Burton also launched an entirely gratuitous attack upon the

integrity of one of Mr. Silbert’s law partners, Richard Oparil. Mr.

Burton wrote to Judge Lamberth on September 26, 2000, to say

that Mr. Oparil, who represents Northrop Grumman in the Alexander case, ‘‘intentionally misled the Court in stating that there

had not been any contacts between Silbert and the White House regarding the e-mail matter.’’ 218 Mr. Burton cited statements by Mr.

Oparil indicating that after speaking to Mr. Silbert and after looking through the firm’s files, ‘‘we don’t believe that there were any

oral communications’’ between Mr. Silbert and White House counsel.219 Mr. Burton wrote that, since ‘‘[t]he firm’s billing records provide the most obvious source of corroboration of telephone calls and

are presumably easily searched,’’ Mr. Oparil must have ‘‘intentionally misled the Court.’’ 220

As Mr. Oparil explained, however, ‘‘[t]he billing records for the

Northrop Grumman matter were not part of the client file that I

reviewed.’’ 221 Furthermore, Mr. Oparil wrote Judge Lamberth on

September 13—almost 2 weeks before Mr. Burton made his allegation—to tell him that he had located the two entries on Mr.

Silbert’s billing records regarding phone calls with White House

counsel.222 In other words, Mr. Burton publicly accused Mr. Oparil

of covering up a matter that he had already voluntarily disclosed.

F. ALLEGATION THAT THE WHITE HOUSE FAILED TO DISCLOSE A COM- PUTER DISK CONTAINING NON-PRODUCED MONICA LEWINSKY E- MAILS

An article in the Washington Times alleged that the White

House had in its possession ‘‘a previously undisclosed computer

disk with e-mails by former intern Monica Lewinsky’’ that were

among e-mail messages sought ‘‘by a federal grand jury and three

congressional committees, but never turned over.’’ 223

This allegation was shown to be wholly without merit. White

House Counsel Beth Nolan informed the committee that the comVerDate 11-MAY-2000 22:54 Dec 08, 2000 Jkt 067962 PO 00000 Frm 00457 Fmt 6604 Sfmt 6602 E:\HR\OC\HR1023V2.XXX pfrm11 PsN: HR1023V2
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224Testimony of Beth Nolan, March 30 hearing at 26–27. 225Letter from Representative Dan Burton to Attorney General Janet Reno (Sept. 7, 2000). 226Letter from Representative Dan Burton to Attorney General Janet Reno (Mar. 30, 2000).

Earlier, Representative Burton had accused the Justice Department’s civil division of ‘‘help[ing]

the White House craft its efforts to hide these e-mails.’’ Letter from Representative Dan Burton

to Attorney General Janet Reno (Mar. 27, 2000). 227Declaration of Daniel A. Barry, Alexander v. FBI, No. 96–2123 (July 9, 1999), ¶ 4. 228Letter from Representative Dan Burton to Attorney General Janet Reno (Mar. 30, 2000). 229The majority also states that Mr. Barry should have corrected similarly general statements

that he made about ARMS during a June 11, 1998, deposition and criticizes Sally Paxton, a

member of the Office of White House Counsel who assisted Mr. Barry, for a ‘‘cavalier attitude

towards the deposition process.’’ Majority report at 131–33. The charge involving Ms. Paxton is

doubly unfair. For one thing, since Ms. Paxton was apparently not aware of any ongoing ARMS

problems, it is difficult to see how she can be blamed for failing to clarify Mr. Barry’s statements. For another, the majority mischaracterizes Ms. Paxton’s comments in an interview about

the deposition with committee staff on June 22, 2000. Ms. Paxton did not say that ‘‘she told

Barry not to change the substance of depositions because it could open him up to being re-deposed.’’ Majority report at 133. Rather, Ms. Paxton told staff that she did not recall telling Mr.

Barry anything, and that she was not sure that she had standard instructions for a deponent

about problems he might have with a deposition transcript. Interview of Sally Paxton by majority and minority staff, House Committee on Government Reform (June 22, 2000). She further

said that making substantive changes would open the person up to being re-deposed but that

she was not sure that she would generally mention this detail to deponents. Id. See letter from

Steven M. McNabb to Representative Dan Burton (Oct. 18, 2000) (correcting ‘‘certain false and

misleading statements about my client, Sally Paxton’’ in the majority’s report) (attached as exhibit 15).

puter disk containing Monica Lewinsky’s e-mails was a copy of a

file belonging to Mr. Haas and that the Lewinsky-related e-mail on

the disk had already been produced.224 The contents of this disk

were provided to the committee. The committee has obtained no

evidence that contradicts Ms. Nolan’s explanation.

G. ALLEGATION THAT AN OA EMPLOYEE FILED A FALSE AND

MISLEADING AFFIDAVIT ABOUT THE MAIL2 PROBLEM

Mr. Burton also alleged that ‘‘a White House employee, aided

and counseled by Justice Department lawyers, submitted a false affidavit to a federal court that concealed the failure of the White

House to search for all e-mails responsive to subpoenas.’’ 225 Mr.

Burton even made a criminal referral to the Attorney General, in

which he accused the employee, Daniel A. ‘‘Tony’’ Barry, of knowingly making false statements under oath, adding that ‘‘there is

evidence that the Justice Department itself may have been involved in preparing and presenting false testimony.’’ 226

The affidavit in question was filed by Mr. Barry, OA’s ARMS expert, on July 9, 1999, in the Alexander case involving FBI files. The

affidavit states in relevant part, ‘‘Since July 14, 1994, e-mail within

the EOP system administered by the Office of Administration has

been archived in the EOP Automated Records Management System

(ARMS).’’ 227 According to Mr. Burton, this statement is ‘‘utterly

false.’’ 228

This allegation ignores the context of the Barry affidavit. The affidavit was filed as part of the government’s efforts to convince the

judge hearing the lawsuit that ARMS searches were not necessary

for discovery purposes. Accordingly, the affidavit describes in some

detail the cost and time involved in conducting a search of ARMS.

Given this context, it appears that Mr. Barry was simply and accurately attempting to explain some basic facts about ARMS—namely, that it archives e-mail and that it has been in effect since July

14, 1994.229

The flimsiness of Mr. Burton’s allegation is underscored by the

fact that Mr. Barry received letters from both the Justice DepartVerDate 11-MAY-2000 22:54 Dec 08, 2000 Jkt 067962 PO 00000 Frm 00458 Fmt 6604 Sfmt 6602 E:\HR\OC\HR1023V2.XXX pfrm11 PsN: HR1023V2
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230Letter from Deputy Assistant Attorney General Alan Gershel, to Steve Ryan, Esq. (Aug.

1, 2000) (attached as exhibit 16); letter from Independent Counsel Robert W. Ray to Stephen

M. Ryan, Esq., and Pamela J. Marple, Esq. (Aug. 2, 2000) (attached as exhibit 17). 231Majority report at 135. 232Statement of Representative Dan Burton, May 3 hearing at 13. 233Statement of Representative Bob Barr, May 3 hearing at 35. 234Testimony of Karl Heissner, May 3 hearing at 49–50. 235 E-mail from Karl H. Heissner to Dorothy E. Cleal (Feb. 5, 1999) (E 3865–74). 236Testimony of Karl Heissner, May 3 hearing at 51.

ment and the Office of Independent Counsel stating that he is not

a target of their respective e-mail investigations.230

The majority report also states that ‘‘[b]y counseling Barry

through the process of preparing and submitting the false affidavit

to the court, Justice Department and White House lawyers were

complicit in the fraud perpetrated upon Judge Royce Lamberth’s

court.’’ 231 This allegation overlooks the incontrovertible fact that

there is no evidence that any White House or Justice Department

lawyers involved in preparing and submitting the affidavit were

aware of any ARMS-related problems.

H. ALLEGATION THAT AN OA EMPLOYEE ATTEMPTED TO HIDE

INFORMATION ABOUT THE MAIL2 PROBLEM FROM CONGRESS

Representative Burton has accused Karl Heissner, the branch

chief for Systems Integration and Development in OA’s IS&T division, of seeking to keep the Mail2 problem a secret from investigators. Mr. Burton cited as evidence an e-mail written by Mr.

Heissner, which he interpreted as follows: ‘‘he concludes by saying,

‘Let sleeping dogs lie.’ I think translated that means let’s keep a

lid on this and don’t let Congress or the independent counsels know

about it.’’ 232 Mr. Barr suggested that, if he were a prosecutor, Mr.

Heissner’s e-mail ‘‘would be considered evidence of obstruction of

justice.’’ 233

Mr. Heissner, a 25-year career civil servant, testified that his email memo addressed two separate and unrelated issues.234 The

first part of the e-mail is entitled, ‘‘Information Requests’’ and

states, in relevant part:

While I’ll be glad to write up something related to the ‘‘Information Requests’’ channeled to us via White House

Counsel in response to various requests from Congress and

litigants against the Government, we may not want to call

undue attention to the issue by bringing the issue to the

attention of Congress because [l]ast year’s hours consumed

by SID staff amounts to only a little over 500, [t]his year’s

hours consumed so far amounts to only 65, and [t]he level

of requests appears to be declining.

(Let sleeping dogs lie . . .) 235

The second part of the e-mail is entitled ‘‘Mail2 Reconstruction.’’

It provides a summary of the Mail2 problem, its discovery, and

subsequent efforts to fix it.

Mr. Heissner testified that his suggestion to let ‘‘sleeping dogs

lie’’ was simply expressing a desire not to bring up the fact that

the number of information requests received by the White House

was declining.236 According to Mr. Heissner, since the number of

information requests was declining, ‘‘we don’t need to go to ConVerDate 11-MAY-2000 22:54 Dec 08, 2000 Jkt 067962 PO 00000 Frm 00459 Fmt 6604 Sfmt 6602 E:\HR\OC\HR1023V2.XXX pfrm11 PsN: HR1023V2
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237 Id. at 34. 238 Id. at 50. 239Letter from Representative Dan Burton to Attorney General Reno (June 28, 2000). See also

majority report at 114 (‘‘Cheryl Mills has been a central figure in the investigation into the

White House’s e-mail problems and subsequent failure to produce subpoenaed documents’’). 240Letter from Representative Dan Burton to Attorney General Reno (June 28, 2000). 241Testimony of Cheryl Mills, May 4 hearing at 33–34.

gress to ask for funding to pay for the costs for performing these

information requests.’’ 237 Mr. Heissner stated that he was not trying to prevent Congress from finding out about the Mail2 problem.238

The majority appears to recognize that the allegations about Mr.

Heissner are without merit because there is no mention of Mr. Burton’s or Mr. Barr’s allegations in the majority report. Unfortunately, the majority makes no attempt to clear the record or to

clear Mr. Heissner’s name in the majority report.

I. ALLEGATION THAT CHERYL MILLS WAS RESPONSIBLE FOR THE

FAILURE TO DISCLOSE THE MAIL2 PROBLEM

Mr. Burton has made a number of misleading and inaccurate allegations about the role of then-Deputy Counsel to the President

Cheryl Mills in the e-mail matter. For example, Mr. Burton alleged

that ‘‘Cheryl Mills is a central figure in the e-mail investigation,’’ 239 and that Ms. Mills:

was in charge of determining the extent of the problem

and whether there were any ramifications for document

production. As we now know, Ms. Mills—by incompetence

or design—may have prevented a number of investigative

bodies, including Congress, the Justice Department, and

Independent Counsels, from receiving subpoenaed documents. . . . [I]t is clear that Ms. Mills is the central figure

in terms of the White House Counsel’s Office[’s] failure to

solve the e-mail problems or its failure to notify interested

parties that documents were not being produced.240

In fact, Ms. Mills’s testimony before the committee indicated that

her involvement in the e-mail matter was limited to a discussion

with Mr. Ruff about the problem, after which she forwarded a

batch of e-mails to White House Associate Counsel Michelle Peterson, who determined that they had already been produced. According to Ms. Mills’s testimony:

Mr. Ruff indicated that there had been a problem with certain e-mails that might not have been captured, that OA

was gathering them, that they were going to forward them

to our office. We were going to then need to make a determination whether or not those e-mails had or had not been

produced and if they had not been produced that we needed to produce them immediately. . . . The e-mails—the

material came from OA over to our office; and I forwarded

them to Shelly Peterson, an associate counsel in our office,

who reviewed the materials to determine whether or not

they were duplicative.241

Ms. Mills’s testimony contradicts Mr. Burton’s assertion that she

was ‘‘in charge of determining the extent of the problem and

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242 Id. at 34. 243Letter from Representative Dan Burton to Attorney General Reno (June 28, 2000). 244Memorandum from Dorothy E. Cleal, Associate Director for Information Systems and Technology, Office of Administration, to Virginia Apuzzo, Assistant to the President for Management

and Administration (May 13, 2000) (E 5201–03, E 6956–58). 245 Id. 246Letter from Representative David McIntosh to Attorney General Janet Reno (Sept. 17,

1998). 247Letter from Ms. Faith Burton to Representative David McIntosh (May 6, 1999) (attached

as exhibit 18). 248Letter from Representative Dan Burton to Attorney General Janet Reno (June 28, 2000). 249Letter from Representative Dan Burton to Judge Royce C. Lamberth (Mar. 29, 2000).

whether there were any ramifications for document production.’’

According to her testimony, her role was limited to determining

whether or not certain e-mails relating to Monica Lewinsky had or

had not been produced.242 There is no evidence to suggest that Ms.

Mills’s testimony on this point was inaccurate.

Representative Burton has also implied that Ms. Mills was informed about broad e-mail problems affecting the office of the Vice

President. Representative Burton wrote to the Attorney General

that a matter of ‘‘some importance’’ was a document indicating that

‘‘[t]he OVP memorandum regarding the Vice President’s computer

problems has been cleared with Cheryl Mills’ office.’’ 243 This statement seems to suggest that the memorandum in question contained information about deficiencies in the records management

practices of the Office of the Vice President.

In fact, however, the memorandum in question discussed a technical failure that caused the Vice President to be ‘‘unable to send

or receive E-mail for approximately seven hours’’ on April 2,

1999.244 According to this memorandum, as a result of this technical failure, ‘‘[a]ll documents which had not been saved to a disk—

in this case three days of E-mail—were irretrievably lost.’’ 245 The

memorandum does not discuss broader issues about records management of the Vice President’s e-mail. It is therefore difficult to

understand how Ms. Mills’s alleged knowledge of the contents of

the memorandum is in any way inculpatory.

This is not the first time the committee has targeted Cheryl

Mills. In September 1998, Representative David McIntosh requested that the Department of Justice investigate whether Ms.

Mills committed perjury and obstructed justice because, in essence,

she did not agree with him about the relevance of two sets of documents to a committee request.246 As the Department of Justice

found, this attempt to transform a simple document request into a

potential criminal offense lacked any merit.247 The allegations in

this instance appear equally unwarranted.

J. ALLEGATION THAT THE JUSTICE DEPARTMENT HAS FAILED TO INVESTIGATE, OR TO APPOINT A SPECIAL COUNSEL TO INVESTIGATE,

THE E-MAIL MATTER

Mr. Burton has repeatedly condemned the Justice Department’s

investigation of the e-mail matter. Mr. Burton has accused the Department of ‘‘investigative laxity’’ 248 and has charged that the Justice Department ‘‘took no steps to determine whether reports about

the e-mail problem were true,’’ 249 further stating that ‘‘I get the

impression that the Justice Department really isn’t all that interVerDate 11-MAY-2000 22:54 Dec 08, 2000 Jkt 067962 PO 00000 Frm 00461 Fmt 6604 Sfmt 6602 E:\HR\OC\HR1023V2.XXX pfrm11 PsN: HR1023V2
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250Statement of Representative Dan Burton, March 23 hearing at 12. 251Letter from Representative Dan Burton to Attorney General Janet Reno (Mar. 27, 2000);

letter from Representative Dan Burton to Attorney General Janet Reno (Mar. 30, 2000). 252Testimony of Alan Gershel, Sept. 26 hearing at 35. 253Statement of Representative Dan Burton, Sept. 26 hearing at 69. 254Testimony of Alan Gershel, Sept. 26 hearing at 105–06. Mr. Gershel also affirmed that the

Department had not impeded or limited the scope of Mr. Ray’s e-mail investigation. Id. at 48. 255Majority report at 141. 256 Id. at 143. 257Testimony of Alan Gershel, Sept. 26 hearing at 34–35. 258Majority report at 129.

ested’’ in the e-mails.250 Because of these perceived deficiencies,

Mr. Burton has called for the appointment of a special counsel to

investigate the e-mail matter.251

While it would be premature to judge the thoroughness of the

Department’s e-mail investigation, Mr. Burton’s request for a special counsel makes no sense, as the e-mail matter is already the

subject of an investigation by Independent Counsel Robert Ray.

Deputy Assistant Attorney General Alan Gershel testified that

‘‘with respect to the White House e-mail matter the [Department’s]

task force and the office of the independent counsel are working together in a coordinated investigation.’’ 252

Mr. Burton has alleged that Independent Counsel Ray’s investigation ‘‘is limited’’ and ‘‘[a] lot of the things that we’re talking

about in the e-mail investigation Mr. Ray does not have any jurisdiction over.’’ 253 In fact, Mr. Gershel confirmed that the independent counsel’s investigation necessarily involves the same basic

factual matters as the committee’s e-mail investigation.254 While

the independent counsel may be focused on examining the e-mail

matter as it relates to the production of documents to his office, all

of the issues explored by the committee—including allegations of

threats and a cover-up—are relevant to this inquiry. Mr. Burton’s

allegation is simply without basis.

The majority report also makes the assertion that ‘‘[i]t appears

that for at least part of its e-mail investigation, the Justice Department had only one part-time lawyer assigned to its e-mail investigation.’’ 255 The majority report offers no evidence to support this

allegation. Instead, the report states the Mr. Gershel’s refusal to

rebut the charge ‘‘suggests that it is likely true.’’ 256 In fact, Mr.

Gershel made clear that his refusal to discuss staffing levels was

based on the Department’s longstanding policy of not disclosing

staffing levels for ongoing investigations.257

Finally, the majority report accuses the Justice Department of

having a conflict of interest because of the role of the Department’s

civil division in defending the White House in the Alexander

case.258 However, Assistant Attorney General Robert Raben explained to the committee:

The Department often represents the interests of a governmental entity in civil litigation where an issue presented

in that civil case touches upon a pending criminal investigation. If an aspect of an ongoing civil case threatens to

duplicate or interfere with the conduct of an ongoing criminal investigation, the Department often seeks to stay that

part of the civil case that might duplicate or interfere with

the progress of the criminal investigation. That is precisely

the relief the Department sought in the Alexander case, in

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259Letter from Assistant Attorney General Robert Raben to Representative Dan Burton (Apr.

12, 2000) (attached as exhibit 19). The majority asserts that ‘‘[t]he Department of Justice has

received no such stay.’’ Majority report at 129. This assertion is misleading, as the judge hearing

the Alexander case delayed holding hearings on the e-mail matter for several months until receiving assurances that ‘‘the criminal investigation has reached a stage where further inquiry

. . . can recommence without threatening the integrity of the criminal investigation or other

law enforcement interests.’’ Order of Judge Royce Lamberth, Alexander v. FBI, No. 96–2123

(July 20, 2000). The judge further noted that he had ‘‘proceeded cautiously’’ since the task force

began its investigation ‘‘to ensure that these proceedings do not interfere with the criminal investigation.’’ Id. The Alexander plaintiffs filed a motion requesting an evidentiary hearing on

e-mail matters on Feb. 19, 2000; the court did not commence the hearing until July 31. Id. 260Letter from Representative Dan Burton to Counsel to the President Beth Nolan (July 26,

2000). 261Letter from Representative Dan Burton to Counsel to the President Beth Nolan and Attorney General Janet Reno (July 12, 2000). 262Letter from Counsel to the President Beth Nolan to Representative Dan Burton (Aug. 7,

2000) (attached as exhibit 20). Ms. Nolan also pointed out that, in addition to testifying twice

before the committee, she has provided the committee with several updates on the reconstruction project and records management issues. Id. 263Testimony of Beth Nolan, March 30 hearing at 25. 264See letter from Counsel to the President Beth Nolan to Representative Dan Burton (Sept.

26, 2000).

which the Department asserted that the lawyers in the

Civil Division, who had been looking into the email issue,

should not proceed with that investigation because it could

duplicate or compromise the investigation by the Task

Force and the Office of Independent Counsel.259

K. OTHER ALLEGATIONS

1. Allegation That the White House Has Delayed Reconstruction of

the E-mails

Mr. Burton has stated that ‘‘it is now obvious to me that the

White House has failed to expedite the production of subpoenaed

documents to the Committee,’’ adding that ‘‘the White House has

clearly demonstrated its utter disregard for both the legislative and

judicial branches’’ and that delays in the reconstruction process

‘‘are not surprising and seem very convenient.’’ 260 Mr. Burton has

further called for the appointment of a special master to supervise

production of e-mails.261

Ms. Nolan has responded in writing to Mr. Burton’s allegations

in some detail, noting correctly that she warned during her testimony before the committee that the schedule for the e-mail reconstruction project was subject to possible delays.262 Ms. Nolan also

testified that ‘‘[a]s our review progresses to completion, we will

likely uncover information that alters or amends these preliminary

conclusions’’ and referred to the ‘‘contractor’s preliminary estimate,’’ adding that ‘‘I want to emphasize preliminary because these

estimates are subject to amendment as the process proceeds and

the contractor learns new information.’’ 263

The majority has not yet responded to an offer made by the

White House on September 14, 2000, to search, reconstruct, and

produce batches of e-mails on an expedited basis.264 The White

House notified committee staff that with about 3 weeks of computer staff time, it would be able to conduct targeted searches

using 100 backup tapes, 70 e-mail accounts, and 70 search

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265 Id. The White House further noted that with about 2 weeks of computer staff time, it

would be able to conduct targeted searches using 50 backup tapes, 35 e-mail accounts, and 35

search terms. Id. 266Letter from Associate Counsel to the President Lisa Klem to Chief Counsel James C. Wilson (Oct. 4, 2000). 267Majority report at 107. 268 Id. at 107. 269 Id. at 110. 270Letter from Associate Counsel to the President Dimitri J. Nionakis to Chief Counsel James

Wilson (Apr. 28, 2000). White House counsel testified that the log was provided as an invitation

to discuss seven documents that White House counsel believed concerned areas relating to ‘‘the

internal deliberations of the executive branch,’’ and that ‘‘that is exactly the kind of thing that

calls for a discussion between the committee and the relevant executive agency.’’ Testimony of

Beth Nolan, May 4 hearing at 228–29. 271Majority report at 111. 272 According to the majority, ‘‘the White House so quickly abandoned its privilege claims because the claims were without merit and could only have been intended to drag out the investigation.’’ Id. at 111. The majority overlooks the more plausible assumption that the White

House dropped its claim in order to accommodate the committee, and to avoid providing the majority with another pretext to complain of ‘‘delaying tactics.’’

terms.265 The White House repeated the offer on October 4.266 To

date, however, the majority has failed to take the White House up

on its offer. This might suggest that the majority is more interested

in speculating about the ‘‘missing’’ e-mails—and accusing the White

House of delay—than in actually reviewing the e-mails.

2. Allegation That the White House Has Impeded the Committee’s

Investigation

The majority asserts that ‘‘the White House Counsel’s Office has

used a number of questionable tactics that appear to have no purpose other than to impede the investigation.’’ 267 However, the majority cites scant evidence to support this assertion. For example,

the majority states:

the original White House production in the e-mail matter

was sent in the evening, two days before the Committee’s

first scheduled hearing of March 23, 2000. This forced an

expedited review of 3,396 pages of documents in less than

36 hours. By placing the Committee in this difficult position, the White House made the hearing process less efficient.268

In fact, the majority has only itself to blame for its ‘‘difficult position.’’ The problem encountered by the majority was caused by the

fact that the majority scheduled a hearing before the committee

had received key documentation.

The majority also accuses the White House of employing a ‘‘delaying tactic’’ by asserting privilege over certain documents.269 This

accusation concerns an April 28, 2000, letter from White House

counsel to the majority in which the White House counsel enclosed

a ‘‘draft log’’ describing several documents ‘‘subject to privilege.’’ 270

The majority concedes, however, that 1 day after receiving a written objection from Mr. Burton, the White House decided not to pursue privilege discussions and agreed to provide the documents to

the committee.271 Given that this whole process took all of 2 business days, it is unclear how much advantage this alleged ‘‘delay’’

could have given the White House.272

Another trivial accusation is the majority’s complaint that White

House counsel did not initially produce copies of the Lewinsky-related e-mails located by Mr. Haas. In fact, after receiving a letter

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273The majority states that White House counsel claimed that the Lewinsky e-mails ‘‘were

unrelated to the Mail2 error and therefore were not relevant to the Committee’s inquiry.’’ Id.

at 111. In fact, Ms. Nolan testified that she took the view that the Lewinsky e-mails were not

covered by the committee’s pre-existing subpoena. Testimony of Beth Nolan, May 4 hearing at

253. Ms. Nolan further pointed out her view was evidently shared by Representative Burton,

who had told Ms. Nolan during her previous appearance before the committee that he intended

to issue a separate subpoena for the zip disk containing the Lewinsky e-mails. Id.; see statement

of Representative Dan Burton, March 30 hearing at 82 (stating that ‘‘I think we’ll issue a subpoena for both the original zip disk and the one that was remade off of [Mr. Haas’s] hard drive’’). 274Majority report at 110 (emphasis added). 275 Id. at 89. 276Testimony of Michael Lyle, May 3 hearing at 130–33.

from Mr. Burton, the White House provided these documents. Once

again, the majority construes a minor disagreement over document

production as evidence of dilatory tactics—even when the White

House immediately acceded to the majority’s demands.273

The majority also makes another spurious allegation:

Because of the Committee’s persistence regarding responsive OVP documents, the White House eventually made a

startling admission about the OVP server. On June 7,

2000, Steven Reich sent a letter accompanying a large production of documents related to the OVP e-mail problems.

He wrote, ‘‘your May 16, 2000, letter regarding non-records

managed e-mail has led us to discover that a technical configuration error apparently prevented e-mail on the OVP

server from being backed-up from the end of March 1998

through early April 1999.’’ In other words, if the Committee

had not followed-up on the OVP problems . . . the White

House most likely would never have disclosed the existence

of another serious flaw in its records management process.274

This allegation distorts the role of White House counsel. As Mr.

Reich’s letter clearly stated, White House counsel only discovered

the backup problem with the OVP server in the course of responding to the committee’s request. The implication that White House

counsel were aware of the problem all along, and only disclosed it

when they were forced to do so, is wholly unsubstantiated.

3. Allegation That OA Briefing Materials Are Evidence of a Conspiracy to Hide the Mail2 Problem from Congress

A reference to the Mail2 problem was removed from draft materials prepared to brief Mr. Lindsay prior to his testimony before

congressional appropriators. The majority has suggested this deletion reflected a deliberate attempt to prevent Congress from finding out about the problem.275 In fact, the deletion had an innocent

explanation. OA Director Michael Lyle explained that the briefing

materials were internal documents prepared for Mr. Lindsay’s testimony regarding appropriation matters, and that the reference to

Mail2 was removed because ‘‘funds were not being sought for the

e-Mail2 reconstruction project in this appropriation.’’ 276

4. Allegation That Sidney Blumenthal Tried to Prevent His E-mails

From Being Archived

A May 3 Washington Times article stated that a White House

memo shows that ‘‘White House aide Sidney Blumenthal, who figured prominently in the Monica Lewinsky investigation, asked last

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277 ‘‘Blumenthal Wanted His E-mail Erased from White House,’’ Washington Times (May 3,

2000). 278Testimony of Michael Lyle, May 3 hearing at 81. 279 Id. at 82. 280Majority report at viii. 281 Id. at xviii. 282 Instead, the OVP maintained its own computer system, serviced by a contractor rather

than by OA. Statement of Counsel to the President Beth Nolan (Mar. 23, 2000). 283Former Counsel to the Vice President Todd Campbell described this system as a ‘‘belts and

suspenders’’ records management policy, with the backup tapes in place in the event of any technical or other problem arising. Interview of Hon. Todd Campbell by majority and minority staff,

House Committee on Government Reform (Aug. 18, 2000). 284Testimony of Beth Nolan, March 30 hearing at 85 (stating that ‘‘ARMS was set up in order

for the executive office of the President to comply with the Federal Records Act’’).

year to have his personal e-mail messages removed from the White

House’s automated-records management system—meaning they

couldn’t be retrieved.’’ 277

However, according to testimony by OA’s director, Michael Lyle,

the memo regarding the Blumenthal e-mail concerned a single email to Mr. Blumenthal that had duplicated itself to the point

where it crashed Mr. Blumenthal’s computer.278 Mr. Lyle said the

Office of Administration decided to delete the duplicates, while

keeping the original.279 There is no evidence to contradict Mr.

Lyle’s testimony or to suggest that there was an attempt to prevent

Mr. Blumenthal’s e-mails from being records-managed.

IV. ALLEGATIONS CONCERNING THE OFFICE OF THE VICE PRESIDENT

A. ALLEGATION THAT THE OVP DELIBERATELY ATTEMPTED TO

CIRCUMVENT SUBPOENA COMPLIANCE

The majority report alleges that ‘‘the Vice President’s Office took

affirmative steps to keep from storing its e-mail records in the only

system that would permit full and accurate subpoena compliance.’’ 280 According to the majority, a counsel to the Vice President

‘‘personally decided that the Vice President would not store his

records in a way that would permit compliance with document requests’’ and there ‘‘can be little doubt that the Vice President’s advisors knew that their actions would permit his office to operate in

a manner that would make it less susceptible to oversight.’’ 281

This allegation is wholly without merit. The committee’s investigation revealed that in 1994, the Office of the Vice President

opted not to archive its e-mails electronically via ARMS.282 Instead,

in order to preserve Vice Presidential records in compliance with

the Presidential Records Act, and consistent with previous practice,

OVP personnel were instructed to print out and save work-related

e-mails. In addition, the OVP system was regularly backed up and

the backup tapes were saved.283

There is no evidence whatsoever that this decision was intended,

or could have been intended, to hamper subpoena compliance. At

the time, ARMS was intended solely as a means of archiving electronic records for posterity in compliance with the Federal Records

Act—not as a tool for subpoena compliance.284 There is no evidence

that anyone had even considered the possibility of using ARMS to

search for responsive documents. Indeed, former Counsel to the

Vice President Todd Campbell, now a Federal judge, informed the

committee that the OVP received only a few subpoenas during his

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285 Interview of Hon. Todd Campbell by majority and minority staff, House Committee on Government Reform (Aug. 18, 2000). 286 Id. The majority notes that Judge Campbell told staff that he did not direct that the

backup tapes be searched in response to subpoenas but claims that ‘‘[h]e could not offer any

explanation as to why not.’’ Majority report at 76. In fact, Judge Campbell stated in his interview that the subpoenas received when he was at the White House were so remote from matters

handled by the OVP that there was no need to take this step. Interview of Hon. Todd Campbell

by majority and minority staff, House Committee on Government Reform (Aug. 18, 2000). 287 Interview of Hon. Todd Campbell by majority and minority staff, House Committee on Government Reform (Aug. 18, 2000). 288The Armstrong decision explicitly applied only to Federal records, and the court made it

clear that the President has great discretion in implementing the PRA. The PRA ‘‘accords the

President virtually complete control over his records during his term of office.’’ 1 F.3d at 1291

(citation omitted). The Armstrong decision also made clear that judicial review of the PRA is

limited: ‘‘the courts may review guidelines outlining what is, and what is not, a ‘presidential

record’ to ensure that materials that are not subject to the PRA are not treated as presidential

records’’ but ‘‘the PRA impliedly precludes judicial review of the President’s decisions concerning

the creation, management, and disposal of presidential records during his term of office.’’ 1 F.3d

at 1294 (citation omitted). 289The Armstrong decision did not hold that printing and saving paper copies of e-mails was

inherently incompatible with records management responsibilities. Rather, the Armstrong decision noted that ‘‘important information present in the e-mail system, such as who sent a document, who received it, and when that person received it, will not always appear on the computer

screen and so will not be preserved on the paper print-out.’’ 1 F.3d at 1284. Armstrong did not

hold that the only acceptable way to manage electronic records was via an electronic archiving

system, but rather that retaining ‘‘amputated paper print-outs’’—lacking data contained in the

original e-mail—was not sufficient for purposes of the FRA. 1 F.3d at 1285. Since the OVP’s

paper print-outs apparently contained full data about the sender and recipients, the OVP’s

records management regime was in compliance with the spirit of Armstrong. 290Majority report at 76. 291 Interview of Hon. Todd Campbell by majority and minority staff, House Committee on Government Reform (Aug. 18, 2000). 292 Interview of Michael Gill by majority and minority staff, House Committee on Government

Reform (July 24, 2000).

tenure there, which lasted through the 1994 election.285 Judge

Campbell also indicated that he made the decision not to use

ARMS to archive Vice Presidential records; that his decision was

not intended to prevent OVP e-mails from being saved on a searchable database; and that he had no memory of ARMS even being a

searchable database.286

Judge Campbell explained that he made his decision after consulting with Michael Gill, who handled information technology

matters in the OVP from 1993 through the fall of 1996, and Kimiki

Gibson, then the Associate Counsel to the Vice President.287 Judge

Campbell believed that his decision was legal and appropriate, and

there is no evidence that would indicate his belief was mistaken.

As explained above, ARMS was created in order to comply with the

Armstrong decision, which held that existing EOP guidelines for

managing e-mail were not in compliance with FRA recordkeeping

requirements. Since records created by the OVP are governed by

the PRA, not the FRA, the OVP was under no requirement to rely

on ARMS for its records management.288 Moreover, the OVP’s decision to rely on saving paper copies of e-mails instead of using

ARMS to archive e-mails was fully in keeping with both the letter

and the spirit of Armstrong.289

The majority asserts that it is ‘‘difficult to understand why the

OVP chose not to use the White House’s ARMS system.’’ 290 In fact,

Judge Campbell told the committee that the OVP had technical

concerns about connecting to ARMS.291 According to Mr. Gill, in

order for the OVP to connect to ARMS, it would have had to take

a giant technological step backwards by converting its e-mail system from the Windows-based ‘‘Lotus cc:Mail’’ to the character-based

‘‘All-in-One,’’ which Mr. Gill considered to be less user-friendly.292

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293Majority report at xvii. 294See, e.g., statement of Counsel to the President Beth Nolan (Mar. 23, 2000) (‘‘archiving email records is a relatively novel concept. I am told that the ARMS system had to be custom

built because at that time no appropriate system was commercially available. As far as we are

aware, no other government entity—including Congress—maintains a similar on-line archival

system’’). See also ‘‘With White House E-Mail, It’s Click Now, Repent Later,’’ Christian Science

Monitor (Apr. 7, 2000) (noting that ‘‘[i]ronically, the office of Rep. Dan Burton (R) of Indiana,

who last week grilled White House counsel about the missing e-mails, stores its electronic messages for a mere week, then overrides them with new work’’) (attached as exhibit 21). The majority’s assertion that ‘‘the difficulty in searching backup tapes was one of the fundamental reasons for the creation of ARMS’’ is equally specious. Majority report at 20. The only evidence

the majority cites in support of this proposition is a statement by Mr. Haas, a Northrop Grumman contract engineer who evidently took no part in the legal and policy discussions that led

to ARMS’s creation. Mr. Haas’s assertion is inconsistent with the interviews conducted and documents received by the committee, which uniformly indicate that the sole impetus for the creation of ARMS was the Armstrong decision. See, e.g., testimony of Beth Nolan, March 30 hearing

at 85 (stating that ‘‘ARMS was set up in order for the executive office of the President to comply

with the Federal Records Act’’); interview of Daniel A. Barry by majority and minority staff,

House Committee on Government Reform (Mar. 9, 2000). 295See, e.g., U.S. v. Ryan, 402 U.S. 530, 534 (1971) (subpoena duces tecum ‘‘placed respondent

under a duty to make in good faith all reasonable efforts to comply with it’’); Food Lion v.

United Food and Commercial Workers International Union, 103 F.3d 1007, 1017 (D.C. Cir. 1997)

(noting that ‘‘[s]everal courts have held that a party charged with contempt may assert a defense of good faith substantial compliance’’). 296Majority report at viii, x.

The majority further asserts that the ‘‘decision by the Vice President’s office to have his [sic] e-mails managed separately from the

rest of the White House meant that the Vice President’s office

could not effectively comply with subpoenas.’’ 293 This assertion is

simply wrong. The notion that the White House, or any other entity, cannot ‘‘effectively comply with subpoenas’’ unless it has a wordsearchable electronic archive that preserves its e-mails has no basis

in law. If the majority’s assertion were true, there would be few,

if any, corporations, citizens, or governmental entities capable of

complying with subpoenas ‘‘effectively.’’ 294 As any lawyer with rudimentary litigation experience can attest, compliance with subpoenas requires a reasonable, good faith effort to locate responsive

documents—no more and no less.295

B. ALLEGATION THAT THE RECONSTRUCTED OVP E-MAILS CONTAIN

SIGNIFICANT INFORMATION

To date, between 180,000 and 200,000 e-mails have been reconstructed and reviewed, and any responsive e-mails have been produced to the Office of Independent Counsel Robert Ray or the Justice Department’s campaign finance task force. Only 56 of the emails produced to the independent counsel or the task force were

responsive to this committee’s subpoenas, and several of those had

already been produced in similar form (e.g., with a different recipient or sender). The majority has alleged that the e-mails contain

damaging new information. According to the majority report, the emails produced by the White House ‘‘are highly relevant to the

Committee’s investigation of campaign finance matters,’’ and the

information in these e-mails is ‘‘important for evaluating whether

the Vice President committed perjury’’ and ‘‘shows that it is impossible to come to a final conclusion about underlying campaign finance matters without a complete review of all the previously withheld information.’’ 296

In fact, none of the 56 reconstructed e-mails provided to the committee contains significant new evidence.

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297 E-mail from Karen Skelton to Ellen L. Ochs (Apr. 23, 1996) (E 8862) (discussed in majority

report at x). 298See, e.g., Senate Committee on Governmental Affairs, ‘‘Investigation of Illegal or Improper

Activities in Connection with 1996 Federal Election Campaigns,’’ 105th Cong., 2d sess., vol. 1,

196 (March 1998) (stating that ‘‘[a] number of White House and DNC documents underline the

importance of the coffees as fundraising events’’). 299The Vice President told investigators that the coffees ‘‘allowed the President to spend time

with influential people who wanted to talk about policy, who would at some later time possibly

be asked to financially support the DNC.’’ He further stated that ‘‘[i]t was contemplated at the

time when they were set up that some or many of those who participated in those sessions

would later on be likely to contribute.’’ Interview of Vice President Gore with Robert J. Conrad,

Jr., Head of the Department of Justice Campaign Financing Task Force (Apr. 18, 2000). 300 E-mail from Jackie A. Dycke to R. Martinez (Apr. 9, 1996) (E 8747–54) (discussed in majority report at x). 301For example, the document indicates that the Vice President will attend a DNC Reception

at the Hsi Lai Temple both in Los Angeles and San Jose. Id. 302 E.g., document labeled ‘‘Current Schedule for April 29’’ (EOP 056497) (referring to a ‘‘DNC

luncheon in LA/Hacienda Heights’’); e-mail from Jackie A. Dycke to R. Martinez (Apr. 10, 1996)

(EOP 053292) (noting that ‘‘the VP is going to San Jose and LA for DNC fundraising events

on April 29’’). 303Senate Committee on Governmental Affairs, ‘‘Investigation of Illegal or Improper Activities

in Connection with 1996 Federal Election Campaigns,’’ 105th Cong., 2d sess., vol. 2, 1793–94,

vol. 4, 4818–31 (March 1998). Staff testified that they were sloppy in their use of the term

‘‘fundraiser.’’ But the key scheduler responsible for the Hsi Lai Temple event in the Vice President’s Office testified that she viewed the event as a community outreach event, not a fundraiser, and the staff person who briefed the Vice President on the event testified that he informed the Vice President that the event was a community outreach event. Id. at 4822–26.

The majority cites as significant new information one e-mail between two Vice Presidential staffers that refers to ‘‘FR coffees’’ at

the White House, which the majority asserts is evidence that the

coffees were used for fundraising purposes.297 It is not clear, however, whether the term ‘‘FR’’ refers to ‘‘fundraising’’ or ‘‘finance-related.’’ Moreover, even if the term ‘‘FR’’ is construed to refer to

fundraising, the e-mail does not add new evidence. Other internal

communications in the Vice President’s Office have described these

coffees as ‘‘fundraising’’ events.298 Indeed, the Vice President has

repeatedly said that he knew attendees at White House coffees

would likely be solicited for contributions later on.299

Another e-mail relied upon by the majority is an e-mail from a

scheduler that refers to a fundraising event in Los Angeles and

lists an event at the Hsi Lai Buddhist Temple.300 But this e-mail

is a draft schedule and it is incomplete and inaccurate in several

places.301 It adds little to what is already known about the Hsi Lai

Temple event. Internal communications in which the Vice President’s staff apparently used the term ‘‘fundraiser’’ to describe the

Hsi Lai Temple event were produced and investigated long ago.302

Three years ago, the Senate Governmental Affairs Committee

talked with the Vice President’s scheduling staff about such internal communications, and thoroughly explored whether staff viewed

the event as a fundraiser and how the Vice President was briefed

about the event.303 The newly reconstructed e-mails received by the

committee contain no e-mails either to or from the Vice President

regarding the Temple event.

C. ALLEGATION THAT VICE PRESIDENT GORE SOUGHT TO HIDE E-MAILS

FROM INVESTIGATORS

Mr. Burton recently alleged:

the Vice President wanted the backup tapes on many of

his e-mails not kept. He didn’t want there to be backup

tapes because they said the only way—in one of the

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304 ‘‘The Edge with Paula Zahn,’’ Fox News (Sept. 27, 2000). 305 E-mail from Joel Velasco to Vice President Gore (Feb. 22, 1998) (E 8701). 306Ms. Nolan informed the committee that such computers were set up in the EOP as ‘‘[u]nder

federal law, equipment in the White House that is dedicated for political purposes must be paid

for by the appropriate political committee, not with official funds.’’ Letter from Counsel to the

President Beth Nolan to Representative Dan Burton (Sept. 26, 2000). However, Ms. Nolan stated that ‘‘[a]s best we can determine, the Vice President did not have a Clinton/Gore ’96 computer or Clinton/Gore ’96 e-mail account in the White House.’’ Id. 307 Interview of Vice President Gore with Robert J. Conrad, Jr., Head of the Department of

Justice Campaign Financing Task Force (Apr. 18, 2000). See also ‘‘The Edge with Paula Zahn,’’

Fox News (June 14, 2000). 308Majority report at 73. 309 Id. 310 Interview of Hon. Todd Campbell by majority and minority staff, House Committee on Government Reform (Aug. 18, 2000). 311 Interview of Charles Burson by majority and minority staff, House Committee on Government Reform (Aug. 3, 2000). Mr. Burson joined the OVP as counsel in February 1997, long after

the decision about connecting to ARMS had been made.

memos, they says [sic] the only way that we can keep from

having backup tapes is to use the Clinton-Gore email system. And so there was a deliberate attempt to try to keep

these e-mails from being backed up on the tapes.304

This allegation is wholly without merit. Mr. Burton appears to

be referring to an e-mail sent to the Vice President which stated

that ‘‘[a]ll internet e-mails are recorded on the White House computers. According to Michael, the only way not to have your e-mails

backed up on government computers would be to get a Clinton/

Gore computer in your office and set it up for private e-mails.’’ 305

The White House has informed the committee that, as best it can

determine, the Vice President did not have a Clinton/Gore ’96 computer or e-mail account in the White House.306 Nor is there anything inappropriate about the suggestion that ‘‘private e-mails’’

should not be archived. Since the PRA requires only that official

Vice Presidential records be saved, it would be legal and appropriate not to archive private, personal, or campaign e-mails.

D. ALLEGATION THAT THE VICE PRESIDENT WAS AWARE OF RECORDS

MANAGEMENT PROBLEMS IN THE OVP

The Vice President has informed investigators that he did not

know about the failure of the White House e-mail system to store

or archive e-mail messages from 1998 to 1999.307 According to the

majority, ‘‘The Vice President’s claim to be ignorant of his Office’s

records management problems is not credible.’’ 308

The only support that the majority can cite for this assertion,

however, is the fact that the Vice President ‘‘is extremely computer

savvy and highly involved in issues related to information systems

both generally and within his office.’’ 309 Such speculation is flimsy

and provides no reasonable basis for questioning the Vice President’s credibility.

There is also no evidence to suggest that the Vice President was

aware of the decision not to use ARMS. To the contrary, Judge

Campbell told committee staff that he did not inform the Vice

President in 1994 about his decision not to connect to ARMS and

that he would be surprised if anyone else did.310 Furthermore, the

Vice President’s Chief of Staff, Charles Burson, told the committee

that he thought, on the basis of meetings he had had with White

House counsel, that OVP e-mails were being electronically archived

on the same system as the rest of the White House.311

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312 E-mail from Joel Velasco to Vice President Gore (Feb. 22, 1998) (E 8701). 313Mr. Barry explained to the committee that after he receives requests to perform an ARMS

search, he responds by e-mail to confirm the details of the search (i.e., the search definition,

an estimate of the cost and time that the search will take, and the search schedule). Interview

of Daniel A. Barry by majority and minority staff, House Committee on Government Reform

(Mar. 9, 2000). Many of these e-mails from Mr. Barry to members of the Office of White House

Counsel were produced to the committee and refer explicitly to Mr. Barry conducting searches

of OVP records. See, e.g., e-mail from Daniel A. Barry to Michael Imbroscio (Sept. 2, 1997) (E

7845); e-mail from Daniel A. Barry to Karl Racine (July 27, 1998) (E 7830); e-mail from Daniel

A. Barry to Steven Reich (Mar. 6, 2000) (E 7822). These three e-mails are attached as exhibit

22.314See e-mail from Daniel A. Barry to Sandra Golas (July 28, 1998) (describing the processing

of e-mails into ARMS and referring to distinct ‘‘buckets’’ for records from such EOP agencies

as ‘‘WHO’’ (the White House Office), ‘‘VPO’’ (the Vice President’s Office), ‘‘OPD’’ (the Office of

Policy Development), and ‘‘CEA’’ (Council of Economic Advisors)) (E 7301) (attached as exhibit

23). 315Letter from Michael K. Bartosz, general counsel to the Office of Administration, to James

C. Wilson, chief counsel (Sept. 29, 2000). 316 Id.

In fact, the committee has documentary evidence that Vice President Gore was told that his e-mails were being automatically

archived. The committee received a copy of an e-mail to Vice President Gore, discussed above, which stated that ‘‘[a]ll internet emails are recorded on the White House computers. According to Michael, the only way not to have your e-mails backed up on government computers would be to get a Clinton/Gore computer in your

office and set it up for private e-mails.’’ 312

While technical personnel in OA were apparently aware that the

OVP was not connected to ARMS, it does not appear that they communicated this information to anyone in the White House. To the

contrary, White House counsel repeatedly received written communications indicating that OVP e-mails were being archived on

ARMS. The committee received dozens of e-mails between Tony

Barry, OA’s ARMS expert, and persons in the White House counsel’s office which indicate that Mr. Barry told White House counsel

that he was searching ARMS for OVP records.313 Although Mr.

Barry was presumably aware that OVP e-mails were not being systematically captured, he apparently placed OVP e-mails which arrived in ARMS through various secondary means into a ‘‘bucket,’’

which he would search in response to requests to look for OVP

records.314

V. THE COSTS OF THE INVESTIGATION AND THE RECONSTRUCTION

EFFORT

As of September 29, 2000, the White House has committed, obligated, or expended approximately $6.9 million on reconstructing

the ‘‘missing’’ e-mails.315 39,157 hours of work have been spent on

this mammoth project—34,822 hours by contract employees, 3,795

hours by employees of the Executive Office of the President, and

540 hours by security personnel. Overall, the cost of the project has

been estimated at $11.7 million.316

The committee has also expended considerable taxpayer dollars

on its own investigation. The committee’s investigation has included 5 days of hearings and 36 interviews of witnesses, many of

them Federal Government employees. It also required the production of over 10,000 pages of documents, the majority of which were

produced by the White House.

1334

317Testimony of Cheryl Mills, May 4 hearing (attached as exhibit 24).

In dollar terms, then, the majority’s allegations are costing the

taxpayers of this country millions of dollars.

For many, however, dollars alone fail to capture the true cost of

the e-mail investigation. The investigation is part of a series of

scandal investigations by this committee that unfairly smeared reputations of many dedicated public servants and drove others to

leave government service. The impact of these investigations was

eloquently expressed by Cheryl Mills in her testimony before the

committee on May 4, 2000:

Mr. Chairman, I left because I was tired of playing a role

in dramas like today, when so many issues that mattered

to me . . . were not being addressed. You have held four

days of hearings, and spent countless more dollars on

depositions and document productions, but yet you have

not chosen to use your oversight authority to hold one

day’s worth of hearings about: a man who was shot dead

by an undercover New York police officer while he was getting into a cab, after refusing to buy drugs from that officer; any of the 67 cases and counting that have been overturned because officers in Los Angeles Police Department

planted guns and drugs to frame people, shot an unarmed

man, and quite possibly shot another man, with no criminal record, 10 times—killing him; why African American

youths charged with drug offenses are 48 times more likely

than white youths to be sentenced to prison.

* * * * *

Nothing you discover here today, will feed one person, give

shelter to someone who is homeless, educate one child, provide health care for one family, or offer justice to one African American or Hispanic juvenile. You could do so much

to transform our country—but instead you are compelled

to use your great authority and resources to address . . .

e-mails.317

HON. HENRY A. WAXMAN.

HON. TOM LANTOS.

HON. MAJOR R. OWENS.

HON. EDOLPHUS TOWNS.

HON. PAUL E. KANJORSKI.

HON. PATSY T. MINK.

HON. CAROLYN B. MALONEY.

HON. ELEANOR HOLMES NORTON.

HON. CHAKA FATTAH.

HON. ELIJAH E. CUMMINGS.

HON. DENNIS J. KUCINICH.

HON. ROD R. BLAGOJEVICH.

HON. DANNY K. DAVIS.

HON. JIM TURNER.

HON. HAROLD E. FORD, JR.

HON. JANICE D. SCHAKOWSKY.

1335

[The exhibits referred to follow:]

1336

EXHIBIT 1

1337

1338

1339

1340

1341

1342

1343

1344

1345

1346

1347

1348

1349

1350

1351

1352

1353

1354

1355

1356

1357

1358

1359

1360

1361

1362

1363

EXHIBIT 2

1364

1365

1366

1367

1368

1369

1370

1371

1372

1373

1374

EXHIBIT 3

1375

1376

EXHIBIT 4

1377

1378

1379

1380

EXHIBIT 5

1381

1382

EXHIBIT 6

1383

1384

1385

1386

1387

1388

1389

1390

EXHIBIT 7

1391

1392

1393

EXHIBIT 8

1394

1395

1396

1397

1398

EXHIBIT 9

1399

1400

EXHIBIT 10

1401

1402

1403

1404

1405

1406

1407

1408

1409

EXHIBIT 11

1410

1411

1412

1413

1414

1415

EXHIBIT 12

1416

1417

1418

1419

1420

1421

1422

EXHIBIT 13

1423

1424

1425

1426

EXHIBIT 14

1427

1428

1429

EXHIBIT 15

1430

1431

1432

EXHIBIT 16

1433

1434

EXHIBIT 17

1435

1436

EXHIBIT 18

1437

1438

EXHIBIT 19

1439

1440

1441

EXHIBIT 20

1442

1443

1444

1445

1446

EXHIBIT 21

1447

1448

1449

1450

EXHIBIT 22

1451

1452

1453

1454

EXHIBIT 23

1455

1456

EXHIBIT 24

1457

1458

1459

(1460)

1 Interview with Robert Haas, Lotus Notes administrator, Northrop Grumman, in Washington,

DC (Oct. 11, 2000).

ADDITIONAL VIEWS OF HON. DAN BURTON

The committee’s investigation into the failure to produce both

White House Office and Office of the Vice President (OVP) e-mails

is ongoing and active. Since the draft of this report was submitted

on October 2, 2000, for Members’ consideration, events have continued to unfold and new evidence has continued to come to light. In

the last 21⁄2 weeks, committee members interviewed Attorney General Janet Reno regarding a number of subjects, including her Department’s investigation into the e-mail matter. Committee staff

also re-interviewed Northrop Grumman employees Robert Haas

and Joseph Lucente, and attempted to interview former White

House lawyer Lanny Breuer. The White House has produced additional relevant documents following the committee’s vote on the report, and several developments arose from parallel proceedings in

the civil FBI files case, Alexander v. FBI.

I. FURTHER EVIDENCE THAT NORTHROP GRUMMAN EMPLOYEES

WERE THREATENED INTO SECRECY ABOUT THE E-MAIL PROBLEM

As explained in the report, White House employees threatened

the Northrop Grumman employees who discovered the e-mail problem. The motivation for the White House officials to threaten the

contract employees into secrecy likely grew out of the fear that the

e-mail problem would become public during the height of a criminal

grand jury investigation of the President. Revelations that document searches conducted by the White House had been significantly incomplete would likely have rekindled virtually every one

of the countless administration scandals of the previous 6 years.

Thus, it was in the interest of the White House, first, to keep the

e-mail archiving problems hidden and, second, to avoid reconstructing the e-mails from backup tapes for as long as possible. The

efforts to achieve the first objective assisted in accomplishing the

second because the secrecy constraints imposed by Mark Lindsay

and Laura Callahan prevented the problem from being fixed.

A. ROBERT HAAS TOLD JOSEPH VASTA ABOUT THE THREATS

Further evidence of the threats against Northrop Grumman employees was developed recently when committee staff re-interviewed Robert Haas on October 11, 2000. Haas explained that the

reason he, Sandra Golas, and John Spriggs asked to meet with

Deputy Program Manager Joseph Vasta in late August 1998 was

that the e-mail reconstruction had not yet begun, and they felt that

they could not get the problem solved with the secrecy restraints

under which they had been placed.1 He said they needed to ‘‘break

this rule down because it is ridiculous. Without removing the rule,

1461

2 Id.

3 Id.

4 Id.

5 Id.

6 Id.

7See ‘‘The Failure to Produce White House E-mails: Threats, Obstruction, and Unanswered

Questions,’’ House Committee on Government Reform, at sec. III.A.4.f. (hereinafter, ‘‘e-mail report’’). 8 Interview with Robert Haas, Lotus Notes administrator, Northrop Grumman, in Washington,

DC (Oct. 11, 2000). 9 Id.

10See e-mail report at sec. III.A.2. 11 Northrop Grumman document production NGL 00503 (exhibit 64). 12See id. 13 Id. 14 Interview with Joseph Lucente, director of contracts and subcontracts, Northrop Grumman,

in Washington, DC (May 1, 2000).

we could not get it fixed.’’ 2 Haas’ contact with Vasta led to the

meeting between the Northrop Grumman employees and Northrop

Grumman counsel in September 1998. After this meeting, Haas felt

free to tell Vasta everything about the e-mail problem, including

the threats that were directed at him by White House staff.3

Haas corroborated Spriggs’ account of the meeting with Vasta.

Haas stated that the group was trying to make him understand

that there was a serious problem, but was hesitant to share the details of the problem with him.4 Like Spriggs, Haas said that the

goal of the meeting with Vasta was to get the ‘‘higher-ups’’ at Northrop Grumman involved.5 Haas also recalled that Spriggs took

Vasta’s handwritten notes of the meeting away from Vasta. When

asked why the notes were confiscated, Haas said that the group’s

standard practice at meetings discussing the Mail2 problem was to

make copies of the notes necessary to conduct the meeting and

then to tear them up and place them in a ‘‘burn bag.’’ 6 Haas’ recollection is also consistent with what Spriggs said.7 Haas added that

he maintained a Mail2 burn bag separate from the standard burn

bags used at the Executive Office of the President (EOP) for documents with individual’s names or other private information.8 According to Haas, their practices with regard to Mail2 notes were

pursuant to the instructions from Laura Callahan and Mark Lindsay not to keep notes related to the e-mail archiving problem.9 This

also corroborates Betty Lambuth’s testimony with regard to keeping notes.10

B. NORTHROP GRUMMAN DIRECTOR OF CONTRACTS JOSEPH LUCENTE’S

LETTER TO THE CONTRACTOR WAS PROMPTED BY THE ALLEGATIONS

OF THREATS

As explained in the report, Northrop Grumman’s director of contracts, Joseph Lucente, sent a letter to the Contracting Officer on

the White House facilities contract, Dale Helms, on September 14,

1998.11 The letter explained that Northrop Grumman management

was aware of the e-mail archiving problem and that the dysfunction prevented the retrieval of messages stored in the system.12

The letter also said that Northrop Grumman was aware that Laura

Callahan had ‘‘directed the Company employees to evaluate the

problem and undertake remedial action, without Northrop Grumman management involvement.’’ 13 In his first interview, Lucente

was asked about the ambiguity in that statement.14 Read one way,

the statement could mean that Callahan directed the Northrop

1462

15 Id. Given that Lucente has never spoken to Haas without counsel present, this knowledge

presumably comes from communications he witnessed during meetings between Haas, his colleagues, and corporate counsel. See id. (Oct. 17, 2000). 16 Id. (May 1, 2000). 17 Id. 18 Id. (Oct. 17, 2000). 19 Id. 20 Id. 21During his second interview with the committee, Joseph Lucente also stated that Northrop

Grumman counsel had referred to a ‘‘gray beard’s’’ involvement in the matter. Interview with

Joseph Lucente, director of contracts and subcontracts, Northrop Grumman, in Washington, DC

(Oct. 17, 2000). 22See e-mail report at sec. III.A.4.g. 23 Id. 24 Response of Non-Party Witness Piper Marbury Rudnick & Wolfe LLP to Subpoena at exhibit A, Alexander v. FBI (D.D.C. Oct. 3, 2000) (CA 96–2123) (exhibit AV–1).

Grumman employees and did so while merely neglecting to involve

their managers. Read another way, it could mean that she had specifically instructed the employees to do their work in such a way

as to conceal it from their managers. In response, Lucente indicated that he understood at the time that Callahan had specifically

directed the employees not to tell their superiors about the problem.15 He further indicated that he thought it was fundamentally

unfair for the government to place his company’s employees in that

position.16 When asked if allegations of threats were an inspiration

for sending his letter, Lucente replied affirmatively.17 In his second

interview, conducted on October 17, 2000, Lucente was asked to explain in what way the letter had been inspired by allegations of

threats.18 However, Lucente was prohibited from providing any further explanation by his counsel, who claimed that such information

was privileged.19 Lucente did confirm, however, that the allegations of threats were, in fact, an inspiration for the letter.20

C. EARL SILBERT’S LAW FIRM HAS ADDITIONAL DOCUMENTS RELATED

TO HIS CONTACTS WITH THE WHITE HOUSE AND REPRESENTATION

OF NORTHROP GRUMMAN

The report outlines how former Watergate prosecutor Earl

Silbert was hired by Northrop Grumman as outside counsel on the

contract dispute arising out of the e-mail matter and how Haas testified that during a September 11, 1998, conference call he told

someone referred to as a ‘‘gray beard’’ 21 about being threatened.22

The report also explains that Silbert’s billing records indicate that

he had a teleconference with a Northrop Grumman employee on

September 11, 1998, and then on two other occasions had teleconferences with someone in the White House Counsel’s Office.23

Silbert’s contacts with Northrop Grumman employees and the

White House raise the likelihood that White House lawyers were

informed about the e-mail problem and the threats against Northrop Grumman employees by Earl Silbert.

This already compelling circumstantial evidence has been bolstered further by revelations in Federal court that Silbert’s law

firm, Piper Marbury Rudnick & Wolfe, is in possession of even

more documentary evidence regarding Silbert’s work on the matter.

On October 3, 2000, Piper Marbury provided a privilege log in the

Alexander case listing 18 documents relating to Silbert’s work on

the e-mail matter, many of which it withheld under claims of attorney-client and work-product privileges.24 Among the documents described in the log are undated, handwritten notes by Earl Silbert,

1463

25 Id. 26Transcript of Evidentiary Hearing, Alexander v. FBI at 19 (D.D.C. Oct. 13, 2000) (CA 96–

2123). 27 Interview with Joseph Lucente, director of contracts and subcontracts, Northrop Grumman,

in Washington, DC (May 1, 2000). 28 Id. (Oct. 17, 2000). 29Transcript of Evidentiary Hearing, Alexander v. FBI at 91 (D.D.C. Oct. 3, 2000) (CA 96–

2123); interview with Joseph Lucente, director of contracts and subcontracts, Northrop Grumman, in Washington, DC (Oct. 17, 2000). 30 Id.

four drafts of Joseph Lucente’s letter to Dale Helms, a fax

coversheet with a copy of the Drudge report from December 5,

1998, and two fax coversheets with handwritten notes of Earl

Silbert and copies of the Insight article ‘‘Computer Glitch Leads to

Trove of Lost E-mails at White House.’’ 25 The volume of documents

in Silbert’s possession confirms that Silbert did perform substantive work on Northrop Grumman’s behalf in the e-mail matter.

Unfortunately, Northrop Grumman has aggressively asserted privileges, preventing the public from learning what Silbert told the

White House.

Judge Lamberth has indicated that these or other documents yet

to be released may lend even further credibility to allegations of

threats. During a status conference in Alexander v. FBI on Friday,

October 13, 2000, Justice Department lawyer Thomas Millet was

cautioned by Judge Lamberth in the following exchange:

Millet: In fact, this whole threat issue has been blown out

of proportion. Remember what Mr. [Haas] said——

The Court: Before you go too far there, you have to recognize I have some documents in camera on that subject; I

ordered full briefing on it. But you better not get too far

out on a limb about what you think happened.26

Of particular interest among the documents being withheld by

Northrop Grumman are the earlier drafts of Joseph Lucente’s September 14, 1998, letter to Dale Helms. In his first interview,

Lucente explained that he knew of at least two earlier drafts of his

letter, both of which were longer than the final version.27 In his

second interview with committee staff, Lucente said that he had

destroyed all copies of the earlier drafts as per an instruction to do

so by corporate counsel.28 However, Lucente did not know until

told by staff at the interview that his letter had been reviewed and

edited by Earl Silbert.29 Therefore, he was unaware that corporate

counsel for Northrop Grumman had provided a draft to Silbert,

that Silbert had suggested changes, or that Silbert’s firm, Piper

Marbury, had retained copies of the earlier drafts.30 Given that

Lucente has admitted that the allegations of threats were the inspiration for the letter, it is imperative that the drafts be reviewed

to determine whether they describe more specifically the threats

made by White House staff. If the discussion of threats was deleted, it would raise the critical question of who deleted the information and why.

1464

31See e-mail report at sec. III.C.3. 32Letter from Richard J. Oparil, partner, Piper Marbury Rudnick & Wolfe, to Larry Klayman,

chairman and general counsel, Judicial Watch (Oct. 4, 2000) (message slip attached) (exhibit

AV–2). 33See e-mail report at sec. III.A.4.g. 34 Id. 35 Id. 36 Interview with Joseph Lucente, director of contracts and subcontracts, Northrop Grumman,

in Washington, DC (Oct. 17, 2000). 37 Id. 38 Id.

D. A TELEPHONE MESSAGE SLIP CONFIRMED CONTACT BETWEEN EARL

SILBERT AND SPECIAL COUNSEL TO THE PRESIDENT LANNY BREUER

IN DECEMBER 1998

The report details testimony from Mark Lindsay in Federal court

regarding a conversation he had with Special Counsel to the President Lanny Breuer about Earl Silbert’s involvement in the e-mail

matter. Lindsay vaguely recalled being contacted by Breuer to discuss a conversation Breuer had with Silbert regarding the contract

dispute arising from the e-mail archiving problem.31 While it was

unclear from Lindsay’s testimony what the substance of Silbert’s

conversation with Breuer entailed and exactly when it occurred, a

new document has surfaced since filing the report which clarifies

at least one of those issues. The document is a telephone message

slip from Silbert’s client file and indicates a call from Lanny Breuer

on December 30, at 11:27 a.m.32 Silbert’s billing records already indicated that he called the White House Counsel’s Office on December 30, 1998.33 This message slip indicates that Lanny Breuer was

the individual at the White House with whom Silbert spoke. Thus,

it corroborates Silbert’s billing records as well as Lindsay’s testimony that Breuer relayed to him a conversation with Silbert.

Only after several meritless assertions of privilege in an attempt

to avoid the interview entirely did Silbert reluctantly agree to be

questioned by the committee on his contacts with the White

House.34 As explained in the report, Silbert claimed to recall neither the identity of the person at the White House with whom he

spoke nor anything whatsoever about the substance of the conversation—except of course that it was properly billable to Northrop Grumman.35

E. EARL SILBERT WAS NOT NORTHROP GRUMMAN’S NATURAL CHOICE

FOR OUTSIDE COUNSEL ON A CONTRACTS MATTER

Some have attempted to minimize the significance of Earl

Silbert’s involvement in the matter, attempting to portray it as the

ordinary involvement of a lawyer in a dispute between the White

House and Northrop Grumman regarding the scope of the contract

between the two parties. However, the committee has learned that

Silbert’s involvement was highly unusual. Joseph Lucente informed

committee staff that Northrop Grumman usually turned to an attorney named Neil O’Donnell with disputes regarding the scope of

its contracts.36 Lucente had never worked with Silbert before.37

Furthermore, Lucente said he had never heard of Earl Silbert

working on scope of contract issues for Northrop Grumman in the

past.38 Thus, it is far more likely that Northrop Grumman in-house

counsel would have consulted Silbert about whether they had an

1465

39See letter from Mark H. Lynch, partner, Covington & Burling, to David A. Kass, deputy

counsel & parliamentarian, Committee on Government Reform (Oct. 16, 2000). See also letter

from David A. Kass, deputy counsel & parliamentarian, Committee on Government Reform, to

Mark H. Lynch, partner, Covington & Burling (Oct. 16, 2000). 40 Evidentiary Hearing, Alexander v. FBI (D.D.C. Oct. 19, 2000) (CA 96–2123). 41 Id. 42 Id. 43 Id. 44 Id. 45 Id. 46 Id. 47 Id. 48 Id.

obligation to disclose the ‘‘jail cell’’ comment than about the finer

points of government contracting. It is also likely that they would

have consulted with Silbert about whether they had an obligation

to disclose the existence of the e-mail problem itself and the fact

that ongoing document searches were incomplete.

F. LANNY BREUER’S RECOLLECTION OF THE CONTACT WITH EARL

SILBERT

Since it became fairly well-established that Lanny Breuer was

the White House lawyer with whom Silbert spoke at least on one

occasion in December 1998, the committee attempted to interview

him to determine whether he had any recollection of the conversation. Through his counsel, he was scheduled to be interviewed on

October 6, 2000, the day after the committee voted on the report.

He later canceled this interview and rescheduled for Monday, October 16, 2000, just before the deadline for these additional views. On

the day of the interview, however, he again canceled and sought to

reschedule the interview after his testimony in the FBI files litigation and the deadline for filing these additional views.39

On October 19, 2000, Breuer testified in the Alexander case that

he might have had telephone conversations with Earl Silbert in

1998, but could not remember any specifics.40 Breuer said there

could have been occasions for Silbert to have called him at the

White House.41 Breuer also recalled that Silbert was counsel for

James Riady and Erskine Bowles, and he and Silbert were professional friends.42 Also, Breuer rather implausibly suggested that

perhaps Silbert might have contacted him because Silbert might

not have known who else to contact at the White House.43 According to Breuer, he possibly could have passed Silbert along to Mark

Lindsay if a contract item came up in a telephone call.44 And,

Breuer suggested that maybe he and Silbert might have even

talked about unrelated matters.45 Breuer made it clear that he

does not remember having specific telephone conversations with

Silbert regarding the issues of e-mail problems, contracts, or

threats in 1998.46 He stated that if Silbert would have have raised

the issue of threats, Breuer would have reported it to Charles

Ruff.47 He also stated that he took ‘‘very, very’’ few notes while

working at the White House.48

G. LUCENTE CONFIRMED THE EXTRAORDINARY NATURE OF OA

DIRECTOR ADA POSEY’S ‘‘SPECIAL TASK ORDER’’ REQUEST

As detailed in the report, Northrop Grumman Program Director

Jim DeWire told committee staff that shortly after learning from

1466

49See e-mail report at sec. III.D.1. 50 Id. 51 Id. 52 Id. 53 Interview with Joseph Lucente, director of contracts and subcontracts, Northrop Grumman,

in Washington, DC (Oct. 17, 2000). 54 Id. 55 Id.

Program Manager Steve Hawkins that his employees were working

on some sort of secret project, DeWire received a call from the Director of the Office of Administration, Ada Posey.49 Posey then proceeded to seek permission from DeWire to have government personnel direct the private contractors on a special project without

disclosing the nature or subject matter of the project.50 DeWire

agreed, requiring only that Posey orally assure him that the project

was legal and within the scope of the contract.51 DeWire described

this as a ‘‘special task order.’’ 52

When asked if he was aware of the ‘‘special task order,’’ Lucente

said he was not.53 He further said that it would not have been the

normal way to operate.54 Even though she was the Director of the

Office of Administration (OA), Ada Posey was not the authorized

agent for the government on the contract. The authorized agent

was the contracting officer, Dale Helms. Lucente said that if

DeWire had asked his advice on the matter he would have recommended consultation with in-house counsel, the chief operating

officer, or the president of the company rather than merely accepting Posey’s assurances and failing to ensure that the contracting officer was at least informed.55 Finally, asked if he would have advised DeWire against approving Posey’s request, Lucente said he

would. Lucente was the director of contracts and subcontracts for

about 12 years and thus his perspective on this issue is valuable.

It appears that both Posey’s request and DeWire’s acquiescence to

it may have been improper. The net effect of both was to allow the

e-mail problem to remain secret from Northrop Grumman managers throughout the summer of 1998, delaying the ultimate reconstruction and production of relevant subpoenaed e-mail records.

II. NORTHROP GRUMMAN’S RECENT FAILURE TO COOPERATE WITH

THE INVESTIGATION

A. NORTHROP GRUMMAN’S SPECIOUS ASSERTIONS OF PRIVILEGE

As part of the committee’s investigation into possible obstruction

of justice regarding the White House’s e-mail problems, the committee has been investigating Northrop Grumman’s retention of

Earl Silbert and his efforts on the company’s behalf. As the report

notes, Silbert was a former Watergate prosecutor who Northrop

Grumman hired as outside counsel specifically to deal with the

White House on the e-mail matter. As the report also noted, the

significance of Silbert’s contacts with the White House is compelling. Such contacts might severely undermine the White House’s

current claims that it did not contemporaneously appreciate its email problem.

In the report, the committee describes evidence suggesting that

on September 11, 1998, Robert Haas met with Northrop Grumman

counsel, during which time Haas recounted to Northrop Grumman

1467

56See e-mail report at sec. III.A.4.g. 57Transcript of Evidentiary Hearing at 37, Alexander v. FBI (D.D.C. Oct. 3, 2000) (CA 96–

2123). 58 Id. at 41. 59 Id. at 89. Interestingly, when Silbert was asked whether he was told that the reason Haas

could not discuss the problem was because he would go to jail, Silbert left the door open. He

stated,

I think in a sense I’ve tried to answer that question. I have no recollection of that, and

the predicate for your question means to me you may have misconstrued my answer.

I did not say—I was not, in answering your question, saying this was what the employee told me. What I was answering or trying to answer was my understanding of

an issue that Northrop Grumman’s management was confronting and how to deal with

it. Id. at 90 (emphasis added).

60 Id. at 57. 61 Interview with Robert Haas, Lotus Notes administrator, in Washington, DC (Oct. 11, 2000).

In other words, Haas misspoke when he testified in Alexander v. FBI, the FBI files civil suit,

in which he identified the location as ‘‘Reston.’’ 62 Id. Haas clarified that when he testified in Alexander regarding whether he repeated his

story to the ‘‘gray beard,’’ the word ‘‘recanted’’ in the transcript should read ‘‘recounted.’’ See

also Transcript of Evidentiary Hearing at 56–57, 60, Alexander v. FBI (D.D.C. Aug. 14, 2000)

(CA 96–2123) (original testimony reading ‘‘recanted’’).

counsel and Silbert that he had been threatened by White House

staff.56 The committee’s report also describes how, during Silbert’s

interview with committee staff, Silbert wholly failed to recall with

whom he spoke at the White House or the subject matter of his

communications with the White House Counsel’s Office, which took

place after Haas apparently spoke to him. And, when his recollection was not failing him, Silbert refused to answer questions posed

by committee staff on the basis of attorney-client privilege and the

work-product doctrine. Silbert did essentially the same when he

testified in the recent evidentiary hearings in Alexander v. FBI.

In those proceedings, Silbert recalled that he was retained by

Northrop Grumman in September 1998, to represent it ‘‘on a matter involving government contracts between Northrop Grumman as

the contractor and the Executive Office of the President as the customer.’’ 57 Silbert also recalled that the matter for which Northrop

Grumman retained him regarded a ‘‘scope of contract’’ issue and

‘‘some instruction given to employees of Grumman.’’ 58 He even recalled having heard that instructions were given to the employees

not to discuss matters regarding non-archived e-mail outside the

group.59 However, Silbert maintained that his communications

with the White House Counsel’s Office were privileged.60 Under either the attorney-client privilege or work-product doctrine, Silbert’s

claims are facially without merit.

Recently, on October 11, 2000, committee staff interviewed Robert Haas. At that interview, committee staff attempted to probe

facts surrounding his conversations with Earl Silbert. During that

interview, Haas recalled having met with Northrop Grumman inhouse counsel in Herndon, VA.61 Also, Haas recalled that, in addition to in-house counsel, Spriggs, Golas, several contract specialists

and possibly Jim DeWire, Northrop Grumman’s program manager,

attended the meeting.62

However, when committee staff attempted to question Haas

about his discussions with Silbert, Haas’ counsel, John M. Bray, of

King & Spalding, instructed Haas not to tell committee staff who

attended the meeting via speakerphone, citing attorney-client priviVerDate 11-MAY-2000 22:54 Dec 08, 2000 Jkt 067962 PO 00000 Frm 00605 Fmt 6604 Sfmt 6602 E:\HR\OC\HR1023V2.XXX pfrm11 PsN: HR1023V2
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63 Interview with Robert Haas, Lotus Notes administrator, in Washington, DC (Oct. 11, 2000).

Although Haas and the other Northrop Grumman witnesses are being represented by King &

Spalding, the cost of their representation is being paid by Northrop Grumman. 64 Id. 65 Id. 66See Transcript of Evidentiary Hearing, Alexander v. FBI (D.D.C. Aug. 14, 2000) (CA 96–

2123) (Hass’ original testimony). 67 It is beyond dispute that the attorney-client privilege protects only communications between

a client and the attorney. See Upjohn Co. v. US 449 U.S. 383 (1981). See also id. at 395 (‘‘The

privilege only protects disclosure of communications; it does not protect disclosure of underlying

facts by those who communicated with the attorney . . . .’’). To claim attorney-client privilege,

the claimant must provide sufficient information to demonstrate that each element of the doctrine or privilege is satisfied, including the date of communication; the names of the author(s),

if it’s a document; the recipient and/or all persons given copies of the communication, if it’s a

document; the identity of those party to the communication, if it’s oral; and a description of the

subject matter of the document with information sufficient to demonstrate the existence of the

privilege. See, e.g., 24 Charles Alan Wright, Kenneth W. Graham, Jr., ‘‘Federal Practice and Procedure’’ § 5507 (2000 pocket part) (RR 503) (citations omitted). Some courts have required the

claimant to state further whether the primary purpose of the communication withheld on the

basis of privilege was to seek or provide legal advice or services; whether the communication

was transmitted in confidence; a statement that the privilege has not been subsequently waived;

and, if documents, the Bates numbers of the withheld records. See, e.g., US v. Exxon Corp., 87

F.R.D. 624, 637 (D.D.C. 1980); Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied,

415 U.S. 877 (1974). 68See, e.g., Alexander v. FBI, 186 F.R.D. 21, 27 (D.D.C. 1998) (holding that information is protected by attorney-client privilege only if it relates to a fact conveyed between client and lawyer). 69 Interview with Joseph Lucente, director of contracts, Northrop Grumman, in Washington,

DC (Oct. 17, 2000).

lege.63 Even after committee staff reminded counsel that the mere

fact of someone’s participation in a communication or even his

identity are not ‘‘communications’’ subject to privilege, counsel instructed Haas not to answer.64 Later in the interview, counsel directed Haas not to answer questions intended only to refresh his

recollection as to his prior testimony in Alexander.65 It is troubling

that counsel would claim privilege over issues previously discussed

in a public proceeding.66

In the committee’s October 17, 2000, interview with Joseph

Lucente, Lucente’s counsel, Ann M. Hart, also from King & Spalding, continued interposing expansive objections that prevented the

committee from obtaining needed information. For example, she repeatedly invoked attorney-client privilege over numerous non-privileged matters, including (1) non-communications, (2) mere facts underlying the purportedly privileged communications, and (3) facts

needed to establish the existence of a privilege.67 With regard to

the latter, counsel saw fit to ignore even the threshold requirement

in privilege law that only communications between an attorney and

his client are privileged.68 She stated that, in her view, even discussions between two non-lawyers regarding the need for getting

legal advice was confidential under the attorney-client privilege. In

fact, at the interview, counsel maintained that ‘‘we are putting the

umbrella [of privilege] over the whole legal advice issue.’’ 69 Such

a position either reflects a surprising misunderstanding of basic

privilege law or an unacceptable failure to cooperate with the Constitutional prerogative of this committee to exercise its investigative oversight function.

Examples of those questions to which counsel instructed her client not to answer on the basis of privilege included the following:

• Did either Jim DeWire or Joe Cunningham (Northrop Grumman

managers who are not lawyers) indicate to you in conversations

without counsel present why Haas and the others were seeking

advice from counsel?

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70To this question, Lucente’s attorney cited in-house counsel’s participation in drafting the letter as a basis for disallowing any questioning as to why the letter was written. She stated, ‘‘Joe

didn’t write the letter in a vacuum.’’ Interview with Joseph Lucente, director of contracts, Northrop Grumman, in Washington, DC (Oct. 17, 2000). 71Thomas R. Mulroy Jr. & W. Joseph Thesing Jr., ‘‘Confidential Concerns in Internal Corporate Investigations,’’ 25 Tort & Ins. L.J. 48, 53 (1989). 72 Ross G. Greenberg, Jordan Klingsberg & Deidre Mulligan, ‘‘Attorney-Client Privilege,’’ 30

Am. Crim. L. Rev. 1011 (1993) (citing generally Michael E. Prangle, ‘‘The Inadvertent Waiver

of Privilege,’’ 28 Tort & Ins. L.J. 637 (1991)).

• Did either DeWire or Cunningham indicate that Northrop

Grumman employees were seeking legal advice for themselves?

• To what extent did threats inspire sending your September 14,

1998, letter? 70

• How did Haas go up the chain-of-command in obtaining the advice of in-house counsel?

• If threats were indeed an inspiration of the letter, why did the

letter not actually include reference to threats?

• Did earlier drafts of the letter mention threats?

• To what extent did your concerns about the secrecy instruction

give rise to sending the letter?

• Did you believe that Haas, Spriggs, and Golas were seeking

legal advice?

• Did they say or do anything to indicate that rather than seek

legal advice, they were merely seeking to disclose information so

that counsel could provide legal advice to the corporation?

• Did legal counsel explain to them that they represented the corporation’s interests and not the employee’s interests?

• Did legal counsel explain to them that they were interviewing

them only in order to obtain information for use in providing

legal advice to the corporation and not to provide legal advice

to them as individuals?

• Did legal counsel instruct them that they were to keep the communication during the meeting confidential?

• Did legal counsel instruct them specifically about with whom

they could share the details of the meeting?

As suggested above, even if counsels’ claims of privilege regarding Haas’ communications are valid—and they plainly are not—the

privilege might have nonetheless been waived through disclosures

by Northrop Grumman employees. Generally, attorney-client privilege is waived if the client discloses the protected communication

to a third party.71 Even though a client might not have intended

to waive the privilege, once the confidential information is disclosed

to a third party, there is no further need to conceal the information

to protect the attorney-client relationship; so, the privilege is

waived.72

As described in section III of the report, Haas was the Northrop

Grumman contractor to whom Laura Callahan directed her comment that, if he revealed the Mail2 problem to anyone, ‘‘there

would be a jail cell with your name on it.’’ Joseph Vasta, Northrop

Grumman’s former deputy project manager on the facilities contract, stated that when the contractors, including Haas, met with

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73 Interview with Joseph Vasta, former program manager, Northrop Grumman, in Washington, DC (June 28, 2000). See also Joseph Vasta document production (exhibit 155) (documenting Aug. 28, 1998, and Sept. 3, 1998, meetings with contractors). 74 Interview with Joseph Vasta, former program manager, Northrop Grumman, in Washington, DC (June 28, 2000) (emphasis added). 75 Joseph Vasta document production (exhibit 155) (emphasis added). 76 Interview with Joseph Lucente, director of contracts, Northrop Grumman, in Washington,

DC (Oct. 17, 2000). Counsel for the Northrop Grumman employees have consistently maintained

that Haas and the other contractors do not bear the privilege. Presumably, they are arguing

that when they met with in-house counsel, they were seeking legal advice for the corporation.

However, such a position is subject to question. Indeed, the contractors were low-level employees, who were in no position to seek legal advice for the company. And, even if they did—such

that they could be deemed within Northrop Grumman’s ‘‘control group’’—they (as members of

the company’s control group) would have had the authority to waive the privilege on the company’s behalf. 77There appears to be some authority on point. See, e.g., Jonathan Corp. v. Prime Computer,

Inc. 114 F.R.D. 693 (E.D.Va. 1987) (‘‘Prime seeks protection through the attorney-client privilege

on a legal communication made to individuals outside of Prime’s ‘control group.’ Then, Prime

claims that while it is entitled to the benefits of the privilege on this communication, it is not

responsible for any waiver of the privilege on the communication by one of these individuals

outside the ‘control group.’ In other words, [Prime claims] the privilege can be created for the

benefit of legal communications with employees at all levels but cannot be waived or destroyed

by these employees. This proposition is inconsistent with a joint reading and the holdings [of

the Supreme Court] in Weintraub and Upjohn Co.’’). 78 ‘‘The precedents of the Senate and House of Representatives, which are founded on Congress’ inherent constitutional prerogative to investigate, establish that the acceptance of a claim

of attorney-client or work product privilege rests in the sound discretion of a congressional committee regardless of whether a court would uphold the claim in the context of litigation.’’ See

Morton Rosenberg, ‘‘CRS Report for Congress: Investigative Oversight—An Introduction to the

Law, Practice and Procedure of Congressional Inquiry’’ 43 (1995). However, a committee may

consider and evaluate the strength of a claimant’s assertion in light of the potential unavailability of the privilege to the claimant if it were raised in a judicial forum. Id. at 44. See also

Exxon Corp., 87 F.R.D. at 637 (‘‘This court has recognized the necessity of asserting the attorney-client privilege in a manner specific enough to allow the court to adjudicate the merits of

its invocation. [citation omitted] A mere assertion of privilege [without more] is insufficient.’’)

(citing SEC v. Dresser Industries, Inc., 453 F.Supp. 573, 576 (D.D.C. 1978)). As stated above,

him in August 28, 1998, Jim Webster (Betty Lambuth’s replacement) had been meeting with OA staff without the contractors.73

So, he noted that the contractors were concerned that Webster’s

having done so ‘‘might get them in trouble.’’ 74 Vasta further noted

that ‘‘to enable the employees to meet with an attorney to freely

discuss their concerns, Jim DeWire [the program director] scheduled a meeting among the team and Ralph Pope [from in-house

counsel’s office] on September 9, 1998.’’ 75 Also, Joseph Lucente confirmed that he understood that, when Haas came in to see in-house

counsel, Haas was in fact seeking legal advice.76 So, the evidence

suggests that when Haas and the other contractors met with inhouse counsel, they were seeking legal advice for themselves.

Central to the question as to who may waive an attorney-client

privilege is the issue of who actually bears the privilege. If Haas

or the other employees who sought the meeting with in-house counsel bear the privilege, it is theirs to waive. However, if the corporation bears the privilege, the analysis becomes more complex. Certainly, a corporation’s directors and officers can waive the privilege.

However, a corporation might seek, as Northrop Grumman apparently does here, to have the privilege expanded to capture communications involving employees outside the ‘‘control group.’’ In such

a case, a reviewing court might well not allow Northrop Grumman

to enjoy the benefits of an expanded attorney-client privilege without likewise accepting the consequences that the privilege could be

waived by a lower-level employee like Haas—someone outside the

‘‘control group.’’ 77 In order to evaluate the claim, however, the committee needs to have its questions regarding the merits of Northrop

Grumman’s privilege claim answered.78

1471

courts have required privilege claimants to state, among other things, whether the primary purpose of the communication withheld on the basis of privilege was to seek or provide legal advice

or services. See, e.g., US v. Exxon Corp., 87 F.R.D. 624, 637 (D.D.C. 1980). 79See interview with Robert Haas, Lotus Notes administrator, Northrop Grumman, in Washington, DC (Oct. 11, 2000). 80 Id. 81 Id. 82 Id. 83Letter from Kent Kresa, chairman, president and chief executive officer, Northrop Grumman, to the Honorable Dan Burton, chairman, Committee on Government Reform (Sept. 22,

2000).

Under any analysis, Haas might very well have waived the privilege. For example, in Haas’ most recent interview, Haas told committee staff of a conversation he had with Northrop Grumman Deputy Program Manager Joseph Vasta following his meeting with corporate counsel in September 1998.79 The discussion took place informally ‘‘by the coffee pot.’’ 80 Haas said he told Vasta about the

threats because he expected that Vasta would have been briefed

about the threats and that he ‘‘no longer had to worry about going

to jail.’’ 81 Asked specifically if he told Vasta about his discussions

with Northrop Grumman counsel, Haas replied, ‘‘yes.’’ 82 Vasta did

not attend that meeting and is not an attorney. Furthermore, the

committee has found no evidence that Haas was authorized by the

managers at the meeting to disclose to Vasta the details of his purportedly privileged communications with counsel.

B. NORTHROP GRUMMAN’S REFUSAL TO WAIVE ATTORNEY-CLIENT

PRIVILEGE

As indicated above, Northrop Grumman’s assertions of privilege

are disturbing. Its baseless assertions of privilege have been made

despite the fact that counsel had been informed that Congress need

not recognize the attorney-client privilege. Northrop Grumman’s refusal simply to waive the privilege is equally disturbing. Early in

the committee’s investigation of Earl Silbert’s efforts on Northrop

Grumman’s behalf, Northrop Grumman indicated that it did not intend to waive attorney-client privilege. On September 21, 2000, the

committee informed Northrop Grumman chairman, president, and

CEO, Kent Kresa, of its intent to issue a subpoena for his appearance before the committee to explain the company’s decision to assert the privilege. Kresa responded on the next day simply saying

that ‘‘[w]e believe that who [Silbert] contacted and for what purpose, and what information that he chose to report back to the

[c]ompany are protected by the attorney-client privilege, and we

simply will not waive that privilege.’’ 83

However, to date, the committee has interviewed or taken testimony from several Northrop Grumman witnesses who recounted

being subjected to threats and intimidation to work on the Mail2

project in secret and without direction from their Northrop Grumman managers. Those facts are already out in the open. When

they—including Haas—originally gave the committee their accounts, none of them asserted any privileges, and Northrop Grumman cooperated with the committee. But now, for whatever reason,

they have begun claiming privileges. Northrop Grumman’s change

of attitude is disappointing, and has prevented the committee from

gathering necessary facts.

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84Transcript of Evidentiary Hearings at 50, Alexander v. FBI (D.D.C. Oct. 3, 2000) (CA 96–

2123). 85 Id. at 55–56. 86 Id. at 21.

Northrop Grumman’s lack of cooperation was also evident in the

questioning of Earl Silbert in the Alexander case: when asked

about various documents which he claimed were privileged, Silbert

conceded that he had not looked at them since he originally generated them in September 1998.

Q. All right. Given your involvement in this controversy,

how is it that you never bothered to look at [those documents]?

A. [T]he reason I did not look at the notes is that I was

concerned that if I did look at the notes and, in fact,

they—that if I did look at the notes, then there would be

a basis for you to claim a waiver of the attorney/client

privilege, and I believe there is case law in the District of

Columbia, a 1980 decision by a District Court Judge, to

that effect. I tried to be very careful, again, to comply with

the rules of professional conduct and the instructions of

my client.

Q. You’re saying that simply by looking at your notes,

which you claim an attorney/client privilege and work

product——

A. Yes.

Q. ——that just by looking at them you would waive your

privileges?

A. There was, in my view, a risk that that would happen,

and I believe there is some case law to support that.84

The lengths to which Silbert went in order to preserve the privilege were in response to an instruction from Northrop Grumman

General Counsel W. Burks Terry to ‘‘observe the privilege, honor

the privilege.’’ 85 Needless to say, this is quite troubling. As Judge

Lamberth noted,

General Counsel of Northrop Grumman called Mr. Silbert

and told him to claim the attorney-client privilege to the

maximum extent possible; that was the instruction he had

when he came down here. And he didn’t review one note

that might be attorney-client privilege, so he wouldn’t accidentally tell anything that he really knew, that his memory could be refreshed from.86

Silbert’s rather tortured justification for not having looked at even

a single document for which he claims privilege, prior to the submission of the privilege log by Northrop Grumman counsel, is—at

the very least—indicative of the lengths to which Northrop Grumman is willing to go to assert the privilege. At the most, it reflects

an intent by Silbert to keep relevant information from a judicial

tribunal.

After Silbert testified in Alexander, Judge Lamberth suggested to

the Justice Department, which is representing the White House,

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87 Id. at 20. 88 Id. 89 Id. 90 Id. at 22. 91Letter from H. Lowell Brown, assistant general counsel, Northrop Grumman, to James C.

Wilson, chief counsel, Committee on Government Reform (Mar. 20, 2000).

that the White House ask Northrop Grumman simply to waive the

privilege.

It would be important for the White House to say to Northrop Grumman, ‘‘Why don’t you waive your attorney-client privilege?’’ I mean, Northrop Grumman feels under

some compulsion to claim this attorney-client privilege on

these important matters. I don’t understand why your client couldn’t suggest to Northrop Grumman [that] they

waive it and allow the facts to be produced, rather than

hiding behind the privilege.87

He continued, ‘‘[the] White House can sit back and let Northrop

Grumman do that and make no comment, if that’s the posture that

the White House wants to be in, but I suggest it would be in

everybody’s interest for the facts to come out.’’ 88 The Judge observed, ‘‘It’s very curious that Northrop Grumman feels so compelled to go to such great lengths to tell Mr. Silbert to come down

and invoke [the privilege] the way he invoked it. It’s just a little

odd to me.’’ 89 ‘‘But I just find it very odd that Northrop Grumman

wants to prevent the facts from coming out.’’ 90

It appears that the Justice Department and the White House

are, in fact, content with permitting Northrop Grumman to claim

privilege over these matters, preventing the public from learning

what really happened. It also appears that Northrop Grumman is

intent on covering up actions taken by White House staff to threaten and intimidate Northrop Grumman employees. It is surprising

that Northrop Grumman does not have greater concern for either

the welfare of its employees, or the public’s interest in a matter of

national significance.

C. NORTHROP GRUMMAN’S FAILURE TO PROVIDE DOCUMENTS IN A

TIMELY MANNER

At the outset of the committee’s investigation, a generalized document subpoena was sent to Northrop Grumman Corp. Pursuant

to this March 9, 2000, subpoena, Northrop Grumman produced to

the committee 608 pages of documents numbered NGL 00001

through NGL 00608 on March 20, 2000.91 Through 4 days of committee hearings held between the end of March and the beginning

of May and throughout the summer of 2000, the committee received no further document productions from Northrop Grumman.

Then, on August 14, 2000, committee staff learned—only through

monitoring the related evidentiary hearings being held in the Alexander litigation—that Northrop Grumman had produced in that

proceeding documents bearing apparently the same numbering

scheme but higher than NGL 00608. One document mentioned in

particular, NGL 00795, was a page of handwritten notes reading

in part, ‘‘Instructed never to commit to paper. Each person on

Mail2 registered from a list.’’ Northrop Grumman failed to produce

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92Letter from James C. Wilson, chief counsel, Committee on Government Reform, to H. Lowell

Brown, assistant general counsel, Northrop Grumman (Aug. 29, 2000).

this clearly responsive document to the committee for more than 5

months.

On August 29, 2000, committee counsel wrote to the vice president and assistant general counsel of Northrop Grumman and requested that the document be produced as required by the March

9, 2000, subpoena. The letter also requested, ‘‘All records that have

been provided to the court in Alexander v. FBI. This includes all

materials bates numbered above NGL 00608. . . . If documents are

produced pursuant to Alexander in the future, please provide them

to the Committee.’’ 92 The following day, August 30, 2000, Richard

Oparil responded in detail to the letter and provided 658 additional

pages of responsive documents. However, since that date, he has ignored the committee’s unambiguous, continuing request to provide

all documents produced pursuant to Alexander in the future. For

example, to this date Oparil has not produced to the committee a

copy of the Lanny Breuer message slip numbered NGL 01393,

which indicates contact with Earl Silbert. Presuming that the intervening numbered documents, NGL 01268 through NGL 01392,

were also produced to the Alexander court, then Oparil has also

failed to provide the committee with another 126 pages of requested documents. Additionally, on the day of Earl Silbert’s testimony before Judge Lamberth, Oparil produced a privilege log and

documents numbered up to NGL 01405. Ordinarily, any one of

these shortcomings would be dismissed as inattention to detail or

a simple oversight. However, taken together and in combination

with the specious claims of privilege discussed above, the group of

lawyers associated with Northrop Grumman appears to be doing

everything possible to prevent the American people from learning

the complete truth about the White House e-mail archiving problem. The question is ‘‘why?’’

III. FURTHER EVIDENCE OF THE INSUFFICIENCY OF THE TEST

SEARCH AND THE UNRAVELING OF THE ‘‘DISCONNECT’’ DEFENSE

A. THE ATTORNEY WHO PERFORMED THE COMPARISON CHANGED HER

STORY

As discussed in section III.C of the report, Associate White House

Counsel Michelle Peterson was tasked with comparing a stack of

e-mails to documents that had already been produced to the independent counsel in the Lewinsky investigation. The purpose of the

comparison was to determine if there was a problem with prior document productions. Peterson, Cheryl Mills, and other witnesses

told the committee that the results of the comparison test were

identical and that the White House Counsel’s Office therefore concluded that there was no problem with prior searches or productions. However, Peterson’s story recently began to unravel. On September 28, 2000, Peterson submitted an affidavit to the Alexander

court indicating that Peterson’s earlier testimony to the court, and

by implication, her statements to this committee, were inaccurate.

Peterson testified that during the course of her testimony to the

grand jury convened by the Independent Counsel’s Office to invesVerDate 11-MAY-2000 22:54 Dec 08, 2000 Jkt 067962 PO 00000 Frm 00612 Fmt 6604 Sfmt 6602 E:\HR\OC\HR1023V2.XXX pfrm11 PsN: HR1023V2
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93Third declaration of Michelle Peterson at ¶ 6, Alexander v. FBI (D.D.C. Sept. 27, 2000) (CA

96–2123). 94Letter from Jay Apperson, deputy independent counsel, Office of the Independent Counsel,

to the Honorable Royce C. Lamberth, U.S. District Judge, District of Columbia 5 (Oct. 5, 2000)

(referring to attachment 3, pages 1–2) (exhibit AV–3) (emphasis in original). 95 Id. 96 Id.

tigate the e-mail matter, it appeared from the documents shown to

her that she ‘‘may have been mistaken with respect to one or possibly two e-mails.’’ 93 After the committee voted on the report, new

evidence regarding her testimony came to light that further undermined Peterson’s claim that the two stacks were identical.

It now appears that even Peterson’s affidavit that was submitted

to correct her earlier misstatements understated the extent of her

error, in that she had not described the missing 69-page index. In

an October 5, 2000, letter written to Peterson’s attorney and courtesy copied to Judge Lamberth, the deputy independent counsel explained that Peterson did not fully correct her misstatements:

While I appreciate Ms. Peterson disclosing to the Court by

way of her declaration the existence of the index and the

fact that it was not produced to this Office, I believe that

her attempt to suggest that the index was not required to

have been produced to this Office, at least in June 1998,

is both inaccurate and misleading. Her declaration (paragraph 10) states that the index ‘‘appeared to be a document that was created after the date of the subpoena,’’

presumably because the index which she reviewed had not

been printed onto paper until June of 1998 in conjunction

with the test run. By that reasoning neither the index, nor

any of the e-mails, were required to be produced, inasmuch

as they were not printed onto paper (or ‘‘created’’ to use

her term) until after the date of the subpoena. The fact is

that the index, like the e-mails, was required to have been

produced to this Office because it existed in electronic form

prior to the issue date of the subpoena.94

Not only did Peterson inaccurately tell this committee that the

two stacks were identical, she also testified to the same in Federal

court. As the Independent Counsel’s Office pointed out in its letter,

Peterson’s testimony before Judge Lamberth on August 28, 2000,

included statements such as ‘‘[e]verything that was in the stack

that Ms. Mills gave me was also contained in the stack that we had

already produced to Independent Counsel Starr;’’ 95 and ‘‘[t]he fact

that all of these documents had been produced meant that I didn’t

have to write a letter or make a call explaining there were additional documents that hadn’t been produced.’’ 96 Those statements

were clearly false. It is telling that the Office of Independent Counsel found Peterson’s testimony so troubling that they felt obliged to

inform the court of all of the information Peterson left out of her

affidavit.

Given the foregoing, the assertions by White House officials that

they could reasonably rely on the test search to conclude that there

was no problem with e-mail productions become much less tenable.

Indeed, the entire theory of the ‘‘disconnect’’ rests on the White

House’s reliance on the increasingly faulty comparison test. As

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97‘‘ Missing White House E-mails, Mismanagement of Subpoenaed Records,’’ hearings before

the Committee on Government Reform, 106th Cong. 237 (Mar. 23, 2000) (testimony of Mark

Lindsay, Assistant to the President for Management and Administration, the White House). 98 Id. at 238. 99Transcript of Evidentiary Hearing at 145, Alexander v. FBI (D.D.C. Aug. 25, 2000) (CA 96–

2123). It should be noted that Lindsay told the committee at the Mar. 23, 2000, hearing that

he heard word back that the test showed duplicates, but he did not say that he received this

information from someone in the White House Counsel’s Office. ‘‘Missing White House E-mails,

Mismanagement of Subpoenaed Records,’’ hearings before the Committee on Government Reform, 106th Cong. 259 (Mar. 23, 2000) (testimony of Mark Lindsay, Assistant to the President

for Management and Administration, the White House).

Michelle Peterson’s claim that the e-mail stacks were identical continues to unravel, the White House’s already flimsy ‘‘disconnect’’

defense becomes even less plausible.

B. MARK LINDSAY FAILED TO ACT AFTER LEARNING OF THE

COMPARISON RESULTS

The validity of the ‘‘disconnect’’ defense is further eroded by testimony from Mark Lindsay. Prior to his August 23, 2000, testimony

in the Alexander case, Lindsay told the committee that, in briefing

his superiors of the e-mail problem, he needed to ‘‘try to collect the

information as soberly and deliberately as we could and then

present that information.’’ 97 He further stated that once he delivered the memo outlining the e-mail problem to his superiors, he

‘‘could put a bit of a sigh of relief, because, frankly, we had conveyed it, and then it was up to them to provide the—particularly

the legal folks—to provide the legal analysis based on the information, the evidence, and the materials that they had which I didn’t

have access to at that particular time.’’ 98 However, as his testimony in Alexander that follows shows, the memo that went to Podesta and Ruff was not the end of Lindsay’s communications with

the White House Counsel’s Office concerning the ARMS system.

Q. And the search confirmed that, in fact, there were emails that had not been archived that were responsive to

subpoenas of the Independent Counsel in the Lewinsky

matter?

A. That was not my understanding. Quite the opposite.

My—I think that it is accurate to say that I was concerned

about what the nature of this result was going to be. When

it went to them, the information that I got back was that

the information was 100 percent duplicates of information

that had already been provided.

Q. Who did you talk to who said it was duplicates?

A. I don’t remember specifically who it was. But there

were numerous people I talked to in the counsel’s office.

Q. But you say you don’t remember specifically. Who generically was it?

A. It may have been Mr. Ruff. It may have been Lanny

Breuer. It may have been Shelly Peterson. I don’t know

which one, but someone in the counsel’s office who is in a

position who knew something about this matter said to

me, it wasn’t anything.99

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100White House document production E 0999 (exhibit 52). 101White House document production E 1002 (exhibit 40). This response to Barry’s e-mail

demonstrates that Gallant most likely communicated to Lindsay the need to re-perform the

searches when she pulled him aside at the weekly meetings.

This testimony greatly undermines the ‘‘disconnect’’ defense. As

described in sections III.C.5 and III.E.1 of the report, Lindsay was

told repeatedly by Kathleen Gallant and others on his staff that

there was a problem with the ARMS system. Gallant also told the

committee that she forwarded e-mails from Tony Barry to Lindsay

when he was OA Counsel. Although Gallant did not recall which

e-mails she specifically forwarded to Lindsay, one of Barry’s e-mails

in that time period read, ‘‘I feel that the records must be recreated

and any searches need to be reperformed if the requestors feel it

is necessary[.] . . . This seems like a daunting proposition, but I

do not see any other alternative.’’ 100 And as Gallant wrote in response to this e-mail, ‘‘I also agree with Tony about the new

searches that will have to be done. We need direction from OA

Counsel on that front.’’ 101

In essence, it is virtually impossible that Lindsay did not know

that there was an ongoing problem with e-mail searches. The difficulties his staff were facing in curing the e-mail problem were

communicated to him by Gallant at weekly meetings. When he

heard from someone at the White House Counsel’s Office that there

was a match between the two stacks, he must have known that either the White House Counsel’s Office was mistaken, or that his

staff were mistaken. It is simply illogical that Lindsay would allow

the staff at OA to continue to struggle through the ‘‘fixing the

bleeding’’ phase of the ARMS project if he was confident that the

White House Counsel’s Office had determined that there was not

a problem with e-mail searches. In sum, Lindsay should have informed the White House Counsel’s Office that they were mistaken.

That he apparently did not is further evidence that Lindsay may

have been involved in obstruction of justice.

IV. THE JUSTICE DEPARTMENT’S QUESTIONABLE HANDLING OF THE

E-MAIL MATTER

A. EXAMPLES OF ADVOCACY IN ALEXANDER V. FBI THAT UNDERMINE

CONFIDENCE IN THE PURPORTED CRIMINAL INVESTIGATION

As discussed in detail in section V of the report, the Justice Department has an inherent conflict of interest in its investigation of

the White House e-mail problem. The Justice Department is on

both sides of the same case. The Department’s criminal investigation of the e-mail matter—if conducted properly—would entail Justice Department lawyers investigating the actions of the Justice

Department lawyers who are currently defending the White House

in the Alexander v. FBI case. As a threshold matter, a proper

criminal investigation would have to look into the role of Justice

Department lawyers, including James Gilligan, Allison Giles, and

others, in the submission of Daniel Barry’s false affidavits and his

false deposition testimony to the court in Alexander. It is problematic that the Justice Department has already sent Barry a letter

indicating that he is not a target of the e-mail investigation.

1478

102See ‘‘Contacts Between Northrop Grumman Corporation and the White House Regarding

Missing White House E-mails,’’ hearings before the Committee on Government Reform, 106th

Cong. 40 (Sept. 26, 2000).

At a September 26, 2000, hearing, the committee attempted to

gather facts necessary to understand the nature of the Justice Department’s criminal investigation. Committee members sought for

basic facts from Alan Gershel, deputy assistant attorney general.

Gershel refused to answer almost all of the committee’s questions,

including how many attorneys were working on the criminal investigation.102 The refusal of Justice Department officials to disclose

even the most basic facts leads to the conclusion that it will be difficult, if not impossible, to determine whether the Justice Department has properly investigated the role of its own attorneys in the

Alexander case. However, as is discussed in section V of the report,

the evidence strongly suggests that the Department is not conducting a vigorous investigation and has therefore most likely not

adequately probed the role of its own attorneys in covering for possible obstruction of justice by the White House.

In that context, the aggressive advocacy of the White House position by Justice Department attorneys is particularly troubling. Following the ‘‘no target’’ letter being sent to Barry, Justice Department attorneys made several arguments to the court in the Alexander case that appeared to be nothing more than a recitation of

White House spin. In attempting to have the court end its inquiry

into possible obstruction of justice, Justice Department attorney

Thomas Millet heavily relied on the ‘‘disconnect’’ defense put forth

by the White House. Millet even invoked Mark Lindsay—the very

person at the center of the alleged obstruction of justice—as the authority for the defense. Several examples follow:

Millet: [I] think the underlying question that the Court

had, again, is why weren’t you told sooner. I think Mr.

Lindsay gave you your answer on Wednesday. The answer

was frankly——

Court: That he passed the buck. He said it’s White House

Counsel’s problem, not his.

Millet: In part.

Court: That’s all he did was pass the buck.

Millet: In part, but I think he also was very candid with

Your Honor in saying that at the time he and the other

higherups who are responsible for making these decisions

either didn’t understand or didn’t appreciate what he

called the people who were doing the real work doing these

searches actually knew, and that they did perform a test.

It wasn’t a perfect test, but it was a test. And when he finished it, they thought they had the problem solved that it

wasn’t really a problem. There was clearly a disconnect between the people doing the work and the people making the

decision. I think that’s the answer to the Court’s question

that if we want to go forward with more witnesses and

more evidence——

1479

103Transcript of Evidentiary Hearing at 10–11, Alexander v. FBI (D.D.C. Aug. 25, 2000) (CA

96–2123) (emphasis added). 104 Id. at 15 (emphasis added).

Court: It never dawned on any of them to tell any lawyer

in the Justice Department about this test or any of that

other information? See it’s really a notion that is not akin

to the Court’s own experience in how real life works. They

do a little test like that to see whether this works and they

never tell any of the lawyers working on case?

Millet: Your Honor, if we go forward with more evidence

and we’re required to put the Justice Department attorneys on the stand and have them testify, which frankly to

me is a very big step that the Court should not undertake

lightly and I don’t [sic] the Court should undertake on the

basis of this record, you’re going to hear that inquiries were

made and the answer that you heard from Mr. Lindsay

was the answer that came back to the Justice Department.

I can represent that to the Court. I have interviewed my

colleagues. That is the answer. We can go through that

processes, but it is the same answer that you heard from

Mr. Lindsay on Wednesday[.] 103

* * * * *

Millet: [S]ometimes lawyers and technical people don’t always understand each other, don’t always use the same

language, don’t always use the same words to mean the

same things. I think, again, on Wednesday Mr. Lindsay

put his finger on the problem as being that kind of disconnect between the lawyers and the technical people just

perhaps not understanding each other and not appreciating what they were being told as being the real core of

what happened here[.] 104

* * * * *

Millet: You have your answer. I think Mr. Lindsay gave

you your answer. I can’t express it any better than he did.

There was a breakdown between technical people and the

higherups. The higherups thought the problem was addressed. As Mr. Lindsay said, they didn’t know or understand what the people who were doing the real work knew,

and that was the——

Court: To decide the question though of whether it was

negligent, reckless, or deliberate, would I not need to

know—have more evidence about what the testing was or

how that conclusion was reached?

Millet: I don’t think so, Your Honor. I think you’ve heard

in the record—for that matter you can look—for that point,

you can look at the congressional testimony, particularly

Mr. Ruff’s. You can see—as the people who actually pulled

the documents did appear before you, they told you what

1480

105 Id. at 29 (emphasis added). 106 Id. at 99 (emphasis added). 107Transcript of interview with the Honorable Janet Reno, Attorney General, Department of

Justice, in Washington, DC, at 9 (Oct. 5, 2000). 108 Id.

they did, what they did with the documents, and what

happened with them. I think between—between what Mr.

Lindsay said, I think it would be appropriate to look at the

congressional testimony. Between what’s in there, you’ll see

that that’s the answer.105

Another Justice Department lawyer, Elizabeth Shapiro, came to

the personal defense of White House lawyers Michelle Peterson and

Sally Paxton in a representation to Judge Lamberth:

I want to say one last thing and may be somewhat out of

turn. When the Court spoke about White House Counsel

who worked on this case, I just wanted to make it clear

that we are not—this is not the apt’s [sic] case. I don’t

know the experience of that case, but I can speak to the

experience in this case. That’s Ms. Paxton and Peterson

have acted in every way as diligently any [sic] agency counsel I have ever encountered. They have worked long and

hard and produced thousands and thousands of documents

and engaged in long periods of discovery I have with extreme diligence. I would want to say that on their behalf.106

This kind of overzealous advocacy by the Justice Department on

behalf of the White House indicates why the Justice Department

cannot be counted upon to conduct a thorough investigation of this

matter. It is difficult to believe that the Justice Department would

conduct a serious criminal investigation of a White House lawyer

such as Peterson while, at the same time, a Justice Department

lawyer provides such a glowing character reference for her in court.

B. THE ATTORNEY GENERAL’S FAILURE TO ALLOCATE ADEQUATE

RESOURCES TO THE E-MAIL INVESTIGATION

The advocacy and overreaching of Justice Department attorneys

is especially troubling in light of the apparent lack of a serious investigation of the e-mail scandal on the part of the Justice Department’s Campaign Financing Task Force. The Justice Department

seems willing to devote more attorneys and resources to the defense of the White House than to the investigation of it. Deputy Assistant Attorney General Alan Gershel’s refusal to disclose even a

ballpark estimate of the number of attorneys working on the criminal investigation does nothing to allay those concerns.

Perhaps even more revealing are recent statements made by Attorney General Reno during an interview with committee staff. The

Attorney General was asked to give an estimate of the number of

attorneys working on the e-mail investigation because of the concern in hearing that only one part-time attorney was on the

case.107 The Attorney General failed to provide an estimate.108 The

following exchange then took place between committee counsel and

the Attorney General:

Counsel: If there were for a period of weeks no attorneys—

and we know there are FBI agents but if there were no

1481

109 Id. at 9–10.

Department of Justice attorneys devoted full-time to this

matter, would you answer that to be a sufficient number

of attorneys devoted to this matter?

Reno: If there were sufficient attorneys devoted to the

matter, I would consider it to be sufficient.

Counsel: But would zero be sufficient?

Reno: Your question was whether there would be sufficient

people if there was not a full-time attorney devoted to it.

How I devote attorneys I think should be an executive

function and I think based on everything that I have been

advised—as to which I have been advised, there are sufficient.

Counsel: Okay. And we are not going to go too much further but I did want to get back to my original question,

which is if there were zero attorneys, would that be in

your view in this situation sufficient?

Reno: If there were zero attorneys what?

Counsel: Devoted to full-time staffing of the——

Reno: Yes, it could be possible that if you had different attorneys devoted to [it] less than full-time.109

From this exchange, the Attorney General apparently conceded

that in her opinion having no full-time Justice Department attorneys working on the e-mail investigation could be sufficient. While

the Attorney General refused to actually confirm that there are no

full-time attorneys working on the e-mail investigation, such a conclusion is consistent with information obtained by the committee.

This underscores the inherent conflict of interest of the Justice Department in the e-mail matter. The problems with Justice Department attorneys investigating their colleagues are exacerbated when

the time and resources devoted to the investigation are apparently

far less than those devoted to the defense of the White House.

V. THE CRITICS OF THE INVESTIGATION HAVE UTTERLY FAILED TO

ADDRESS THE FACTS ON THEIR MERITS

A number of criticisms have been made of the committee’s investigations. Some of these criticisms are simply inaccurate. Others

have taken the form of baseless attacks against the committee. All

of the criticisms, however, clearly demonstrate that the White

House, and its allies in Congress want to keep the public from

knowing what happened.

A. RESPONSE TO THE MINORITY STAFF REBUTTAL

Following the release of the committee’s report, the minority circulated a ‘‘rebuttal’’ to the news media. Unfortunately, the minority

rebuttal is riddled with errors and misleading statements.

1482

110 Rebuttal prepared by minority staff. 111 ‘‘The Budget of the Executive Office of the President,’’ hearings before the Treasury, Postal,

and the Executive Branch Subcommittee of the Committee on Appropriations, 105th Cong. (Mar.

12, 1998) (testimony of Ada Posey, Director, Office of Administration). 112 E-mail report at sec. III.B.1, IV.A.2. 113 Rebuttal prepared by minority staff. 114 E-mail report at sec. II. 115 Id. at sec. III.C.1. 116 Id. at sec. II.C, III.D.3.c. 117 Rebuttal prepared by minority staff.

The Spin: ‘‘The number of e-mails affected by the Mail2 problem

is relatively small compared to the total number of e-mails properly

recorded in ARMS.’’ 110

The Truth:

• The precise number of e-mails affected is not the point. To prevent the production of even one subpoenaed document through

threats and intimidation is serious misconduct. The point is that

the White House knew that a number of messages were not

searched. It knew that the number of unsearched messages was

significant. Yet it failed to either search the messages or inform

Congress that it could not.

• The number of records properly recorded in ARMS in 1994 was

1.7 million. In 1997 it was 4.1 million. By the end of 2000, it

is estimated that it will record 30 million.111 Even a small percentage of such large numbers would be significant. For example, the Mail2 problem alone affected all of 1997, when 4.1 million records were recorded in ARMS. If only a ‘‘relatively small’’

number of those records—say 10 percent—were affected by the

Mail2 error, that would mean 410,000 records were not

searched. That would represent only 1 year during only one of

the several archiving errors. In fact, the audit prepared by Robert Haas on June 18, 1998, shows that, as of that date, 246,083

e-mails were not recorded in ARMS.112

The Spin: ‘‘These e-mail problems are highly technical. All of

them were inadvertent.’’ 113

The Truth:

• The net effect of the problems is not technical or difficult to

comprehend. A large universe of documents was not

searched.114 The White House was clearly told as much, but

failed to inform those who had subpoenaed documents from

them.115

• The OVP decision to manage e-mail solely by backup tapes and

avoid archiving in ARMS was not inadvertent. It was intentional.116

The Spin: ‘‘Mr. Haas found a few Lewinsky-related e-mails that

turned out to have already been previously provided to Independent Counsel Kenneth Starr.’’ 117

The Truth:

• Haas found more than ‘‘a few’’ Lewinsky-related e-mails. In fact,

the White House produced to the committee 832 pages of emails found by Haas and used by the White House Counsel’s OfVerDate 11-MAY-2000 22:54 Dec 08, 2000 Jkt 067962 PO 00000 Frm 00620 Fmt 6604 Sfmt 6602 E:\HR\OC\HR1023V2.XXX pfrm11 PsN: HR1023V2
1483

118Letter from Beth Nolan, Counsel to the President, the White House, to the Honorable Dan

Burton, chairman, Committee on Government Reform (May 2, 2000). See also e-mail report at

sec. IV.B.3. 119 Id. 120See letter from Jay Apperson, deputy independent counsel, Office of the Independent Counsel, to the Honorable Royce C. Lamberth, U.S. District Judge, District of Columbia 5 (Oct. 5,

2000) (referring to attachment 3, pages 1–2) (exhibit AV–3). Attachment 3 to Apperson’s letter

to Judge Lamberth is letter from Apperson to Mark Lynch, counsel for Michelle Peterson, in

which Apperson describes Peterson’s affidavit as ‘‘both inaccurate and misleading’’ in its suggestion that the index was not required to have been produced to the independent counsel in June

1998. Id. 121 Id. at sec. III.C.2. See also id. at n.347–348 and accompanying text. 122 Rebuttal prepared by minority staff. 123 ‘‘Missing White House E-mails, Mismanagement of Subpoenaed Records,’’ hearings before

the Committee on Government Reform, 106th Cong. 100 (Mar. 23, 2000) (testimony of John

Spriggs, senior engineer, Northrop Grumman). See also e-mail report at sec. III.A.5. 124 Id. at sec. III.A.4.a, III.A.4.e–g.

fice to argue that the e-mail did not affect document production.118

• Michelle Peterson, the lawyer who compared Haas’ e-mails to

those already produced to the independent counsel, filed a September 27, 2000, affidavit in the FBI files litigation stating that,

during her grand jury testimony, she was shown documents

which indicate that she may have been mistaken in concluding

that the two stacks of e-mail she reviewed were identical.119

• The e-mail provided to the Counsel’s Office in order to perform

the comparison included a 69-page index, which itself was withheld from the independent counsel even after Peterson’s comparison.120 Peterson’s ‘‘mistake’’ was far from merely overlooking a one or two pages, and the two stacks of e-mail were

far from identical.

• White House Counsel Charles F.C. Ruff conceded that his belief

that using the Lewinsky production as a tool to determine

whether there was a problem with the White House’s subpoena

compliance ability was erroneous.121 And in fact, it was.

The Spin: ‘‘The evidence regarding alleged jail threats is inconclusive and contradictory. In total, eight individuals were present

at meetings when the alleged threats were made. Of those eight

witnesses, two deny making any jail threats; three have no recollection of any jail threat; one recalls a jail threat being made in response to a ‘flippant’ question; and one recalls the word ‘jail’ being

mentioned but cannot remember who said it.’’ 122

The Truth:

• Other than Laura Callahan—the person accused of making the

threat—there were five people present at the meeting at which

Robert Haas claims he was threatened. Of those five, three recall the jail threat (Robert Haas, Betty Lambuth, and Sandra

Golas). And a fourth, John Spriggs, believed he was threatened,

though he did not specifically recall the word jail: ‘‘Were they

threatening to me? Yes, they were threatening to me, in—in a

narrow context.’’ 123

• Robert Haas contemporaneously repeated his allegation to multiple witnesses, including Northrop Grumman employees Steve

Hawkins, Joe Vasta, and Joseph Lucente.124 He also told IS&T

1484

125 Id. 126 Id. at sec. III.A.5. 127 Id. at sec. III.A.4.b. 128 Id. at sec. III.A.4.d. 129 Rebuttal prepared by minority staff. 130 Id.

Director Kathleen Gallant, as well as his wife and several members of his family.125

• Those who did not recall hearing the jail threat did not question

the credibility of those who did. In fact, neither did Ranking Minority Member Henry Waxman. As he stated at the March 23,

2000, hearing: ‘‘Mr. Haas, who seemed credible to me, clearly

believed he had been threatened with jail by Ms. Callahan.’’ 126

• Golas took the threat so seriously that she risked her job in trying to comply with the warnings not to tell anyone.127 Also, the

other contractors took the threats so seriously that they felt the

need to hold their meetings out of the office at a local park and

at a Starbucks.128

The Spin: ‘‘[T]he individuals who allegedly made the jail threats

were not even White House employees: both worked in the Office

of Administration (OA), which provides support services to the

White House, and one was a career civil servant. There is no evidence that White House officials had any knowledge of—or participated in—any threats.’’ 129

The Truth:

• OA is an entity within the Executive Office of the President.

While the OA is not within the physical building of the White

House, it is disingenuous and misleading to argue that Mark

Lindsay and Laura Callahan were not White House employees.

OA employees are responsible to the White House, and they ultimately answer to the Assistant to the President for Management and Administration. Moreover, Mark Lindsay was elevated to the high position of Assistant to the President—working in the White House—after the e-mail problems occurred but

before they became public. Also, Mark Lindsay was a political

appointee in OA at the time he allegedly threatened Northrop

Grumman contractors. It should also be noted that Laura Callahan continues to work for the Clinton administration at the

Department of Labor.

• It is also illogical to assume that the very persons who allegedly

threatened contractors would inform their White House superiors of such heavy-handed and possibly illegal tactics, unless

their superiors were complicit in the misconduct.

The Spin: ‘‘There is no evidence that Mr. [Earl] Silbert was

aware of, or communicated information about, threats or subpoena

compliance—issues that were peripheral, if not irrelevant, to the

contractual matter at stake.’’ 130

The Truth:

• The committee questioned Earl Silbert—former Watergate prosecutor and friend of then-White House Counsel Charles F.C.

Ruff—about his contacts in late 1998 with Northrop Grumman

1485

131 E-mail report at sec. III.A.4.g. 132Transcript of Evidentiary Hearing at 47, Alexander v. FBI (D.D.C. Oct. 3, 2000) (CA 96–

2123). 133 E-mail report at sec. III.A.4.g. 134 Id. 135 Id. at sec. III.E.1.b.ii. 136Transcript of Evidentiary Hearing at 91, Alexander v. FBI (D.D.C. Oct. 3, 2000) (CA 96–

2123). When informed of this testimony, Lucente was surprised to learn that his letter had been

reviewed by Silbert and that Silbert had provided corporate counsel with edits. Interview with

Joseph Lucente, director of contracts and subcontracts, Northrop Grumman (Oct. 17, 2000). 137 Id. 138 Rebuttal prepared by minority staff. 139 E-mail report at sec. II.C, III.D.3.c.

(NG) and the White House Counsel’s Office. When asked specifically about the discussion of threats with White House counsel,

Silbert claimed he had no recollection of such discussions and

at the same time asserted attorney-client privilege.131 On October 3, 2000, the committee also learned through his testimony

in Federal court that Silbert took notes of his conversations

with NG counsel and a NG employee.132 These notes have not

yet been reviewed by the committee. Until Mr. Silbert either explains the substance of the meeting or produces the notes, it is

simply premature for the minority to claim that ‘‘[t]here is no

evidence’’ related to Mr. Silbert’s communications concerning

threats or subpoena compliance. This claim by the minority also

appears to be premature when considering the testimony of Robert Haas on August 14, 2000, in the FBI files case. Haas testified that he recounted the threats to an outside counsel described to him as a ‘‘gray beard.’’ 133 This evidence, coupled with

Silbert’s billing records, strongly suggests that Earl Silbert is

the ‘‘gray beard’’ with whom Haas spoke.

• The claim that threats were peripheral or irrelevant to the contractual matter at stake completely ignores the testimony of the

persons involved in the meetings between NG employees, NG

Director of Contracts Joseph Lucente, and NG counsel Ralph

Pope in September 1998. In that meeting, NG employees discussed threats with Lucente and Pope.134 Lucente in turn drafted a letter that went to the White House on September 14,

1998, stating that NG would not move forward on the contract.135 It was recently learned in court that Silbert had direct

involvement in the review and editing of this letter.136 Lucente

told the committee that the threats were an inspiration for

sending the letter.137

The Spin: ‘‘In the course of responding to committee inquiries

regarding the Mail2 problem, the White House also discovered

other e-mail problems including . . . a problem that prevented email in the Office of the Vice President from being backed up from

the end of March 1998 through early April 1999.’’ 138

The Truth:

This is merely one of the many problems in the Office of the Vice

President (OVP). The minority failed to mention the others:

• The OVP decided in 1994 not to connect its e-mail system to

ARMS, thereby ensuring that its e-mail would not be

archived.139 But the White House Counsel’s Office claims not to

1486

140 Id. at sec. II.C. 141 Id. at sec. III.D.3.c. 142 Id. at sec. II.C. 143 Rebuttal prepared by minority staff. 144 E-mail report at 74. 145 Id. at sec. III.D.3.b. 146 Rebuttal prepared by minority staff.

have been aware of this decision.140 ARMS searches that were

represented as including OVP records in fact did not, and no

one searched the OVP backup tapes in response to subpoenas.141

• In April 1999, when responsibility for the OVP server was

transferred to IS&T, backup tapes were ordered to be recycled

on a rotating 3-week basis. This occurred at a time when the

OVP was still not participating in ARMS. In the words of Senior

Engineer John Spriggs, ‘‘Every three weeks they overwrite the

existing tapes. And so if the OVP is doing records management

with tape backups, then they have a problem.’’ 142

The Spin: ‘‘So far, between 130,000 and 150,000 e-mails have

been reconstructed and reviewed. Of those, only 55 were responsive

to this committee’s subpoenas, and many of those had already been

produced in similar form. None of these 55 e-mails provided significant new evidence.’’ 143

The Truth:

• The first batch of responsive e-mails produced to the committee

on September 22, 2000, include a document regarding political

advisor Carter Eskew sent directly to Vice President Gore stating ‘‘Reminder: All internet e-mails are recorded on the White

House computers. According to Michael, the only way not to

have your e-mails backed up on government computers would be

to get a Clinton/Gore computer in your office and set it up for

private e-mails. QUESTION: How would you like to proceed on

this?’’ 144 This e-mail goes to the Vice President’s knowledge of

the archiving of his e-mail messages that this committee is investigating.

• The September 22, 2000, production also includes an e-mail

from the person ‘‘desking the VP’s trip to CA on 4/29,’’ stating

that the Vice President was committed to do a fundraising event

in Los Angeles on April 29, 1996. The e-mail was drafted on

April 9, 1996, and the only event in Los Angeles as of that date

was a luncheon at the Hsi Lai Temple. This information is significant because as of April 9, 1996, the Hsi Lai Temple event

was considered a fundraiser, and there is no mention of an

event at another venue—a direct contradiction of representations that a separate fundraising event had been scheduled and

then canceled at the last minute.145

Finally, it is troubling that the minority has attacked the credibility of the majority by citing an allegation from a newspaper article as if it were from the committee. The Democrats’ rebuttal endeavors to correct a statement from the March 29, 2000, edition of

the Washington Times concerning a computer disk containing

Lewinsky-related e-mail.146 While it is comforting to know that the

1487

147 Rob Johnson, ‘‘Former Gore Legal Counsel Dragged into E-mail Inquiry,’’ the Tennessean,

Oct. 19, 2000. 148 Id.

minority is chasing down inaccuracies in the newspapers, such

charges have little to do with the committee’s work.

B. JUDGE TODD CAMPBELL’S COMMENTS ON THE REPORT

In an article published in the Tennessean on October 19, 2000,

Federal Judge and former Counsel to the Vice President Todd

Campbell was quoted as calling Chairman Burton ‘‘a zealot who

has no regard to the reputation of others. And he has no credibility.’’ It is surprising to see such language from a sitting Federal

judge. Even more surprising is that Judge Campbell’s intemperate

remarks were made in response to purely factual assertions in the

committee’s report of which he was the source. These facts suggest

that Judge Campbell’s ire is more likely the result of his relationship with Vice President Gore and the Presidential election season

than it is of any unfair statement in the committee’s report.

Judge Campbell’s name is mentioned in the report as the decisionmaker in the Office of the Vice President (OVP) on the issue

of whether the OVP would participate in a system-wide White

House e-mail archiving system. Committee staff interviewed him

by telephone on August 18, 2000. Judge Campbell was cordial and

candid, which was appreciated. However, he has mischaracterized

the substance of the report as well as Chairman Burton’s motives.

He was also quoted as saying:

The Office of the Vice President was in full compliance

with the Presidential Records Act in two ways: One, we

had backup tapes of all the e-mail, and two, the staff was

instructed to keep hard copies of all documents that were

responsive to the Presidential Records Act. In 1994, it was

not even clear that you had to have backup tapes.147

The report does not claim that the OVP failed to comply with the

Presidential Records Act. In fact, the Presidential Records Act

(PRA) is not even mentioned in either of the two sections dealing

with the OVP. Rather, the committee’s concern is that the Vice

President’s e-mail was managed in such a way as to avoid subpoena compliance.

Judge Campbell also said that the report was released ‘‘for partisan purposes to influence the outcome of the presidential elections.’’ 148 This is perhaps the Judge’s most absurd statement. The

portion of the report devoted to the Vice President’s Office e-mail

problems comprises only about 6 percent of the total report and the

conclusions are qualified as being preliminary. It is disappointing

that a sitting judge would not be more concerned that an office at

the Executive Office of the President had failed to comply with a

number of subpoenas because of a decision he had made. That decision, and the resulting failure of the OVP to comply with the committee’s subpoenas, is the committee’s concern—and it should be

Judge Campbell’s as well.

1488

149 ‘‘Mills on the Hill,’’ the Weekly Standard, May 15, 2000, at 2. 150 ‘‘Missing White House E-mails, Mismanagement of Subpoenaed Records,’’ hearings before

the Committee on Government Reform, 106th Cong. 115–116 (May 4, 2000) (emphasis added). 151 Id.

C. CHERYL MILLS’ OPENING STATEMENT AT THE COMMITTEE’S MARCH

4, 2000 HEARING

In her opening statement before the committee on March 4, 2000,

former Deputy Counsel to the President Cheryl Mills demonstrated

utter contempt for the committee’s legitimate oversight authority

by smugly dismissing its core function as, essentially, a waste of

her time.

The Weekly Standard described her statement as follows:

At last week’s House Government Reform Committee hearing on the suppression of subpoenaed White House emails, Mills took the stand and immediately rebuked the

committee’s members, while current and former Clinton

aides in attendance nodded their heads in vigorous assent.

‘‘Nothing you discover here today,’’ the allegedly impressive lady intoned, ‘‘will feed one person, give shelter to

someone who is homeless, educate one child, provide

health care for one family, or offer justice to one AfricanAmerican or Hispanic juvenile.’’

In other words: Favored Democratic social policies are the

test of all government work. A man has committed murder. Should he be sent to prison? Will sending him to prison ‘‘feed one child?’’ The answer being no, the murderer

must go free.149

It is telling that Mills’ view was contradicted later that day by her

more seasoned and respected former boss, former Counsel to the

President Charles F.C. Ruff:

Mr. HUTCHINSON. How would you have failed if in your defense of the President you had requested certain documents from the Congress or from other body and then you

had come to find out that they were never produced?

Mr. RUFF. [I] think the point you make is an absolutely

solid and important one. This committee has every obligation to inquire into the circumstances surrounding those

events in order to determine, first, whether indeed there

was any impropriety—and I am firmly of the belief that

there was none; second, to determine whether there’s a

systemic problem that needs to be corrected; and, third,

whether the White House is responding appropriately to

the committee’s concerns. I view all of those as entirely legitimate inquiries, and we’re doing our best to try to respond to them.150

While Mills dismissed the investigation as wholly illegitimate, Ruff

described it as ‘‘entirely legitimate.’’ 151 Moreover, he said the committee had not merely a legitimate interest; it had ‘‘every obligation’’ to inquire. This contrast with Mills’ position could not be

more stark.

1489

Mills’ failure to divert attention from the issue at hand was illustrated by the reaction of Congressman Christopher Shays:

Mr. SHAYS. [W]hen I read your statement, Ms. Mills, before you even delivered it, I became so incensed by the

focus on you and not about getting at this issue that I’ve

written out a statement, and I’ve written out the statement so I don’t say more than I need to say. So, Ms. Mills,

you’re not the only one disillusioned by this process. I have

been pushed from disappointment to anger to outrage by

the pervasive ethical and moral minimalism of this White

House. Among the important issues you omitted from your

list is respect for law and the affirmative obligation of

sworn officers of the court to disclose material facts to

properly constituted authorities. As much as you might not

like it, this committee is such a properly constituted authority. While undoubtedly deeply felt, your statement conveyed to me a profound lack of respect for this constitutional process, and I’ll say unlike the profound respect that

I thought you showed to the Senate. It’s not enough for

those in the White House you defend to say no evidence

has been found that anyone intentionally sought to hide

the e-mail system problems. That’s far too low a bar to set

for yourselves, to convince yourselves prematurely the

problem was minimal, to hide behind the expense and difficulty of the reconstruction project, to delay any disclosure

of a problem until forced by negative publicity. All bespeak

an ethical opportunism that allows by omission, if not by

commission, the obstruction of justice.

* * * * *

Now, I also remember some people at the White House. I

remember Billy Dale and John Drellinger . . . They were

in the White House and they got fired, and then to defend

their being fired the FBI and the IRS had to take a good

look at them.

And I was looking at an old article, and this may have

been said in jest, Mr. Ruff, I know it was said in jest, but

it has an eerie feeling of strength to it. You were interviewed by Bob Woodward[.] I’ll read what Mr. Woodward

says[:] . . . If called to testify some day at such an inquiry

. . . Ruff says he knows just what he would do, ‘‘I’d say,

gee, I just don’t remember what happened back then and

they won’t be able to indict me for perjury and that maybe

that’s the principal thing I’ve learned in 4 years, I just intend to rely on that failure of memory.’’ I know you said

it in jest, but the words you used to respond to questions:

‘‘I don’t recall,’’ ‘‘I don’t remember,’’ ‘‘I understood this is

an issue’’ and so on and ‘‘[I] don’t remember if I was at a

meeting.’’ The meeting: Mr. Lindsay, on June 19th, how

many people were at that meeting when you spoke to Mr.

Ruff?

1490

152 ‘‘Missing White House E-mails, Mismanagement of Subpoenaed Records,’’ hearings before

the Committee on Government Reform, 106th Cong. 80–82 (May 4, 2000).

Mr. LINDSAY. I don’t recall, sir.152

In essence, that is the story of this investigation.

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Æ