Few major news outlets have covered the fact -- first reported by the New York Daily News -- that in a letter to I. Lewis "Scooter" Libby's defense attorneys, special counsel Patrick J. Fitzgerald said that numerous emails from 2003 are missing from the White House computer archives.
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A February 1 New York Daily News article by staff writer James Gordon Meek reported that in a recent letter to defense attorneys for former vice presidential chief of staff I. Lewis "Scooter" Libby, special counsel Patrick J. Fitzgerald, the lead prosecutor in the CIA leak case, wrote that numerous White House emails from 2003 are missing from White House computer archives. A Media Matters for America survey of coverage following the publication of Meek's article found that major news outlets have -- with only a few exceptions -- ignored this story.
On October 28, 2005, a grand jury indicted Libby on five counts of perjury, obstruction of justice, and making false statements to the FBI. Made public as part of a recent court filing, Fitzgerald's letter was sent in response to requests by Libby's legal team that the prosecutor turn over a large number of documents pertaining to the defendant. At the end of the letter, in which Fitzgerald refused the request, he wrote:
We are aware of no evidence pertinent to the charges against defendant Libby which has been destroyed. In an abundance of caution, we advise you that we have learned that not all e-mail of the Office of Vice President and the Executive Office of the President for certain time periods in 2003 was preserved through the normal archiving process on the White House computer system.
Media Matters examined cable and network news coverage on February 1 (from 4 p.m. to midnight ET) and February 2 (from 6 a.m. to 10 a.m.) and also looked at newspaper and wire coverage on February 1 and 2 for mentions of the letter, following the publication of Meek's article. This survey found that only CNN, the Associated Press, and The New York Sun have devoted any substantial coverage to Fitzgerald's revelation.
On the February 1 edition of CNN's The Situation Room, CNN Justice Department correspondent Kelli Arena reported that "Fitzgerald admits that some of the e-mails from the president's and vice president's offices were destroyed." Immediately following her report, host Wolf Blitzer discussed the story with CNN legal analyst Jeffrey Toobin:
BLITZER: Potentially, Jeff, how significant or insignificant is this development?
TOOBIN: Well, I think you have to say it raises questions. Why were these documents destroyed outside the normal course? Who knew about it? Who ordered it? What kind of documents were there? All these questions may have entirely innocent answers, but we don't know what any of the answers are at this point.
BLITZER: Because when I hear a story like this, it hearkens back -- I mean, I just remember, of course, some of those missing tapes during Watergate and the Nixon White House that evidence may have been destroyed, and this may be totally, totally overreaching. There may be a simple explanation. But the fact that the prosecutor writes this letter saying what happened to this -- these e-mails, that raises certain questions.
TOOBIN: And certainly the Iran-Contra affair was based almost entirely on electronic messages -- so-called prof notes -- sent between Oliver North and colleagues. They have been crucial evidence in all White House investigations. What happened to them? A lot of things get destroyed in the normal course of business. Why were the normal procedures not followed? As you point out, could be completely innocent. But, we just don't know.
BLITZER: How normal is it for e-mail to be destroyed in the normal course of business over at the White House? A question I don't have the answer to, but presumably, the special prosecutor is going to be looking into that question right now.
The "normal procedures" for preserving White House communications referred to by Blitzer and Toobin were detailed in an April 7, 2000, Christian Science Monitor article:
[W]henever a White House staffer clicks "send," a message reminds them that a copy of their missive is being sent to records management.
When it comes to saving e-mails, the White House is held to a higher standard than the private sector, and even Congress.
Companies that have a policy of saving e-mails usually do so only for three to six months, according to records-management consultants. Many companies consider them the same as phone calls, and don't archive them unless they are equal in weight to a written communication.
But the White House is different. It saves its records for posterity. After President Clinton vacates his office next January, at least 30 million stored e-mails will be deposited with the National Archives, an unfathomable mountain of data ranging from "how about lunch?" to speech drafts, to perhaps more juicy communications.
Late in the day on February 1, the AP published an article by staff writer Pete Yost headlined "Fitzgerald Hints White House Records Lost." In the article, Yost included the response of Steven Aftergood, director of the Federation of American Scientists Project on Government Secrecy: "Bottom line: Accidents happen and there could be a benign explanation, but this is highly irregular and invites suspicion."
A February 2 article (subscription required) by New York Sun staff writer Josh Gerstein also noted experts' concerns regarding Fitzgerald's letter:
"It seems pretty surprising that there would be a failure to preserve records when this issue was litigated in the 1980s and 90s," an attorney for a non-profit group that gathers declassified government records, the National Security Archive, Meredith Fuchs, told The New York Sun. "It's particularly surprising given that there are investigations going on about things that could have happened within the Office of the Vice President or the Office of the President."
The missing e-mails could be relevant to a series of ongoing inquiries, including the criminal probe into influence peddling by a lobbyist, Jack Abramoff.
"Entities are under an obligation to preserve their emails if there is an anticipation of litigation," Ms. Fuchs said.
In 2000, the Clinton White House became embroiled in debate over a failure to preserve some of its e-mails. The Justice Department investigated and a House committee held a hearing on the issue, as did a federal judge considering a lawsuit brought by a conservative legal group, Judicial Watch.
"If they didn't take the steps necessary to prevent that happening again, then somebody needs to be held accountable," the group's president, Thomas Fitton said yesterday. "Certainly, that's intriguing."
Further, on the February 2 edition of Fox News' Fox & Friends First, anchor Lauren Green briefly mentioned the story in a news update:
GREEN: The special investigator in the CIA leak case says there may be a problem with White House emails. Patrick Fitzgerald says an archiving problem may have lost some records from 2003. That's the year someone exposed the identity of [former covert CIA operative] Valerie Plame. The vice president's former chief of staff Lewis Libby is already facing federal charges in the case.
The missing e-mails were also noted by WashingtonPost.com columnist Dan Froomkin in his February 2 "White House Briefing" column.
While most news outlets have entirely ignored Fitzgerald's letter, several did so despite devoting substantial coverage to related developments in the Libby case. For example, on the February 1 edition of MSNBC's The Abrams Report, host Dan Abrams discussed a recent court filing by Libby's defense team with two former government lawyers. But during the seven-minute segment, Abrams made no mention of Fitzgerald's letter, which was attached to that same filing.