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The Case of Patrick Fitzgerald and the Missing Emails

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Going on weeks now, I've been inundated with questions about whether Fitzgerald knew about the GWB43.com server. If so, what can he teach Waxman, Conyers, and Leahy about its use? If not, does that mean Fitzgerald has received enough new information that the CIA Leak case will re-enter an active phase? Over two weeks ago, I wrote Fitzgerald's spokesperson to see if he could offer any enlightenment–and I got a classic non-answer in return, "there's no public record basis for me to comment so I have to decline." So what follows is my best understanding of the recent evidence that has come to light–as well as the evidence already available. Much of this is speculative–but it ought to lay out at least the overall chronology involved.

Note: I just posted the followup to this post, Rove's Hadley Email, over at TNH.


Looking back, it seems like from day one, at least one journalist covering this story suspected something was up. On October 7–the day the WH was first told to turn over materials–the reporter asked whether employees were obliged to turn over emails they had already deleted. Watch how McClellan immediately emphasizes that employees are only obliged to turn over materials "in the posession" of the White House.

Q     No, I understand that.  I'm just saying how would this work? Let's say I remember — I'm an official, I remember sending some email about this, but I've long since deleted it.  How —

[snip] 

Q     I just want to be clear, though, the White House is obligated to provide emails that may have been deleted by the individual but are still archived by the White House —

MR. McCLELLAN:  Look back — it said what is in the possession of, I believe, in the White House, the employees and staff. 

That sure sounds like the dodge of a spokesperson who is well aware of the way the RNC server is used, not to mention aware that a lot of sensitive emails reside on it. And not only did that first document request limit itself to items in the possession of the White House, but it was a request, not a subpoena. It wasn't until 2004 when those documents were formally subpoenaed. Keep in mind, by the time that formal subpoena went out in January 2004, BushCo had had the initial 11-hour gap between the time when Ashcroft informed Alberto Gonzales and the time Gonzales informed the White House to retain all relevant records, and then three more months before actually being legally subpoenaed. Abundant time to do a great deal of deleting.

It's clear that Fitzgerald was supicious about the lack of emails from key participants in Plame's outing early on in the investigation. He asked Libby about it specifically in his March 24 testimony.

Q. You're not big on e-mail I take it?

A. No. Not in this job. I was in my prior job.

But it wasn't until seven months after Fitzgerald started investigating–and at precisely the time he started getting journalists' testimony–that the RNC claims it stopped its automatic destruction policy on White House email. 

Mr. Kelner said that as a result of unspecified legal inquiries, a "hold" was placed on this e-mail destruction policy for the accounts of White House officials in August 2004. 

Frankly, I'm not convinced that this hold is a response to the Plame investigation. It just as likely relates to the Abramoff investigation, which started in March 2004 with the cooperation of people–like Abramoff and Michael Scanlon–who knew about the RNC server. The Senate Indian Affairs Committee, led by Republican John McCain, issued its first subpoenas in June 2004. And we know SIAC and FBI got Susan Ralston's emails that were sent from the RNC servers–they had been printed off (from Abramoff's computer, apparently) in May 2004. If it were the Abramoff investigation–and not Fitzgerald's–it would explain why Rove would continue blithely deleting his own emails as if nothing had happened. (more…)

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