Missing Rove Emails A Violation of Records Act

Three years ago, Robert Luskin, the attorney who defended White House Political Adviser Karl Rove in the CIA leak case, made a startling discovery: a July 2003 email Rove sent to then-Deputy National Security Adviser Stephen Hadley proved Rove was far more involved in the leak of covert CIA operative Valerie Plame-Wilson, and the campaign to discredit her husband, former Ambassador Joseph Wilson, than he had let on during interviews with federal investigators and in testimony before a federal grand jury.

Curiously, the email Rove sent to Hadley which Luskin had found never turned up during an exhaustive document search ordered a year earlier, in September 2003, by Alberto Gonzales. At the time, Gonzales, who was White House counsel, enjoined all White House staff members to turn over any communications pertaining to Plame-Wilson and her husband, a vocal critic of the Iraq war, who had accused the Bush administration of twisting pre-war Iraq intelligence. Gonzales's order to turn over documents and emails came 12 hours after former White House Chief of Staff Andrew Card had informed him that the Justice Department was launching an investigation into the leak.

The order Gonzales sent to Karl Rove and other administration officials demanded "documents that related in any way to a contact with any member or representative of the news media about Joseph C. Wilson, his trip to Niger in February 2002, or his wife's purported relationship with the Central Intelligence Agency."

The Rove/Hadley email was not included in the thousands of pages of documents turned over to the FBI. The reason? Apparently the "right search words weren't used," Luskin told Newsweek in October 2005. The email Rove sent to Hadley in July 2003 has never been released publicly. It's unclear whether the email was sent via the White House computer system or from Rove's email account maintained by the Republican National Committee (RNC), which, according to the National Journal, is what Rove uses to conduct 90 percent of his White House business, in what would appear to be a violation of the Presidential Records Act.

Deja Vu All Over Again

The narrative about the single email that tied Rove to the Plame-Wilson leak that was lost and then found is a complex one. But the story has deja vu written all over it, as Rove finds himself smack in the middle of the latest high-profile scandal plaguing the White House - the apparent politically motivated firing of nine US attorneys last year. Once again, lawmakers are doing their darnedest to obtain copies of Rove's emails, linking him directly to the US attorney scandal, and once again serious questions are being raised about the lengths to which Gonzales, as head of the Justice Department, and the Bush administration are willing to go to insulate Rove.

In April, the RNC disclosed that thousands of emails Rove had sent over a four-year period via his RNC email account might have been destroyed. The nonprofit government watchdog group Citizens for Responsibility and Ethics in Washington (CREW) revealed in April, however, that its own probe had discovered that as many as five million White House emails were missing, in violation of the Presidential Records Act.

Last week, the Justice Department released a single email which was sent to Rove and several DOJ and Bush administration officials at an account maintained by the Republican National Committee - kr@georgewbush.com., in response to a wide-ranging subpoena issued by the Senate Judiciary Committee. The committee had demanded all of Rove's emails, including those emails sent and received during the height of the Plame-Wilson leak, which Rove's attorney had surrendered to Special Prosecutor Patrick Fitzgerald. The email was hardly a smoking gun. It simply showed that Rove was kept in the loop about the news surrounding the issue.

Using search terms such as "Rove, Karl, kr, gwb43.com, georgewbush and rnchq.org," the Justice Department could only find a February 28, 2007 email that J. Scott Jennings, a special adviser to President Bush who works in Rove's shop, had cc'd Rove. And as for emails, the Judiciary Committee requested that Rove sent or received during the Plame-Wilson leak, and thereafter that were allegedly turned over to Fitzgerald?

"The Office of Special Counsel Fitzgerald also conducted a search using the same search terms referenced above, and we have been advised that this effort did not identify any responsive documents," said the Justice Department letter to Senate Judiciary Committee Chairman Patrick Leahy. "Mr. Fitzgerald noted that his office did not obtain all of Mr. Rove's emails, but rather obtained access to his electronic media for the purpose of searching for documents responsive to search terms relevant to his investigation. Only records responsive to Mr. Fitzgerald's investigative search terms were retained by his office...."

If that's the case, then it certainly calls into question the integrity of Fitzgerald's investigation as it pertains to Rove.

Melanie Sloan, the executive director of CREW, said in an interview with Truthout last month that, "It looks like Karl Rove may well have destroyed evidence that implicated him in the White House's orchestrated efforts to leak Valerie Plame-Wilson's covert identity to the press in retaliation against her husband, former Ambassador Joseph Wilson." Sloan also said, "Special Counsel Fitzgerald should immediately reopen his investigation into whether Rove took part in the leak, as well as whether he obstructed justice in the ensuing leak investigation."

The prospect of a new investigation into Rove appears to be unlikely.

Still, if history does indeed repeat itself, it is likely the evidence of Rove's complicity in the US attorney scandal is lurking on a hard drive somewhere.

The Case of the Sudden Reappearance of the Lost Email Rove Sent to Hadley

Immediately after Luskin revealed that he had told Fitzgerald his client had in fact discussed Plame-Wilson and her husband with Time magazine reporter Matthew Cooper, suspicions about the timing of the discovery of the email Rove had sent to Hadley surfaced. This was contrary to both Rove's sworn testimony before a grand jury and what he had told the FBI in an interview.

Rove had been a source for a story Cooper wrote about the covert CIA operative and the former ambassador. Rove failed to disclose that crucial piece of information to the FBI in October 2003, a mere three months after he spoke to Cooper. He said the conversation had escaped his memory. However, Rove and his attorney were reminded about the White House political adviser's conversation with Cooper thanks to a chance meeting Luskin had with Cooper's colleague, Viveca Novak, sometime in 2004. She told Luskin it was well known within Time magazine that Rove had been a source for Cooper.

That tidbit of information supplied by Novak led Luskin and Rove to search Rove's files. What turned up was the email Rove had sent to Hadley, which for unknown reasons had not surfaced a year earlier. This led Rove to change his testimony. Rove's memory just happened to have been refreshed right around the same time it had become clear that Cooper would lose his legal battle and would be forced to respond to a subpoena demanding that he reveal the identity of his source, who happened to be Karl Rove.

Did Rove Deliberately Conceal Evidence Tying Him to the CIA Leak?

Up until this point, the leak investigation had primarily been centered on an obscure law that made it a felony for any government official to knowingly disclose the identity of an undercover CIA officer.

But around the time Luskin said he located the email Rove had sent to Hadley, Fitzgerald had already become suspicious that Rove was obstructing his investigation and might have destroyed evidence implicating him in the leak. In late January 2004, Fitzgerald sent a letter to then-acting Attorney General James Comey seeking confirmation that he had the authority to investigate and prosecute suspects in the leak case for additional crimes, including evidence destruction.

Comey responded to Fitzgerald in writing on February 6, 2004, confirming that Fitzgerald did indeed have the authority to prosecute additional crimes, including "perjury, obstruction of justice, destruction of evidence and intimidation of witnesses."

Miers Informs Fitzgerald About the White House's Lost Emails

The same month Luskin spoke with a reporter for Newsweek, White House Counsel Harriet Miers, who succeeded Gonzales, told Special Prosecutor Patrick Fitzgerald that some White House emails were not archived in accordance with the Presidential Records Act, according to CREW.

The White House's Office of Administration briefed Miers about the extent of their email issues. Miers is said to have immediately informed Fitzgerald about it due to Fitzgerald's having subpoenaed White House emails sent in 2003. However, according to CREW, Fitzgerald's staff was briefed before a complete audit of the email records could be taken.

Three months later, as was first reported in a story by Truthout last year, Fitzgerald had filed a court document in January 2006 in US District Court in Washington, DC. The document revealed that his investigative team had "learned that not all email of the Office of the 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." That document was filed during the discovery phase of the perjury and obstruction-of-justice trial against former vice presidential staffer I. Lewis "Scooter" Libby.

White House "Discovers" 250 Pages of Emails Related to CIA Leak

Less than two weeks later, the White House turned over 250 pages of emails from President Bush and Vice President Dick Cheney's offices to investigators working for the special prosecutor - more than two years after the investigation had begun. It's unknown what was contained in those emails. But Truthout reported at the time that additional emails were withheld from Fitzgerald's probe by Gonzales, who, as White House counsel, had cited executive privilege as the reason he would not turn over the communications.

The White House offered no official explanation concerning the circumstances regarding the sudden reappearance of the emails it had turned over to Fitzgerald on February 6, 2006, or if there had been any truth to Fitzgerald's allegations that the emails had not been automatically archived. At the time, a White House spokeswoman would only say that staffers had "discovered" the batch of documents during a search.

Sloan, the CREW director, said her organization had no direct evidence proving that Rove had intentionally withheld emails from Fitzgerald's probe. But the CREW attorneys doubted that that Rove and the White House had been forthcoming about Rove's involvement in the leak of Plame-Wilson's covert identity in light of the fact that thousands of emails Rove had sent and received during the height of the leak probe had not been recovered. Moreover, Sloan said it was difficult to determine whether Rove's attorney, Robert Luskin, had been forthcoming with Fitzgerald about the changing stories that Rove and Luskin had told the special prosecutor regarding Rove's role in the Plame-Wilson leak and the discovery of the email Rove had sent to Hadley.

"He is a well known lawyer and I would give him the benefit of the doubt, but there is no way to know if he was telling the truth or not at this point," Sloan said.

Although the DOJ said it could only locate one email "to, from or copied to Karl Rove" since November 2004, related to the investigation into the US attorney firings, the Justice Department was "continuing to search for documents."

Matt Renner is a reporter for Truthout.

Jason Leopold is a former Los Angeles bureau chief for Dow Jones Newswire. He has written over 2,000 stories on the California energy crisis and received the Dow Jones Journalist of the Year Award in 2001 for his coverage on the issue as well as a Project Censored award in 2004. Leopold also reported extensively on Enron's downfall and was the first journalist to land an interview with former Enron president Jeffrey Skilling following Enron's bankruptcy filing in December 2001. Leopold has appeared on CNBC
and National Public Radio as an expert on energy policy and has also been the keynote speaker at more than two dozen energy industry conferences around the country.

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