Judge Demands Information About Missing White House Emails

[motivez]

April 25, 2008 (Computerworld) A federal judge has told the White House to answer "once and for all" whether backup tapes holding e-mail documents sought by a Washington-based watchdog group have been preserved.
In the order, District Court Judge John M. Facciola said that the Executive Office of the President must tell the court by May 5 whether any backup tapes created from March to October 2003 have been preserved. Further, the government must disclose the specific dates when e-mail messages were not backed up.


The White House has been working for months trying to fend off a lawsuit filed last May in federal court in Washington by the Citizens for Responsibility and Ethics. The nonprofit organization is seeking access to White House e-mails related to a number of controversial issues such as reasons for starting the war in Iraq, the release of a former CIA operative's name and the U.S. Department of Justice's actions.


In the report, Judge Facciola cited what he called an apparent contradiction by Theresa Payton, CIO in the Executive Office of the President, in statements about whether the White House has tapes backing up e-mail messages sent from March to October 2003. In a document filed with the court in January, Payton stated that prior to October 2003, the White House regularly overwrote its backup tapes.


However, Judge Facciola noted that the White House officials have separately told the court that it is "simply incorrect" that the Office of Administration does not possess backup tapes of the EOP network before 2003. "The Court must admit that it is still unclear which backup tapes are being preserved and stored by the EOP," he wrote.


To help recover e-mails that the White House contends are missing, Judge Facciola recommended that District Court Judge Henry Kennedy order it to collect and preserve e-mails from .PST files located on workstation hard drives of employees who worked at the EOP between March 2003 and October 2005.


In addition, he recommended that White House employees be ordered to turn over any flash drives or other portable media that may contain e-mails sent or received between the dates in question.


On May 5, the White House must also tell the court how many current employees were working at the White House between March 2003 and October 2005, how many hard drives were in use between those dates in question and what were the costs associated with forensic imaging of e-mails.

Judge orders White House to resolve e-mail backup 'ambiguity'

Great development IMO, the White House has been stalling for way too long on this stuff, I guess in hopes of putting it off long enough that they're out of office and the political scandal can be laid at the feet of someone else.

It really bugs me to see this secrecy time and time again.. there's no transparency whatsoever in this Administration, they consistently put their secrecy and desire to keep the public in the dark above their responsibility to be ethical in what they do.. and they've never really been held accountable except in the court of public opinion, which unfortunately came a bit too late to keep them from being re-elected.

Moving forward it seems like we need some ways to force transparency in future Administrations.. but I'm not sure how to accomplish that when the current one has expanded the definition of Presidential / Executive power so massively :sad2:

[WickedLou9]

WHat is stop stop them from simply ignoring the order? It's not like congress will impeach the president at this point. Bush could put babies on spikes on the whitehouse lawn and nothing would happen to him.

[A_C_E]

Originally Posted by WickedLou9

WHat is stop stop them from simply ignoring the order? It's not like congress will impeach the president at this point. Bush could put babies on spikes on the whitehouse lawn and nothing would happen to him.

Theoretically, since being in violation of a Court order puts you in contempt of Court--the Court could order the DOJ to forcibly execute the order and/or bring charges against White House staffers.

I mean, it's not going to happen. But violating a Court order is violating a Court order, and they could be placed in contempt if the DOJ is willing to execute the judicial order (also not going to happen, in which case we end up with a major, major Constitutional issue: breach of the separation of powers).

[kinggovernor]

Originally Posted by A_C_E

Theoretically, since being in violation of a Court order puts you in contempt of Court--the Court could order the DOJ to forcibly execute the order and/or bring charges against White House staffers.

I mean, it's not going to happen. But violating a Court order is violating a Court order, and they could be placed in contempt if the DOJ is willing to execute the judicial order (also not going to happen, in which case we end up with a major, major Constitutional issue: breach of the separation of powers).

"John Marshall has made his decision, now let him enforce it!"
-Andrew Jackson

I have always wanted to see how something like that would shake out

[WickedLou9]

Originally Posted by A_C_E

Theoretically, since being in violation of a Court order puts you in contempt of Court--the Court could order the DOJ to forcibly execute the order and/or bring charges against White House staffers.

I mean, it's not going to happen. But violating a Court order is violating a Court order, and they could be placed in contempt if the DOJ is willing to execute the judicial order (also not going to happen, in which case we end up with a major, major Constitutional issue: breach of the separation of powers).

Congress has issued subpoenas before for white house staffers and the Bush admin ordered the staffers to ignore the orders. nothing happened that I can recall.

[WickedLou9]

Originally Posted by kinggovernor

"John Marshall has made his decision, now let him enforce it!"
-Andrew Jackson

I have always wanted to see how something like that would shake out

Enforcement rests with the executive branch right? Really the only accountability for the president is impeachment. Short of that, the president can do whatever he wants untill congress removes him from Office.

[kinggovernor]

Originally Posted by WickedLou9

Enforcement rests with the executive branch right? Really the only accountability for the president is impeachment. Short of that, the president can do whatever he wants untill congress removes him from Office.

What exactly is "Judical Power" and how far out can they take it

[A_C_E]

Originally Posted by WickedLou9

Enforcement rests with the executive branch right? Really the only accountability for the president is impeachment. Short of that, the president can do whatever he wants untill congress removes him from Office.

Not exactly true. A Court order supersedes any level of discretion, as it is given the same degree of weight as a warrant. It is an order, under penalty of jail time, to comply with what the judge tells you to do, or you will be arrested.

Now, state courts can compel the police to execute an Court order over the objections of the District Attorney's office--that's just the way the system is set up. The comparative example would be the District Court judge compelling a federal police agency (probably the FBI) to forcibly execute the Court order over the Bush administration's/Attorney General's protests. Odds are, whoever executed the order would end up getting fired, since obviously the administration tells the DOJ leaders what to do.

It could get really, really hairy. If the President refuses to comply, then the judge could issue a bench warrant for his arrest, in which case ANY agency with police power could detain him. And you can bet someone outside the administrations direct control would.

This is all just conjecture, though. No renegade DOJ or HLS agent is going to risk his job to make the Court happy, and no judge would ever actually issue a bench warrant for the President's arrest. In reality, as Lou said, the only unbeatable check is an impeachment.

[A_C_E]

Originally Posted by kinggovernor

What exactly is "Judical Power" and how far out can they take it

At the Federal level, nothing.

The President can do whatever he wants if the Attorney General isn't willing to execute Court orders on the Executive Office. The Court could even then render the Attorney General's actions Unconstitutional, but so what? They can't forcibly remove him from power, and, conceivably, Congress couldn't either without impeaching the President for refusing to do his Constitutional duty.

This is why we should have an independent, elected Attorney General.

[kinggovernor]

Originally Posted by A_C_E

At the Federal level, nothing.

The President can do whatever he wants if the Attorney General isn't willing to execute Court orders on the Executive Office. The Court could even then render the Attorney General's actions Unconstitutional, but so what? They can't forcibly remove him from power, and, conceivably, Congress couldn't either without impeaching the President for refusing to do his Constitutional duty.

This is why we should have an independent, elected Attorney General.

that would politicize the Attorney General's office more than it already is. What we should have is a Constitution Amendment that clearly outlines what Judicial Power means.

[A_C_E]

Originally Posted by kinggovernor

that would politicize the Attorney General's office more than it already is. What we should have is a Constitution Amendment that clearly outlines what Judicial Power means.

I don't think that's true at all--Right now, the AG is a straight appointed position, and the AG is always going to be the President's buddy. Why not have a tough-on-crime elected AG, Eliot-Spitzer-pre-Client-Nine style? You'd probably get federal judges or former DOJ/HLS higher-ups running on certain anti-crime, anti-corruption platforms, and let the people decide?

I'm certainly not opposed to an amendment outlining judicial power, either.

[kinggovernor]

Originally Posted by A_C_E

I don't think that's true at all--Right now, the AG is a straight appointed position, and the AG is always going to be the President's buddy. Why not have a tough-on-crime elected AG, Eliot-Spitzer-pre-Client-Nine style? You'd probably get federal judges or former DOJ/HLS higher-ups running on certain anti-crime, anti-corruption platforms, and let the people decide?

I'm certainly not opposed to an amendment outlining judicial power, either.

Eliot Spitzer is a good example because he stayed out some of the political battles, including gay marriage. When he was State AG, the state law was that gay marriage was illegal and he defended the law in court. However, when he announced his candidacy for Governor he stated that he wanted to make it legal.

That is how it should work but it wouldn't work that way all time.