Gonzales received formal notification that evening that the DOJ had launched a criminal investigation into the leak of covert CIA operative Valerie Plame Wilson.
Gonzales asked the DOJ if he could wait until morning before notifying White House staffers about the probe, thereby delaying the issuance of a directive to preserve emails and other documents related to the leak of Wilson's undercover status federal investigators would need as part of their investigation.
The DOJ agreed.
But after Gonzales hung up the telephone, he immediately contacted Andrew Card, who was White House chief of staff at the time, and told him about the investigation.
Twelve hours later, Gonzales sent out an email to more than 1,000 White House staffers stating, "you must preserve all materials that might in any way be related to the [Justice] department's investigation" of Wilson as well as any emails or documents that mentioned her husband, former Ambassador Joseph Wilson, whose criticism of the administration's prewar Iraq intelligence led White House officials to leak his wife's identity to the media.
What happened during those 12 hours is anyone's guess. Did Andrew Card provide top White House officials such as Karl Rove and Vice President Dick Cheney's former Chief of Staff I. Lewis "Scooter" Libby - the two top Bush administration officials who were responsible for unmasking Mrs. Wilson's covert status - advance notice of the investigation in an attempt to get them to destroy smoking-gun evidence linking them to the leak?
Given this administration's penchant for secrecy and its track record for being less than truthful with the public and Congress about what administration officials knew and when they knew, it's certainly possible.
The 12-hour gap and the four days it took the Justice Department to notify Gonzales about the probe was seen as a departure from standard procedure, according to a letter sent to President Bush by Sens. Tom Daschle, Chuck Schumer, Carl Levin and Joseph Biden in October 2003.
"Every former prosecutor with whom we have spoken has said that the first step in such an investigation would be to ensure all potentially relevant evidence is preserved, yet the Justice Department waited four days before making a formal request for documents," the letter says. "When the Justice Department finally asked the White House to order employees to preserve documents, White House counsel Alberto Gonzales asked for permission to delay transmitting the order to preserve evidence until morning. The request for a delay was granted. Again, every former prosecutor with whom we have spoken has said that such a delay is a significant departure from standard practice." The implication was the White House might have destroyed evidence before receiving official notification to turn over documents.
This story has been told numerous times over the past four-and-a-half years. Yet, each time the narrative is repeated, it takes on new meaning as a result of additional information and/or evidence that has surfaced to suggest some sort of malfeasance on the part of White House officials who played a role in the Wilson leak.
Last week, the White House filled in some of the gaps to the official story related to this high-profile scandal. In a federal court filing, the White House said it routinely "recycled" backup tapes that housed administration emails between 2001 and October 2003, meaning it does not have a record of emails that may have been sent and received by some administration officials pertaining to the Wilson leak, the occupation of Iraq, and other historic events for a period of two years. The revelation came minutes before midnight on January 15, in response to a lawsuit filed by the government watchdog group Citizens for Responsibility and Ethics in Washington (CREW).
CREW, which is also representing the Wilson's in a civil suit against several White House officials, including Rove and Cheney, sued the White House last year over what the watchdog group's sources say are the loss of as many as 10 million emails, which in and of itself is a violation of the Presidential Records Act. CREW has been seeking information from the White House about its email preservation policies and the extent of what has been lost.
The dispute over the missing emails may very well have been relegated to the apparent violation of the Presidential Records Act, if not for the fact the time frame in question coincided with the federal criminal investigation into the leak of Wilson's CIA status, and the fact there was clear-cut documentary evidence that would later be discovered tying Rove and Libby to the leak. Moreover, at the time Gonzales enjoined White House staffers to turn over evidence in their files about the Wilsons, the White House had publicly exonerated Rove and Libby for playing a role in the leak.
The details the White House provided in last week's federal court filing about its email retention policy and the recycling of backup tape calls into question the integrity of the leak investigation conducted by special counsel Patrick Fitzgerald, particularly as it relates to Karl Rove, in that it appears Fitzgerald may not have obtained all of the evidence in the case because the "recycled" backup email tapes may have contained further documents implicating other officials in the leak or, at the very least, discussed the matter.
Anne Weismann, chief counsel for CREW, said her group's sources have told her Fitzgerald has not been told the full story about the extent to which evidence pertaining to the leak case had not been turned over. She did not elaborate.
She agreed the integrity of the special prosecutor's probe should be called into question based on the emails issues revealed in response to her organization's lawsuit against the White House.
"I was told he [Fitzgerald] was never given the whole story," Weismann said in an interview with Truthout last week. "We wrote [Fitzgerald] a letter last April. We have not heard back from him. I have no indication that [Fitzgerald's] doing anything. But it would be legitimate to conduct a further inquiry."
One of the murky, unanswered questions in the leak case that has lingered for some time is the story behind Rove's discovery of a July 2003 email he sent to then Deputy National Security Adviser Stephen Hadley that proved Rove had, at the very least, engaged in a discussion with former Time magazine reporter Matthew Cooper about Joseph Wilson.
The email Rove sent to Hadley never turned up during an exhaustive document search ordered a year earlier, in September 2003, by Gonzales.
The order Gonzales sent to Rove and other administration officials, 12 hours after Gonzales received notification about the probe from the DOJ, 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," Rove's attorney Robert 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 Congress, is what Rove uses to conduct 90 percent of his White House business, in what would also appear to be a violation of the Presidential Records Act.
The story behind the single email that tied Rove to the Plame-Wilson leak is a complex one. It was Luskin who apparently discovered the email Rove sent to Hadley. Yet, it took more than a year before the high-powered Washington, DC, attorney disclosed this crucial fact to Fitzgerald. And it was disclosed to the special prosecutor only when it became clear Cooper would lose his legal battle and would be compelled to respond to a subpoena demanding he reveal the identity of his source who told him Wilson worked for the CIA. Cooper testified his source was Karl Rove.
After Luskin revealed he had told Fitzgerald his client had in fact discussed Wilson and her husband with Cooper, suspicions about the timing of the discovery of the email Rove had sent to Hadley surfaced because Rove had maintained in sworn testimony before a grand jury and in interviews with the FBI in October 2003 - a mere three months after he spoke to Cooper - that he never identified Wilson or her affiliation with the CIA to reporters. Rove had also been the source that told syndicated columnist Robert Novak that Wilson worked for the CIA.
Luskin said Rove recalled his conversation with Cooper thanks to a chance meeting Luskin had with Cooper's Time magazine colleague, Viveca Novak, sometime in 2004. She told Luskin it was well known within Time magazine Rove had been a source for Cooper.
That tidbit of information supplied by Novak led Luskin and Rove to search Rove's files, Luskin claimed. 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 grand jury testimony, which coincided with a judge's order compelling Cooper to reveal his source.
But around the time Luskin said he located the email Rove had sent to Hadley, Fitzgerald had already become suspicious 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 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 Fitzgerald did indeed have the authority to prosecute additional crimes, including "perjury, obstruction of justice, destruction of evidence and intimidation of witnesses."
In October 2005, 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, which alleges as many as 10 million emails are unaccounted for, Fitzgerald's staff was briefed before a complete audit of the email records could be taken.
Three months later, in a story first reported by Truthout, Fitzgerald had filed a court document in January 2006 in US District Court in Washington, DC, stating 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.
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, 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 the emails had not been automatically archived. At the time, a White House spokeswoman would only say staffers had "discovered" the batch of documents during a search.
Last week, Congressman Henry Waxman, the Democratic chairman of the House Oversight and Government Reform Committee, released a letter that says the White House's Office of Administration conducted a study last year and determined 473 days of emails between 2003 and 2005 are missing from more than a half-dozen White House agencies. In some instances, the White House has only found a record of five emails on some days where there should have been at least 60,000 email communications that have been swapped between staffers, Weismann said.
To be sure, an aide in Waxman's office said "in its 2005 study, the Office of Administration did not find any emails for that component on that day in the server where emails are archived."
The dates where emails are missing for entire days in 2003 coincide with the former White House Press Secretary's public exoneration of Rove and Libby for their alleged roles in leaking Plame's identity, an interview Cheney gave to Tim Russert, host of "Meet the Press," where Cheney vehemently denied knowing Joe Wilson or any aspect of the leak of his wife's CIA status, despite the fact court filings show Cheney discussed the Wilsons with his staff numerous times in the preceding months. Moreover, the emails went missing a week or so before the FBI first questioned Rove, Libby and other White House officials about the leak.
Waxman, who has been seeking additional documents and interview transcripts related to the federal investigation of the CIA leak case, has called a Congressional hearing for February 15 to hear testimony about the missing emails and the position maintained by the White House that there is "absolutely no reason to believe that any e-mails are missing," despite evidence to the contrary. One document Waxman has been actively trying to obtain, without success, is a letter Fitzgerald sent to Luskin in June 2006 apparently clearing Rove of criminal exposure for his role in the leak.
In an interview with Truthout last year, Melanie Sloan, the CREW director, said her organization had no direct evidence proving Rove had intentionally withheld emails from Fitzgerald's probe. But the CREW attorneys doubted Rove and the White House had been forthcoming about Rove's involvement in the leak of Wilson's covert identity in light of the fact 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 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. But "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."
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This story was published on January 24, 2008.