Harvard Law School Berkman Center for Internet & Society The Berkman Center for Internet & Society at Harvard Law School

You've Lost Mail: The White House Email Saga

Independent Counsel Robert Ray, the Justice Department and Congress are all investigating why the White House, after discovering a computer error in 1998 that stopped emails from being properly archived, neither retrieved the missing messages immediately nor turned over the emails required by subpoena. The Independent Counsel, Justice, and Congress are trying to determine if the missing emails were part of an effort to obstruct official investigations including Whitewater, impeachment, and political fund-raising. The White House denies any such unlawful activity.

In mid-February of this year, ex-chief of White House computer operations Sheryl Hall came forward with allegations that Clinton administration officials were involved in an email cover-up. Hall, who now works at the Treasury Department, alleged that email messages written between August 1996 and November 1998 were intentionally made unavailable to both the Justice Department and congressional investigators.

Hall charged that approximately 100,000 messages sent to or by some 500 top White House aides, initially misplaced mistakenly by a computer glitch, were inappropriately labeled classified and were not turned over to the Justice Department. (House Governmental Oversight Committee Chairman Rep. Dan Burton quotes the figure of un-archived emails at about 250,000. The exact number remains unknown.)

The story behind the cover-up, as told by Hall, touches on some of the most explosive issues connected to digital documents and their discovery. In May 1998, a contractor, Betty Lambuth, informed White House officials that a computer glitch prevented some 100,000 emails from being processed through the Automated Records Management System ("ARMS"). Ironically, this system's specific purpose was to enable the White House to store all email correspondence in one central place and, therefore, to facilitate the White House's ability to respond to document subpoenas; by storing all email centrally, comprehensive word searches could easily be done to identify all manner of communications relating to Monica Lewinsky, Filegate, campaign finance, &c. Instead of admitting the mistake and releasing the emails, the White House, according to Hall, labeled the messages classified and kept them from the Justice Department.

In early March 2000, shortly after Hall's allegations were made public, Lambuth - the contractor who first identified the computer glitch - claimed that when she discovered the glitch and told White House counsel, she was threatened with jail if she told anyone else about it. Her discovery, it will be recalled, came in May 1998 -- during the midst of the Lewinsky investigation. Lambuth and a few assistants who had a hand in discovering the glitch were allegedly told not to tell their private-sector boss and were left to discuss "Project X" in parks and Starbucks cafes.

Both Hall and Lambuth are represented by the conservative legal/ethical watch-dog group Judicial Watch, which has dozens of suits pending against various agencies of the federal government (including the "Filegate" litigation, Alexander et. al. v. FBI et al., and Civil Action No. 96-2123, of which this email case is a part). Though the "missing" emails allegedly contain references to a number of White House scandals, Judicial Watch has apparently used the Hall and Lambuth declarations to forestall the Independent Counsel from issuing a report on Filegate, in particular.

In a recent declaration, Hall alleged that the White House plans to destroy archival cartridge tapes and reformat the hard drives of departing White House staffers. On March 10, the U.S. District Judge in the above-captioned matter ordered the Justice Department attorney representing the White House to ensure that no hard drives were reformatted or cartridges destroyed.

The White House has called the glitch "unintentional" and blamed it on "human error," attributing the problem to a "disconnect" between technicians and lawyers who apparently did not realize that the computer mistake might have an effect on the pending subpoena requests.

In a letter sent last month to House Governmental Oversight Committee Chairman Rep. Dan Burton, White House counsel further explained that it might take upwards of $3 million and as long as two years to recover all the emails. (Counsel has since decided that recovering the emails will take only about 6 months.) The letter also explained that the initial programming glitch resulted from miscoding accounts "MAIL2" instead of "Mail2" and mistakenly dropping accounts for people whose last names begin with "D"-- which went unnoticed because "J" accounts were filed twice (which leaves one to wonder who the top aides with last names of "D" were/are).

In the latest development, on Tuesday May 2, 2000, the White House dropped a proposed executive privilege claim and turned over White House lawyers' handwritten notes to Congress. The notes could potentially have been covered by executive privilege, as they involved discussions about the missing email between the White House and computer experts.

The next layer to peel away, of course, would be to put all this in context. Some questions include the following:
(1) What does it mean that 500 top White House aides' files were miscoded? How many White House employees had email accounts at the time?
(2) Is the real issue here programming error or White House trickery?
(3) How can we come up with meaningful standards regarding the maintenance and preservation of electronic data? Is the White House plan to destroy ex-aides' hard drives necessary or indefensible?
(4) What kind of built-in oversight exists in record-keeping programs that could take these issues out of the realm of human choice and simply automate them?
(5) Are there any essential differences between the legal and ethical issues regarding discovery, document preservation, shredding, &c, in the largely pre-electronic and present ages?