One of the things that I think the Bush White House used to try to defend their actions was to say “Well, we came in and we found all these additional e-mails.” But if they existed on backup tapes—and they aren’t all on backup tapes—well, they’re not accessible. They’re not part of the archive.
Through the limited restoration project that was done [by the Obama White House], we discovered that there most definitely were e-mails on backup tapes that were not part of the archive. Those are now part of the archive of e-mail records for the Bush White House.
Isn’t the National Archives required to present as full a record as they can? Is there any possibility that more e-mails could come to light once they’re in the Bush library?
We have a hole, and everybody knows we have a hole: there definitely are more e-mails on those backup tapes, and I would have hoped that NARA would view this as a sufficient priority that they’d push on their own. But so far they haven’t.
It’s a question of money. Our hope would be that we could convince Congress or someone to appropriate money for this. That’s why we wanted to make sure the Archives kept the backup tapes. And it’s still a hope, but the story doesn’t attract the same attention that it did. Everyone has moved on.
The fact of the matter is that if the Bush administration had done a full restoration from the backup tapes at the outset it would have ended up costing them less. And that was the recommendation that the Office of Administration had made. And it never happened.
The White House knew they had a big problem on their hands in 2005. How did you find out about it?
We found out about it because we had someone, essentially a whistleblower, come and tell us. It seemed sort of incredible: that the White House had discovered that many millions of e-mails were missing?
Then we had another source come to us and say the same thing. And at that point, it seemed reliable enough to put it out there. I will admit I had some trepidation. I was waiting for the White House to say this is totally wrong. And they didn’t!
When our first report went public, they admitted it. They might have quibbled with the numbers, and they certainly tried to make CREW and our motives an issue—as opposed to their own conduct—but there was no flat out denial. Then Waxman’s committee got involved and they got access to the actual documentation.
How else did information come out?
When the Obama administration came in, there was an interest in settling the lawsuit. We said any settlement had to have three key components: there has to be some restoration of missing e-mail, we have to have assurances that the White House is now using an appropriate system, and we need documentation because we think the public needs to know the story. So we got tens of thousands of documents from the White House as part of our settlement.
What were the grounds for your lawsuit?
We were arguing that the failure of the White House to preserve and restore the missing e-mails was a violation of the Federal Records Act.
There are components of the White House that produce federal records—like the Council on Environmental Quality, for example. And there are components that create presidential records. The courts have said that private groups cannot sue for the same problems with presidential records. And normally that would have precluded this lawsuit.
A bunch of different administrations have been sued over this issue. The Clinton administration was sued, and they set up a system that maintained federal and presidential records separately. When Bush got in and scrapped that system, they didn’t maintain them separately. They just dumped them all together.
It was a problem legally for them, but it helped us. That gave us a basis to go in and say, “Well, we’re suing over the federal records.” Since they couldn’t differentiate between them, when they did restoration they had to restore both. I think it’s the greatest irony.
Huh. If they had gone ahead and fixed the system for the federal records, would there be anything that anyone could do about them not having an adequate system for presidential records?
No. The bottom line is that if the Bush White House had chosen to say, “We don’t want to put in a good system for presidential records,” I’m not sure there was anything we could have done.