U.S. SENATOR PATRICK LEAHY
http://leahy.senate.gov/press/200705/050207.htmlChairman Leahy Issues Subpoena For ‘Lost’ Karl Rove E-Mails
…Compels Attorney General To Provide E-Mails To Judiciary Committee
In Connection With Panel’s Probe Of U.S. Attorney Firings And Politicization Within Dept. Of Justice
WASHINGTON (Wednesday, May 2) – Senator Patrick Leahy (D-Vt.), chairman of the Judiciary Committee, Wednesday issued a subpoena to Attorney General Alberto Gonzales compelling the Department of Justice to provide all Karl Rove e-mails in its possession related to the panel’s ongoing investigation into the mass firings of federal prosecutors.
Rove, a senior political advisor to President Bush, and the White House political operation -- which Rove heads – have been linked to the project that resulted in the unprecedented firings of several well-performing federal prosecutors, according to information gathered by the Committee through documents, interviews and testimony. Several of the dismissed prosecutors have testified under oath and said in public that they were unaware of performance problems and believe political influence was a factor in their firings.
Leahy requested the e-mails first at the Committee’s oversight hearing with the Attorney General on April 19, 2007, and then again in a letter to the Attorney General on April 25, 2007. The Attorney General has failed to respond to those earlier requests.
Included below and as a PDF document:
* Text of the letter sent to Attorney General Gonzales;
* Text of the subpoena issued as well as relevant attachment;
* Text of 4/25/07 letter from Leahy seeking the Rove e-mails;
* Excerpt from 4/19/07 SJC Oversight Hearing w. Attorney General Gonzales;
* Press report containing Rove’s attorney’s comments suggesting Dept. Of Justice has relevant e-mails in its possession.
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May 2, 2007
The Honorable Alberto Gonzales
Attorney General
United States Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
Dear Attorney General Gonzales:
At the hearing last Thursday and again in a letter dated April 25, 2007, I asked you whether you would provide Karl Rove’s e-mails in the possession of the Justice Department to the Committee without a subpoena. His lawyer stated publicly that these emails, many of which have been reported “lost”, were turned over to U.S. Attorney Patrick Fitzgerald as part of the investigation into the leak of the identity of a covert CIA officer by officials in the Administration that led to the conviction of I. Lewis “Scooter” Libby. You responded at the hearing that you did not know but would check and get back to me. I have not heard back from you since in response to my question or the letter.
Attached please find a subpoena compelling the Department by May 15 to produce any and all emails and attachments to emails to, from, or copied to Karl Rove related to the Committee’s investigation into the preservation of prosecutorial independence and the Department of Justice’s politicization of the hiring and firing and decision-making of United States Attorneys, from any (1) White House account, (2) Republican National Committee account, or (3) other account, in the possession, custody or control of the Department of Justice. This subpoena includes any such emails that were obtained by Mr. Fitzgerald as part of the Plame investigation.
I continue to hope that the Department will cooperate with the Committee’s investigation, but it is troubling that significant documents highly relevant to the Committee’s inquiry have not been produced, such as a confidential order revealed yesterday by the press that you issued in March 2006 delegating to two of your aides, former Chief of Staff D. Kyle Sampson and former White House Liaison Monica Goodling, authority over the hiring and firing of most political employees of the Justice Department.
Indeed, despite multiple requests for the Department to produce documents voluntarily related to the Committee’s investigation into the mass firings of U.S. Attorneys and politicization at the Department, the Department’s production of documents has been selective and incomplete. Many documents have been withheld or redacted without any legal basis being set forth. In addition, to date, the Department has yet to provide the Committee with the precise scope of the production, any assurance that a preservation order was issued to prevent the loss or destruction of documents, and a complete privilege log that provides the basis for withholdings and redactions. In document productions and interviews with Department employees, the Department continues to insist on providing information within only a highly limited scope inconsistent with the Committee’s inquiry and over the Committee’s objection.
I look forward to your compliance with the Judiciary Committee’s subpoena by the May 15 return date. I also ask for an immediate response to and full compliance with the outstanding requests for information by the Committee and its members to avoid further subpoenas.
Sincerely,
PATRICK LEAHY
Chairman
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Text of Subpoena
UNITED STATES OF AMERICA
Congress of the United States
To Alberto Gonzales, Attorney General of the United States, Greeting:
Pursuant to lawful authority, YOU ARE HEREBY COMMANDED to appear before the Committee on the Judiciary of the Senate of the United States, on May 15, 2007, at 2:00 o’clock p.m., at their committee room 226 Dirksen Senate Office Building, then and there to testify what you know relative to the Committee’s inquiry into the preservation of prosecutorial independence and the Department of Justice’s politicization of the hiring and firing of United States Attorneys and to bring with you the documents described in Attachment A under the terms and conditions stated therein. A personal appearance at the above-referenced date and time will not be necessary if the documents described in Attachment A are delivered to the Committee’s offices prior to the scheduled return.
Hereof fail not, as you will answer your default under the pains and penalties in such cases made and provided.
To any Committee staff member or U.S. Marshal to serve and return.
Given under my hand, by authority vested
in me by the Committee, on this 2nd day
of May , 2007__.
Senator Patrick Leahy /s/
Chairman, Committee on the Judiciary
United States Senate
Attachment A
Documents Subpoenaed
1. Complete and unredacted versions of any and all emails and attachments to emails to, from, or copied to Karl Rove related to the Committee’s investigation into the preservation of prosecutorial independence and the Department of Justice’s politicization of the hiring and firing and decision-making of United States Attorneys, from any (1) White House account, (2) Republican National Committee Account, or (3) other account, in the possession, custody or control of the Department of Justice, including any such emails that were obtained by U.S. Attorney Patrick Fitzgerald as part of the investigation into the leak of the identity of a covert CIA officer by officials in the Administration that led to the conviction of I. Lewis “Scooter” Libby. The documents produced shall include, but not be limited to:
A. Documents related to the Administration’s evaluation of, and decisions to remove and/or replace, U.S. Attorneys since President Bush’s re-election.
B. Documents related to the selection, discussion and evaluation of possible replacements for any U.S. Attorney, including interim or acting appointments.
C. Documents related to the performance and decision-making of U.S. Attorneys, including in cases involving public corruption specifically or broadly, voter fraud, vote suppression, and enforcement or non-enforcement of civil rights laws protecting voting rights.
D. Documents related to the hiring, firing, appointment, removal, or resignation of career and political personnel at the Department of Justice, including documents related to the policies for and White House or Department officials involved in the hiring, firing, appointment, removal, or resignation of career and political personnel.
Instructions
1. In complying with this subpoena, you are required to produce all responsive documents that are in your possession, custody, or control, whether held by you or your past or present agent, employee, or representative acting on your behalf. You are also required to produce documents that you have a legal right to obtain, that you have a right to copy, or to which you have access, as well as documents that you have placed in the temporary possession, custody, or control or any third party.
2. No documents as defined herein called for by this request shall be destroyed, modified, removed, transferred, or otherwise made inaccessible to the Committee. If you have knowledge that any subpoenaed document as defined herein has been destroyed, discarded, or lost, identify the subpoenaed document and provide an explanation of the destruction, discarding, loss or disposal and the date at which then document was destroyed, discarded or lost.
3. This subpoena is continuing in nature. Any document not produced because it has not been located or discovered by the return date shall be provided immediately upon location or discovery subsequent thereto with an explanation of why it was not located or discovered by the return date.
4. If you believe any responsive documents are protected by a privilege, please provide a privilege log which (1) identifies any and all responsive documents to which the privilege is asserted, (2) sets forth the date, type, addressee(s), author(s) (and, if different, the preparer and signatory), general subject matter, and indicated or known circulation of the document, and (3) states the privilege asserted in sufficient detail to ascertain the validity of the claim of privilege.
5. Production with respect to each document shall include all electronic versions and data files from email applications as well as from word processing, spreadsheet, or other electronic data repositories applicable to any attachments, and shall be provided to the Committee where possible in its native file format and shall include all original metadata for each electronic documents or data file.
Definitions
1. The term “document” as used in this subpoena includes all emails, memoranda, reports, agreements, notes, correspondence, files, records, and other documents, data or information in any form, whether physical or electronic, maintained on any digital repository or electronic media, and should be construed as it is used in the Federal Rules of Civil Procedure.
2. The terms “related” and “relating” with respect to any given subject, shall be construed broadly to mean anything that constitutes, contains, embodies, reflects, identifies, concerns, states, refers to, deals with or is in any manner whatsoever pertinent to the subject.
3. The terms “including” and “includes,” with respect to any given subject, shall be construed broadly so that specification of any particular matter shall not be construed to exclude any documents that you have reason to believe the Committee might regard as responsive.
4. The terms “Department of Justice” and “Department” includes without limitation, anyone presently or formerly employed there, suspended from employment there, or on administrative leave from employment there.
5. The terms “you” and “your” include you individually, in your capacity as Attorney General, as well as the Department of Justice, and, without limitation, anyone presently or formerly employed there, suspended from employment there, or on administrative leave from employment there.
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(4/25/07Letter From Chairman Leahy To Dept. of Justice Seeking Rove E-Mails)
April 25, 2007
The Honorable Alberto Gonzales
Attorney General
United States Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
Dear Attorney General Gonzales:
At the hearing last Thursday, I asked you to provide Karl Rove's e-mails in the possession of the Justice Department. You responded that you did not know but would check and get back to me. I have not heard back from you since.
Please respond to my questions about Mr. Rove's e-mails, whether they are in the custody of the Department of Justice, and whether they will be provided without a subpoena.
Sincerely,
PATRICK LEAHY
Chairman
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Excerpt of CQ Transcript of Chairman Leahy questioning during 4/19/07 SJC Oversight Hearing w/ Attorney General Gonzales --
LEAHY: Mr. Attorney General, late last week, the White House spokesperson claimed an unknown number of e-mails, including those of Karl Rove, from both White House accounts and apparently those sent or received using political Republican National Committee accounts, were lost.
And Mr. Rove's attorney, in the investigation that led to Scooter Libby's conviction for lying suggested that U.S. Attorney Patrick Fitzgerald, a part of the Department of Justice, obtained all of Mr. Rove's e-mails as part of the investigation into the leak of the identity of a covert CIA operative.
If that is the case, those e-mails would be in your possession or in the possession of the Department of Justice.
What do we have to do to obtain Mr. Rove's e-mails relevant to the development and implementation of the plan to replace U.S. attorneys and the committee's investigation into that matter?
GONZALES: Senator, I was not aware that -- I didn't see that article. I wasn't aware that Mr. Fitzgerald had that information or if, in fact, the department still has that information.
So I'd have to go back and look to see what, in fact, the facts are.
LEAHY: If he does have the information, and it involves e-mails relevant to the development and implementation of the U.S. attorneys plan...
GONZALES: Senator, I believe that those -- well, I don't have the answer to that, Senator. I know that they're of interest to the committee, and obviously the department wants to be cooperative with the committee.
There may be White House equities here that need to be considered, and so...
LEAHY: We're not talking about e-mails from the president. In fact, the president doesn't use e-mail, as I understand.
Am I right?
GONZALES: As far as I know that's correct, sir. But the fact that they may have been communications over an RNC account doesn't mean that they're not presidential records. If in fact relates to government business, and they're transmitted over an RNC account, they could nonetheless be presidential records. And so there would be a governmental interest -- a White House interest in those records.
LEAHY: These are records supposedly that were lost, though.
GONZALES: Senator, I don't know...
LEAHY: Are they there or aren't they there?
GONZALES: What I'm saying is, is if in fact they exist...
LEAHY: Well, what was -- let me ask you this. The White House Counsel's office is responsible for the establishment and oversight of these kind of internal rules, conduct.
When you served as the White House counsel, you were there four years. What was the policy and practice with regard to Karl Rove and other political operatives at the White House using Republican National Committee e-mail accounts to conduct official government business?
GONZALES: Well, of course, Senator...
LEAHY: That'd be a policy set by your office.
What was the policy?
GONZALES: Senator, there were a few people in the White House, as I recall, who had -- who use non-governmental communications equipment. That was done actually, quite frankly, for legitimate reasons in terms of not wanting to violate the Hatch Act and using government facilities for political activity that is permitted under the Hatch Act for certain individuals in the White House.
LEAHY: But how many -- but what was the policy?
Could they conduct official business on those...
GONZALES: I think the intent of the policy as I recall, Senator, is that those e-mails were to be used primarily for non-governmental purposes, but in fact -- but if there was governmental communications communicated over these non-governmental communications equipment, that there ought to be some kind of effort to preserve that communication if in fact it was a presidential record.
LEAHY: There ought to be, or was your policy that there had to be?
GONZALES: I think the policy -- I have to go back and look at -- the policy was that it should be preserved. Printed out, or somehow forwarded to a government computer.
LEAHY: Are we talking about two or three computers, or a number of computers?
GONZALES: Senator, I don't recall the number.
LEAHY: If the White House spokesperson said as many as 50 past, current White House officials had these separate RNC or other outside e-mail accounts to conduct official business, would that sound accurate?
GONZALES: Sir, I'd have no way of knowing.
LEAHY: Well, as White House counsel, did you conduct any audit or oversight of the use of non-governmental e-mails by White House personnel?
GONZALES: Senator, I don't recall there being an audit. We provided guidance, but I don't recall such an audit.
LEAHY: Is anyone investigating this issue now?
GONZALES: At the Department of Justice or at the White House?
LEAHY: Are you aware of anyone investigating this issue now?
GONZALES: Senator, from what I understand in the papers, is that I think the Counsel's Office is looking to see what happened here. I don't know if that's what you mean by an investigation.
I think there is an effort, but I haven't spoken to the Counsel's Office about this issue as to whether or not they're doing an investigation to see what happened.
LEAHY: And you're not doing any investigation from the Department of Justice?
GONZALES: Senator, I'm not aware that there is an investigation that's ongoing with respect to this issue.
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Associated Press clip of Rove’s Attorney (emphasis added) -
April 13, 2007 Friday 8:42 PM GMT
Lawyer for top White House official says Rove did not delete e-mails sought in prosecutors firing probe
By LAURIE KELLMAN, Associated Press Writer
The lawyer for Karl Rove, chief political adviser to President George W. Bush, dismissed the notion Friday that Rove intentionally deleted his e-mails from a Republican-sponsored server.
Rove mistakenly believed that the communications were being preserved in accordance with the law, attorney Robert Luskin said.
The issue arose because the White House and Republican National Committee have said they may have lost e-mails from Rove and other administration officials. Democratically chaired congressional committees want those e-mails for their investigations into the firings of eight federal prosecutors.
The mystery of the missing e-mails is just one part of a furor over the firings of eight U.S. prosecutors that has threatened Attorney General Alberto Gonzales' job and thrown his Justice Department into turmoil.
For now, Bush is standing by his longtime friend from Texas, who has spent weeks huddled in his fifth-floor conference room at the Justice Department preparing to tell his story to the Senate Judiciary Committee on Tuesday.
Rove's "understanding starting very, very early in the administration was that those e-mails were being archived," said Rove attorney Luskin.
The prosecutor probing the Valerie Plame spy case saw and copied all of Rove's e-mails from his various accounts after searching Rove's laptop, his home computer, and the handheld computer devices he used for both the White House and Republican National Committee, Luskin said.
The prosecutor, Patrick Fitzgerald, subpoenaed the e-mails from the White House, the committee and Bush's re-election campaign, he added.
"There's never been any suggestion that Fitzgerald had anything less than a complete record," Luskin said.
Any e-mails Rove deleted were the type of routine deletions people make to keep their inboxes orderly, Luskin said. He said Rove had no idea the e-mails were being deleted from the server, a central computer that managed the e-mail.
On Thursday, one Democratic committee chairman said his understanding was that the committee believed Rove might have been deleting his e-mails and in 2005 took action to preserve them in accordance with the law and pending legal action.
New documents released Friday by the Justice Department may shed additional light, but their release prompted Gonzales' one-time chief of staff, Kyle Sampson, to postpone a closed-door interview with congressional investigators.
The missing e-mails posed some of the weightiest questions of a sprawling political and legal conflict between the Bush administration and Democrats in Congress.
Democrats are questioning whether any White House officials purposely sent e-mails about official business on the RNC server then deleted them, in violation of the law to avoid scrutiny.
White House officials say they can't rule that out, but that the administration is making an honest and aggressive effort to recover anything that was lost. "We have no indications that there was improper intent when using these RNC e-mails," spokeswoman Dana Perino said Friday.
Luskin said Rove didn't know that deleting e-mails from his RNC inbox also deleted them from the RNC's server. That system was changed in 2005.
Rove voluntarily allowed investigators in the Plame case to review his laptop and copy the entire hard drive, from which investigators could have recovered even deleted e-mails, Luskin said.
As the investigation was winding down, Luskin said, prosecutors came to his office and reviewed all the documents including e-mails he had collected to be sure both sides a complete set.
Luskin said he has not heard from Fitzgerald's office and said that, if Fitzgerald believed any e-mails were destroyed, he would have called. Fitzgerald's office declined comment.
The White House did not immediately respond to Luskin's comments.
Separately, the White House was confronted with unrelated questions about the possible loss of e-mails from aides' government accounts.
Perino said she could not rule out that millions of White House e-mails could have been lost when staffers' accounts were converted to Microsoft Outlook from Lotus Notes. It was a rolling process, she said, which occurred in the first couple of years of the administration, which took office in January 2001.
"I wouldn't rule out that there were a potential 5 million e-mails lost," she said. "There was no intent to have lost them."
Associated Press writers Matt Apuzzo and Pete Yost contributed to this report.
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