A federal judge ordered the White House to preserve copies of all its e-mails, a move that Bush administration lawyers had argued strongly against.
U.S. District Judge Henry Kennedy on Monday directed the Executive Office of the President to safeguard the material in response to two lawsuits that seek to determine whether the White House has destroyed e-mails in violation of federal law.
In response, the White House said it has been taking steps to preserve copies of all e-mails and will continue to do so. The administration is seeking dismissal of the lawsuits brought by two private groups, Citizens for Responsibility and Ethics in Washington and the National Security Archive.
The organizations allege the disappearance of 5 million White House e-mails. The court order issued by Kennedy, an appointee of President Clinton, is directed at maintaining backup tapes which contain copies of White House e-mails.
The Federal Records Act details strict standards prohibiting the destruction of government documents including electronic messages, unless first approved by the archivist of the United States.
Justice Department lawyers had urged the courts to accept a proposed White House declaration promising to preserve all backup tapes.
“The judge decided that wasn’t enough,” said Anne Weismann, an attorney for CREW, which has gone to court over secrecy issues involving the Bush administration and has pursued ethical issues involving Republicans on Capitol Hill.
The judge’s order “should stop any future destruction of e-mails, but the White House stopped archiving its e-mail in 2003 and we don’t know if some backup tapes for those e-mails were already taped over before we went to court. It’s a mystery,” said Meredith Fuchs, a lawyer for the National Security Archive.
CREW and the National Security Archive are seeking to force the White House to immediately explain in court what happened to its e-mail, an issue that first surfaced nearly two years ago in the leak probe of administration officials who disclosed Valerie Plame’s CIA identity to reporters.
Special counsel Patrick Fitzgerald revealed early in 2006 that relevant e-mails could be missing because of an archiving problem at the White House.
The White House has provided little public information about the matter, saying that some e-mails may not have been automatically archived on a computer server for the Executive Office of the President and that the e-mails may have been preserved on backup tapes.
The White House has said that its Office of Administration is looking into whether there are e-mails that were not automatically archived and that if there is a problem, the necessary steps will be taken to address it.
Kennedy issued the order following recommendations to do so by a federal magistrate who held a hearing on the matter.
“We will study the court’s order and the magistrate’s recommendations,” said White House spokesman Scott Stanzel. “However, the Office of Administration has been taking steps to maintain and preserve backup tapes for the official e-mail system. We have provided assurances to the plaintiffs and to the court that these steps were being taken. We will continue preserving the tapes in compliance with the court’s order.”