For years Citizens for Responsibility and Ethics in Washington and the National Security Archive have been waging a legal battle to secure the recovery, proper storage and archiving of several million White House emails from March, 2003 to October, 2005. The missing emails became public knowledge after Special Counsel Patrick Fitzgerald notified Scooter Libby's defense attorneys of this gap in White House records. Thursday's ruling by Magistrate Judge John Facciola stated that the White House is ignoring the court's instructions to search a full range of locations for all electronic messages that may be missing.
The opinion is the third time in two days that a federal court has ruled against the White House in this matter.
On Wednesday, U.S. District Judge Henry Kennedy directed the White House to search computers and storage media for e-mails created between March 2003 and October 2005. That afternoon, Facciola admonished the White House for not previously conducting a search of individual workstations that the magistrate had recommended last April.
The Bush White House has represented to the court that no records created in an office covered by the Presidential Records Act are transmitted to offices covered by the Federal Records Act. But there is no factual record on which to base that conclusion, said Facciola.
The Executive Office of the President, the magistrate said, is limiting its search to offices subject to the requirements of the Federal Records Act, while sidestepping offices subject to the preservation requirements of the Presidential Records Act.
There is a profound societal interest as well as a legal obligation to preserve all records and "the importance of preserving the e-mails cannot be exaggerated," Facciola wrote.
He ordered the EOP to conduct a search of all offices regardless of which law covers a White House office.