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NBC News
updated 2/2/2006 9:05:16 PM ET 2006-02-03T02:05:16

A letter from special prosecutor Patrick Fitzgerald to the I. Lewis “Scooter” Libby defense team reveals that some White House e-mails from 2003 weren't archived as they should have been.

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The year 2003 is significant in the CIA leak investigation. It's the year that CIA operative Valerie Plame's name was allegedly leaked to reporters to discredit her husband, former Ambassador Joseph Wilson, for his failure to buttress administration claims of yellowcake uranium found in Niger, uranium the administration said was earmarked for Iraqi weapons of mass destruction, based on forged documents obtained by the Bush White House.

Administration officials went so far as to include a 16-word reference to the purported uranium purchase in Bush’s 2003 State of the Union speech. But shortly before the March 2003 invasion of Iraq, the documents on uranium in Niger were found to be fakes, a revelation that undercut some of the administration rationale for going to war.

Fitzgerald's letter was responding to a request from Libby's lawyers for additional documents, e-mails and other correspondence the Libby team says is essential to mount a defense. Lawyers for Libby this week accused prosecutors of withholding evidence the defense team has sought.

Libby, formerly chief of staff for Vice President Cheney, was indicted Oct. 28 on charges of obstruction of justice, making false statements and lying about how and when he learned and later revealed to reporters then-classified information about Plame’s employment by the Central Intelligence Agency.

The letter in Exhibit B
Buried in the Tuesday filing at District Court — “Exhibit B” in a motions request by Libby's defense team — is a Jan. 23 letter sent to Libby by Fitzgerald.

The last paragraph of the letter says, “We are aware of no evidence pertinent to the charges against defendant Libby which has been destroyed.” But it goes on to say, “We advise you that we have learned that not all e-mail of the Office of Vice President and the Executive Office of the President for certain time periods in 2003 was preserved through the normal archiving process on the White House computer system.”

The disclosure may or may not be relevant to answering key questions in the CIA leak case — namely who leaked Plame’s name and whether the investigation involves senior White House adviser Karl Rove.

Fitzgerald has focused on why Rove did not reveal his July 11, 2003, conversation with Time magazine reporter Matt Cooper when Rove was first interviewed by the FBI and during his first grand jury appearance.

Rove later corrected the record after his attorney, Robert Luskin, discovered a July 11 e-mail Rove sent alerting then-deputy national security adviser Stephen Hadley that Rove had spoken with Cooper.

‘Didn't take the bait’
According to Newsweek, Rove wrote Hadley in the e-mail that Cooper pushed him on whether President Bush was being hurt by the Niger controversy. “I didn't take the bait,” Rove wrote, adding that he told Cooper not to get “far out in front on this.”

After reviewing the e-mail, Rove returned to the grand jury and reported the Cooper conversation.

Why didn't the Rove e-mail surface earlier? It’s not clear. But Luskin tells NBC News that “any suggestion that what Fitzgerald is identifying has any relation to the Hadley e-mail is speculation.”

According to those familiar with the case, Fitzgerald has told Luskin that he does not believe there was “bad faith” involved in the belated discovery of the Rove-Hadley e-mail.

Potential for glitches
One lawyer familiar with executive branch searches says there can be frequent technical glitches involved in uncovering documents and e-mails.

Fitzgerald's letter is in “Exhibit C” of the Libby filing.

Lea Anne McBride, a Cheney spokeswoman, said the White House is fully cooperating. She referred calls to Fitzgerald's office. Fitzgerald's spokesman declined comment.

The preservation of White House internal communications has been an issue of legal contention since at least the 1980s, with the Reagan White House.

More recently, in 2000, the Clinton White House became embroiled in debate over a failure to preserve some of its e-mails. District Judge Royce Lamberth was furious when the Clinton administration finally conceded that e-mails being sought by a grand jury and Congress went missing.

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