How did White House e-mails go missing? A federal appeals court is cool to the idea of forcing the Bush administration to reveal records that might explain what happened.
During a half-hour-long argument Friday, the three-judge panel suggested that the Freedom of Information Act does not apply to the records, a signal that the court would allow the documents to remain confidential.
The judges seemed dismissive of the argument that the White House office housing the records had responded to other FOIA requests for many years, until it was sued a year and a half ago in the e-mail controversy.
Judge Thomas Griffith expressed doubt that the White House's previous position is legally significant.
"Why does it matter? ... They made a mistake," Griffith told Anne Weismann, chief counsel for Citizens for Responsibility and Ethics in Washington.
For nearly three years, the White House has revealed little about the difficulties with its e-mail system, which may have resulted in the loss of millions of electronic messages.
Tied to Valerie Plame controversy
The problems first surfaced during the investigation of the leak of Valerie Plame's identity as a CIA employee, when prosecutors sought e-mails from the office of Vice President Dick Cheney.
Lawsuits filed by private groups and testimony at a congressional hearing in February disclosed that the White House had failed to install automatic archiving for its e-mail. Instead, the White House stored electronic messages on computer servers in what was to have been a stopgap measure but continued for at least five years. The White House said in February it was in the process of getting an archive.
In June, the White House drafted a document that calls for an attempted recovery effort for as many as 225 days worth of e-mail. The Associated Press obtained a copy of the draft document in August.
The White House refuses to say whether it has hired a contractor to undertake such a recovery effort, which would involve trying to pull copies of any missing messages from tens of thousands of computer backup tapes.
A federal judge agreed with the White House that the Office of Administration is not subject to the FOIA, and CREW appealed.
'Slippery slope' of courts, presidency
On Friday, Weismann argued that the White House Office of Administration is not entitled to an exemption from Freedom of Information Act requirements, unlike, for example, the National Security Council, which advises and assists the president.
Judge A. Raymond Randolph suggested Weismann's position would take the White House "down the slippery slope" of courts impinging on presidential power.
At the same time, the judges made clear that the Justice Department lawyer speaking on behalf of the White House had taken his argument too far.
Justice Department lawyer Thomas Bondy argued for the importance of the Office of Administration, saying that President George W. Bush is the head of it.
"And he spends a lot of time on that," replied Griffith, drawing laughter.
Bondy held his ground, saying that the director of the Office of Administration is the chief administrator of the Executive Office of the President and that the office is the management arm of the president.
The other judge who heard the appeal was David Sentelle, an appointee of President Ronald Reagan. Randolph is an appointee of President George H.W. Bush; and Griffith, an appointee of current President George W. Bush.