Court Smacks Down Bush Administration in White House Emails Case

Let our journalists help you make sense of the noise: Subscribe to the Mother Jones Daily newsletter and get a recap of news that matters.

The Bush administration suffered a major legal defeat on Monday when a federal court denied the administration’s motion to dismiss a lawsuit that has arisen from the possible loss of several million White House emails. The ruling allows the plaintiffs in the case, Citizens for Responsibility and Ethics in Washington (CREW) and the National Security Archive (NSA), to move forward with their legal efforts to force the recovery of the missing emails and the adoption of a more reliable email archiving system.

Meredith Fuchs, the NSA’s general counsel, says the White House’s pending motion to dismiss had been a “hold up” that prevented anything else from happening in the case. “Now that roadblock is gone, so we have the opportunity now to try to take more aggressive action in the case,” she says, adding that the litigation will probably “heat up” in the months to come.

The emails in question, which could number in the millions, are from between 2003 and 2005 and could include information about the runup to the war in Iraq and the outing of Valerie Plame Wilson as a covert CIA officer. (Need to catch up? Read our full coverage of the missing White House emails story.)

Despite the plaintiff’s victory in this latest ruling, the Bush administration has been largely successful in running out the clock on the emails controversy. The NSA and CREW first filed suit in September 2007, several months after Dana Perino, a White House spokeswoman, said she “wouldn’t rule out that there were a potential 5 million e-mails lost.” It is now a near certainty that the ongoing litigation surrounding the missing emails will not be resolved before the Obama administration takes office in January 2009. When Obama enters the White House, he could continue on the path the Bush administration has set out, or settle the case, as the Clinton administration eventually did when watchdog groups sued over its handling of emails in the 1990s.

The NSA has sued every president since Reagan on the issue of record-keeping. Fuchs, the NSA’s general counsel, says Obama could send a positive signal by not adopting the Bush administration’s obstructionist attitude with regards to the missing emails. “It’s not uncommon for a new administration to change position [on ongoing litigation],” she says. “[Obama] can make clear from day one that his administration is going to be responsible and preserve its records. He can support the National Archives in its effort to restore the records from the Bush White House, so that Congress, the courts, and ultimately the public will be able to learn how decisions were made.”

There is some indication already that the Obama administration may consider moving in a different direction related to the record-keeping issue. One of Obama’s campaign promises was to “nullify the Bush attempts to make the timely release of presidential records more difficult.” Fuchs says this “shows they believe in accountability in the White House.” But repealing obscure Bush administration executive orders regarding presidential records would be a far cry from acceding to CREW and NSA’s demands for the costly recovery of missing emails and the even-more-costly creation of a functional email archiving system. Mother Jones has asked the Obama press office if the President-elect has plans to continue the Bush administration’s legal strategy with regards to the missing emails. We’ll let you know what we hear.


Headshot of Editor in Chief of Mother Jones, Clara Jeffery

It sure feels that way to me, and here at Mother Jones, we’ve been thinking a lot about what journalism needs to do differently, and how we can have the biggest impact.

We kept coming back to one word: corruption. Democracy and the rule of law being undermined by those with wealth and power for their own gain. So we're launching an ambitious Mother Jones Corruption Project to do deep, time-intensive reporting on systemic corruption, and asking the MoJo community to help crowdfund it.

We aim to hire, build a team, and give them the time and space needed to understand how we got here and how we might get out. We want to dig into the forces and decisions that have allowed massive conflicts of interest, influence peddling, and win-at-all-costs politics to flourish.

It's unlike anything we've done, and we have seed funding to get started, but we're looking to raise $500,000 from readers by July when we'll be making key budgeting decisions—and the more resources we have by then, the deeper we can dig. If our plan sounds good to you, please help kickstart it with a tax-deductible donation today.

Thanks for reading—whether or not you can pitch in today, or ever, I'm glad you're with us.

Signed by Clara Jeffery

Clara Jeffery, Editor-in-Chief

payment methods

We Recommend