Ask any computer guy. Five million emails don't disappear by accident, especially in the White House. It takes a lot of hard work, involving deliberate action from a team of seasoned professionals, to make the evidence unretrievable.
The missing emails, many of which were sent by Karl Rove, are a small part of the boundless evidence indicating a conspiracy to obstruct justice within the White House. Eric Holder, our next attorney general, could easily demonstrate sufficient probable cause to get a signed warrant to search documents held by the current president and vice president. Bush and Cheney would not be able to stop the government from moving forward. A search warrant is not the same thing as a subpoena. So, while Bush and Cheney have tied up subpoenas in the courts with bogus claims of executive privilege, they face a far more daunting task if they attempt to stall the government from moving on a warrant. As the Supreme Court unanimously ruled 34 years ago in United States v. Nixon, executive privilege is overcome by the need for evidence in a criminal inquiry.
It's a safe bet that Bush intends to upend such an inquiry by repeating the stunt his father pulled 16 years earlier. George H.W. Bush pardoned Casper Weinberger and effectively shut down an investigation into criminal activities that implicated Bush Sr. in Iran-Contra. But things are different this time. There are so many more people who could be targets for Holder to investigate and prosecute. Given all that went on during this administration, there had to have been a lot of people who looked the other way. Those people are subject to prosecution. Under the century-old doctrine of willful blindness, you can be prosecuted as an accessory if you had reason to believe that criminal acts were being committed under your nose.
Still, in spite of widespread evidence that Bush, Cheney, Rove et al. ran a criminal operation, Obama may be reluctant to use his political capital in pursuit of prior administration officials. (As usual, Barney Frank said it best. After the President-elect referred to himself as post-partisan, Rep Frank said he felt "post-partisan depression.")
But Obama can go a long way toward clearing the air by taking two quick and easy steps. He can simply disclose certain documents concerning the CIA leak and Katrina. Since those disclosures are responsive to bipartisan requests from Congress, they would not polarize Washington, nor would they would not tie up resources in a protracted investigation.
Step One: Disclose the transcript of Patrick Fitzgerald's joint interview with George Bush and Dick Cheney.
What did Bush and Cheney know, and when did they know it? That's what the House Committee On Oversight and Government Reform wants to know with regard to the CIA leak scandal. Did Cheney declassify Plame's status? If so, when did the declassification take place? Did Bush know about it? Did they have any awareness of how national security might be compromised? Did they answer the questions directly and openly, or were they evasive?
The committee sought the transcript of Patrick Fitzgerald's interview with Bush and Cheney pertaining to the criminal investigation over the CIA leak. Attorney General Michael Mukasey, in yet another demonstration of contempt for his oath of office, refused to comply with the request, because Bush asserted executive privilege. Last Friday, the committee issued its draft report, which stated:
"On a bipartisan basis, the Committee finds that the President's assertion of executive privilege over the report of the Vice President's interview was legally unprecedented and an inappropriate use of executive privilege. The assertion of executive privilege prevents the Committee from having access to a complete set of records and thus results in the Committee's inability to assess fully the actions of the Vice President."
Eric Holder can correct Mukasey's noncompliance in short order.
Step Two: Disclose the documents requested by Congress pursuant to investigations into Katrina.
What did Bush and Cheney - and for that matter, Chertoff, Rumsfeld, and many others - know and when did they know it? More than three years after Katrina killed a thousand Americans, we still have no idea. Back in March 2006, when Joe Lieberman made a pretense of believing in government oversight, he issued a strongly worded demand, as ranking member of the Senate Homeland Security Committee, that the White House comply with Congressional requests for documents and information pertaining to the disaster.
"[V]irtually everyone in the White House who had anything of operational significance to do with the preparation for and response to Katrina falls into the category put off limits to us. And, of course, we have been denied our requested interviews with even those lower level employees about whom the White House says it is willing to give us information. This has left us unable to obtain any real sense of what the White House did or didn't do to run or aid the federal response to Katrina. And it has kept us from obtaining key information from executive branch agencies about the government's response to Katrina. Members of both of our staffs have repeatedly and for months asked White House staff for precedent for the White House's sweeping assertion of near immunity from inquiry. To date, we have been given none."
Obama's White House should respond to both Waxman's and Lieberman's respective committees by complying with their three-year-old requests for the following:
"[A]ll documents:
• produced, sent or received by the EOP or any of its employees or officials between August 26, 2005 and August 31, 2005 that refer or relate to (a) actual or potential breaching or overtopping of the levees in or around New Orleans or (b) flooding in or around New Orleans; and
• related to the 11:13 AM White House Homeland Security Council spot report stating that there was a report of a levee breach, including any and all documents stating or relating to the source of the report of a levee breach. If no such documents exist, please identify the source of that report."
Today, anyone who writes about the CIA leak case, or about Katrina, is extrapolating from the very small tip of a very large iceberg. If we want to move on as country, we need a cursory glimpse of what remains hidden below the surface. In terms of restoring accountability and transparency to the executive branch, these two steps provide some of the biggest bang for the buck.