Were White House E-Mail Actions Illegal? The White House is facing two lawsuits related to handling of e-mails. If the White House destroyed e-mails, it may have violated federal law. Legal analyst Dahlia Lithwick discusses a federal judge's order to preserve all White House e-mails.
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Were White House E-Mail Actions Illegal?

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Were White House E-Mail Actions Illegal?

Were White House E-Mail Actions Illegal?

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ALEX CHADWICK, host:

This is DAY TO DAY. I'm Alex Chadwick.

MADELEINE BRAND, host:

And I'm Madeleine Brand.

The White House says it has misplaced five million e-mails. That has prompted a federal judge to order the Bush administration to keep copies of all its e-mails.

Dahlia Lithwick has been covering this controversy. She's a legal analyst for Slate.com and also here on DAY TO DAY. Welcome back to the program, Dahlia.

Ms. DAHLIA LITHWICK (Slate): Hi, Madeleine.

BRAND: Okay, five million e-mails. How do you misplace five million e-mails, first of all?

Ms. LITHWICK: Well, there's been a lot of different stories from the White House about these missing e-mails. They're from a period from March of '03 to October of '05. That was a fairly crucial chunk of the timeline that had to do with the White House handling of Katrina, White House handling of the U.S. attorneys firings, possibly White House involvement in ideological prosecutions across the States, so a lot of stuff is going on.

And the last we heard, at least one watchdog group says that, yes, e-mails from the time period have gone missing. And many of them, by the way, were sent on private RNC accounts, not White House accounts. So we're not even just talking about, you know, a White House server.

Initially last spring, the White House said, oh, you know, they're just lost. Then when it turned out it's awfully hard to lose five million e-mails, they started saying, oh, actually, they're just privileged. And then as of yesterday we have a federal judge telling them from now on you all have to hold on to all your backups of all your e-mails - and put it in a court order.

BRAND: And this is in response to two lawsuits.

Ms. LITHWICK: That's right. This is a pair of lawsuits that is essentially from groups that are trying to sort of preserve White House history. One is the watchdog group called CREW. That's Citizens for Responsibility and Ethics in Washington. And the other one is a group that's called the National Security Archive.

And both groups have filed suit that have now been consolidated into one suit alleging that the White House has destroyed all sorts of old e-mails and documents, and that's in violation of a federal law - the Federal Records Act - which essentially prohibits the destruction of government documents unless the archivist has approved it.

So these groups are essentially saying we think the White House has destroyed some of its own history or is not coming forward with its own history, and we have an interest in keeping the history books on track.

BRAND: And so now that the judge has issued a restraining order saying they'd have to keep copies of all its e-mails, what happens now?

Ms. LITHWICK: Well, I mean, the reason the judge did this is he went and sought a recommendation from the magistrate judge and the magistrate judge said, yes, get a court order. Now, the White House was saying, look, we're going to pledge to you that we are archiving all our materials. Why do you need to get a court order? And apparently the magistrate judge says because a court order is punishable by contempt. So in other words, there will be real consequences if the White House comes back and says, as it has been wont to say in the past, the dog ate my homework.

BRAND: And on the other side, this issue of presidential e-mails came up on the political trail with Hillary Clinton. There's some controversy there about the e-mails between her and her husband, Bill, when he was president. Does this ruling have any impact on that?

Ms. LITHWICK: Well, it doesn't have impact on that. This is a narrow order in a particular case, but certainly it reveals that this is not a game that only the Bush White House has played. The Clinton White House also, first of all, lost a good many e-mails and also has attempted to sort of get around the Federal Records Act. And one of the things that Bill Clinton apparently asked the archives to do was to consider withholding all of its correspondence with his wife Hillary Clinton until January of 2013.

And as you mentioned, that's becoming an issue on the campaign trail because there's an enormous amount of information that the world feels like it wants know.

BRAND: Dahlia Lithwick, legal analyst at Slate.com. Thank you.

Ms. LITHWICK: Always a pleasure, Madeleine.

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