White House May Cite Executive Privilege

The White House is raising the possibility of invoking executive privilege to keep Congress from seeing some documents in the controversy over missing e-mails that are under subpoena, documents disclosed Monday.

Meanwhile, investigators are poring over memos suggesting presidential aides could have begun retrieving the missing messages more than a year ago to see if they should have been turned over for investigations ranging from Whitewater to impeachment.

The White House sent the House Government Reform Committee, which is investigating the controversy, a one-page list of documents it is not turning over under subpoena because they are considered covered by executive privilege and attorney-client confidentiality.

Among the documents on the list, which was obtained by Associated Press, are handwritten notes by White House lawyers involving discussions they had with computer experts about the e-mails.

The list says the notes “reflect mental impressions” of the lawyers for the White House Office of Administration, which oversaw the e-mail system at the center of the controversy.

The list is the first step in the executive privilege process. In past investigations, the White House has sometimes relented and turned over documents and in other cases has invoked the privileges to shield memos.

The decision prompted an angry reply Monday by the chairman of the Government Reform Committee.

“The White House is obstructing the investigation,” Rep. Dan Burton (R-Ind.) said in a letter to the White House counsel’s office. “This meaningless legal mumbo jumbo is obviously a transparent ploy to provoke wasteful and time-consuming squabbles over documents.”

A White House spokesman, Jim Kennedy, responded: “We have already turned over a lot of material to Mr. Burton. What he is seeking is not historical information about the origins of this problem but current information generated only as a result of his inquiry.”

Meanwhile, Associated Press obtained an internal memo showing that presidential aides prepared to notify Congress as early as February 1999 about a glitch in their e-mail system and to begin retrieving thousands of unarchived messages that might be relevant to investigators. But they never followed through.

The February 1999 memo, which included talking points for possible testimony before congressional appropriators, laid out the history of the e-mail problem that has become the focus of criminal investigators.

The memo disclosed that presidential aides had solicited a proposal on Oct. 20, 1998, from contractor Northrop Grumman to “recover the missing records” that weren’t properly archived because of the glitch.

“The approximate cost for the system design is $602,000,” Karl H. Heissner of the White House Office of Administration wrote.

Officials, however, didn’t divulge the existence of the glitch to Congress or prosecutors.

Instead, they waited until this year to begin retrieving the missing e-mails and reviewing them to determine if they should have been handed over to lawmakers and federal prosecutors who had subpoenaed documents in the Monica Lewinsky, political fund-raising and Whitewater investigations.

Heissner’s memo also suggests he was reluctant to tell Congress about the status of official document requests to the White House--both from lawmakers and “litigants against the government”--because statistics showed such requests were declining.

“We may not want to call attention to the issue by bringing the issue to the attention of Congress because . . . the level of requests appears to be declining,” Heissner wrote.