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 here's
a critical and so far unanswered question about the General Accounting
Office's decision to sue Vice President Dick Cheney for information
about outsiders who were consulted by Cheney's energy task force:
Why has it come to this?
Cheney's position seems clear enough. The vice president, who has
long been determined to preserve executive-branch privileges, appears
to believe strongly that the GAO simply does not have the authority
to compel him to hand over the information. But what about the other
side? Why has the GAO — which has never before filed suit to
force a top federal official to hand over information — decided
to go nuclear?
GAO officials, including Comptroller General David Walker, say
they simply want to uphold the office's ability to demand access
to executive-branch records in the future. But the GAO's position
seems baffling in light of its behavior during its last major investigation
of the White House.
In the spring of 2000, investigators for the House Government Reform
Committee discovered that the White House had misplaced or mishandled
hundreds of thousands of e-mails sent to White House staff by people
outside the White House between September, 1996 and November, 1998.
Some of that material was under subpoena from the Office of Independent
Counsel, which was investigating Whitewater and the Monica Lewinsky
matter, as well as the Justice Department, which was investigating
the campaign-finance scandal.
Committee chairman Dan Burton wanted to know whether the loss of
the e-mails was the result of mistakes made by White House technicians
or whether it was the result of a deliberate attempt to conceal
information from investigators. Burton asked the GAO to look into
the matter.
The GAO's report, published in April, 2001, is a study in frustration.
Clinton White House officials repeatedly refused to provide information
that the GAO requested. The White House sometimes gave grossly incomplete
answers to GAO inquiries. And on one occasion, Vice President Al
Gore did not respond to a GAO request for information until 6:49
p.m. on January 19, 2001 — just hours before leaving office.
Even then, Gore's response was to refuse to provide information.
Some examples. The GAO wanted to know whether the White House had
told the independent counsel, Justice Department, and other investigating
agencies that there was a problem with White House e-mails. White
House officials told the GAO that they had written 30 letters to
various investigative bodies, notifying them of the problem. "We
requested copies of those 30 letters," the GAO report says,
"but we were not given copies of any of them. Without complete
documentation, we were unable to confirm the Executive Office of
the President's claims to have notified officials concerning the
effect of the e-mail malfunctions on respective document productions
to investigative bodies..." Indeed, the chapter of the report
containing that quote is headlined, "Limited Access to Information
Prevented Confirmation of the Executive Office of the President's
Notification of Appropriate Officials."
In another section, the GAO tried to gather information on the
cost of the various projects undertaken to repair the White House
e-mail system. But the report notes that, "Our review of cost
issues was limited by the unavailability of complete and reliable
information. Specifically, we were not given access to Office of
Vice President files of hard copy e-mail records, which impaired
a full assessment of the Office of Vice President's practices to
preserve e-mail records."
On yet another occasion, the GAO report describes the obstacles
investigators encountered when trying to get information from Gore
on the status of e-mail files in the vice president's office:
We submitted written questions to the Office of the Vice President
(OVP), through the Executive Office of the President (EOP), on
September 14, 2000, in which we asked if, and how, the OVP implemented
the portion of the 1997 EOP policy which stated that staff "[m]aintain
Presidential Records in organized files." In its November
14 response, the OVP stated that OVP staff implemented the requirements
of the statute by maintaining presidential records "in organized
files." In follow-up, we submitted another set of written
questions to the OVP, through the EOP, on November 30. At this
time, our request was to "[p]lease provide a list of all
OVP staff who maintain the organized files of hard copy OVP records
as mentioned in the EOP response. We would like to physically
observe the files of randomly selected OVP staff and would like
to arrange for this observation during the week of December 11,
2000"... The intent of our request was to confirm the existence
of e-mail records in such files and not to examine the text of
the records contained therein, as explained verbally to the EOP
Office of Administration General Counsel on numerous occasions
during December 2000 and January 2001. We were not provided a
contact within OVP with whom to discuss the request. The OVP did
not respond to our request in writing until 6:49 p.m. on January
19, 2001, at which time OVP's response was that the OVP did not
maintain a centralized filing system.
Seventeen hours later, of course, Clinton and Gore had left office,
and the White House records were taken to the National Archives.
The question that emerges from all this is why the GAO chose not
to take court action to defend its right to access to executive
branch records. David Walker, the man who decided to sue Vice President
Cheney, was in charge of the GAO at the time of the e-mail matter
and chose not to sue — or even threaten to sue — the Clinton
White House. Indeed, it appears Walker gave up in frustration at
the Clinton administration's refusal to provide information.
A GAO spokesman says Walker is traveling today and cannot immediately
respond to questions. National Review Online will include his response
in a future story.
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