GAO Paper Tiger?
They sue Bush but backed away from Clinton.

January 31, 2002 10:40 a.m.

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.