At our last meeting, on May 18, 2000, the Committee was asked for the first time to authorize a subpoena for backup tapes containing e-mail records from the Office of the Vice President for five months in 1995 and 1996. According to Senator Specter’s staff, the focus on these particular months was to capture any electronic messages with the Vice President relating to November and December, 1995 meetings about fund- raising calls and to an April 1996 Buddhist Temple fund-raising event in California. I held over consideration of the subpoena at that time since, in my view, it had been precipitously added to the agenda at the last minute and needed further consideration.

Fortunately for us the Judiciary Committee rules allow for a week’s postponement and consideration since at the meeting today, we learn that this matter is being resolved without the necessity for a subpoena after all. Sometimes just picking up the telephone to get all the facts and then making a polite request works. It may not make headlines, but it gets the documents.

This subpoena was entirely unnecessary and totally irresponsible.

First, the White House has made clear that it will provide the email communications that are relevant to the Committee’s oversight inquiries without the need for a subpoena. The White House Counsel, Beth Nolan, explained in a letter to the Chairman on May 24, 2000, that the process of restoring the back-up email tapes to accommodate the needs of various investigative bodies is a time-consuming, costly and delicate process. Once the back-up tapes are restored and copied, then the process of reviewing the tapes for relevant messages can begin. Ms. Nolan invited the Committee to “propose a list of priority dates . . . as soon as possible” for the White House to conduct the searches for the requested messages.

There was simply no need to make the request for priority dates in the form of a subpoena when we have an express invitation from the White House to let them know and assurances from the White House that they “will do [their] best to integrate” this Committee’s requests with the ones received from other investigative bodies.

It is truly remarkable that the majority of this Committee chooses first to communicate – now routinely at each executive business meeting – with the Executive Branch and its agencies by way of subpoena. Issuing subpoenas may make for a good show of partisan force by the majority but certainly continues the erosion of civil discourse that has marked this Congress.

Second, in my view, this subpoena was totally irresponsible for three reasons: the subpoena is over-broad, and compliance by the White House with the precise terms of the subpoena could result not only in disruption of pending inquiries but, more importantly, harm to the very fragile back-up tapes that the Committee seeks.

Be careful what you ask for – particularly by way of subpoena. The resolution presented to the Committee demanded that the Director of White House Security deliver to the Judiciary Committee by the end of next week:

“The weekly and monthly backup tapes for all electronic mail sent or received by all individuals within the Office of the Vice President, including but not limited to Vice President Gore, from November and December 1995 and March, April and May, 1996.”

The back-up tapes have a very short shelf-life and are fragile originals. It has taken time to develop the right technical means for duplication. I understand that handling these back-up tapes and restoring them to a form for copying and searching, is a very difficult and risky process since the tapes may disintegrate or break. If the White House complied with the specific demand of the majority’s subpoena, this Committee would get these tapes with the significant risk that these historical records could be damaged beyond repair.

Furthermore, the majority’s subpoena demand was extraordinarily sweeping and broad. The backup tapes are essentially “pictures” of everything on the servers operating at the Office of the Vice President, in no particular order. This includes system files, data files such as word processing files, e-mails and everything that was on the system at the time the “picture” was taken. We should all be clear that this subpoena called for everything on the servers, and not just the select e-mails that Senator Specter and others may be interested in seeing. Consider the precedent this subpoena would set. Essentially, the subpoena would give this Committee the “green light” to rummage through the White House files, without regard to the precise focus of the oversight investigations being conducted by Senator Specter.

The White House has a major and expensive effort underway to restore these e-mails and put them in a readable and searchable format and even have a time line for doing so. This Committee does not have that capability. Consequently, should the majority in the end ignore the White House’s offer to conduct a search and instead get their hands on these back-up tapes as they demand, they will have to go through each byte of data to find whatever they are interested in.

The documents contained at the White House and Office of the Vice President are not and should not be an open book for the Committee to review. Indeed, much if not all of the material on the tapes is protected by Presidential Privilege. This Committee as recently as last year in its requests for documents and testimony from the Department of Justice in connection with the presidential pardons of FALN members recognized the importance of this executive privilege and endeavored to respect the boundaries of that privilege. This subpoena showed no responsible regard whatsoever for the Presidential Privilege.

Finally, as Ms. Nolan notes in her lengthy letter to the Chairman, other investigative entities are interested in information that may be on these back-up tapes. If the tapes are removed from the secure room in which they are currently being held and transferred to this Committee as demanded in the majority’s subpoena, we could be adversely affecting and disrupting those other inquiries, including a joint effort by Independent Counsel Ray and DOJ’s Campaign Finance Task Force to recover information from the tapes.

The majority’s subpoena was flawed in multiple respects. I am glad the Committee had an additional week to consider this matter and that in the end the Committee did not approve this resolution, but instead is working out a procedure with the White House for the production of e-mails in a responsible fashion.