Judiciary Committee attempting to stop removal of documents to National Archives

With time running out for the Bush Administration, the House Judiciary Committee is making a last-ditch effort to preserve materials subpoenaed in its investigation of the firing of U. S. Attorneys in 2006.

A motion filed Wednesday in federal court in the District of Columbia asks for a court order requiring White House Chief of Staff Josh Bolten to leave subpoenaed materials at the White House, where they will be accessible, and asks for former White House lawyer Harriet Miers to retain any documents she has.

The motion was filed in response to the administration's plan submitted Monday, which calls for the subpoenaed materials to be taken to the National Archives and maintained separately from other materials:

Two primary factors urgently warrant this Court to grant the Committee’s motion. First, the opportunity for (1) a negotiated resolution to this matter;
(2) the new Administration to assert its views as to the merits of the lawsuit (as expressly encouraged by the Court of Appeals); and

(3) compliance with this Court’s order, once it is, as we believe likely, affirmed on appeal, and all future orders, will all be severely impaired if the outgoing Administration transfers the subpoenaed materials to the Archivist of the United States (“Archivist”) pursuant to the Presidential Records Act (“PRA”), 44 U.S.C. §§ 2201-2207. Despite the authority of the incoming Administration to recall documents from the Archivist under certain circumstances, the recall process may take weeks or months, thereby interfering with the ability of the new Administration to assess this matter and prepare its legal position, thus diminishing the prospect of settlement prior to the commencement of briefing in the Court of Appeals in February. There
is simply no way in which the new Administration can promptly and effectively evaluate the merits of the litigation prior to the due date of the opening appellate brief on February 18, 2009, without a full understanding of the materials at issue.

Second, recent media reports stemming from a published report of the Government
Accountability Office (“GAO”) have revealed that fundamental flaws exist in the procedures for transfer, receipt, cataloging and retrieval of presidential records sent from the White House to the Archivist. These reports suggest that documents, particularly electronic records, may be lost, altered and made difficult to locate for future production after they have been transferred to the archives. Given these concerns, it makes good sense not to transfer these documents so as to avoid any potential document loss or undue delay in retrieving them.