Friday, October 19, 2007

CREW is right! -- white house must preserve e-mail, sez federal magistrate judge, on october 19, 2007

well -- it takes a while, but
the large, steel wheels of justice,
they are a-rollin'. . . the magistrate
judge in CREW v. executive office of
the president, et al.
[pdf] has concluded
that there is a substantial likelihood
that applicable law will ultimately be
found to require the white house to
surrender those e-mails (supposedly long-
lost, in the sands of time and tide).

it is technically called dicta (that
is, not a precedent), but it is encouraging
dicta, nonetheless -- and the real
possiblity of criminal contempt now attaches
to any attempt to "disappear" the e-mails:

". . .one of the several legal issues
separating the parties is whether one
of the defendants, the “Executive Office
of the President, Office of Administration,”
is an agency and therefore subject to the
Federal Records Act. See 44 U.S.C. § 2901 (14).
The parties explained to me that this precise
issue awaits resolution
in a case pending
before Judge Kollar-
Kotelly. I have now
reviewed the briefs
on that issue in that
case and am certain
that the issue is
substantial and
complicated. I
certainly cannot say
that CREW has no
likelihood of prevailing
on that issue

Instead, I must say that weighing the
substantiality of the legal questions
presented against the irreparable harm
that CREW may suffer and the clear absence
of any harm to the government
the order I am recommending the Court
issue to prevent the destruction of the
backup media. A proposed order accompanies
this Report and Recommendation.

Failure to file timely objections to the
findings and recommendations set forth in
this report may waive your right to appeal
from an order of the District Court adopting
such findings and recommendations. . ."

indeed. well-done, CREW!

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