McCaleb called to account for destroyed e-mails

FROM THE ARCHIVE

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TUESDAY, NOVEMBER 26, 2002

A federal court investigator on Monday said he plans to interview retiring Assistant Secretary Neal McCaleb under oath as part of an ongoing probe into the destruction of e-mails against court orders.

In a letter to the Department of Justice, special master Alan Balaran said the responses he has received so far "raise more questions than they answer." Hoping to catch McCaleb before he departs by the end of the year, the letter requests a deposition within the next couple of weeks to prevent additional delays.

The interview would be a first for McCaleb, who announced his retirement from federal service last week. Although he said an increasingly "contentious and litigious environment" contributed to his decision to leave the Department of Interior, he has never testified in person about his handling of the trust fund accounts of more than 300,000 American Indians.

McCaleb has submitted written declarations to the federal court overseeing the debacle. He has also been represented by his own personal attorney, in addition to the Department of Justice, for more than a year. Taxpayers are paying for both methods of counsel.

But he has escaped the type of scrutiny placed on other top Interior officials. Secretary Norton was forced to testify in her own contempt trial while Deputy Secretary J. Steven Griles, his top aide Jim Cason and Indian Trust Transition Director Ross Swimmer have been the subject of a series of controversial depositions currently before Joseph S. Kieffer III, another court investigator.

McCaleb's probe centers on the repeated destruction of internal e-mails against his own policies and in contravention of court orders. From December 1, 2001, to October 1, 2002, he admitted that he failed to correctly file his electronic records before deleting them.

Balaran has been directed by U.S. District Judge Royce Lamberth to look into the lapse. A report is expected at the conclusion of the probe and it could recommend further contempt sanctions against McCaleb.

McCaleb is already in hot water for failing to fix the the Individual Indian Money (IIM) trust. He and Norton were held in civil contempt of court for providing misleading information about efforts to reform the broken system. The Bush administration is planning to appeal.

McCaleb isn't the only one targeted for the destroying electronic correspondence. During an 18-month period, computer tapes of numerous e-mails were erased at Interior offices nationwide.

Norton, in court papers, disclaimed responsibility for the incident because she said it occurred before she joined the department. An internal investigation by Inspector General Earl E. Devaney failed to find anyone accountable even though a key Interior attorney said he "had never heard" about the trust fund litigation more than two years into the Cobell case and was never told about any court orders.

"Even if there was something I wanted to erase, I wouldn’t know how to do it," another attorney whose backup tapes were erased claimed.

Relevant Documents:
Balaran Calls for McCaleb Deposition (11/24) | McCaleb Seeks Delay in Response to Balaran (11/14) | Special Master Letter on E-Mails (10/20) | DOI Memo: E-mail Backups (November 2001) | DOI Report: Allegations Concerning Conduct of Department of the Interior Employees Involved in Various Aspects of the Cobell Litigation (June 2002) | Special Master Opinion on Destroyed Computer Backups (July 2001)

Relevant Links:
Indian Trust: Cobell v. Norton - http://www.indiantrust.com
Cobell v. Norton, Department of Justice - http://www.usdoj.gov/civil/cases/cobell/index.htm
Indian Trust, Department of Interior - http://www.doi.gov/indiantrust