Another John DoE Surfaces in Solyndra

Just when you thought it was safe to give half a billion dollars of other people's money to a fly-by-night green energy company, the dormant Solyndra scandal has erupted again. This time, a Department of Energy executive is trying to duck a subpoena from the House Committee on Oversight & Reform, and his efforts may point to a real-live cover-up. 

Like much of the most interesting Solyndra news, the story of DoE Director of Strategic Initiatives Morgan Wright originates with the Washington Post's Carol D. Leonnig and Joe Stephens – whose work I have praised in the past and who continued digging away at the story of the failed solar panel company long after summer soldiers like me had moved on to fresh woods and pastures new. The oversight committee describes why they want to talk with him:  

E-mails show that Morgan Wright was involved in an organized effort within the Department to use his non-official e-mail account to discuss loan decisions as part of an intentional effort to avoid scrutiny and disclosures under federal transparency laws.  Wright was the recipient of one e-mail discussed in a Washington Post story from former DOE official Jonathan Silver. "Don't ever send an email on doe email with a personal email addresses," Silver wrote Aug. 21, 2011, from his personal account to Wright's Gmail account. "That makes them subpoenable."  E-mails from non-official accounts have offered important insight into the decision making process at odds with narratives offered by Administration officials. 

Wright's name is new to me, and his most prominent mention in DoE public documents is a disclosure statement [pdf]. But here's some background on Silver, who according to a Solyndra board member "championed the cause" of green energy loan guarantees and was especially active in pushing money out the door before he deserted the Obama administration to become a something at some think tank. 

It seems to me it's Silver who should be testifying before the American people. The story he gave the Post does not in any way comport with the text of his email [pdf] (where, by the way, he seems unaware that there's a "b" in "subpoena"). "I intended to advise my DOE colleagues to use their official email for official purposes and personal email for personal purposes," Silver told Leonnig and Stephens. "It was never my intention to avoid the requirements of the Federal Records Act."

Well in that case it must be completely innocent! 

Silver's message to Wright came as White House officials (but not the media or the public) were fully aware of the company's impending bankruptcy. (Solyndra, a Fremont, California, maker of tube-shaped solar panels, went down last September after burning through $527 million in taxpayer-guaranteed loans.) If there was a point when the original story of a shameful but manageable failure became a tale of an actionable cover-up, this was that point. Committee Chairman Darrell Issa (R-California) is reissuing the Wright subpoena.

Comments

[Ken Shultz]

“Don’t ever send an email on doe email with a personal email addresses,” Silver wrote Aug. 21, 2011, from his personal account to Wright’s Gmail account. “That makes them subpoenable.” E-mails from non-official accounts have offered important insight into the decision making process at odds with narratives offered by Administration officials.

Nothing can be said to be certain, except death and taxes and government bureaucrats writing memos for the sole purpose of covering their pensioned asses.

Make a government bureaucrat do something he doesn’t want to do, and, as sure as the sun will rise tomorrow, he will write a memo before doing it–just to cover his ass.

And CYA memos are easier than ever to send now–that’s what the Bcc button is all about. Yeah, there should be another hearing. Just follow the emails. See how far up it goes…

Where’s an independent prosecutor when you need one?

[Fist of Etiquette]

Is this a gate? Like Solargate or Greengate? I can’t tell what merits a gatification these days.

[Episiarch]

Are you retarded? Like, where were you educated, in a barn?

“Gatification” is when something becomes a Catalan cat or possibly resembles a Catalan cat. You wanted “gateification”.

Seriously, can we have you tested for an extra chromosome? I mean, you wear a hat and have a job and bring home the bacon, maybe no one knows?

[Fist of Etiquette]

“Gatification” is when something becomes a Catalan cat or possibly resembles a Catalan cat.

What the fuck else did you think I was talking about? Have whoever does your reading for you re-read my comment to you, hombre, so you can maybe glean some context.

[Episiarch]

Did one of your fat dominatrixes just punch you in the head? Everyone who isn’t dumber than Hugh knows that with Dali dead, nothing can be gatified any more. What, are you going to resurrect Joan Miro?

[Fist of Etiquette]

You neanderthals here with your cat fetishes.

[Beefkins]

The gun shop is where I get my instant gatification.

[Fist of Etiquette]

Yeah, after the waiting period.

[Bee Tagger]

The Brady campaign’s secret mission is legally require men to engage in foreplay longer.

[Corning]

Leave aside the spelling. Is “subpoenable” even a word?

damn well should be…the possibilities of its use are limitless.

[Corning]

Active concealment of material facts, as distinguished from innocent non-disclosure, amounts to fraud.

[Greg]

Well duh, that’s if YOU do it.

[Paul.]

he seems unaware that there’s a “b” in “subpoena”).

Cavanaugh continues to be the reincarnation of my more eruidite parents. Continuously correcting everyone’s grammar and spelling.

[Almanian's Evil Twin]

My mom (a librarian – so there you’ll have it) had a pin that said, “I am eruditer than you.”

I always liked that pin.

[GILMORE]

My eruditification trumps all of your prosaic tartuffery.

[darius404]

That’s…. that’s AWESOME. I want one.

[GILMORE]

the reincarnation of my more eruidite parents

Thats amazing. Pre-druidic parents. I had no idea they’d survived so long.

[Beefkins]

You misspelled “erudite.” Can I write for Reason now?

[Paul.]

Your timestamp has to be wrong.

[Beefkins]

I COME FROM THE FUTURE.

ALSO, DON’T INVEST IN SOLAR. DOESN’T PAN OUT.

[Paul.]

Ha, and I misspelled Erudite. To my credit, it was a typo. But it makes my post even more deliciouser.

[R C Dean]

Indeed. An RC’z Law for you, sir.

[Ted S.]

Better than having parents who have lousy spelling.

Mom: How do you spell “spear”?
Me: S-P-E-A-R
Mom: No, not that kind of spear! [hands me a photo of she and her gal pal at Epcot Center]
Me: [looks nonplussed; there’s definitely no spear at Epcot]
Mom: That kind of spear! [points to the spherical main building at Epcot]

[widget]

OT, in a way.

I haven’t done any work for the feds in 20 years so I don’t know whats going on there now. I do contract work for cities and public agencies quite a bit though. It bemuses me that in many cases the agencies have a policy to delete all email older than 30/60/90 days. IT claims lack of storage space or some such nonsense to justify this. Sometimes they try to make me use their email system. Thanks, but no way. I’ll use my own email account and keep every email, sent and received, forever. Public sector contract work’s OK, it puts food on table, but I am unemployable in the public sector. Even if they kept emails indefinitely, I wouldn’t trust them with it.

[Sevo]

“It bemuses me that in many cases the agencies have a policy to delete all email older than 30/60/90 days.”

If it is deleted, it is still retrievable, isn’t it?

[Tulpa Doom]

Not if they know what they’re doing.

Oh wait, we’re talking about public employees here.

[widget]

Whether or not it is technically possible to retrieve is practically irrelevant. The only ones who can retrieve it are the same gatekeepers who deleted it.

[Sevo]

“The only ones who can retrieve it are the same gatekeepers who deleted it.”

Can a law enforcement agency require it or do so?

[Agammamon]

Sort of. The reason they do this is CYA – right now you can be forced to provide any saved email in a civil discovery request. if you’ve already deleted it IAW policy it would require probable cause and a judge signing off on the warrant.

And if you have an email deletion policy then you can’t get into trouble for not storing email IAW policy – there’re no legal directives controlling what your deletion policy is, it can even require that you delete email every day.

[Sevo]

So if I delete email on a regular basis, any civil action presumes that to be gone; the email is deleted.
But in a criminal action, a judge can require retrieval of deleted email. And deleted email, barring some really clever fiddling, is recoverable.
Correct?

[R C Dean]

A civil subpoena can require that you turn over the actual hardware for imaging, and can get deleted emails unless you have been scrupulous about overwriting.

I have recommended mandatory deletion of email older than 6 months as a security measure: what has been wiped can’t be hacked. As long as you are deleting as part of your normal business processes, its not a problem (IMLO), although this means if you do get a subpoena you have to jump on it chop-chop, because once you get a subpoena no deleting of subpoenaed material is allowable.

Of course, even if you have require deletion, people save it anyway. I would.

[Gray Ghost]

A bit of an inside baseball question, but do you need the actual subpoena, or just a reasonable anticipation of litigation?

[R C Dean]

Kind of the latter. Where you have a policy or practice of disposing of records that is justifiable and reasonable, it gets to be pretty subjective as to when you should switch off that policy just because something happened that may, someday, lead to a lawsuit.

Now, where you have actual notice of a suit, or a complaint or threat of litigation, you need to look at whether you need to preserve evidence.

Personally, I’ve found that a lot of the articles and whatnot on this subject (especially around e-discovery) are just flatout wrong, stating, in effect, that there is a duty to never delete electronic records. For their own reasons, litigators like to conflate shredding documents as the cops are kicking the door down with routine disposal of records.

[R C Dean]

For extra fun in the healthcare world, we are under a HIPAA regulatory requirement to maintain electronic security.

I think this requirement can reasonably be applied to scrub down our email accounts (with overwriting!), which would, purely by happy accident, kick the guts out of the next overreaching e-discovery demand that we get.

[Paul.]

If it is deleted, it is still retrievable, isn’t it?

Depends on how it’s deleted.

It can be a bitch to recover, even if you have backups. Although virtualization of servers makes it a tad easier.

[Sevo]

“If there was a point when the original story of a shameful but manageable failure became a tale of an actionable cover-up, this was that point.”

Won’t make a bit of difference. Obama is ‘trying’, you see. ‘Trying’ to save us from ourselves, and if he makes a mistake now and then, well, he’s ‘trying’.
Repubs favor starving women, children, minorities and the elderly; Obama is ‘trying’.
That’s all.

[Sevo]

OT, but related:
SF city gov’t tries to pitch ‘green’ energy, ends up delivering guaranteed profits to Shell; stupidvisors find unintended consequences. Like a $15M cost to the city:
http://www.sfgate.com/bayarea/…..857981.php
This isn’t any sort of conspiracy, just simple (SF city gov’t) stupidity.

[Rich]

his non-official e-mail account

But it can still be blocked by Executive Privilege, right?

[Sevo]

Nixon claimed so, and Obama seems to agree.

[widget]

I took a drive to Prim, NV a couple of weeks ago to do some drinking and gambling. Maybe I should stop right there, but anyway, Whiskey Pete’s casino was stocked with construction workers at about 5:30 pm. On the way there I noticed a couple tall towers surrounded by hundreds of trucks, cars, a construction vehicles.

I got in the mood to spark up a conversation with one of the construction workers sitting next to me at the blackjack table. I asked him what those two towers were on the CA side of the border. “Solar power plants.” And the gambling stopped for five minutes.

The plants are powered by a field of mirrors reflecting sunlight on the tower’s water container. The water boils and the steam drives a turbine. The turbine spins past magnets and electrical current is generated. But he didn’t say anything about that.

Instead I, and the other players, got an earful of information about the aggressive mating habits of desert turtles. He was an electrician by trade, but had been assigned to escort a consulting environmental specialist around the construction site to save the turtles. Turtles are nasty little fuckers.

[R C Dean]

Isn’t dodging a subpoena by definition a coverup?