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McCaleb aide testifies in court's e-mail probe
WEDNESDAY, DECEMBER 11, 2002

An aide to Assistant Secretary Neal McCaleb has given information to a federal court investigator that calls into question the outgoing Bush official's sworn testimony about his wanton destruction of e-mails, according to an attorney involved in the case.

In a deposition that took place yesterday morning, Jean Maybee, a Bureau of Indian Affairs staff member, gave what was described as damaging testimony. "She cooked 'em," said Dennis Gingold, who represents 500,000 American Indians whose trust funds have been mismanaged for more than a century.

Special master Alan Balaran, a judicial officer, interviewed Maybee under oath about her knowledge of the e-mail destruction. McCaleb admitted he didn't preserve the documents as required by Department of Interior policy, not to mention court orders in the trust fund lawsuit.

But in a sworn affidavit, McCaleb tied the lapse in judgment -- which he has characterized as a "misunderstanding" -- to Maybee. "[I]t was my impression that my Administrative Assistant was saving my e-mail messages relating to American Indian Trust Reform," his November 19 declaration stated.

Maybee, however, refuted McCaleb's allegation, according to Gingold, who was present during yesterday's proceeding but didn't ask direct questions of the witness. "She said the declaration was false with regard to any suggestion that she did anything or told him she was saving his e-mails," he said.

Maybee also backed up her testimony with a series of notes she took during a key time period McCaleb mentioned in his declaration. The notes describe McCaleb's realization, in early October, that his e-mails may have been lost.

Maybee recounted that she tried to help McCaleb recover the correspondence. The Interior's internal computer system keeps weekly backups and it was believed the documents -- which included critical trust-related reports, according to Maybee --- could be retrieved.

But eventually Maybee was informed by a BIA computer specialist that the backups would not be helpful because McCaleb had not filed his e-mails prior to deleting them -- a key step in the process. "At this point I began to panic," she recalled.

Shortly thereafter, the Interior informed the court of the incident. On October 16, a department attorney in a letter said that e-mails from December 2001 to October 2002 were erased.

A few days later, Dan DuBray, an Interior spokesperson, released a statement that pledged to recover the destroyed data. The department hired Zantaz Inc., a California firm specializing in information retrieval for financial and other institutions, to help out.

Balaran has been authorized by U.S. District Judge Royce Lamberth, who is overseeing the trust fund lawsuit, to investigate and draft a report on the incident. It could lead to additional contempt sanctions against McCaleb, who was held in civil contempt for misleading the court about efforts to fix the broken system.

As part of the probe, Balaran has interviewed McCaleb under oath. That deposition took place on Friday. He has now ordered Aurene Martin, McCaleb's deputy, to appear before him this Friday.

Martin served as McCaleb's legal counsel from October 2001 -- when the e-mail failure began -- to May 2002, when she was promoted to deputy assistant secretary after Wayne Smith was forced out. Under a reorganization of the BIA that McCaleb announced last week, Martin stands to be promoted to a "principal" with broad authority over the agency.

Prior to joining the BIA, Martin served on the Republican staff of the Senate Indian Affairs Committee, where she worked for Sen. Ben Nighthorse Campbell (R-Colo.).

McCaleb leaves at the end of the month. In his resignation, he said the strains of litigation affected his job.

Relevant Documents:
Neal McCaleb Deposition (November 19, 2002)

Relevant Links:
Indian Trust, Department of Interior - http://www.doi.gov/indiantrust
Indian Trust: Cobell v. Norton - http://www.indiantrust.com
Cobell v. Norton, Department of Justice - http://www.usdoj.gov/civil/cases/cobell/index.htm
Trust Reform, NCAI - http://www.ncai.org/main/pages/
issues/other_issues/trust_reform.asp