Another former DOJ lawyer echoed that notion: "When I heard the emails were not recoverable from Yoo, I was surprised," he said.
The Justice Department's Office of Professional Responsibility wrote in a report, released last week: "We were told that most of Yoo's records had been deleted and were not recoverable," and said that their probe was "hampered" by not having access to the emails. That has sparked calls from Sen. Patrick Leahy (D-VT), the National Archives, the New York Times, and CREW for an investigation into the missing emails.
Anne Weismann, a top Justice Department lawyer during the Clinton administration who now is with CREW, told TPMmuckraker that the emails of Janet Reno were printed out every week when she was Attorney General, in order to ensure that they were preserved.
"There was no question that people understood," the need to preserve emails, said Weismann, who worked specifically, in part, on statutes governing federal and presidential records, and who last year led a largely successful legal effort by CREW to have email records from the Bush White House retrieved, after they were said to have been deleted.
The need for lawyers in Yoo's department -- who were effectively interpreting the law on behalf of the US government -- to preserve emails would have been particularly clear, said the former DOJ-er. "When you're at the Office of Legal Counsel, and you're working with the White House, given previous areas of sensitivity, I would have thought there would have been a particular sensitivity toward keeping good records," he said.
"It's incomprehensible that [Yoo] could have concluded it didn't need preserving," said Weismann, referring to his correspondence on the subject of the Torture Memos.
OPR has not said how hard it pushed for Yoo's emails. If the emails were genuinely unrecoverable, the Justice Department would likely face questions about its record-keeping systems, since federal law requires that such records be maintained.
Jeanette Plante, the director of the department's record keeping office, declined to comment to TPMmuckraker, referring us to the public affairs office, which has not responded to our inquiries on the subject.
There would also be questions about the lengths to which the department, or members of its staff, went to render the emails unrecoverable -- since it's almost certain that simply deleting them from Yoo's inbox would not do so. None of the former DOJ-ers who spoke to TPMmuckraker said they would have known how to delete emails permanently.
Asked by TPMmuckraker what Yoo knew about the deletions, his lawyer, Miguel Estrada, said via email: "No reason why [Yoo] would know about whether they are missing or why, since he was long gone (by several years) when OPR investigated the matter. So there is no statement he can make about it."
A department official told Congress this morning that he would look into the department's technical and record keeping processes, and the question of whether the emails are recoverable, and report back.