“Lost” White House E-mail Update

Ken AshfordWhite House SecrecyLeave a Comment

Here’s the story so far.

There are two laws at issue here.

One is the Presidential Records Act, which requires that all communications and documents from and to the White House be preserved.  This includes, among many other things, e-mail.

Then there is the Hatch Act.  This requires that campaigning and other such matters NOT be done within the White House and with government equipment.  For example, the staff of a President cannot solicit voters from the White House using the White House phone.  They cannot send out mass e-mails using White House computers.  This is because the property of the White House belongs to the government — i.e., you and me.  We pay for it, so it doesn’t belong to Republicans or Democrats.

So a lot of White House people necessarily wear more than one hat.   Karl Rove, for example, as Chief of Staff to the President of the United States, has duties within that official realm.  But he also has duties as titular head of the Republican Party.  So he has to be careful that he does the right work within the right realm.

And apparently, he and others were not doing this.  They were using their email accounts with the Republican National Commitee to conduct official U.S. business.  This came to light in the U.S. Attorney purge scandal, when some of the documents released showed that Kyle Sampson (the chief of staff to Attorney General Alberto Gonzales) and others were communicating about official government business with email addresses like ksampson@gwb43.com, i.e. non-governmental servers.

Using non-governmental email accounts to conduct governmental business is not a violation of the Hatch Act.  You might be hearing references to it on the news — but don’t get sucked in.  It’s a red herring. The Hatch Act is a one-way street.  You cannot conduct campaign-related activity with government property (such as computers), but it doesn’t prevent government people from doing official government work on with, say, their AOL account. 

No, the problem here is the Presidential Records Act (or "PRA").  If official government-related emails are sent through non-governmental computers, those records have to be preserved.

The question here is why.  Why would Rove and others use RNC email accounts to conduct official government business.  Think about it.  Is this even smart?  One would think that the Bush Administration, so concerned about national security, would not allow official government work to be conducted through relatively insecure email accounts.  So why was this the practice?

Well, the answer is obvious.  These other computer servers don’t comply with the Presidential Records Act, since they are not government computers.  So the emails can get "lost" there.  Rove and others intentionally used non-White House email servers, so that those emails would get "lost" and never have to be turned over should an investigation arise.  Or, as John Cole put it:

Losing emails from non-official servers run by the Republican party is not a bug, it is a feature. This wasn’t a mistake- it was a plan.


Fortunately, like the war in Iraq, the plan was not well-thought out.  And, we learn this morning, the RNC didn’t routinely delete all the emails that went through their server. 

Why not?

Because back in August 2004, when Plamegate was being investigated, the RNC stopped deleting the White House staff’s emails in response to "unspecified legal inquiries".  Legal note: it is illegal to destroy evidence if you reasonably think it might be relevant to a pending investigation.  The RNC wisely stopped deleting those emails from its severs.

With one exception:  Karl Rove.

According to Mr. Kelner [counsel for RNC], although the hold started in August 2004, the RNC does not have any e-mails prior to 2005 for Mr. Rove. Mr. Kelner did not give any explanation for the e-mails missing from Mr. Rove’s account, but he did acknowledge that one possible explanation is that Mr. Rove personally deleted his e-mails from the RNC server.

Mr. Kelner also explained that starting in 2005, the RNC began to treat Mr. Rove’s emails in a special fashion. At some point in 2005, the RNC commenced an automatic archive policy for Mr. Rove, but not for any other White House officials. According to Mr. Kelner, this archive policy removed Mr. Rove’s ability to personally delete his e-mails from the RNC server. Mr. Kelner did not provide many details about why this special policy was adopted for Mr. Rove. But he did indicate that one factor was the presence of investigative or discovery requests or other legal concerns. It was unclear from Mr. Kelner’s briefing whether the special archiving policy for Mr. Rove was consistently in effect after 2005.

This is obstruction of justice, and it rests right at the feet of Karl Rove.

SIDENOTE:  Throw into this mix the issue of "executive privilege".  The legal maxim is this: you can’t claim privilege if you have already given it up.  For example, if I have a privileged conversation with my attorney, and then I go and blab the conversation to the newspaper or some third party, I can’t go back later and say, "Well, it was a confidential conversation between me and my attorney".  I have waived the privilege. 

"Executive privilege" applies to communications between the President and his advisors.  It does not apply to communications among the advisors (unless those communications reflect advice given to the President).  But in any event, if this stuff is so confidential and sensitive, then one would not have carried on these communications through RNC computer servers.  Read this for a better run-down.

The latest news on the executive privilege front is this:

White House Counsel Fred Fielding is now claiming that the emails Karl Rove and his colleagues sent from RNC and Bush Campaign domains — in a transparent attempt to avoid the Presidential Records Act and keep them permanently hidden from investigators — are nonetheless covered by executive privilege.

Yes, you read that right: emails sent from non-government-owned computers using non-government email addresses are nevertheless part of the President’s executive apparatus and may not be examined by Congress.

Here’s the thing.  It doesn’t matter a whit what Fielding says.  The Judiciary Committee can simply subpoena the RNC for information on its servers.  The White House cannot claim privilege over matters that are not under its custody and control (well, they can try, but it will just get laughed out of the courthouse).  [P.S.  Read the link above; Kleiman has a pretty good secnario of how this might all play out]

UPDATE:  Glenn Greenwald does the yeomans’ work in catalogueing the history of the Bush Administration’s past foibles in "losing" documents.  His examples range from the handling of Hurricane Katrina to the treatment of Jose Padilla to the removal of eight federal prosecutors.  He closes with this:

Rove and company were well-aware of their legal obligations to preserve their communications, and were equally aware that using their White House emails to communicate would result in such preservation. This lengthy record by the Bush administration of finding ways to "lose" key documents relevant to investigations and judicial proceedings ought to leave little doubt about the corrupt intent motivating this behavior.

I should add, to those readers who don’t know, that I am an attorney whose major client is a major tobacco company.  If we attempted to "lose" or hide documents and emails in this manner, my colleagues and I would face serious charges.  What Rove has done is beyond the pale.