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We knew it was coming, and here it is.  Special Counsel to the President, Emmet T. Flood, has sent a letter to the RNC specifically telling them not to provide the e-mails requested by House Judiciary Chair John Conyers as part of the Committee's investigation of the U.S. Attorney scandal.  

The full text of the letter is available at the TPM Document  Collection.  But here's the money quote:  

We understand that once your client has reached an agreement on the appropriate search terms with the Judiciary Committee and has gathered information it believes responsive to the Letter's request, you will provide the Office of Counsel to the President with an opportunity to review such material before communicating it to any other person.

The "Letter" referred to is, of course, the letter that Chairman Conyers sent, requesting the e-mails, along with other information.  

The stated purpose for the request for the RNC not to comply with the Letter, and the House Committee investigation is:  

Such review is necessary to determine, among other things, (1) whether any materials implicating the Presidential Records Act are, in fact, involved, and (2) whether, the Executive Branch may need to take measures necessary to protect its other legal interests in communications responsive to the Letter's requests.

Just to be clear: having not taken any steps prior to disclosing these communications to a third party, (see my previous diary about that issue) to ensure the security of these communications, the White House Counsel's office is now expecting the RNC apparently with the RNC's agreement, to delay turning the requested e-mails and other communications over to the Judiciary Committee until the White House gives the okay.  

Now, again, I'm a lawyer, but federal criminal prosecution is not my bailiwick.  But here's the plain text of Title 18 (Crimes) of the U.S. Code, Part 1, Chapter 73, Section 1505:  

Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress—
Shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both.

Link to the statute.  

"Impedes . . . or endeavors to . . . impede the due and proper administration of the law . . ."  

The definition of impede, in case anyone needs reminding, includes to hinder, slow, or delay.  

I would, therefore, argue that we now have a pretty clear case that the White House Counsel's Office is now obstructing justice, in plain view of the public and the MSM.  The WH is clearly attempting to influence, by means of it's letter, the RNC to not comply with the Committee's investigation.  

I would also argue that, again, the RNC, if it complies with this "request" of the White House, or agrees to this scheme, is complicit in the White House obstruction, and is, in fact, obstructing justice itself.  Take a look at that first part:  "Whoever corruptly . . . impedes . . ."  Just because the WH tries to influence the RNC doesn't mean that the RNC has to cave to that pressure (leaving aside whether the RNC would seriously attempt to resist the WH).  

So.  Anybody seeing any coverage of this?  I watched KO last night, and he had Jonathon Turley on, but even they didn't discuss anything about waiver of executive privilege, or obstruction, and the effect of the WH having disclosed these communications to 3rd, 4th, 5th, parties, as these e-mails went from one server to another to another.  

This is an issue which, I would argue, needs to start getting some coverage.  Maybe if enough of us e-mail Keith at countdown@msnbc.com, he'll get Turley to get the ball rolling.  

Thanks, Kossacks!  I'll stick around for a little while, but I've got Court later, so this will be something of a drive-by.  

Update:  Didn't see this one while I was writing mine, but MediaFreeze has
this related diary up.  Take a look.  

2nd Update:  Sorry haven't been around to respond to all y'all, but had to go try to earn a living.  And, I'm going to have to get the kids very shortly, so won't have time to respond until tomorrow or even later.  

But I did want to thank everyone for taking the time to read, and thank MediaFreeze for the referrals.  

Also, I would reiterate that I am not, have never been, a prosecutor, let alone a federal prosecutor, and am not experienced in this particular area of the law.  Nevertheless, I think it's clear that the WH intends, and the RNC has apparently agreed, not to turn over documents/records/e-mails/communications which have been requested by the House Judiciary Committee.  

This is the interesting part, that I've not had time to delve into.  The HJC has not subpoenaed these documents, but I'm not convinced that a subpoena is necessary.  That's the purpose of the Letter from Conyers; to let the RNC know that these communications are being sought pursuant to a Congressional investigation.  So, whether a subpoena is issued or not, is not, to my mind (and that and $5 will get you latte in some places) material to the violation of the statute.  I'd love to find some case law, but probably won't have time.  

Secondly, of course, this would have to be acted upon by . . . the U.S. Attorney's Office, and the DOJ, becuase that's who is in charge of enforcing these laws, right?  My point is simply this:  there may be no way to stop the WH short of impeachment (personally that's what I believe).  But if you are going to impeach, you've got to have grounds for impeachment, meaning specific "high crimes and misdemeanors."  This appears to me to be obstruction of justice, by the administration.  If Clinton was impeached for perjury . . .

The political will may or may not be there.  But it's a moot question, until there's demonstrable grounds.  

Gotta go, kids need me.  Pay attention to the comments by Serendipity, Mary2002, Cliffy, and zashvil.  Good points.  Appreciate the discussion.  Thanks, Kossacks!  

Originally posted to Jbearlaw on Wed Apr 18, 2007 at 10:34 AM PDT.

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  •  mojo jar (285+ / 0-)
    Recommended by:
    Alumbrados, sgere, ljb, Alma, pb, Night Owl, Mogolori, grollen, Rayne, Lords, Sparhawk, gogol, Tulip, PeterHug, Lahdee, littlesky, rincewind, Shockwave, celdd, polecat, tithonia, RFK Lives, zic, Plays in Traffic, Gareth, mldostert, madhaus, mrfleas, fabooj, mlafleur, JesterDel, concernedamerican, TracieLynn, riverrun, macdust, Wee Mama, mmacdDE, mik, SamSinister, megs, OCD, srkp23, highacidity, AlyoshaKaramazov, mytribe, Glic, scamp, buckhorn okie, vmibran, roses, samddobermann, JuliaAnn, bobinson, Ignacio Magaloni, peraspera, murphsurf, oceanspray, nargel, EasyRider, Miss Blue, jsm6022, Shaniriver, JIffyboy, Jesterfox, rioduran, arkdem, dmsilev, antirove, litigatormom, revsue, PresentMoment, mayan, edrie, Lynwaz, minorityusa, nancelot, oldjohnbrown, Dallasdoc, Winnie, pat bunny, BmoreMD, jayatRI, susie dow, texasmom, homo neurotic, Black Maned Pensator, smartcookienyc, lizah, snakelass, hazzcon, tabbycat in tenn, john culpepper, lcrp, Schup, BlogDog, Dood Abides, Pohjola, walkshills, blonde moment, peterj911, DrReason, SanDiegoDem, ScienceMom, jcrit, ANKOSS, djpat, kd texan, realalaskan, AlwaysDemocrat, Josiah Bartlett, Demfem, cohe, sawgrass727, Gowrie Gal, weelzup, rapala, davidincleveland, Fabian, ukexpat, paige, lcs, Bluesee, 3goldens, Farlfoto, rstnfld, jrooth, Jeffersonian Democrat, Ckntfld, blueyedace2, hiredman, Halcyon, Salvor Hardin, PBen, oldhousepoor, kamarvt, Simplify, zbctj52, karpinsky, Brooke In Seattle, reflectionsv37, boofdah, dg10348, IL dac, Heartcutter, HugoDog, jimreyn, GreyHawk, Little Lulu, SheriffBart, babatunde, Warren Terrer, wiscmass, word is bond, Tex Kosmaniac Dem Lady, Cory Bantic, Rogneid, Ghost of Frank Zappa, Brian B, bookwoman, Ekaterin, SleeplessinSeattle, ThatBritGuy, Tigana, lgmcp, berko, occams hatchet, Shirl In Idaho, keefer55, buddabelly, gwilson, MissInformation, Thundergod, Nightprowlkitty, tarheelblue, highfive, sherlyle, DrSpalding, sunsquared, tobendaro, hungrycoyote, cwaltz, Ellicatt, Yellow Canary, cookseytalbott, rcald, victoria2dc, InsultComicDog, revliver, Sagittarius, dougymi, compbear, deha, sailmaker, greenearth, quinque, Silent Lurker, tecampbell, MJ via Chicago, StrayCat, UEtech, OneCrankyDom, imabluemerkin, DSPS owl, Everest42, FreeTradeIsYourEpitaph, armadillo, myrealname, ER Doc, bonesy, buckinfuzzard, murphthesurf, txdemfem, Nerdsie, land of the free, BPLariat, Clive all hat no horse Rodeo, MrJersey, cherryXXX69, MarketTrustee, kurt, horatius, DanC, Mary2002, kurious, Snarcalita, Quicklund, Riddle, dunneasley, phonegery, Abraham Running For Congress When I Turn 25, fisheye, A Mad Mad World, Susan Something, dotsright, Cronesense, SweetAuntFanny, maddogg, Russ Jarmusch, Bob Guyer, Cottagerose, ColoTim, offgrid, left coast lad, Proud Moonbat, Nespolo, Ticonderoga, ca democrat, neontrace, gmac51, netguyct, Oreo, TheCorkBoard, gatordem, Steffo, carpunder, keikekaze, MichiganGirl, FXDCI, willb48, craiger, B12love, mathGuyNTulsa, Empower Ink, gizmo59, MKinTN, ohadmeyer, kafkananda, rogerdaddy, Mad Kossack, LightningMan, dragoneyes, middle child, AshesAllFallDown, Johnny Rapture, bethincary, alex valgus, Miss Butter, BunnyFoo, demoKatz, TH Seed, geomoo, pickandshovel, brione, pooh74, DanK Is Back

    And, as always, hit the rec button if you think others might want to read.  Thanks!  

    "Win some, Lose some . . . and then there's that little known 3rd category." Al Gore, January 9th, 2007.

    by Jbearlaw on Wed Apr 18, 2007 at 10:29:39 AM PDT

    •  Thanks for your perspective... (15+ / 0-)

      This is an important issue that is not getting much attention... even here!

      MediaFreeze posted a diary here about the subject, but I like your analysis.

      Please rec this up!!!

      Insert meaningfull quote here.

      by weelzup on Wed Apr 18, 2007 at 10:39:41 AM PDT

      [ Parent ]

      •  Ok, never mind! (5+ / 0-)

        MediaFreeze's diary just hit the rec list... so it is getting attention here... now if we could just get the MSM to pay attention.

        Insert meaningfull quote here.

        by weelzup on Wed Apr 18, 2007 at 10:44:03 AM PDT

        [ Parent ]

        •  Not to rain on anyone's parade (17+ / 0-)

          but it certainly got my attention.

          I too am a lawyer with federal court experience, primarily in civil rights actions against government entities.

          Like all of the progressives here, I too would want the Congress to gain unrestricted access to all relevant and unprivileged documents that it may need to carry out its law-making functions. But the key is that the information must be relevant and not privileged. We must always remember that what is good for the goose is good for the gander. Just because we are convinced that obtaining full access to what Conyers is asking for will get us a result that we want should not cloud our judgments. You see, if we can do it to them, then we set a precedent for them to be able to do it to us. So I think that we really need to see the other side's arguments being made here from the perspective that we may someday be in the position of having to make the same arguments.

          Conyers demand letter is quite broad. It just may very well be too broad. This is something that the court's should decide. I also think that it is still  an open question as to whether a violation of the Presidential Records Act by sending an official, otherwise privileged communication outside of permitted channels waives the privilege. (I think we have a strong argument that it is, but it is still unsettled.) So, until it is, Emmet T. Flood's letter is presenting a good faith request.

          So I would caution against salivating at this point, and also caution all to consider the ramifications of calling for unlimited discovery here.

          Be concerned, yes. But at the same time, be pragmatic. Be careful not to give away any rights we may have just to win this battle. In the long run, judicial action will be brought to determine whether the WH position is reasonable. In this action, everyone's rights will be protected, and a judge or panel of judges or a master will determine what will need to be produced and what will not. That is our system. Not perfect from a results point of view, but designed to protect each and every one of us from too much or unwarranted governmental intrusion.

          Calm down and instead of calling for some kind of enforcement or speculating even if it is available, vow to monitor the situation. If you really want to do something, pick any of the many organizations that eventually will be filing amicus briefs in the judicial action that will follow and donate ton's of money.

          Just saying.

          The foolish and the dead alone never change their opinions. James Russell Lowell

          by Serendipity on Wed Apr 18, 2007 at 02:03:15 PM PDT

          [ Parent ]

          •  Hear hear! (3+ / 0-)
            Recommended by:
            PeterHug, Serendipity, deha

            Except you misused the possessive in "ton's" [sic].

          •  I recall an adage about justice delayed... (3+ / 0-)
            Recommended by:
            Serendipity, Dallasdoc, greenearth

            Going to district court, circuit court, and to the Supremes would effectively allow the WH to run out the clock here.  Hell, just going to district court and circuit court and then have 4 Supremes grant cert could easily drag things out until fall 2008, by which time the matter would be essentially moot.

            I am not conversant w/ the finer legal points of the privilege claimed here, but I would assume that basic waiver principles that are applied in other situations would be applied there as well.  As jbear notes, if I send an e-mail to a client and a third party, I have waived any privilege claims on that e-mail.  Similar principles should apply here as well.

            You appear to be engaging in hair-splitting that obscures the latest WH attempt to thwart a Congressional inquiry.  

            Some men see things as they are and ask why. I see things that never were and ask why not?

            by RFK Lives on Wed Apr 18, 2007 at 03:02:23 PM PDT

            [ Parent ]

            •  But remember (2+ / 0-)
              Recommended by:
              keefer55, Jbearlaw

              justice involves no more and no less than what is right - the Shakespearean pound of flesh but not a drop of blood. The corrolary of what you say is contained in the phrase "rush to judgment."

              Your example of sending an email to a client and a third party is not on point. Here, the issue is not whether there is another party other than the sender and recipient to whom the communication was sent, but a) whether the use of a third party vehicle in sending the communication a) violated another law and b) whether this violation operates to trump an otherwise valid privilege. My point is that these are open questions since there has yet to be any decision rendered on the requirements of the Presidential Records Act.

              (This is separate from the issue of whether, in an investigation into the violation of the Presidential Act, the request is for production of violative communications. Given the allegation that this vehicle was needed to comply with yet another law, the Hatch Act, I think that this is a prime example where balancing will be a major component of the ultimate decision.)

              Basically, I see too many finer points that need to be resolved. The bruhaha these events is raising and the good lawyering going on all over the place screams novel issues.

              The foolish and the dead alone never change their opinions. James Russell Lowell

              by Serendipity on Wed Apr 18, 2007 at 03:49:26 PM PDT

              [ Parent ]

              •  not just a vehicle though (5+ / 0-)

                "whether the use of a third party vehicle in sending the communication "

                This isn't a matter of sending on AOL.  When the parties were using these accounts it was presumptively in their status as operatives for the RNC or the re-election campaigns, neither of which have a privileged situation with the President.  And the emails were all being stored on open servers where they could be accessed by non-privileged persons as well.

                While I think they still would have major problems if you were talking about the use of a personal yahoo account, for example, what you are talking about is in the nature of entity owned accounts - they were not Kyles and Monica's private accounts, being serviced by an entity like Yahoo, they were email accounts OWNED BY the RNC and the re-election campaign.

                •  But were the communications sent TO (2+ / 0-)
                  Recommended by:
                  ohcanada, Jbearlaw

                  the RNC or just THROUGH the RNC communication system? Do we know that?

                  That is why the best argument is that by sending them through the RNC, the WH violated the PRA, and this is what triggered the waiver.

                  See my example about attorney client emails in other threads. I would think that most lawyers would prefer a holding that sending advice through email does not waiver the attorney client privilege.

                  That's my point - we can argue this so far that we all get hurt in the long run.

                  The foolish and the dead alone never change their opinions. James Russell Lowell

                  by Serendipity on Wed Apr 18, 2007 at 04:22:40 PM PDT

                  [ Parent ]

                  •  An even better refutation of executive privilege (12+ / 0-)

                    . . . in my opinion, is that it never existed in the first place.  That is, in transacting certain business over the RNC server, the White House made a conscious decision that that business was political and not on behalf of the executive branch.

                    If there was no privilege to begin with, you don't even need the waiver argument.

                    Luckily, we have both arguments.  The problem, of course, is getting enforcement and accountability for what looks like nothing less than a blatant cover-up.

                    "[W]e shall fight on the beaches, we shall fight on the landing grounds, we shall fight in the fields and in the streets . . . we shall never surrender[.]"

                    by Miss Butter on Wed Apr 18, 2007 at 04:41:14 PM PDT

                    [ Parent ]

                    •  That is a very good argument (9+ / 0-)

                      by I would extend it further by saying -

                      In transacting business that the PRA required to be transacted on official channels over unofficial channels (the RNC server) the WH engaged in unlawful conduct and made a misrepresentation that the business was political in nature. It can not now, with a straight face, claim that its own unlawful conduct and its misrepresentations made to justify the unlawful conduct somehow protect it.

                      The foolish and the dead alone never change their opinions. James Russell Lowell

                      by Serendipity on Wed Apr 18, 2007 at 04:52:19 PM PDT

                      [ Parent ]

                      •  I know what you're saying, and agree that (10+ / 0-)

                        . . . there's a fairness argument to be made.  The thing is that the PRA doesn't require that business be communicated over any particular channels -- only that the President and his staff are required by law to preserve documents that relate to their "constitutional, statutory, or other official or ceremonial duties."

                        (a) Through the implementation of records management controls and other necessary actions, the President shall take all such steps as may be necessary to assure that the activities, deliberations, decisions, and policies that reflect the performance of his constitutional, statutory, or other official or ceremonial duties are adequately documented and that such records are maintained as Presidential records pursuant to the requirements of this section and other provisions of law.

                        (b) Documentary materials produced or received by the President, his staff, or units or individuals in the Executive Office of the President the function of which is to advise and assist the President, shall , to the extent practicable, be categorized as Presidential records or personal records upon their creation or receipt and be filed separately.

                        (c) During his term of office, the President may dispose of those of his Presidential records that no longer have administrative, historical, informational, or evidentiary value if--

                        [Rules for consultation with Congress before disposing of Presidential records.]

                        44 U.S.C. section 2203 (emphasis mine).

                        I commented on a thread a while back that this means that, under the PRA, the White House can conduct its business via carrier pigeon so long as it preserves documents as prescribed.

                        So the White House's very interesting choice of communication channel isn't what's illegal -- what's illegal is (a) violation of the Hatch Act, (b) failure to preserve records under the PRA, (c) obstruction of justice, and (d) possibly some national security-type statute(s) or regulation(s).

                        "[W]e shall fight on the beaches, we shall fight on the landing grounds, we shall fight in the fields and in the streets . . . we shall never surrender[.]"

                        by Miss Butter on Wed Apr 18, 2007 at 05:15:30 PM PDT

                        [ Parent ]

                  •  Communications between client and lawyer (12+ / 0-)

                    have generally been held to be privileged, BUT a recent decision held that where an individual client sent an e-mail to his personal attorney through his employer's e-mail server, the privilege was waived because he was aware that all his e-mails could be reviewed by his employer. Even if the client didn't think about this when he sent the e-mails, he was "on notice" of company policy that permitted the employer to review all of his e-mails.

                    Significantly, under the rationale of the decision, if the client and his lawyer had communicated through a personal Yahoo or gmail account, the communications would have remained privileged -- even though it would probably be possible for someone to hack into those accounts.  The issue turned on the fact that the e-mails sent over the employer's server belonged to the employer.

                    I think the problem the WH has here is that the WH employees were (supposedly) given access to RNC e-mail accounts for the very purpose of separating "official" government communications from political activity that is NOT subject to executive privilege or the Presidential Records Act. People used the RNC servers knowing that the normal WH archiving procedures were not going to be used. Even if they thought the RNC might be saving them, they were, at the very least, "on notice" that the official archiving procedures didn't apply.  

                    I don't see how the WH claims executive privilege over communications sent through an RNC server that the WH officials KNEW were not being archived like "official" communications, as required by federal statute, and were being sent through a server where a non-governmental entity would have access to and control over those communications.  Further, at least in the case of Karl Rove, there appears to have been widespread awareness in the WH that a significant percentage of all e-mails were being sent on the RNC server, and the WH did NOTHING to preserve executive privilege by making him cut it out.

                    By the way, executive privilege doesn't apply to everything coming in or out of the White House, regardless of how its sent.  Executive privilege applies to advise given to the President, is strongest when it relates directly to national security, and even then may be outweighed by the need to complete a criminal investigation.

                    Alberto Gonzalez: "I'd really like to see his diploma." Dick Cheney: "He scares the living crap out of me." -- Keith Olbermann

                    by litigatormom on Wed Apr 18, 2007 at 04:59:47 PM PDT

                    [ Parent ]

                    •  Very nice. (3+ / 0-)
                      Recommended by:
                      retLT, Jbearlaw, geomoo

                      But I don't know if the "archiving" is that important.

                      I think that if all of the communications sent through RNC do turn out to be political ones, you would agree that none of it could be looked at by Congress. The conflict between the Hatch Act and the PRA necessitates some kind of firewall. Clinton chose a hardware solution way back at the dawn of the email age, BushCo Chose an ISP solution. To hold otherwise would put our whole political system in jeopardy.

                      But communications that are not political but were sent through the RNC presumably could be looked at by Congress. These would all be communications in violation of the PRA. Examples here would be communications dealing with the administration's involvement in personnel matters at DOJ. These would have been offical communications but for their having deliberately been taken out of the offical system.

                      So the argument here is  whether some of these communications that clearly violate the PRA are still entitled to executive privilege. Like you said, those will be subject to a balancing test, which also is what I am saying. My personal gut feel is that the vast majority of any communications recovered from the RNC will in fact be political. But there also will be many that were sent through the RNC to try to conceal them. Some of these may in fact contain communications that we could all agree would have been privileged if kept in the official channels. Whether the courts will extend the privilege this far remains to be seen.

                      All I am arguing is that to make all of these determinations is going to take time, and any final determination will only come after a long, drawn out legal battle. Rather than blather here on a blog, we need to be aligning with those who will be duking it out in the judicial system and supporting those who stand the best chance of getting the greatest amount of disclosure.

                      BTW, you write wonderful diaries and comments. I try to read all of them. Keep it up.

                      The foolish and the dead alone never change their opinions. James Russell Lowell

                      by Serendipity on Wed Apr 18, 2007 at 05:30:24 PM PDT

                      [ Parent ]

                      •  The knowledge that the e-mails on (5+ / 0-)
                        Recommended by:
                        retLT, Serendipity, jiml, Jbearlaw, geomoo

                        the RNC server were not being archived indicates that the WH officials knew that the e-mails were not the kind of communications subject to executive privilege. It's just a basis for finding waiver or non-applicability of executive privilege.

                        I do think that there is a basis upon which purely "political" e-mails could be read by Congress -- they are evidence of violations of the Hatch Act.  I think the "ISP firewall" construct adopted by the WH is ineffective to comply with the Hatch Act.  I think that if WH officials are sending hundreds of "political" e-mails a day while on WH premises that may be a violation of the Hatch Act regardless of what server or cell phones are used.

                        P.S. Thanks for your kind words.

                        Alberto Gonzalez: "I'd really like to see his diploma." Dick Cheney: "He scares the living crap out of me." -- Keith Olbermann

                        by litigatormom on Wed Apr 18, 2007 at 06:12:09 PM PDT

                        [ Parent ]

                        •  I doubt that you two will ever read this (2+ / 0-)
                          Recommended by:
                          Serendipity, geomoo

                          but wanted to say that I really appreciate your insights.  

                          I also want to interject that it seems to me that one of the important points here is that, at least as I understand, the initial press reports had it that the RNC made these accounts available to WH staff specifically for the purpose of allowing them to conduct partisan political work on those accounts, not official government business.  There's a couple of points to be made here.  

                          1. IF the user(s) didn't adhere to the stated and intended purpose for which the accounts were made available and were supposed to be used, and instead conducted official business (allegedly without the knowledge and/or consent of the RNC - giving the benefit of the doubt), doesn't that help us get to a waiver?  After all, essentially the RNC was giving the users a license to use their facilities; but the license was for use for a specific purpose.  Would not the RNC then have the absolute right to review the communications in order to determine whether or not the users/licensees are using the accounts within the confines of the license?  If so, that carries with it the clear implication that the WH has not protected the confidentiality of the official communications.  This ties into the archiving argument:  These communications were being stored/backed up by the RNC, and the records were in the possession of the RNC, and it does not appear that there was any pre-arranged system to review, sort, archive, or make any other kind of determination regarding the content of these communications; and if you don't know what you are sending out, or worse, know what you are sending out, but are sending it out in violation of the stated policies of both the WH (PRA) ad the RNC, and you have no set of procedures in place to retrieve those communications without having the RNC, and their IT subcontractors, review those communications to determine what the content is, how can you have taken reasonable steps to protect the privilege/confidentiality of those communications?  There's a reason why we attorneys put those little "attorney/client privilege" statements on all of our faxes, e-mails, etc.  

                          Which leads to point number 2.  

                          Serendipity, I both agree and disagree with regard to the use of the e-mail accounts, and the RNC servers, etc., as a "vehicle for delivery" of the communications.  Certainly, e-mail is a vehicle for the delivery of communications.  But it's not simply a vehicle.  Everybody knows that servers, particularly ISP servers (using your comparison of the RNC to an ISP), are routinely backed up, and that your ISP may very well have all kinds of information about you stored in their servers, including, for example, what e-mail you've sent, where it went, what web sites you've visited, etc.  And even most ISP's have stated policies with which users must comply in order to continue to use that ISP.  Prohibitions on spamming, for instance, are ubiquitous.  And, typically, if you violate the terms of their policies, and particularly if you violate the law at the same time (i.e., anti-spamming laws) the policies explicitly allow the ISP to turn over your information to law enforcement authorities.  Now, I don't know if the RNC had any such stated policy with regard to these e-mail accounts; but the point is, if there was such a policy and if it is industry standard, these communications which were sent in violation of the PRA would not be confidential any more, would they?  My point is that, like credit cards and teaser rates, ISP's control their own services, and can change the terms of those services, including their privacy policies.  And unless there is a clear contract between you and the ISP, you are bound by their terms of use.  In this analogy, the WH is bound by the RNC's terms of use, absent an agreement otherwise, and there is no evidence of such an agreement at this time -- indeed the evidence would seem to be that in fact, they are now scrambling to reach some kind of an agreement, ex post facto.  

                          I keep coming back to the fact that you, as the holder of the privilege, have to take adequate and reasonable safeguards against disclosure to third parties.  And so far, I've seen no evidence that there was any, repeat any, safeguards at all.  I remember a case where a law firm shredded their documents and threw them in the dumpster, and the state (if memory serves) painstakingly taped the documents back together again, and the issue in the case was whether or not shredding the documents was an adequate safeguard.  

                          Finally, I want to say this:  

                          The whole Executive Privilege argument seems to me to be, in some ways and particularly the way this WH is trying to use it, is in direct contradiction of the PRA.  The purpose of the PRA is to to document and preserve the deliberative processes of the President.  That's why the PRA has provisions for keeping documents private for a period of time, in order to preserve the Executive Privilege, and the prerogatives of the President to receive unfiltered advice, etc.  My point is that the PRA is the balancing test.  This was the procedure agreed to by both Congress and the President, as signed into law, to balance the competing interests of the Congress and the people of the U.S. to know how their President made policy decisions that affect the entire country, and the President's need to be able to operate with some substantial discretion in making policy.  The PRA essentially says, okay, your deliberative processes may be privileged, but they have to be documented, and released in the future, after you have left office.  After all, when you are no longer in office, you don't need to protect your deliberative process anymore, do you, because you are not making decisions anymore? Right?  Thus, I would argue that the very act of violating the PRA (as this WH has routinely done as a matter of policy) waives the privilege.  

                          Anyway, I hope you won't mind if I try to turn these comments, and these issues, into another diary in the (hopefully near) future.  I think this is a fascinating topic, and really appreciate your ideas and dialogue.  

                          "Win some, Lose some . . . and then there's that little known 3rd category." Al Gore, January 9th, 2007.

                          by Jbearlaw on Thu Apr 19, 2007 at 03:42:10 PM PDT

                          [ Parent ]

                          •  I saw it. (0+ / 0-)

                            I think we are saying the same thing while recognizing other twists.

                            My original comment was not really addressed to or against your diary but to other comments that were drooling as though your analysis was a SCOTUS ruling. I was just raising issues.

                            Looks like it did some good.

                            The foolish and the dead alone never change their opinions. James Russell Lowell

                            by Serendipity on Fri Apr 20, 2007 at 03:33:57 PM PDT

                            [ Parent ]

                    •  thankyou, litigatormom, appreciate n/t (1+ / 0-)
                      Recommended by:
                      Serendipity

                      *a hundred years from now, the future may be different because I was important in the life of a child*

                      by bonesy on Wed Apr 18, 2007 at 07:59:44 PM PDT

                      [ Parent ]

          •   It's not violation of PRAthat constitutes waiver (4+ / 0-)

            ?????

            I also think that it is still  an open question as to whether a violation of the Presidential Records Act by sending an official, otherwise privileged communication outside of permitted channels waives the privilege. (I think we have a strong argument that it is, but it is still unsettled.)

            Putting aside the iffy ground of Exec Privilege in general, in the face of a possible criminal investigation, I don't think anyone is conflating that it is violation of the PRA that constitutes a waiver. It is handing info over to a non-privileged third party, the RNC.

            Am I misunderstanding you?

            •  Is the use of (2+ / 0-)
              Recommended by:
              Sparhawk, Jbearlaw

              a third party delivery system (which may be a violation of the PRA) in and of itself the "handing over of a communication to a third party?" Unless we see from and to whom the communcations were sent, we cannot assert that the way they were sent rises to the level of disclosing the communication to a non-privileged party. Although if the way they were sent is unlawful, I think that might make a stronger argument.

              Can you cite any law that has held that a waiver can occur based upon using an internet delivery system? If so, has using commercial email providers been deemed to be an delivery system that waives privilege as a matter of law? What if the commercial provider has a secure system, does that influence your conclusion? Isn't this why we lawyers have those paragraphs of disclaimer in our emails to protect the attorney-client privileges in the event of a mis-delivery? Or does just sending them via the internet constitute a waiver. Does this mean that we all lose the internet as a tool or risk losing our core privilege?

              There are just too many unanswered legal questions that tug at the roots of too many fundamental legal principals and rights. Hence the cacaphony.

              All I am saying is this whole thing is a mess and it will be a challenge to get a decent decision. That will take time, unfortunately.

              The foolish and the dead alone never change their opinions. James Russell Lowell

              by Serendipity on Wed Apr 18, 2007 at 04:04:34 PM PDT

              [ Parent ]

          •  The flip side... (7+ / 0-)

            === This is something that the court's should decide. I also think that it is still  an open question as to whether a violation of the Presidential Records Act by sending an official, otherwise privileged communication outside of permitted channels waives the privilege. (I think we have a strong argument that it is, but it is still unsettled.) ===

            The flip side being that if the White House claims executive privilege for the e-mails, and the RNC did NOT archive them, then there should be a prosecution for violation of the Executive Records Act.  That will be a key test of good faith under the "sauce for the goose" theory.

            sPh

            •  Duty to archive separate from privilege (3+ / 0-)

              There are many docs that aren't privileged that would be required to be archived properly under the act.  

              As the, if not counterpoint, parallelpoint, even a properly archived, in the gov servers, doc can lose privilege if it is then forwarded on or otherwise disseminated to non-privileged private parties like the RNC, via placing it on their servers for example.

              So, let's say A)  Goodling has a presumably privileged (and it's hard to even define Exec privilege to know it's breadth - since it is a very touchy feely fuzzy penumbra-y type priv - not a strict constructionist privilege) email she sends to McNulty.  B) McNutly responds, still presumably privileged, still on gov servers. C) Monica then uses her RNC account to send her original email and McNulty's response to Sampson - or sends to Sampson on his RNC email account, putting the conversations into the hands of the RNC as a private entity.

              You have met the records archiving requirements at A and B.  You may have privilege requirements met for A and B as well, from the formalities (form) components - IF you meet the substance requirements for privilege for A and B.

              But, by the time you get to C, the transmission of the "C" info itself is no longer meeting the archiving requirements and bc it is using the RNC to handle the communications - inviting it into the communications - it can no longer be privileged.  Now, what happens to the first two communications that got appended (the A and B)?  They were definitely ok on the archiving front, but have they now lost privilege claims as well, as they have, in essence, been "turned over" to the RNC?

              For example, if a Republican Attorney sits down one day and gives all his client X's privileged information to the local head of the Republican Party and someone later subpoenas that Head.  ;)  Can client X claim Attorney/Client privilege for the information that Head has?  Not anymore.  Privilege was destroyed.  Client X can still keep his own attorney from disclosing further, and Client X may have some malpractice grounds and ethics complaints, but Head cannot refuse to respond to the subpoena bc lawyer and X had privilege and X can't claim privilege for what Head has.

              So there are two separate issues.  One is whether or not archiving was done, as required.  A SEPARATE issue is, irrespective of archiving requirements, was info handed over to a non-privileged third party.  Pretty clearly it was and I don't think they even tried for "privilege" as opposed to "a significant interest in"  approach from the WH.

              My guess?  Some kind of filter team approach will be the resolution.
               

              •  I agree, filter team. (1+ / 0-)
                Recommended by:
                retLT

                There is precedent, I think.  (IANAL)  Similar to the review of the Nixon tapes before turning them over, if memory serves.  (Gosh, that was a long time ago!)

                •  IAAL, and ... legalese for "filter team" is (0+ / 0-)

                  usually "a special master", whose sole duty is to sort out apples from oranges and turn the oranges over to the judge. Problem is, the special master, and the judge, are by definition NONPARTISAN ... so, who is so respected in Congress that both sides would trust him to give Conyers everything he deserves and never talk about the stuff he gave back to the RNC?

              •  Here is the apple vs orange analysis (1+ / 0-)
                Recommended by:
                Jbearlaw

                Both official and unoffical emails go through the internet. Period. The difference is the account used.

                Merely using an unofficial account, according to you, rises to the level of "turning over the communication to a third party" and constitutes a waiver.

                I differ - unless the communication was directed to an nonprivileged third party (not merely passed through in electronic form)I submit the privilege is not waived.

                Real life example - attorneys send email advice to clients millions of times each day with multiple disclaimers at the bottom to protect the privileges from inadvertent, accidental, and unintended mis-delivery. If you are correct, then the simple fact that they were sent through the internet waives the privilege.

                Another example. Attorney A puts a letter to Client C in an envelope and gives it to Gofer G to deliver.  This does not waive any privilege because G is just a delivery vehicle. My point is that the internet is just a delivery vehicle. What is making everyone extremely angst about the WH situation, is that the Gofer delivery boy here is the RNC. Would your arguments be the same if a G-mail account was used?

                The foolish and the dead alone never change their opinions. James Russell Lowell

                by Serendipity on Wed Apr 18, 2007 at 04:15:46 PM PDT

                [ Parent ]

                •  ok ok (1+ / 0-)
                  Recommended by:
                  Serendipity

                  I see what you are saying.  Its not the account that makes it a 3rd party communication but the party that does.  Yes, you are correct, aside from archving issues of which I know nothing, I don't see how lawyer "x" being mailed from client "y", once from a work account and another time from a yahoo account would change the privileged nature of the communication.  I agree, but I am still pissed that WH addresses were circumvented for "dirty business" and WH addresses were used for "God Bless Our Country" crap!

                  •  You're getting it. (0+ / 0-)

                    But for me, the key is that the WH had no control over these communications once they were sent out.  They handed them over to the RNC with no safeguards in place once the RNC had control over them.  See my rather lengthy comment upthread.  

                    "Win some, Lose some . . . and then there's that little known 3rd category." Al Gore, January 9th, 2007.

                    by Jbearlaw on Thu Apr 19, 2007 at 03:50:43 PM PDT

                    [ Parent ]

              •  I am no lawyer, but I disagree (1+ / 0-)
                Recommended by:
                Sparhawk

                I am no lawyer, but that will not stop me from disagreeing ;-)

                As far as I can see, if even one privilaged e-mail was processed on the RNC servers then all the provisions of the Executive Records Act were triggered for those accounts, for those systems, and the people who managed them.  They were immediately subject to the documentation, training, certification, and reporting requirements of the Act, not to mention the archiving requirement.

                And that doesn't even touch the question of whether or not clasified material was transmitted through the RNC systems while they were being used for Executive business.

                sPh

            •  There you go. Great point. (0+ / 0-)

              They put Capone away for tax evasion if I remember correctly.

              The foolish and the dead alone never change their opinions. James Russell Lowell

              by Serendipity on Wed Apr 18, 2007 at 04:06:00 PM PDT

              [ Parent ]

          •  I agree/disagree (5+ / 0-)

            Conyers demand letter is quite broad. It just may very well be too broad. This is something that the court's should decide. I also think that it is still  an open question as to whether a violation of the Presidential Records Act by sending an official, otherwise privileged communication outside of permitted channels waives the privilege. (I think we have a strong argument that it is, but it is still unsettled.) So, until it is, Emmet T. Flood's letter is presenting a good faith request.

            The question is, does the RNC represent the WH?  Of course privilege is waived unless the RNC can somehow prove that the WH and RNC communications fall under some sort of "common interest" privilege which I don't believe exists at the federal level, and frankly, that would just sound bad.

            I think the RNC has the right to review the emails for privilege...but...and here's the punch line Why does the WH have that right?!!???

            •  Actually (1+ / 0-)
              Recommended by:
              Jbearlaw

              I would suspect that the WH always has the right. The only reason the RNC is now forced to look at the emails is because of Conyer's request. And I suspect that compliance with Congress' request will not operated to waive any privileges on the material that is now being looked at.

              I keep coming back to the point that the RNC account, for all practical pursposes, is just an ISP account. Most communications were not sent TO the RNC but THROUGH the RNC. Obviously, any communications that were cc'd to any nonprivileged party are no longer privileged. But you would have to look at each one to make that determination.

              And don't forget, there is always the basic question of relevance.

              The foolish and the dead alone never change their opinions. James Russell Lowell

              by Serendipity on Wed Apr 18, 2007 at 04:29:00 PM PDT

              [ Parent ]

          •  Agreed (3+ / 0-)
            Recommended by:
            Serendipity, Marlyn, Mary2002

            I'm not surprised that a competent lawyer would want to look at the documents before they are produced.  The big question is what happens to a document that is not legitimately privileged but is very damaging.  If it gets produced then the lawyer is doing his job.  If the bad stuff all disappears then it's obstruction of justice.

            Bush's only "exit strategy" is to let somebody else figure it out in 2009.

            by Tod on Wed Apr 18, 2007 at 03:38:37 PM PDT

            [ Parent ]

      •  Only resort left now. Send in the marshalls n/t (3+ / 0-)
        Recommended by:
        reflectionsv37, Rogneid, bookwoman

        Sociopathy is not an innate talent. It is a honed skill.

        by horatius on Wed Apr 18, 2007 at 12:56:22 PM PDT

        [ Parent ]

        •  Agreed! (5+ / 0-)

          It is obvious the WH is terrified over what may be in those emails and will do anything it can to make sure they are not released. It's way past time to physically seize all of the RNC servers, backups and any other device that might contain historic data and immediately turn it over to forensic specialists that can attempt to recover these lost emails. Every minute this data remains in the hands of the RNC is one more minute they can use to delete and destroy. I wouldn't be a bit surprised to see a catastophic fire at the RNC headquarters!

          Attention Waxman Staffers! Clean up on aisle 1600! huttotex 3/27/07

          by reflectionsv37 on Wed Apr 18, 2007 at 01:51:22 PM PDT

          [ Parent ]

        •  Exactly! They have no respect for the law so (2+ / 0-)
          Recommended by:
          Rxtr2, victoria2dc

          why do we worry about it.  The Capital Hill Boys stop the vote count in Miami; the Supremes steal the election; Rice doesn't show up for a hearing; they can't remeber shit; they lose emails; they throw innocent people in WI in jail to win an election; they pack the DoJ with unqualified zealots; SCREW IT.  Get a bunch of people and go take the servers -- they would!

    •  Only thing on the news today (9+ / 0-)

      is the VT massacre, with occasional reference to some bombings in Iraq with HUGE casualties.

      Alberto Gonzalez: "I'd really like to see his diploma." Dick Cheney: "He scares the living crap out of me." -- Keith Olbermann

      by litigatormom on Wed Apr 18, 2007 at 12:24:40 PM PDT

      [ Parent ]

    •  Also possibly applicable (13+ / 0-)

      (c) Whoever corruptly—
      (1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or
      (2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so is guilty of obstruction.

      18 U.S.C. § 1512(c)(1)-(2).

      If not for this, for the "lost" emails.  Note that the "federal proceeding" need not be pending at the time of the obstruction.  It is enough that it is reasonably forseeable.

      The Democratic Message: Security, Privacy, Justice

      by Upper West on Wed Apr 18, 2007 at 12:47:43 PM PDT

      [ Parent ]

    •  Who prosecutes? n/t (6+ / 0-)

      "I count him braver who overcomes his desires than him who conquers his enemies; for the hardest victory is over self." --Aristotle

      by java4every1 on Wed Apr 18, 2007 at 12:59:56 PM PDT

      [ Parent ]

    •  Every time... (26+ / 0-)

      the Bush Administration (including the allegedly independent Office of the Vice President) breaks the law and is not charged with such unlawful conduct, a precedent is established. The precedent is that the Executive Branch is exempt from the law. The so-called "rule of law" is thereby disestablished and our society sinks further into lawlessness. How can we expect our society to uphold the Social Compact and obey our laws if the highest authority in our nation refuses to do so?

      Based on this morning's report of the Supreme Court's abortion ruling, I believe that it is fair to say that the Bush Crime Family now controls two out of the three Branches of the U.S. Government.

      Our Congress is now in a position where it is compelled to do the thing which it most hates to do: it must take some meaningful, effective action. All Congresscritters hate to even say the "I-word." If impeachment continues to remain "off the table," then we are all SO fucked. There's no way around it.

      "The arc of the moral universe is long, but it bends toward justice." Rev. Dr. Martin Luther King, Jr.

      by jayatRI on Wed Apr 18, 2007 at 01:21:26 PM PDT

      [ Parent ]

    •  Interesting (1+ / 0-)
      Recommended by:
      Jbearlaw

      But the WH will argue there's no threat, and that the letter merely evidences an understanding that the RNC has agreed not to hand the emails over to congress until the WH has reviewed them. How, on its face, is the letter a threat?

    •  immediate reaction w/o reading comments (0+ / 0-)

      is that it is a tacit admission of having already violated the law - since any email on an RNC server by definition is political and therefore should not be official White House business.  IF they are claiming the Presidential Records act is applicable

      • they are acknowledging violation of the security of provisions of government communications
      • they are acknowledging an inappropriate admixture of political and presidential, thereby violating the Hatch Act

      and all of that is before even getting to the issue of obstruction.

      So was the US Attorney replacement in DC  intended to be insurance, since Rove didn't think he was going to lose control of H or S  (apparently his vote fixing did not account for the level of Dem turnout)?

      IANAL  -  I do not even play one in the classroom.  And I am too tired to think clearly.  

      But to go to this degree, it seems to me that they are desperate to cover up previous wrongdoing.  They have thereby compounded the mistake they already did when the US Attorney story broke -  it is never the original misdeed that gets you into real trouble in DC, it is always the coverup.

      And if Bush was upset at the comparison Reid made between Iraq and Vietnam, then perhaps Harry ought o make it a lot more clear - and make the comparison between the current set of White House horrors and those to which John Mitchell first appended that label, the collective set of misdeeds we know as Watergate.

      Those who can, do. Those who can do more, TEACH!

      by teacherken on Wed Apr 18, 2007 at 08:19:46 PM PDT

      [ Parent ]

  •  Rove is afraid of his emails being found (34+ / 0-)

    This is good news, in a way, because it suggests that the incriminating email is sitting on RNC servers waiting to be recovered. Rove is finished once the Congress cracks open his email files.

    We are producing an increasing number of useful goods and services for increasingly useless people. -- Ivan Illich

    by ANKOSS on Wed Apr 18, 2007 at 10:39:42 AM PDT

    •  Disagree - think Rove is afraid of something more (10+ / 0-)

      Look at this chain:

      Rove -- Blackberry -- RNC-based Domain Email -- Recipient Blackberry -- Recipient Domain

      What Rove is very worried about is:

      -- validation between desktop email records already in Judiciary Committee's possession and Blackberry logs;

      -- validation between Blackberry logs and RNC-based Domain Email system.

      I suspect he's already deleted stuff from his desktop, but check the Blackberry logs and the RNC-based email will validate there's been a pattern to the emails he's deleted.  Further, he can try to claim that certain emails may not have made their destination with plausible deniability, only as long as it is murky that the emails made it from his desktop to the Blackberry to the email system.

      Not only is he sweating Hatch Act violations, but likely violations of national security discussing content that belongs only inside White House network, violations of Presidential Records Act, obstruction of justice made clearer by validation of missing emails...

      And proof that near-live presidential and congressional election data was monitored and reviewed and possibly altered within the same systems network.  (See luaptifer's work on gwb43.com -- OH election data from polling place was available within the same network as the RNC's email servers.)

      By the way...Blackberry's entire system crashed this morning.  Did anybody else take note??

  •  something I don't understand (36+ / 0-)

    a friend of mine, several years ago, had the FBI come into their home and remove all of their computers for some investigation that ultimately in the end had nothing.to.do.with.them.

    Why on earth can't they go in.and.get.the.servers like that? Why the hell are they playing so nice? I mean they've been repeatedly dissed by the WH since this whole thing started.

    Everyone knows whats going to come out. I think even the WH knows it. They are in a world of trouble. Any minute that goes by without that information in the investigative hands, leaves opportunity for evidence to be destroyed.
    I don't care how much they say they value the rule of law. The last 6 years shows us just how much disdain they have for the rule of law. They absolutely cannot be trusted.

  •  WH letter does NOT say this (1+ / 0-)
    Recommended by:
    Warren Terrer

    specifically telling them not to provide the e-mails

  •  This diary adds clarity (19+ / 0-)

    Thanks to MediaFreeze for bringing attention to this issue right away.  Your diary adds clarity with respect to obstruction of justice.  I'm glad you took the time.   This is a valuable diary.

    I don't believe in evolution. I am convinced by the evidence.

    by geomoo on Wed Apr 18, 2007 at 11:20:50 AM PDT

  •  Why are we still in this assymmetrical game? (27+ / 0-)

    Our opponents question and criticize every little thing, making things up when they need to, while our side overlooks aggregious behavior, focusing daintily on one little problem at a time.  Why are the dems still behaving this way?  I hope they jump on this and every other opening they find.  Aggressively.  Loudly.  

    I don't believe in evolution. I am convinced by the evidence.

    by geomoo on Wed Apr 18, 2007 at 11:23:32 AM PDT

  •  White House Press Corps: Feel free to use these.. (30+ / 0-)

    ...questions at tomorrow's press briefing.

    1.  Regarding the letter which Special Counsel to the President, Emmet T. Flood, sent to the RNC asking them to allow the White House to review any communications before providing them to the Judiciary Committe - what is the legal basis for this?
    1.  Is the White House going to claim Executive Privilege over emails from outside whitehouse.gov?
    1.  If you are going to claim Executive Privilege, aren't you claiming that the RNC is a de facto part of the Executive Branch?
    1.  The reasons given for the US Attorney firings have changed since the story broke, the current claim is that they serve at the pleasure of the President and can be removed for any reason as long as that removal is not to coerce or impede an ongoing investigation.  This is the angle the Judiciary Committee is obviously exploring.  If this was not the reason for the firings, as you claim, why wouldn't you turn over all of the emails regarding the firings and prove that the firings were not done for improper reasons?

    That's a start.  Anyone have any more?

  •  All these fools should remember (15+ / 0-)

    in a few years we should have a Democratic Atty General, and when we do, the Statue of limitation will not of run out. They may feel they are in the Cat bird seat now, but there will be a time they will have to pay the piper on this. I will be the one cracking up on the sidelines when this comes true.

    -8.63 -7.28 Molly Ivin : "..We want to find solutions other than killing people. Not in our name, not with our money, not with our children's blood."

    by OneCrankyDom on Wed Apr 18, 2007 at 12:28:22 PM PDT

  •  Just got back.... (14+ / 0-)

    Please note the update to my diary. Excellent work here! Thank you very much for your important contribution on this matter of the gravest concern to the rule of law in this country.

  •  Regardless of RNC actions (8+ / 0-)

    the WH has conspired to obstruct.

  •  Questions: (1+ / 0-)
    Recommended by:
    zashvil

    Given no flaw in what you are saying here, would Conyers or his office bring the charge of obstruction of justice?  Does such action require some per centage of the committee to go forward?  Does it require a special prosecutor?

    A secondary question is: does the Administration not know what counts as obstruction of justice?  Is that why they are delaying this, to figure out what would be a crime and what would not?  

    •  Congress cannot bring criminal charges. This is a (7+ / 0-)

      federal criminal statute, and the only way to proceed is for a U.S. Attorney to bring the matter before a grand jury. But everyone is jumping the gun here. The first step is for Congress to subpoena the records. The RNC is a private actor, and will have to decide whether to comply with the subpoena. It cannot raise the PRA as a defense to compliance with a subpoena, nor can it assert executive privilege, because those are defenses to the subpoena that have to be asserted by the person or entity who owns the privilege or has the obligation to preserve records -- the President or the archvist of the U.S. (under the PRA). If the RNC refuses to comply with the subpoena, then Congress votes contempt and the U.S. Attorney has to take the case (because its with a private party). Alternatively, the RNC could move to comply, and the President would be forced to go to court to intervene and enjoin the subpoena. Its important to recognize that the president's letter to the RNC is not based on executive privilege -- it is based on the claim that these communications might fall under the PRA and therefore should be preserved under that act.

      •  Is voting contempt exclusive? (1+ / 0-)
        Recommended by:
        zashvil

        And haven't they already subpoenaed RNC?

        Can they not ask for a court order on compliance, with the court to determine any "executive thinks it might be interested, is that enough for a donut" impact on its subpoena?  

        •  Its my understanding that the committee (4+ / 0-)
          Recommended by:
          Boston Boomer, Glic, Jbearlaw, Miss Butter

          has requested documents, but not issued a subpoena. Once a subpoena has issued, there are 3 ways that I know of to get it before a court: 1) the target of the subpoena refuses to obey. In that instance the Congress has to vote on a contempt and, if it's using the statutory model, it refers the contempt finding to the U.S. attorney for prosecution. 2) The target goes directly to court, seeking an order to quash the subpoena. 3) Some third party wishes to intervene to assert its rights (like the Preznit) and goes to court to quash the subpoena.
          There is a lot of talk about Congress' inherent power of contempt, but it hasn't been used in about 80 years, and because it was used before all of the modern due process cases, I think there would be serious constitutional problems with it if it were used today. And you know how important the Bill of Rights is to BushCo!

          •  Dec action & You're right on RNC - no subpoenas (1+ / 0-)
            Recommended by:
            Jbearlaw

            They have sent subpoenas, as best I can tell, but only to DOJ; just the letter to RNC.

            I understand the vote on contempt, referral, etc. but if I understand correctly, RNC is not saying that they will not turn over docs, but rather that they are first going to allow the WH to go through everything.  I am wondering if Congress would not have something in the nature of a declaratory judgement action that it could file with regard to its subpoenas and the RNC duties under those subpoenas and the lack of WH standing to interfere with those interests? Especially since RNC is claiming that it is going to let other, potentially adverse, parties rifle the info first without supervision?

            So they issue subpoena and take it and their preservation request and file a dec action to determine rights of WH in their subpoenaed docs?

            Is that not an option?  It seems that if the target, and third parties, have the right to resort to the courts to quash or assert rights, then Congress could resort to the courts to have it detemine the rights of a third party that is not bothering to intervene, but to whom the target is going to turn over info.

            Not an option? Is contempt of congress a staturorily exclusive remedy?

    •  As I said in my update (0+ / 0-)

      I would argue that the remedy is impeachment.  

      "Win some, Lose some . . . and then there's that little known 3rd category." Al Gore, January 9th, 2007.

      by Jbearlaw on Thu Apr 19, 2007 at 03:54:10 PM PDT

      [ Parent ]

  •  Book em Danno! 5 years in prison - Yes! (1+ / 0-)
    Recommended by:
    greenearth

    WWJD? - what would Jesus delete?

    by annefrank on Wed Apr 18, 2007 at 01:04:38 PM PDT

  •  The important words here are (0+ / 0-)
    corruptly, or by threats or force, or by any threatening letter or communication

    The WH can easily argue that they are not corruptly threatening or forcing the RNC to do anything.

    It is a "polite request" to ensure security of information.

    The effect is to impede the investigation, but they will argue that it does not meet the requirements of an offence.

    It is putting the cart before the horse regards corruption, because you need the information to be disclosed before corruption can be established, IMO.

  •  Recommended! n/t (0+ / 0-)

    Don't assume anything...Verify! It's as easy as 3.14159265

    by Mr SeeMore on Wed Apr 18, 2007 at 01:14:12 PM PDT

  •  Could someone explain under what legal theory (6+ / 0-)

    the White House counsel has standing to order a separate entity to withhold documents?

    What legal theory says the White House has some legal standing with respect to e-mails transmitted on a non-governmental e-mail system?

    "we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex" Dwight D. Eisenhower

    by bobdevo on Wed Apr 18, 2007 at 01:28:56 PM PDT

    •  As posted above, there is no subpoena yet, so (5+ / 0-)

      he hasn't done anything so far except ask to review the documents, and the RNC has only agreed to allow that review. Note the statement in the letter that the President will then decide whther he needs to take further action. Second, the apparent theory of the letter is that any of the communications in the possession of the RNC were presidential records and under the PRA the president has the responsibility of protecting them -- in other words, 'inadvertant' disclosure. Congress needs to bring this to a head by issuing a  subpoena for the records, so that the white house has to choose to bring a legal action to prevent the RNC from complying with the subpoena.  

    •  This is common in privilege (3+ / 0-)
      Recommended by:
      victoria2dc, Jbearlaw, Mary2002

      When someone else holds your potentially privileged docs, it is both common and proper to instruct them not to divulge, until such time as a determination about privilege can be made.  (I've written such letters myself.)  I disagree with Jbear that there's anything untoward in this action.  (I also don't believe that the WH has grounds for claiming privilege here, but that's a separate issue, and as yet an open one.)

      Of course, if the RNC were to decide not to comply (Ha!), then the WH would have to bring a court action to enjoin the production.  That is, the WH can tell the RNC not to produce, but it has no **intrinsic** power to stop production.

      •  Appreciate the insight. (2+ / 0-)
        Recommended by:
        bobdevo, Miss Butter

        This is not an area that I litigate in, obviously.  Would you be willing, perhaps, to do more of a rebuttal?  I took a class in privileges years ago, and am looking at this based on what I know.  As I understand from the comments of several other persons, in this thread and others, there is case law on the subject that says that, when you send an e-mail through, for example, your place of work, you cannot claim an expectation of privacy with regard to that e-mail, because you've disclosed it to your employer, etc.  

        I mean, in what context are you used to seeing third parties holding your potentially privileged documents?  A subcontractor, a business partner, an accountant, someone with whom the client has a fiduciary or contractual relationship with?  I would think that the nature of the relationship (between the person claiming the privilege and the person holding the documents) would make something of a difference.  My recollection is that once a communication is disclosed to a third party, unless there is some further claim of privilege based upon a separate form of privilege.    Please feel free to enlighten me.  Thanks!

        "Win some, Lose some . . . and then there's that little known 3rd category." Al Gore, January 9th, 2007.

        by Jbearlaw on Wed Apr 18, 2007 at 03:52:23 PM PDT

        [ Parent ]

        •  I'm with you. I don't see privilege surviving (0+ / 0-)

          the disclosure - inadverent or not - to a third party.   Plus - I don't know if any privilege applies to communications about the US attorneys - national security it's not.

          "we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex" Dwight D. Eisenhower

          by bobdevo on Wed Apr 18, 2007 at 06:16:07 PM PDT

          [ Parent ]

        •  More of a rebuttal? (1+ / 0-)
          Recommended by:
          Jbearlaw

          No.

          OK, ok.  ;-)  I'm not going to get into the question of whether there's a winning claim of privilege here.  (As I said originally, I think this is a loser for the WH.)  For one thing, I haven't spent the time researching it, and for another, I know bupkus about Executive Privilege.  But the crux here is that there is an at-least colorable claim of privilege (esp. given that the concours of Exec Priv. generally are so ill-defined).  And therefore, there's nothing inappropriate with the WH telling the RNC to keep that stuff secret until the WH can review and make its own privilege determinations.  (Which would then, presumably, have to stand up to legal challenge.)

          Recall that IF the material is in fact privileged, (which again I doubt), the RNC does not have the legal right to produce it w/o WH consent.  So the WH has to act pre-emptively to protect their privilege, and that means they have to do so now, **before** any determination as to the validity of the priv. claim is made.

          As to the case litigatormom mentioned earlier, about losing privilege by sending it thru your company email system, IMHO that's a deeply shitty result, but it's neither here nor there.  Again, I make no claim as to whether the WH has a **valid** claim of priv, merely that they have an **arguable** one.  And therefore, the time for them to protect it is now, not after the RNC turns the material over and Congress (not to mention maybe TPM!) has already seen it.

          Finally, your question as to when your privileged material can end up in a 3d party's hands?  There are various ways.  For instance, if could be somebody you used to have a (or still have) a joint defense agreement with.  It could be someone who used to be your client or your lawyer, or who used to work for them.  It could be someone who broke in and stole your docs without your permission.  (Indeed, I think the WH's strongest argument lies here, although to make it convincingly, they'd also have to fire and/or prosecute most of the WH staff, including Rove, so I doubt we'll see it used more than in a hand-wave.)

          Obviously, the WH's privilege argument has to cover two items.  1) Why the docs are privileged, and 2) why transmission to the RNC did not work a waiver.  But all that comes at a later stage.  For now, it's proper for the WH to demand it be kept secret.

          •  Again, appreciate the reply (0+ / 0-)

            See my comment upthread, though.  From what I can tell, your analysis (and I agree that its a "colorable" claim) pre-supposes either an inadvertant disclosure (theft), or the pre-existence of a confidential relationship.  That's where I think the WH and the RNC screwed up.  I'm just not aware (which isn't to say that it doesn't exist) of any pre-existing agreement regarding the confidentiality of these communications between the RNC and the WH.  Indeed, the evidence seems to point to the opposite:  that the RNC licensed these accounts for use for political and not official usage, and that the users/licensees did not comply with either the PRA, their own internal procedures, or the RNC policy.  Thus, they did not take adequate steps to safeguard confidentiality, and lost it.  Of course, there will be legal wrangling before a determination is made.  

            "Win some, Lose some . . . and then there's that little known 3rd category." Al Gore, January 9th, 2007.

            by Jbearlaw on Thu Apr 19, 2007 at 04:02:04 PM PDT

            [ Parent ]

            •  Given what I've read... (1+ / 0-)
              Recommended by:
              Jbearlaw

              ... I agree with your thumbnail analysis.  But again, it doesn't change my point that, as long as there's any chance that privilege would be upheld, the time for the WH to protect it is now, proactively, isntead of trying to erase an improperly-disclosed document from the committee's (and the public's) memory.

      •  What privilege does the White House (2+ / 0-)
        Recommended by:
        victoria2dc, Jbearlaw

        have in messages sent thru the RNC system?  The only times I can think of when executive privilege claims are upheld concerns national security -- and if Karl et co were send national security messages on an unsecure commercial system - that's gotta be some kinda violation.

        Further, with respect to inadvertent disclosure - that can potentially waive privilege based on:
          1.  the reasonableness of the precautions taken to prevent the disclosure;
          2. the time taken to rectify the disclosure;
          3. the scope and nature of the discovery proceedings;
          4. the extent of the disclosure in relation to a role in discovery proceedings; and
          5. the overriding issue of fairness.

        The messages were sent via the RNC to evade lawful requirements and to hide potentially criminal communications - not a fertile ground for arguing clean hands.  Could get interesting.

        "we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex" Dwight D. Eisenhower

        by bobdevo on Wed Apr 18, 2007 at 06:14:18 PM PDT

        [ Parent ]

        •  Short answer (1+ / 0-)
          Recommended by:
          Jbearlaw

          As I said in my response to Jbear, I don't actually think they have any privilege, but I do think they've got some arguments that are at least better than laughworthy.  And therefore, they have to act now to protect the material from disclosure.  Because if they overreach, the docs can be produced after a priv. determination is made.  But if they underclaim, then how can they ever get it back?

    •  If the President does it-- (1+ / 0-)
      Recommended by:
      bobdevo

      it's not illegal.
      Richard M. Nixon

  •  Should congress appoint a special counsel? (0+ / 0-)

    I volunteer. :)

    Time's fun when you're having flies. - Kermit the Frog

    by Five of Diamonds on Wed Apr 18, 2007 at 01:30:06 PM PDT

  •  Anyone know executive privilege? (1+ / 0-)
    Recommended by:
    zashvil

    Other legal prviliges evaporate when the info is passed to a third person.  Same with EP?

    Time's fun when you're having flies. - Kermit the Frog

    by Five of Diamonds on Wed Apr 18, 2007 at 01:40:18 PM PDT

    •  Executive privilege may be a bit different from (2+ / 0-)
      Recommended by:
      Five of Diamonds, Miss Butter

      other privileges. But first, even with respect to more traduitional privileges, there are situations in which so-called 'inadvertant' disclosure may not result in a waiver of the privilege. That would not seem to be applicable here, however. With respect to executive privilege, the wild card is always a claim that further disclosure would jeopardize national security (which was the ground advanced in U.S. v. Nixon). You never know what a court will do when the President yells "national Security!" But that does not appear to be a possibility here, either. I really think the white house is fucked on its executive privilege claims, here -- if we can get this into a court.

  •  Federal obstruction of justice (3+ / 0-)
    Recommended by:
    victoria2dc, armadillo, demoKatz

    All we have to do now is turn it over to the US Attorney General's office for prosecution! Fantastic!

    Oh, wait...

  •  Six of One half ... (2+ / 0-)
    Recommended by:
    victoria2dc, Miss Butter

    The RNC can do exactly what the WH wants and still comply with the House Judiciary committee.  The RNC can deliver the emails to the WH so long as they turn over ALL of the same material to the committee shortly thereafter.

    This way everyone gets what they want; but I'm certain that this is not exactly what the WH wants.

  •  When will Contempt of Congress (2+ / 0-)
    Recommended by:
    Miss Butter, demoKatz

    subpoenas be sent to Mr. Flood, the RNC and the others who are obstructing justice...?

  •  shut it down shut it down (11+ / 0-)

    slam the brakes on the functioning of the government. nothing gets passed, no funding for anything -- until the white house complies with legal requirements.

    shut it down. it's clear the courts, right up to and including the supreme court, will not solve the problem of a rogue presidency: the benches are packed with well-paid, well-placed cronies.

    shut it down. it's clear the functionaries in the civil service and the other agencies were packed years ago with fascist enablers.  

    lookie. this govenment is using its money only to do greater and greater harm. slamming the doors  shut and refusing to authorize ANYTHING anything at all until the white house follows the constitutional law...

    or -- well you know -- i guess we could really just kiss the presidential election of 2008 goodbye.

    shut the muthafucka DOWNnnnnnnnnn

  •  Sure Gonzales is right on top of this (1+ / 0-)
    Recommended by:
    victoria2dc

    expect him to appoint a special prosecutor to bring him and the admin down.

    Really. Tomorrow, after his testimony, he will appoint a SP to get right on this...

    I love catch-22s.

  •  just raises suspicion (1+ / 0-)
    Recommended by:
    victoria2dc

    I think the clear implication here is that they're trying to hide something, or delay something coming out that would damage the Administration. This should be a matter decided between the requestor and the targeted party, i.e. the RNC. If mutual agreement is not possible, it should go to the courts. The White House should have no say in this, even if its employees were using the services of the RNC. The charge of obstruction of an investigation here is a valid issue, as we're not talking about Joe down the block writing a letter to his ISP to let him see any emails he sent before they forward them to the FBI.

  •  Dana, 22 email accounts or a whole lot more..? (3+ / 0-)
    Recommended by:
    BloggerJohn, JuliaAnn, victoria2dc

    Dana...?

    Interesting! Is it 22 or over 50 email accounts?

    Today McClatchy reports:

    But investigators know from documents already released by the Justice Department in the U.S. attorneys probe that some of the 50 current and former White House officials who had separate Republican Party e-mail accounts did send or receive e-mails related to the U.S. attorneys through their non-government accounts.

    LINK

    But today Dana Perino said:

    MS. PERINO: Well, I think one of the things to step back and take a look at is that we are talking about a very small universe of emails. There are 1,700 employees that work for the Executive Office of the President, 1,000 of those are political employees, like myself, and 22 of them have political email accounts. That's about 2 percent of the people.

    LINK

    So is it 22, or a whole lot more? Dana...?

  •  George Bush got away with (4+ / 0-)

    lying America into war on purpose. That's a precedent. Once you get away with something like that, the slippery slope becomes a vertical surface slathered with bacon grease. If Bush got away with such an extreme offense as lying our country into war, why wouldn't he also be allowed to get away with relatively trivial matters like firing attorneys for political reasons? In fact, if we're content with letting George Bush get away with lying America into war, it doesn't even make sense that people would care about the attorney firings.

    But frankly, as for me, I am pissed that George Bush lied my country into war. He needs to pay for what he did. He needs to be punished. I still want revenge, and enough so that I'm not distracted by every little thing that pops up in the Bush administration.

    Republicans are liars.

    by tr4nqued on Wed Apr 18, 2007 at 05:25:15 PM PDT

  •  I think they are getting backed into a corner, (3+ / 0-)
    Recommended by:
    JuliaAnn, victoria2dc, Jbearlaw

    that's why this b.s. letter was sent. More legal mumble jumble at the expense of taxpayer money. I don't want to fund Bush's war anymore and I certainly do not want to pay  one cent for Bush's legal rights. Rec.diary, and loved great discussions in comments.

    *a hundred years from now, the future may be different because I was important in the life of a child*

    by bonesy on Wed Apr 18, 2007 at 08:06:49 PM PDT

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