Dan Froomkin has a must read article up at the Post, regarding the "missing" e-mails from the RNC. In it, he quotes from an interview he conducted with White House spokesman Scott Stanzel, who was subjected to "oversight" by an unnamed White House attorney during the interview. One key piece: Who was in charge of compliance during the several years during which the e-mails were routinely deleted? Alberto Gonzales, who will be testifying before Congress next Tuesday.
Some money quotes below the fold.
[W]hen I asked Stanzel to read out loud the White House e-mail policy, it seemed clear enough to me: "Federal law requires the preservation of electronic communications sent or received by White House staff," says the handbook that all staffers are given and expected to read and comply with.
"As a result, personnel working on behalf of the EOP [Executive Office of the President] are expected to only use government-provided e-mail services for all official communication."
This is an important piece of the puzzle, because the policy certainly appears to support the plain language interpretation of the Presidential Records Act; see flernk's diary from earlier today, which contains the text of some of the relevant portions of the PRA.
The handbook further explains: "The official EOP e-mail system is designed to automatically comply with records management requirements."
So, let's be clear: This is the official White House policy manual, and the manual states explicitly that 1) "Federal law requires the preservation of electronic communications sent or received by White House staff;" 2) White House staff "are expected to only use government provided e-mail services for all official communications; and 3) the White House e-mail system is designed to automatically store all such e-mails. That's the policy, which was the responsibility of, and should have been established by, and supervised by, the White House Counsel's office, aka, Alberto Gonzales during Bush's first term.
From the sound of it, Gonzo will be trying to deny responsibility for this "omission" as well. I wonder if it's going to be the "incompetence" defense again?
So is anyone in trouble? Apparently not. Stanzel was careful to apportion blame widely and generically. "This issue is not the fault of one individual," he said. He refused even to acknowledge that it is the White House counsel's office that is responsible for the establishment and oversight of internal rules of conduct. The White House counsel during Bush's entire first term, of course, was Alberto Gonzales, now the embattled attorney general.
I sure as hell hope that this issue gets extensive attention next Tuesday, when Gonzo appears before the Committe.
But the part that really caught my eye was this last little blurb.
Stanzel also described another recent change; White House staffers no longer have the ability to delete their RNC e-mail under any circumstances.
I'm an attorney, and I think that particular change could be crucial to Bush's claim regarding "executive privilege" and the communications involved here. By making the e-mails non-deletable, i.e., making sure that they are preserved in order to comply with the PRA, the administration has made a tacit admission that these are official communications. That's important. Typically, a privilege applies only to the contents of a particular communication, and then only if the person(s) sending the communication take reasonable steps to ensure the confidentiality of those communications. If you consult an attorney and bring your friend, business partner, etc. with you, and you confess to a crime, you have effectively waived the privilege, because you didn't protect its confidentiality -- you disclosed it to a third party who was present at the time the communication was made. Here, the WH is now admitting that these were official communications which were disclosed to a third party, i.e., the RNC, and which were stored, for however long, on that entity's servers. That's disclosure of official White House communications to an outside agency, and that's a classic waiver.
I wonder though, if, there might not be national security implications as well. That of course would depend on the nature of the communications, but it's a consideration that shouldn't be ignored. I hope both the House and Senate make a point of requesting that the White House immediately publish the policy manual, both the old and the new, and if need be, subpoenaing the same.
Great minds must think alike. RandomSequence just posted a diary regarding the insecure nature of e-mail, and some of the national security considerations.
Update: Hat tip to citizen92, who found this lovely little tidbit:
According to CREW, the White House's official email (the ones that staff are supposed to use and that automatically archives) is missing up to 5 million emails from 2003-2005.
And the White House, when appraised of the problem, chose to do nothing.
http://www.citizensforethics.org/...
Through two confidential sources, CREW learned that the Executive Office of the President (EOP) has lost over FIVE MILLION emails generated between March 2003 and October 2005. The White House counsel’s office was advised of these problems in 2005 and CREW has been told that the White House was given a plan of action to recover these emails, but to date nothing has been done to rectify this significant loss of records.
Note that these are alleged to be official White House e-mails, not RNC e-mails! Sheesh! How blatant can you get?
UPDATE: Just wanted to say thanks to all who have stopped by, and for the rec's and comments! Thanks, Kossacks!
FINAL UPDATE: Gotta go pick up the kids. Thanks, everyone!
UPDATE, 4/13/07: Jeez, I didn't think this thing would still be on the rec list, or that it would generate this much interest. Thanks everyone!
There've been a couple of questions in the comments that I thought I'd take a quick whack at, and since they are all related, thought I'd just post an update.
Most of the questions/comments concern whether/why the administration is now trying to claim executive privilege with regard to these e-mails, and some confusion as to how that interacts with the Hatch Act.
A couple of points: 1) I don't doubt that they will make the attempt to claim executive privilege-- it's part of Cheney's view of the monarchial powers of the executive branch. Take a look at Executive Order 13233, which sets forth a much broader definition of executive privilege, and which Bush issued shortly after 9/11, superseding Ronald Reagan's 1989 Order. Bonus point: EO13233 directly claims executive privilege over "deliberative processes," the recordation of which is one of the primary purposes of the PRA, 44 USC 2203:
(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.
- Prior to this blowing up in their faces, the administration argued that since the e-mails were for political purposes, they had to use outside servers, etc., in order to avoid a violation of the Hatch act, which prohibits use of government resources for political campaign purposes (remember all the furor over the Lincoln bedroom or Gore's use of the phones?). So, they argued that these were not official documents, but were political documents, which weren't subject to the requirement of preservation under the PRA. From TPM Muckraker (Mrch 26th, 2006):
The RNC has said that the committee provides email addresses to White House personnel so that they can keep their official and political duties separate.
At some point (When? We don't know, that's why I want the policy manuals subpoenaed), allegedly when Fitz was investigating Rove, they changed the policy, to retain at least some of those e-mails (though apparently, Rove continued to delete his). At that point, apparently in response to the investigation, the administration essentially conceded that some percentage of the now-estimated 5 Million e-mails were records subject to the PRA. But they continued to use the RNC for e-mails, on a wide-spread basis and made no attempt to preserve those e-mails according to CREW (above).
Then came the multiple reports and disclosures regarding the use of outside e-mail to discuss the firing of the USA's, which was obviously official business. Hence, apparently, the "recent" (second, third?)change in policy requiring that all RNC e-mail be preserved -- as clear an admission that they are official records as can be.
Another interesting point -- Is it now the RNC policy to preserve the e-mails? If so, that would reinforce the point that these are disclosures to a third party. If it's not the RNC policy, where does the White House get the authority to order the RNC to preserve those e-mails, and what governmental resources and access is being provided to the RNC in order to preserve those e-mails/records? Where are they kept? Who's in control of them? The quote from Stanzel doesn't say much.
And now they have to make a decision; would they rather argue the obvious illegality of having not preserved these records (which they've essentially admitted are official records), or argue about whether the PRA infringes on the scope of the constitutional right of executive privilege? Not a hard decision to make, except that they've waived the privilege. Of course, my guess is they'll make it anyway, for talking points purposes and to cloud the issue.
Further, regardless of whether the e-mails are privileged or not, the PRA would still require that they be preserved. The President could classify them, or request that they be sealed and not disclosed for the statutory period under the PRA, but they'd have to be preserved for history's sake.
Even so, claiming executive privilege would throw this into the courts, delaying the release of the information contained in the e-mails and helping to run out the clock. Another reason for them to make the claim.
I can't type fast enough: NYTimes today.
The money quote:
Now that Democrats are also demanding access to the political e-mail, the White House took steps on Thursday to use those latest demands as leverage to force Democrats to accept the White House’s conditions for making Mr. Rove and the others available.
In a letter to Mr. Leahy and Representative John Conyers Jr., chairman of the House Judiciary Committee, Mr. Fielding, the White House counsel, said the administration was prepared to produce e-mail from the national committee, but only as part of a "carefully and thoughtfully considered package of accommodations" — in other words, only as part of the offer for Mr. Rove and the others to appear in private.
Mr. Conyers, a Michigan Democrat, issued a tart reply: "The White House position seems to be that executive privilege not only applies in the Oval Office, but to the R.N.C. as well. There is absolutely no basis in law or fact for such a claim."
And from the Post::
The RNC yesterday turned over to the White House a copy of e-mail records for administration officials still on the RNC server to determine whether any of them are privileged or whether they can be provided to congressional investigators. Officials indicated that they would include post-2005 e-mails from Rove.
With regard to questions of the criminality and punishment:
The Hatch act specifically provides for prosecution of individual violators. The following is a block quote from this page from the Office of Special Counsel, which lists some of the criminal statutes under which, say, Karl Rove could be prosecuted for using government servers to perform partisan political e-mailing.
Federal employees should also be aware that certain political activities may also be criminal offenses under title 18 of the U.S. Code. See 18 U.S.C. §§ 210, 211, 594, 595, 600, 601, 602, 603, 604, 605, 606, 607, 610.
I've been unable to find any statutory remedies for violations of the PRA (which isn't to say that there aren't any, just that I haven't found them). If anybody else has, let me know, and I'll post another update.