When that moment arrived, scarcely a year into President Bush's first term, the president signed a controversial executive order that, among other things, claims broad authority to review and block the release of presidential papers and extends executive privilege to the heirs of the officeholder and to the Vice President. The order was met with outrage by archivists and historians, some of whom argue that this statute effectively gives the administration the power to write its own history. "This is very much pre-Nixon in the sense that they want presidents and their families to control what people see and what they cannot see, what history they can write and what history they cannot write," says Montgomery, the presidential papers expert. "They want to manage their own historical legacy."
John Carlin, the former governor of Kansas who served as the national archivist from 1995 to 2005, says the administration's expansion of executive privilege "was probably the major issue where we as an agency disagreed with the White House." Carlin, who was asked to resign from the National Archives in December 2003 by then-White House counsel Alberto Gonzales, no explanation given, says his agency was granted ample opportunity to object to the directive, but, in the end, "We said our piece and they made their decision."
The president's executive order has long been the subject of bi-partisan concern in Congress and, in March, legislation passed the House that would essentially revoke it. But even before the measure could come to a vote, the White House issued a veto threat, writing in a Statement of Administration Policy that "executive privilege is not subject to Congressional regulation, but rather arises directly from the Constitution itself."
In this context, the news that at least some White House officials are using alternate email accounts to avoid creating an official record of their communications seems to fit a broader pattern. But in many ways, says Steven Hensen, the past president of the Society of American Archivists and the technical director of Duke University's archives, this practice seems "a bit more devious." "It clearly looks like an attempt to conceal official business," he says.
Asked about the use of RNC email accounts during a press briefing on March 27, White House spokesperson Dana Perino played down this unusual practice. "What I knowI checked into thisis that certain White House officials and staff members who have responsibilities that straddle both worlds, that have responsibilities in communication, regularly interface with political organizations, do have a separate email account for those political communications. That is entirely appropriate, especially when you think of it in this case, that the practice is in place and followed precisely to avoid any inadvertent violations of what is called the Hatch Act
. Under an abundance of caution so that they don't violate the Hatch Act, they have these separate emails." She added that "people are encouraged, on official White House business, to use their official White House accounts."
The Hatch Act prohibits federal employees from engaging in political activity while on the job. But, according to two lawyers I spoke with, both of them well versed in the details of that law, this rationale doesn't entirely hold water. A lawyer who works for the Office of Special Counsel, the agency charged with investigating Hatch Act violations, told me that Senate-confirmed presidential appointees as well as staffers whose salaries are paid from an appropriation for the Executive Office of the President are exempt from some of the strictures of that law and are allowed to engage in political activity. (No federal employee, however, is allowed to fundraise on the job, or solicit or discourage the political activity of people with business before their agencies.) And even if they weren't exempt, simply using a non-government email account wouldn't make any difference, the lawyer explained. "Using my personal account or some other email account that's not a federal email account would not remove me from the prohibition if I'm still either on duty or in a federal building."
Perino's explanation doesn't hold up on another level as well. Since the administration has been so insistent that the eight fired U.S. attorneys were let go for performance rather than political reasons, how to explain why Rove aide J. Scott Jennings was using his "political" email account to push for Tim Griffin, a former Rove aide, to take over Bud Cummins' job as the U.S. Attorney for the Eastern District of Arkansas? "The statements from the White House so far have been rather confusing," says the Waxman aide. "Very odd."
While some White House officials may legitimately be using RNC-issued laptops and BlackBerrys to conduct party business, it's clear that others are taking pains to use alternate email accounts simply to keep their communications from becoming public record. In 2004, U.S. News & World Report noted, in a three-sentence item, that many White House aides had begun using Web-based email in order to avoid the White House system. "I don't want my E-mail made public," one White House "insider" told the magazine. "It's Yahoo!, baby," another said.
In the Clinton White House, according to an official staff manual circa 1997, there was a strict prohibition against using anything but the official system. In addition, a 2000 directive to White House staff states that "the system designated for EOP [Executive Office of the President] mail
is to be used exclusively for E-mail communications within the EOP Complex and with outside parties. Other applications (e.g., commercial E-mail services) may not be used to send or receive E-mail."
Whether or not the use of non-governmental email accounts ultimately breaches the Presidential Records Act, it virtually assures an incomplete historical record of the Bush presidency. "The only way accurate history can be written is if the full records are available to evaluate," says John Carlin, the former national archivist, who did not want to weigh in directly on the current controversy. "Records undergird a democracy."
But the email controversy may be of significance not only to historians who will pour over the Bush papers in years to come, but to others who are working to provide present-day accountability. Indeed, among other people, these revelations could be of particular interest to a certain federal prosecutor who recently won the conviction of the Vice President's former chief of staff, I. Lewis Libby, on charges of obstructing an investigation into the leak of Valerie Wilson's identity. Contained in the lengthy docket of U.S.A. v. Libby is a January 23, 2006 letter from special prosecutor Patrick Fitzgerald to Libby's defense team, who were then jousting over classified discovery. In it, Fitzgerald advises Libby's attorneys, "in an abundance of caution," that "we have learned that not all email of the Office of Vice President and the Executive Office of the President for certain time periods in 2003 was preserved through the normal archiving process on the White House computer system." Though the prosecution later received an additional 250 pages of records from the vice president's office, it remains unclear what the true nature of this archiving problem was or whether Fitzgerald received all of the documents that may have been relevant to his investigation. (Fitzgerald's office declined to comment after being provided with a detailed request.) Perhaps Fitzgerald, along with other investigators who have sought White House records, was looking in the wrong place. He may want to check the RNC's servers.