Balkinization: The Missing White House E-Mail Records and Democracy

The Missing White House E-Mail Records and Democracy

Guest Blogger

Laura DeNardis

Resident Fellow, Information Society Project,
Yale Law School

Open public access to government records helps to legitimize the exercise of formal government power. The archiving of public documents is a fundamental responsibility of democratic governments. In this light, allegations of missing White House e-mails underscore the democratic implications of electronic government records.

This past Monday, Rep. Henry Waxman issued an interim report on the House Oversight Committee’s investigation into the possibility that White House officials violated the Presidential Records Act by failing to preserve e-mail records. The investigation addressed whether White House officials routinely conducted official government business using e-mail accounts provided by the RNC and the Bush-Cheney ’04 campaign. The Committee’s investigation thus far claims the following: at least 88 White House officials had RNC email accounts; these officials extensively used these accounts and more than half of the e-mails were exchanged with official .gov e-mail addresses; the RNC has no e-mail records for 51 of the 88 officials and there are major gaps in the records for the other 37 officials. The report also claims there is evidence that the Office of White House Counsel may have become aware of official business conducted via RNC accounts but did nothing to ensure the preservation of these government records.

The post-Watergate Presidential Records Act of 1978 (44 U.S.C. Chapter 22) established that, after January 20, 1981, the legal status of presidential records would change from private control to public ownership. The PRA requires:

“(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.”

If White House officials conducted official presidential business over some subset of the hundreds of thousands of RNC e-mail account correspondences, and if these government records were not preserved, this would constitute a violation of the Presidential Records Act. In his June 18 White House press briefing responding to questions about these allegations, Tony Snow had few comments but noted that the RNC email accounts were established precisely to avoid Hatch Act violations and that the RNC had an email preservation policy for White House staffers.

Many questions – technical, procedural, political – arise from this discussion, but the larger issue is the importance of open government documents to democracy and how the responsibility for electronic record preservation rests with the government, not the RNC (or with Bush-Cheney ’04). According to the interim report, when the Bush Administration took office, White House Counsel Alberto Gonzales issued a staff memorandum stating that electronic mail related to official business counted as part of the Presidential record and that, should e-mail received on a personal account include information that would qualify as a Presidential record, the staff member had the duty to preserve that record by forwarding it to the White House e-mail account or by printing it.

If this archival process did not occur, and if officials used now-deleted RNC e-mail exchanges for official Presidential business, there are four possible explanations: 1) technical ignorance: government officials using RNC e-mail accounts simply assumed that their e-mails were being automatically archived on some server somewhere and thus were not overtly aware of possible Presidential Record Act violations; 2) obfuscation: government officials intentionally used RNC e-mail accounts so that their e-mails were not formally archived along with official .gov e-mails; 3) exceptionalism: government officials believed that the rules should not apply to them in the current historical context; or 4) apathy: government officials did not deem the government transparency and accountability attributable to open document archiving important enough to print a record or forward to a .gov email address. Which would be most troubling?

Posted 1:35 AM by Guest Blogger [link]

Comments:

I will agree these are "Empty" Paragraphs ; )

# posted by

Charles : 11:45 PM

I am having a hard time making the distinction between #2 and #3.

#3 seems to simply be a justification for #2.

It is also difficult to distinguish #1 from #4. In light of the users' knowledge (constructive knowledge, at a minimum) of the official WH policy and the Presidential Records Act, only apathy would keep them from investigating (for example, sending a simple email to IT staff) whether the emails were being archived.

And furthermore, I don't think the question of whether the emails were being archived is -- strictly speaking -- a "technical" issue. Practically anyone who understands what "archiving" is will also understand that it is technically possible (and anyone who doesn't understand that archiving is technically possible would therefore at least suspect that the emails would not be preserved, a situation which would, for someone not apathetic or intending to obfuscate, merit further inquiry). So the question for that user then becomes, since archiving is possible, is it actually being done? (a question of policy, not of technology.) And again, for the non-apathetic, non-obfuscating user, a situation meriting further inquiry.

Therefore, I think you can boil the four proposed explanations down to only two: (i) intentional obfuscation, or (ii) apathy. I would propose a third explanation, however. Namely, that the user(s) inquired as to whether the emails were being archived, and were told that this was the case. This explanation would, clearly, absolve the user of any significant degree of wrongdoing. But this, then, sets up the situation where someone at the RNC made misrepresentations to the user(s), but did not violate the law because that person was not under any legal obligation.

My guess is that the explanation eventually proffered by the WH will be my proposed third explanation. That is, all of the WH staffers using these email addresses were assured by someone at the RNC that their emails were, in fact, being preserved for posterity. Who told them this? Perhaps that devious and elusive gremlin known as the "senior leadership of the [RNC IT] department".

# posted by

HHL : 1:53 AM

We should distinguish between the real reasons and those which Tony Snow or other designated liar will deliver.

The real reasons, I believe, will vary among the users, with exceptionalism rife among the top aides -- Rove, for example, clearly had and still has every right to believe that he is exempt from obeying either law or custom. Deliberate obfuscation will be most common at the next level down, and among the low-level staffers there is likely to be a fair amount of simple ignorance of a law which they should have been fully informed of.

Bush clearly cut his loyal cadre far too much slack, and they used it to their own ends with a near-complete disregard for the law.

As for the explanation proffered by the DL, it will almost certainly be that nobody knows who was supposed to enforce the rules and inform the staff of their duties under the Hatch Act and other governing laws. They'll probably pick somebody already gone to take the fall. My bet would be Harriet Miers, who will cheerfully fall on her sword for Bush.

Those who carried out the policies will not be punished, as Bush has no desire to enforce laws he does not agree with.

# posted by

C2H50H : 10:55 AM

Which would be most troubling?

What will be most disturbing is the failure to prosecute.

# posted by

Mark Field : 11:16 AM

Oh, forgot: What would be most troubling would be a failure to hold responsible Bush, Miers, Gonzales, and whoever else at the top of the organization failed to fulfil their legal responsibilities.

# posted by

C2H50H : 11:23 AM

It is doubtful whether anything other than a complete Presidential refusal to keep any records could be a violation of the PRA. All this law requires is that presidential acts "are adequately documented and that such records are maintained as Presidential records." There is no requirement that every communication by a member of the executive be preserved. Rather, it appears that, so long as the President makes what he considers to be adequate records of his own acts, the PRA has been satisfied.

If the PRA was interpreted to require that all email communications by members of the executive concerning any executive policy be preserved, then such members would be placed in a position of either violating the Hatch Act or the PRA.

Under the Hatch Act, a government employee cannot use a government email account to send political emails.

Under the extreme reading of the PRA proposed by the Dems, a government employee cannot send an email from a party account which touches upon any aspect of executive policy without opening the party's political emails to fishing expeditions by members of the opposing party issuing congressional subpoenas or violating the PRA by simply deleting a mixed political and policy email from a party account.

Such a reading of the law is absurd and not required by the text of the PRA.

# posted by

Bart DePalma : 9:05 AM

"It is doubtful whether anything other than a complete Presidential refusal to keep any records could be a violation of the PRA."

Horseshit. But expected from the source of it.

". . . . Rather, it appears that, so long as the President makes what he considers to be adequate records of his own acts, the PRA has been satisfied."

Such as ensuring that copies of the memoes Bushit signed in authorizing the war crime of torture are kept -- "maintained"?

"If the PRA was interpreted to require that all email communications by members of the executive concerning any executive policy be preserved, then such members would be placed in a position of either violating the Hatch Act or the PRA."

Actually, one can comply with both witout any conflict. It's the game of violating the Hatch Act in order to avoid the PRA that has the result of violating either/both.

"Under the Hatch Act, a government employee cannot use a government email account to send political emails."

And under the PRA they cannot use extra-executive email systems in order to get around the PRA.

"Under the extreme reading of the PRA proposed by the Dems, a government employee cannot send an email from a party account which touches upon any aspect of executive policy without opening the party's political emails to fishing expeditions by members of the opposing party issuing congressional subpoenas or violating the PRA by simply deleting a mixed political and policy email from a party account."

It isn't complicated, shill: If conducted honestly, official gov't business is not conducted via extra-executive political party emails that are "accidentally" destroyed.

"Such a reading of the law is absurd and not required by the text of the PRA."

The PRA -- anti-shredding law --requires executive documentation to be preserved. Such a reading of the PRA is correct, not "extreme," extremist.

# posted by Bart DePalma : 9:05 AM

The extremists are those, such as you, who don't give two shits about the law -- except when it is to your advantage, or to the disadvantage of others.

# posted by

JNagarya : 1:22 AM