On February 6, 2003, lobbyist Jack Abramoff sent an email to his former executive assistant Susan Ralston, who had since gone on to work for Karl Rove, requesting that she pass along an important message to her boss. A Louisiana Indian tribe, the Jena band of Choctaws, was seeking to acquire land for a casino, a project at odds with the interests of Abramoff’s tribal clients who feared it would siphon business from their own gaming establishments. Abramoff wanted Rove to intercede and “to get some quiet message from the WH [White House] that this is absurd.” After Ralston agreed to pass along word, Abramoff replied to thank her. But he slipped up.
Instead of responding to an email account administered by the Republican National Committee (email@example.com) as he had intended, he sent the message to Ralston’s White House address. The following day Abramoff was alerted to his error by a colleague, Kevin Ring, who’d spoken to a White House official to whom Abramoff’s request had been forwarded. “She said it is better to not put this stuff in writing in their email system because it might actually limit what they can do to help us, especially since there could be lawsuits, etc.,” Ring wrote. Abramoff responded swiftly: “Dammit. It was sent to Susan on her rnc [Republican National Committee] pager and was not supposed to go into the WH system.”
The significance of this intriguing exchange, which was among thousands of emails reviewed by investigators for the House Government Reform Committee as part of an extensive investigation into Abramoff, might have gone unrecognized had it not been for another scandal, this one involving the abrupt firings of eight U.S. Attorneys. As the controversy intensified in early March and hearings were held, the Department of Justice was forced to release thousands of documents, including email exchanges between Alberto Gonzales’ chief of staff Kyle Sampson, who resigned in mid-March, and Rove deputy J. Scott Jennings.
Here too was evidence that White House officials were conducting business using RNC email accounts, domains such as gwb43.com and rnchq.org. But why? For one, as Abramoff was attempting to do, it is a way of bypassing the White House server and skirting its automatic archiving function, insuring that potentially damaging or incriminating emails will not be preserved for posterity by the National Archives, or worse, come to light through the efforts of a federal prosecutor or congressional investigator. In a March 15 letter to Henry Waxman’s Government Reform Committee, the watchdog group Citizens for Responsibility and Ethics in Washington noted that this practice might violate the 1978 Presidential Records Act, which governs how the papers of presidents and their staffs are to be preserved, and urged an investigation. “This refreshed our memory about what we’d seen in the Abramoff emails,” says one Waxman aide.
A little over a week later, Waxman’s Committee fired off its own letters to Mike Duncan, chairman of the Republican National Committee, and Marc Racicot, the former chair of the president’s reelection committee, demanding that they preserve White House emails on their organization’s servers “because of their potential relevance to congressional investigations”—”multiple” investigations the letter stressed. “The e-mail exchanges reviewed by the Committee provide evidence that in some instances, White House officials were using the nongovernmental accounts specifically to avoid creating a record of the communications.” (According to the Waxman aide, Duncan and Racicot have yet to respond.)
Steven Aftergood, the director of the Federation of American Scientists’ project on government secrecy, says the use of RNC email accounts is interesting for another reason. “It shows how closely intertwined the White House is with its partisan allies,” he says. “The fact that the White House and the RNC are working hand in hand and White House officials are using RNC emails is itself remarkable.” He added, “Iran-Contra is getting invoked a lot these days and this may be another parallel, where the famous White House emails were recovered even after they were deleted from the White House server. People may have learned that lesson.”
Oliver North certainly did. Back in 1986, when most people had not even heard of email and the government’s email system was still known as PROFS (Professional Office System), he and John Poindexter attempted to purge their hard drives of electronic communications related to Iran-Contra. (“We all sincerely believed that when we send a PROFS message to another party and pressed the button ‘delete’ that it was gone forever. Wow, were we wrong,” North later remarked after his incriminating messages were resurrected.)
In 1993 then-National Archivist Don Wilson inked a secret agreement with George H.W. Bush in the final hours of his presidency giving him sole control over his administration’s computer records. (Wilson went on to become the executive director of Bush’s presidential library; a federal court later declared their agreement unconstitutional.) Years later, with the embattled Clinton administration faced with numerous allegations of impropriety, including charges that it had illegally obtained FBI files on prominent Republicans for political purposes—this controversy became known as Filegate—a White House whistleblower came forward claiming that the administration had suppressed 100,000 emails related to ongoing investigations. Sheryl Hall, who helped to supervise the computer system in the Clinton White House, reported being told by a colleague that “if the contents of these e-mails became known, that there would be different outcomes to these scandals, as the e-mails were incriminating and could cause people to go to jail.” Congressional Republicans, then in the majority, cast the alleged cover-up as a worse scandal than Watergate, concluding in a report by the House Government Reform Committee that “the e-mail matter can fairly be called the most significant obstruction of congressional investigations in U.S. history.” (Democrats, led by Henry Waxman, fired back with their own report, which noted, among other things, that “this Committee has a long history of making unsubstantiated allegations.”)
In general, past administrations, Democratic and Republican, have chafed at the prospect of turning over their records, per the Presidential Records Act, says Bruce Montgomery, the director of the University of Colorado at Boulder’s archives and an expert on presidential papers. “No president since Carter, who signed the Presidential Records Act into law, has looked kindly on that statute. Carter did not want the Presidential Records Act to apply to him. The Carter Justice Department saw it as a breach of the separation of powers.” In 1985, a young lawyer working in the Reagan White House questioned the constitutionality of the law in a memo to his boss, White House counsel Fred Fielding, who is currently reprising that role in the Bush administration. That lawyer, John Glover Roberts Jr., who we know as Chief Justice Roberts, noted that the “existence of the Act serves to burden the full and frank exchange of advice.” That advice, he argued, “is protected by the constitutionally based doctrine of executive privilege.” He fretted, however, that it was too early to mount a constitutional challenge. That would have to wait until 2001, when, after the 12-year waiting period outlined in the law, the first batch of Reagan-era documents would be released.
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 know—I checked into this—is 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.