The RNC e-mails as one more White House demerit.

The law, lawyers, and the court.
June 21 2007 12:00 PM

Mail Trail

The RNC e-mails represent one more White House demerit.

Karl Rove. Click image to expand.
Karl Rove

The Bush administration's signature triptych celebrates lawlessness, secrecy, and scorn for public accountability. The latest confirmation of this fact comes from the June 2007 interim staff report of the House Committee on Oversight and Government Reform. It revealed chronic and flagrant White House violations of the Presidential Records Act of 1978 by employing Republican National Committee e-mail accounts for official business. Then-White House Counsel Alberto Gonzales stood idly by in a characteristic cerebral stupor.

The act establishes that the records of a president, his inner circle, and certain units of the executive office of the president are owned by the United States. The ownership issue had previously been disputed by President Richard M. Nixon in a battle over papers needed to prosecute Watergate crimes. In order to preserve White House records for access by the public and historians, the act directs the president to "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 … maintained as Presidential records pursuant to the requirements of this section … " The act insures that presidents are held accountable to the judgment of history, and that a complete chronicle of White House operations is maintained to teach political wisdom to the nation and its officeholders.

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The interim staff report found that at least 88 White House officials enjoyed RNC e-mail accounts, including Karl Rove, the president's senior adviser; Andrew Card, the former White House chief of staff; and Ken Mehlman, the former White House director of political affairs. White House officials wrongly employed RNC e-mail accounts for official purposes, for example, communicating with agencies about federal appointments and policies. The RNC has preserved more than 140,000 e-mails sent or received by Mr. Rove. Over one-half involved communicants using official ".gov" accounts. But the RNC has also destroyed massive numbers of White House e-mails. For instance, of the 88 White House officials with RNC e-mail accounts, no records were preserved for 51 individuals.

At present, the magnitude of the act's violations is unknown. But the motivation of the Bush White House in using these accounts seems clear: to conceal embarrassing communications or evidence of lawlessness. The oversight committee's investigation into convicted lobbyist Jack Abramoff's contacts with the White House unearthed the following e-mail exchange between Rove's then-executive assistant Susan Ralston and Abramoff's associate Todd Boulanger: "I now have an RNC BlackBerry, which you can use to e-mail me at any time. No security issues like my WH e-mail." A sister e-mail indicated that Mr. Abramoff had been advised by a White House staff member to avoid sending communications through the official White House e-mail system because "to put this stuff in writing in their e-mail system … might actually limit what they can do to help us." Evidence has also emerged that these RNC e-mail accounts were used by the White House in communicating over the firings of U.S. attorneys and evading Hatch Act limitations on diverting government resources for partisan political activities.

Then-White House Counsel Gonzales apparently knew of the document retention requirements of the act. A memorandum was prepared in his name to White House staff on Feb. 26, 2001, instructing that all e-mail relating to official business be preserved and maintained. But extrapolating from his testimony regarding the U.S. attorney debacle, Gonzales either never read what he signed or didn't remember what he read. That would explain the testimony of Ms. Ralston to the committee. She elaborated that the White House counsel had in his possession as early as 2001 Mr. Rove's RNC e-mails, which concerned official business regarding Enron and special prosecutor Patrick Fitzgerald's investigation of the Valerie Plame leak. Yet Gonzales remained mute and unmoved by the ongoing document retention violations.

The RNC e-mail affair, standing alone, would not justify alarm. Most presidential records were maintained. Abramoff and Scooter Libby were held accountable to the criminal law. Violations of the Hatch Act were identified. But the affair betrays a White House enthusiasm for lawlessness and secret government irreconcilable with bedrock democratic values. And it is this pattern of secrecy for its own sake that is most chilling.

In the aftermath of 9/11, President George W. Bush initiated several secret programs for gathering foreign intelligence, at least one of which was in contravention of the Foreign Intelligence Surveillance Act of 1978. Neither Congress nor the public was informed. The president cannot be accountable to the law or to the electorate unless his deeds are made known. And Congress cannot legislate to thwart executive abuses unless it knows what mischief is afoot.

In December 2005, the New York Times first revealed the fact of the National Security Agency's warrantless domestic surveillance program that violated FISA. If President Bush had had his way, the secret spying would have remained secret forever. It would never have been subject to congressional or judicial checks. Congressional hearings to learn the spying details (sans sources and methods) have been repeatedly frustrated by claims of executive privilege. Indeed, the Department of Justice has even repeatedly refused to disclose or to discuss advice addressing the legality of the NSA's spying based on the absurd assertion that operational details would be exposed to the enemy by amplifying Supreme Court precedents. During Gen. Michael Hayden's confirmation hearing as director of the Central Intelligence Agency, he refused to answer an inquiry from Sen. Dianne Feinstein as to whether a FISA warrant had ever been sought for a pen register on the theory that an answer would reveal otherwise secret intelligence sources or methods.

President Bush also authorized secret prisons in Eastern Europe to torture or otherwise abuse persons suspected of complicity in terrorism. According to the president, terrorist detainees must be kept in secret dungeons indefinitely because any publicity might clue in al-Qaida that one or more of its cells had been penetrated. In other words, the president is fighting terrorism in part by entirely secret means, a throwback to the Cold War years that witnessed decades of illegal mail openings, illegal telegram interceptions, and years of misuse of the NSA for non-intelligence purposes.

President Bush has asserted executive privilege to prevent Mr. Rove and former White House Counsel Harriet Miers from testifying under oath about the firings of U.S. attorneys. The privilege has further been invoked to conceal relevant Justice Department communications. It has been used to blunt a congressional inquiry into the executive branch's dysfunctional response to Hurricane Katrina.

Vice President Dick Cheney concealed the identities of private business advisers to his Energy Task Force. Visitors for official business are kept secret. Former Attorney General John Ashcroft ordered the closure of removal proceedings for alleged terrorists. The Central Intelligence Agency sought to reclassify declassified information that Chinese intervention in the Korean War had been miscalculated and that the intelligence services of the United States and Great Britain had collaborated during World War II. President Bush has complicated and delayed public access to the papers of former presidents.

The pattern here is clear: The Bush administration treasures secrecy for the sake of secrecy and law evasion. Depend upon it: The RNC e-mail spectacle will not be the last chapter. That should be deeply disturbing.

The history of secret government is a history of oppression and folly. Secrecy invites false allegations or loopy ideas to advance personal vendettas or to gratify racial, religious, ethnic, or other obnoxious biases. President Bush is no exception.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group. He is also chairman of the American Freedom Agenda, a group devoted to restoring checks and balances and protections against government abuses.

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