An Odd Wrinkle

by hilzoy

Via Dan Froomkin, here's an article from the National Journal:

"White House Deputy Chief of Staff Karl Rove may have forfeited potential claims of executive privilege over the dismissals of eight U.S. attorneys -- if he communicated about the matter outside the White House e-mail system, using his Republican National Committee e-mail account or RNC equipment. Or at least that's a legal possibility posed by rapidly advancing electronic technology and the evolving work habits of busy White House officials."

Actually, while I am not a lawyer, I don't think this is a particularly good argument: surely what matters for executive privilege claims is whether or not someone is advising the President, not what email system he's using. [UPDATE: In comments, the clear consensus is that I am wrong.*] The more interesting part comes later:

"According to one former White House official familiar with Rove's work habits, the president's top political adviser does "about 95 percent" of his e-mailing using his RNC-based account. Many White House officials, including aides in the Political Affairs Office, use the RNC account as an alternative to their official government e-mail addresses to help keep their official and political duties separate. Although some White House officials use dual sets of electronic devices for that purpose, Rove prefers to use his RNC-provided BlackBerry for convenience, the former official said.

No original e-mails or documents created by Rove have emerged among the more than 3,000 pages of communications offered to Congress in its probe of the attorney firings, although several e-mails from other White House and Justice Department officials containing references to him were among the documents provided. (...)

President Bush pledged this week to "release all White House documents and e-mails involving direct communications with the Justice Department or any other outside person, including members of Congress and their staff, related to this issue." The president, echoed by White House Counsel Fred Fielding in a March 20 letter to lawmakers, said that any congressional interviews with White House officials or voluntary surrender of e-mails and materials by the president will not disclose communications between or among White House officials. That would eliminate voluntary disclosure of possible e-mail discussions between Rove and Miers, and between Rove and Jennings or other White House aides who frequently use BlackBerry devices and may have conducted official White House business using their RNC e-mail accounts. Bush said on Tuesday that he would go to court, if necessary, to "oppose any attempts to subpoena White House officials."

If Rove or other White House officials used RNC e-mail to discuss the prosecutor firings or the subsequent controversy -- and if their discussions went to e-mail recipients who use the White House servers -- their communications are captured and would be considered presidential records owned by the American people for purposes of eventual public disclosure under the Presidential Records Act, by virtue of both subject matter and official position, according to the archives expert.

White House and RNC spokespeople did not respond to National Journal questions about Rove's use of the RNC e-mail system and the preservation of communications he created on its equipment. The former White House official, speaking on background, said that although the RNC had a policy to purge e-mails after a short period of time, Rove's e-mails on its system and those of a few other White House aides in sensitive positions were preserved by the RNC "to protect Karl." Even with a policy of deleting e-mails from servers, information-technology experts say, organizations rarely erase data entirely."

The law governing presidential records is here. Presidential records include documents "relating to the political activities of the President or members of his staff" that "relate to or have a direct effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President" (US Code 44:22:2201:2A). The Presidential Records Act requires that they be preserved. The White House has a system for doing that:

"(T)o fulfill its statutory obligations under the PRA, the White House email system automatically copies all messages created by staff and sends them to the White House Office of Records Management for archiving. It appears that the White House deliberately bypassed the automatic archiving function of its own email system that was designed to ensure compliance with the PRA."

The law does not, as far as I can tell, set out any penalties for not preserving presidential records, presumably because, well, Presidents are supposed to take care that the Laws be faithfully executed, and all that. It is not legal for Rove to use a server whose contents are periodically purged; and speaking as an academic, it's horrible to think that all that history is being put in jeopardy.

Moreover, as this dKos diary points out, it could also be a serious security risk. Do you think that the US Government has installed all the things it uses to keep White House communications secure on the RNC servers? Would that even be legal? (I hope not: I don't really want my hard-earned tax dollars going to beef up security on the RNC's computer network -- or the Democrats' either. That's not what we pay taxes for.) If the RNC's communications aren't secured, however, then Karl Rove has found one more way to compromise national security.

Honestly: I have had more than enough of people in this administration acting as though the rules just don't apply to them.

* UPDATE (continued from above): I would have thought that in a case like Rove's, where he does wear two hats, he would have available to him the argument that rather than not advising the President when writing these emails, he was in fact advising him, and was therefore in violation of the Presidential Records Act. I mean: surely two hats doctrines allow for the possibility that the person wearing the hats screws up, and uses system A to do what he should have used system B to do? There might be a presumption that this wasn't true, but I'd think it would be defeasible. No?

What this argument would not show is that what Rove did was OK, by any stretch of the imagination. So long as his emails actually concern or effect the President's actions in his official capacity, whether Karl Rove was acting in his official capacity seems to be irrelevant, for the PRA. It does not have a 'two hats' exception; it covers this:

"documentary materials, or any reasonably segregable portion thereof, created or received by the President, his immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise and assist the President, in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President."

And its exceptions don't take the form: when a member of the staff is not acting in that capacity. Rather, they refer to the content and function of the documents:

"The term “personal records” means all documentary materials, or any reasonably segregable portion therof,[2] of a purely private or nonpublic character which do not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President."

I would think that if Rove does try to argue that he was not, in fact, advising the President whenever he used the RNC system, one could also make a pretty compelling argument that he should be fired. Most employers I know, even ones that allow (or expect) people to wear different hats, have some provision in their employment manuals that says, in effect: still, you can't spend no time, or even just 5% of your time, doing work for us. Your outside consultancies, etc., cannot be so great that you are in effect drawing a salary from us but doing all your work for others.

Comments

[CaseyL]

[S]peaking as an academic, it's horrible to think that all that history is being put in jeopardy.

That's a great bit of academic humor, hilzoy, very dry, indeed.

I bet there's all kinds of interesting information in those private emails - and that most of it would be of interest to investigators wanting to know about every little dirty thing the Bush White House has been up to over the last 6 or so years.

[J. Michael Neal]

Actually, using the RNC e-mail probably is a pretty strong argument. Any advising of the President has to be done in compliance with the PRA; if Rove wasn't following that law, then pretty much by definition, he couldn't be acting in his role as an advisor to the President.

[Bruce Baugh]

You know, I'd never thought about this before, but...

If the contracts for e-mail security went to White House buddies, the whole system may be wildly insecure. But I'm not about to go try to break in to check that speculation.

[Steve]

Usually, hilzoy's non-lawyer instincts are quite accurate, but in this case you'd be surprised the difference something like an email system can make. The same fact pattern comes up often when you're dealing with someone who wears two hats; for example, if I'm Vice-President and General Counsel of a company, the legal advice I dispense is protected by the attorney-client privilege, but the business advice I dispense is not. So if you're trying to figure out whether a particular communication is privileged, you'd have to figure out which hat I was wearing at that moment.

In Rove's situation, use of the RNC email account is pretty decent evidence that he wasn't wearing the "presidential advisor" hat. If Mel Martinez from the RNC sends an email giving the President advice, it surely isn't covered by executive privilege (any more than my own advice to the President would be); the same is true for Karl Rove, even though he has a White House job and might be entitled to give privileged advice when acting in that capacity.

It's funny how so much time was spent obsessing over which phone Al Gore made his fundraising calls from, once upon a day, and now people like Karl Rove move seamlessly between a taxpayer-funded job and a partisan role as Republican Party spokesman, and no one ever says boo. Interesting.

[Alex]

Hilzoy, I think you need to reconsider your dismissal of the relation between the use of outside servers and the claim of executive privilege.

First off, as a previous commenter mentioned, if Rove was using a non-governmental email address, there's a very good case to be made that he was not acting in his official government capacity. The PRA may directly cover that, but even if it does not, I suspect other laws might. For example, during a campaign there's supposed to be a firewall between the two roles. That's what candidates are forced to maintain two web sites, one for their campaign and one for their governmental activities.

Beyond that, however, if Rove's use of an outside address is a direct and explicit violation of the law, the very existence of emails themselves is evidence of a crime. Executive privilege covers many things, but it certainly cannot be invoked to hide evidence of criminal behavior.

[moe99]

I'm with Steve and Alex on this one. The RNC servers are serviced by RNC technicians and they presumably have access to all the documents in the RNC server internet tubes.

I know that in the law office where I work, even though I supposedly have a secure computer, any one of our computer technicians can access my hard drive to determine if I am using the computer in accordance with office policy. (oops don't tell them). I can't even erase the cookies that I gather on my work computer for a while.

I would assume the RNC can and does exercise similar powers over their RNC domain. As a result there is no expectation of confidentiality as the material is accessible to third parties not affiliated with the White House.

[Jon H]

Another point on the non-official email is that Bush apparently doesn't use email, which means the email communications were going to other people, possibly those outside the umbrella of executive privilege.

I could be wrong, but I think confidentiality privileges can collapse if you open communications up to people beyond the privileged circle.

[OCSteve]

Powerline and The Corner are trying to figure out what the meaning of is is:

It can be argued, however, that the email is consistent with Gonzales' statement to the press. The argument is that the decision had already been made before the meeting Gonzales attended, and he was simply signing off at that time. So whether Gonzales misled the press depends on what actually happened at the meeting.

It can be argued that water is not wet. The man is either a liar or incredibly incompetent. I’m not sure if I prefer a competent liar or an incompetent boop for AG.

[OCSteve]

Er, make that "boob". I didn't mean to call the AG "bronchiolitis obliterans with organizing pneumonia".

[Nell]

I don't really want my hard-earned tax dollars going to beef up security on the RNC's computer network

You know what I don't really want my tax dollars going to? A political operative who spends 95% of his time working for the RNC.

It's pretty straightforward to me: If a copy of every WH-related message and document on Karl's Blackberry isn't archived into the required presidential records system, and made available to members of congress and prosecutors when requests and subpoenas are made, then the man's breaking the law.

At a freaking minimum, he needs to go off the federal dime now, and lose his security clearance.

[spartikus]

If the contracts for e-mail security went to White House buddies, the whole system may be wildly insecure.

While written in the breathless style typical of a Daily Kos diary, I think they're on to something here. In short, it's not simply executive privilege that is an issue. Foreign intelligence services expend considerable resources attempting to monitor American communications (and vice versa). If official state business was conducted via RNC servers, their security had better be crackerjack, or this could be a security disaster.

There is also speculation that GWB does use email...again using the RNC address.

[cleek]

I think they're on to something here.

i suspect we're all going to learn a lot more about 'Smartech' in the coming weeks.

[Bruce Baugh]

OCSteve, you made me come perilously close to spewing water through my nose with I didn't mean to call the AG "bronchiolitis obliterans with organizing pneumonia".

[hilzoy]

Forgot to say so when I did it, but: I updated this morning.

[Portia]

For what its worth, other forms of privilege depnd on whether outside persons were present -- including priest-penitent, attorney-client and doctor-patient. Therefore, the argument that this went outside of the executive branch is fairly strong to me -- it was accessible by others to whom the privilege does not extend and therefore Rove et al. waived it....

[OCSteve]

Rove prefers to use his RNC-provided BlackBerry for convenience

This is what I would actually be most concerned about. RIM’s security claims have been disputed. If he is conducting any sensitive government business on a CrackBerry he is a fool.

The Dutch have a clue:

Dutch intelligence service AIVD has told Dutch MPs to stop using the Blackberry to access their email because their messages are prone to interception, The Register newspaper reports today.

[zmulls]

I'm a little late to this party.

Is the current argument that Rove was not advising the President, but instead was acting as a political operative from the RNC when he was discussing how and when to fire US Attorneys?

I'm not sure that's an argument he really wants to make...

[Ginger Yellow]

"Actually, using the RNC e-mail probably is a pretty strong argument. Any advising of the President has to be done in compliance with the PRA; if Rove wasn't following that law, then pretty much by definition, he couldn't be acting in his role as an advisor to the President."

I genuinely don't understand this argument, and the similar ones in the following comments. It seems to beg the question entirely. Without knowing the content of the e-mails, how can you distinguish between the hypotheses "He only acted as advisor to the president using the White House email" and "He broke the law by using the RNC email while acting as advisor"?

By way of comparison, would you be convinced by the argument that "It's illegal to conduct electronic surveillance outside of FISA, therefore the NSA programme must be compliant"?

[J Thomas]

"Actually, using the RNC e-mail probably is a pretty strong argument. Any advising of the President has to be done in compliance with the PRA; if Rove wasn't following that law, then pretty much by definition, he couldn't be acting in his role as an advisor to the President."

I genuinely don't understand this argument, and the similar ones in the following comments. It seems to beg the question entirely. Without knowing the content of the e-mails, how can you distinguish between the hypotheses "He only acted as advisor to the president using the White House email" and "He broke the law by using the RNC email while acting as advisor"?

Well, the obvious approach is to relesae all the RNC email to see whether it involves advising the president etc. If it doesn't, then it isn't protected under executive privilege.

Then there's the matter of how secure the RNC communications are. While we can't really expect them to be that nice to us, possibly russians or the french intelligence service or somebody will reveal Rove's RNC communications and settle the question. They have no obligation toward US executive privilege, and I can't imagine any foreign intelligence service or foreign government except maybe the israelis would want to do Bush a favor and help him serve out two more years. Who in the world has he made a deal with in the last 6 years that he kept? (Well, but we haven't heard about the secret ones.)

I don't see that the reasoning you complain about is correct in itself. I think the point is that Rove has a collection of double-binds here, where anything he does is wrong. His only real recourse is to say "I'm the President and I can do anything I want and nobody can stop me."

[Ginger Yellow]

"Well, the obvious approach is to relesae all the RNC email to see whether it involves advising the president etc. If it doesn't, then it isn't protected under executive privilege."

Indeed. I suspect there's an irony here going over my head.

My (Hilzoy's, really) point is that for a presidential advisor to send 95% of his emails outside of the legally mandated channel for work related email is somewhat odd on its face. Most employers would be somehwat perturbed to find out that their employees were spending 95% of their time not working for them. Similarly, we should be perturbed if somebody employed at taxpayers' expense to be deputy chief of staff to the president is spending 95% of his time on party political affairs. That's before we get into the whole issue of whether or not there's a deliberate attempt to conceal these communications.

[dutchmarbel]

The Dutch have a clue:

That'd be a first ;). We've had quite a few scandals because old pc's from the wrong departments ended up with data still on them, usb sticks were lost with data on them, notebooks got stolen... you get the picture.

However we don't have 'executive privilege' except maybe for the Royals (who aren't allowed to say anything significant because the prime-minister is responcible for all they comuncate). I wouldn't be sure about that though; ours is a rather egalitarian society.

[dutchmarbel]

oeps, italics begone

[Francis]

let me join the chorus of those who disagree with your first analysis. The "executive" privilege will not, indeed cannot, attach to RNC e-mail, because the RNC is not the executive.

as many have pointed out, this particular administration has really reached a new level of interweaving party with office.

that's a big no-no, as Al Gore discovered.

put it this way: If Congress subpoenas Rove's RNC e-mails relating to the firing of the USAs, even Gonzalez and Yoo would have a hard time asserting privilege.

[dr ngo]

Francis, you may know a lot about law, but I suspect you underestimate Prof. Yoo's ingenuity and tenacity when you say:

even Gonzalez and Yoo would have a hard time asserting privilege.

As far as I can see, Yoo has no more difficulty in asserting privilege than Louis XIV had.

[CharleyCarp]

You know, I'm not as certain about the email thing, and not sure I want to be as certain about it. There are times when I need to communicate with clients using my gmail account. For example, when my fine IT people are doing their periodic take-down (consider that stricken through) upgrades of the system. Or I'm on the road, and having trouble getting in.

I don't think this is inconsistent with the privilege, and I don't want some court saying that it's inconsistent with the privilege.

The hard line position against Rove harkens back to the debate at the beginning of email about whether the use of email at all waives the privilege: although the argument made logical sense, every bar looking at the question realized that the common sense of the thing had to trump the literal meaning of the old sweeping statements about waiver.

I wouldn't expect our Circuit -- which is where the issue is going to end up -- to find waiver based solely on which blackberry Karl used. (Although, Francis, I'll defer to you on just how wacky and literal you think Janice Rogers Brown is going to be on this kind of thing).

[Model 62]

CC: Wouldn't the Common Sense Clause force us to reconsider waiver rules in situations where 95% of the communication occurred outside the usual, protected, channels?

One or two exceptions due to technical or logistical difficulties is reasonable. But 95%?