Potential Violations of Presidential Records Act Uncovered

The Committee On Oversight And Government Reform for the Majority Staff of the U.S. House of Representatives (the Oversight Committee) has been conducting an investigation into whether White House officials violated the Presidential Records Act by using email accounts maintained by the Republican National Committee (the RNC) and the Bush Cheney '04 Campaign (the Campaign) for official White House communications. The Oversight Committee first learned that White House officials might be using RNC email accounts to avoid creating a record of official communications during the Oversight Committee's inquiry last year into White House contacts with convicted lobbyist Jack Abramoff. The Oversight Committee recently issued its interim staff report, and its preliminary findings are worthy of consideration.

The first finding is that the number of White House officials provided with RNC email accounts was higher than previously disclosed. Indeed, while in March 2007 a White House spokesperson stated that only a handful of officials had RNC email accounts, the Oversight Committee has learned that from the RNC that at least 88 White House officials had such accounts.

The next finding is that White House officials made extensive use of their RNC email accounts. For example, the RNC has preserved 140,216 emails sent or received by Karl Rove, with more than half of these emails, 75,374 to be exact, were sent to or received from individuals using official .gov email accounts.

The report disturbingly also finds that there has been extensive destruction of emails of White House officials by the RNC. The report sets forth that of the 88 White House officials who obtained RNC emails accounts, the RNC failed to preserve emails for as many as 51 of these officials. To top this off, the report summarizes that there were major gaps in the email records of the 37 White House officials for whom the RNC did preserve emails.

As if the foregoing were not enough, the report next concludes that there is evidence that the Office of the White House Counsel under Alberto Gonazales may have known that White House officials were using RNC email accounts for official business but did not take any action to preserve theses presidential records.

The Presidential Records Act requires 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."

Given the findings reflected above, not surprisingly, the Oversight Committee concludes that the evidence indicates that White House officials used their RNC email accounts to get around these requirements. This is a problem. Presidential records must be maintained as a matter of law and so that the American public truly knows what its President is up to. Yet, here, it is not even possible to determine at this point "precisely how many presidential records may have been destroyed by the RNC," according to the Oversight Committee, and "given the heavy reliance by White House officials on RNC email accounts, the high rank of the White House officials involved, and the large quantity of missing emails, the potential violation of the Presidential Records Act may be extensive."

The Oversight Committee now recommends as part of its further investigation that the records of federal agencies should be examined to assess whether they may contain some of the White House emails that have been destroyed by the RNC, there should be review to determine whether White House Counsel Alberto Gonzales knew about the use of political email accounts by White House officials, and there may need to be compulsory process to obtain the cooperation of the Campaign (which so far has refused to provide the Committee with basic information about email accounts it provided to 11 White House officials).

While the President wields power, such power cannot be wielded in secret and in violation of the Presidential Records Act. The Oversight Committee should continue its investigation to determine finally whether that truly happened.

 

Eric Sinrod is a partner in the San Francisco office of Duane Morris LLP where he focuses on litigation matters of various types, including information technology and intellectual property disputes. His Web site is http://www.sinrodlaw.com and he can be reached at ejsinrod@duanemorris.com. To receive a weekly email link to Mr. Sinrod's columns, please send an email to him with Subscribe in the Subject line.

This column is prepared and published for informational purposes only and should not be construed as legal advice.  The views expressed in this column are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.