The White House has acknowledged that many years' worth of official email--which is required by law to be preserved--has been "lost." The reason it was lost is because many White House staffers, most notably Karl Rove, have conducted much of their official business over the years on private RNC-sponsored email accounts that routinely purged old email. The White House has attempted to mitigate its culpability for this blatant violation of the Presidential Records Act by arguing that it was the byproduct of a good faith effort to comply with another law, the Hatch Act, which prohibits conducting certain partisan political activity on government time. As White House spokesperson Dana Perino put it:
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, regular 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. And so there are some members of the administration that do straddle both worlds. And so under an abundance of caution so that they don't violate the Hatch Act, they have these separate emails.
The goal here is to portray these White House staffers as honest civil servants trying their best to comply with two contradictory sets of legal mandates. And the White House has actually been pretty successful at selling this line, as evidenced by this paragraph from a recent New York Times story:
At issue is how the White House complies with two seemingly competing laws. One is the 1978 Presidential Records Act, which requires the administration to ensure that its decisions and deliberations are “adequately documented” and that records flowing out of those decisions are preserved. The other is the Hatch Act, which prohibits federal officials from engaging in political business on government time.
But here's the thing. It's just not true. The Hatch Act and the Presidential Records Act are not "competing" laws. It's remarkably easy to comply with both. All you have to do is preserve your official communications.
The Presential Records Act simply requires that the President "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." He is directed to accomplish this "[t]hrough the implementation of records management controls and other necessary actions." The White House email system is set up to facilitate compliance with the Presidential Records Act, but it is not the exclusive means of doing so.
In other words, the problem here wasn't the use of the RNC accounts per se, but the fact that no one bothered to set up any controls on the RNC accounts to ensure that emails would be retained. A simple archiving program and some restrictions on manual deletions would have solved the problem. Instead, the accounts had a 30-day purge policy, meaning that if the entire White House staff had used free Gmail accounts, they would have enjoyed infinitely better document retention than what was provided by the RNC. But as John Cole put it the other day:
Losing emails from non-official servers run by the Republican party is not a bug, it is a feature. This wasn’t a mistake- it was a plan.
Compliance with the the Hatch Act was clearly a pretext for conducting official business "off the record," as evidenced by the willingness of Karl Rove and his staff to engage in blatant violations of the Hatch Act in other contexts. Are we really supposed to believe that the use of email was the one area where these guys were concerned about crossing the line?
This is, after all, a White House that has from the beginning adopted the most cavalier attitude imaginable toward legal and regulatory restrictions on the exercise of its power. So why on earth would they have given even a second thought to the exceedingly remote possibility that some of their emails would someday be found to be in technical violation of the Hatch Act? That's just not credible. The Hatch Act was a convenient excuse for conducting business in a way that was far less likely to create a trail of discoverable communications. It's that simple.
There is no reason these RNC accounts had to be used to the extent they were (or utilize such draconian deletion policies). If Karl Rove truly feels that compliance with the Hatch Act requires him to conduct 95% of his business via a private RNC email account, perhaps he should be asked to explain why he deserves to be on the public payroll at all? Why should he get 100% of his salary if he's only devoting 5% of his time to official business?
And on a final note, it's worth asking why the problematic nature of this parallel email system is just now garnering headlines. As the folks at the Hotline coyly hinted the other day, there must have been a number of journalists who knew about these RNC accounts and communicated to White House officials through them:
How many journalists sent e-mails to White House officials' email@example.com accounts? How many journalists currently covering the e-mail story did this?
Though I'm certainly not holding my breath, it would be nice if some of the journalists who have personal experience communicating with the White House through these back-channel accounts would share some of their insight with us (rather than just offering cryptic hints).