Casual Lawbreaking at the White House

By Dan Froomkin
Special to
Tuesday, June 19, 2007; 1:14 PM

New evidence unearthed by House Democrats establishes that White House political adviser Karl Rove and many of his colleagues used Republican National Committee e-mail accounts for official business -- even though White House policy is clear that doing so is a violation of the Presidential Records Act.

How did such casual lawbreaking come to be so widespread? And why was it tolerated? Those are among the questions the White House has yet to answer satisfactorily.

One reason for Rove's use of the RNC e-mail account would appear to be convenience. Rove was equipped with an RNC BlackBerry very early in the Bush presidency -- and by all accounts he uses it constantly.

Another reason, suggested by White House spokesman Scott Stanzel in April, is that some people may have used their non-government accounts for official business due to "an abundance of caution" in order to avoid violating the Hatch Act, which prohibits the use of government e-mail for overtly political purposes. A cynic could even argue that Rove and his operatives have so intertwined politics and policy in this White House that it would be understandably difficult for them to determine whether they should be using RNC or White House accounts.

Yet another possibility, of course, is that Rove and the others chose to use the RNC e-mail accounts for official business as a way to keep their e-mail from public scrutiny, which is implicit in the use of White House e-mail accounts. If that was their goal, they appear to have succeeded.

Unlike the White House, whose e-mail retention rules essentially preserve everything forever, the RNC automatically deleted most e-mails after 30 days and allowed users to manually delete whatever they felt like. The result, as I first reported in April, is that countless White House e-mails are now missing.

And as the new House Oversight Committee report points out, the White House counsel's office -- then headed by current Attorney General Alberto Gonzales -- was aware of these violations of e-mail policy, but chose to do nothing about it.

The Coverage

Ron Hutcheson writes for McClatchy Newspapers: "Presidential adviser Karl Rove sent more than 140,000 e-mails through the Republican National Committee's computer system, circumventing a federal law intended to guarantee the preservation of presidential records, House of Representatives investigators have concluded.

"While 88 White House aides used the back-channel system, Rove was its biggest user at the White House, and more than half of his communications dealt with official business, according to an interim report by the House Oversight Committee. . . .

"White House spokesman Tony Snow declined to respond directly to the staff report, but he defended the use of the Republican Party e-mail system. He said aides used RNC equipment and the e-mail network to comply with federal laws that prohibit the use of government supplies for partisan political activity.

"'We've seen a number of times right now where people have been putting together investigations to see what sticks. They have had very little success so far. This is an administration that is very careful about obeying the law,' he said."

Michael Abramowitz writes in The Washington Post: "White House aides made extensive use of political e-mail accounts for official government business, despite rules requiring that they conduct such business through official communications channels, according to new evidence disclosed yesterday by congressional investigators. . . .

"Congressional Democrats have suggested that Rove and other White House officials may have used the political accounts to avoid scrutiny of their decisions from Congress, but the report offered no evidence about their motives. [Karl Rove's former assistant Susan B.] Ralston said Rove believed all of his e-mails were being saved even though the RNC had a policy until 2004 of destroying all e-mails after 30 days. . . .

"RNC spokeswoman Tracey Schmitt said in an e-mail that the committee should not assume more e-mails will not be found. 'This is not necessarily the total number of e-mails preserved,' she said. 'The RNC has repeatedly made clear to the committee that it is continuing to search for e-mails.'"

Charles Babington writes for the Associated Press: "In a statement, [committee chairman Henry] Waxman said the panel's findings 'should be a matter of grave concern for anyone who values open government.' He said the committee will investigate 'who knew about the violations of the Presidential Records Act, why they did not act earlier, and what e-mails can be salvaged from RNC, White House, and agency computer systems.'

"The committee's top Republican, Tom Davis of Virginia, criticized the report, saying the panel should obtain more conclusive evidence before accusing the RNC and White House of wrongdoing. The evidence thus far, he said, 'simply does not support the report's breathless conclusions.'"

From the Report

Yesterday's column included some excerpts from the report's summary. Here are some more excerpts from the full report:

"The Committee has obtained evidence of potentially extensive violations of the Presidential Records Act by senior White House officials. During President Bush's first term, momentous decisions were made, such as the decision to go to war in Iraq. Yet many e-mail communications during this period involving the President's most senior advisors, including Karl Rove, were destroyed by the RNC. . . .

"Although 88 White House officials received RNC e-mail accounts, the RNC says that it retains e-mail records for only 37 of these officials. . . .

"According to the data provided to the Committee, the RNC has preserved 140,216 e-mails sent to and from Mr. Rove's RNC e-mail account between January 2002 and April 2007, the most of any White House official. The second most prolific user of the RNC account was Sara Taylor, the former White House Director of Political Affairs. The RNC has preserved 66,018 of her e-mails. . . .

"In 2007, Mr. Rove frequently sent more than 100 e-mails per day through his RNC e-mail account and received more than 200 per day. . . .

"Of the 674,367 e-mails preserved by the RNC, 240,922 e-mails (36%) were sent to or received from government e-mail accounts. . . . Mr. Rove alone sent or received 75,374 '.gov' e-mails using his RNC e-mail account.

"In response to the request from the Committee, a few agencies have provided partial inventories of e-mails exchanged between agency officials and White House officials using RNC and Bush Cheney '04 e-mail accounts. These limited inventories indicate that White House officials used their RNC e-mail accounts to conduct official business. . . .

"When concerns were first raised publicly about the use of RNC e-mail accounts by White House officials, the White House stated that the problems arose, in large part, from a lack of clear guidance from the White House regarding the handling of e-mail and the separation of official and political work. According to White House spokesperson Dana Perino, the White House implemented a new e-mail policy this year because the existing 'policy wasn't very clear, and that people needed a clearer policy.'

"In fact, the White House policy from the first days of the Bush Administration has been clear: use only the official e-mail system for official communications and retain any official e-mails received on a nongovernmental account. A February 26, 2001, memorandum from Alberto Gonzales, Counsel to the President, to White House staff stated: 'e-mail is no different from other kinds of documents. Any e-mail relating to official business therefore qualifies as a Presidential record. All e-mail to your official e-mail address is automatically archived as if it were a Presidential record, and all e-mail from your official e-mail address is treated as a Presidential record unless you designate otherwise. . . . [I]f you happen to receive an e-mail on a personal e-mail account that otherwise qualifies as a Presidential record, it is your duty to ensure that it is preserved and filed as such by printing it out and saving it or by forwarding it to your White House e-mail account.'

"Ms. Ralston's deposition provides evidence that the White House Counsel's office under Alberto Gonzales may have been aware as early as 2001 that White House officials were not complying with the policies regarding preservation of official e-mail. Ms. Ralston told the Committee that she and Mr. Rove twice searched for e-mails on his political accounts in response to investigative requests. Ms. Ralston stated that in 2001, Mr. Rove was asked to search his political computer in response to a request relating to an investigation of Enron. She testified that the White House Counsel's office would have known about these searches 'because all of the documents that we collected were then turned over to the White House Counsel's office.'"

Ralston's Deposition

The House committee's May 10 deposition of Susan Ralston is kind of a big deal for us White House watchers. It is, as far as I know, the first wide-ranging deposition from a key Bush White House aide.

Just how key was Ralston? She was not just Rove's confidential assistant, she was literally his doorkeeper: "When people came to meet with Mr. Rove, did you greet them and bring them in to Mr. Rove?," committee counsel Kristen Amerling asked Ralston.

"Yes," Ralston replied. "I sat just outside his office, so they couldn't get to him without walking past me."

There were a few things Ralston simply refused to talk about without immunity. As Abramowitz writes in The Post: "Ralston's deposition spelled out her interest in obtaining immunity from the committee before testifying on other matters, including the relationship between White House officials and disgraced lobbyist Jack Abramoff. Ralston worked for Abramoff before going to work at the White House.

"Ralston's attorney, Brad Berenson, told the investigators during the deposition that Ralston is interested in helping the committee and has 'useful information.' While she does not believe she has violated the law, Berenson said, Ralston 'doesn't have sufficient comfort that testimony provided in this setting on those subjects will not have some tendency to inculpate her, at least in the eyes of someone who is inclined . . . to put the worst possible construction on events.'"

Ralston did, however, answer questions about Rove's use of e-mail -- and about the private briefings on Republican electoral prospects in the last midterm election that Rove's office held for senior officials in at least 15 government agencies covered by federal restrictions on partisan political activity.

Ralston said the briefings typically included a report on "target states."

"Q. When you say 'target states,' what do you mean by that?

"A. There were states that were a priority for political -- for the 0ffice of Political Affairs. They called them 'target states.'

"Q. A priority with respect to what?

"Q. These were states that -- they were states that were important, given the races and the political activity of that particular time. So, for example, if there were key races in Florida , then Florida might be a target state. . . .

"Q. Did they discuss, as the one given at the GSA did, targeting specific Democratic seats and defending specific Republican seats?

"A. The presentations that I remember did."

Fresh Plame Material

And Ralston had some intriguing observations about the leak of covert CIA agent Valerie Plame's identity. As became clear in the obstruction of justice trial of vice presidential aide I Lewis "Scooter" Libby, Rove's role was significant. He confirmed Plame's identity to syndicated columnist Robert Novak, and was the first person to leak her identity to Time reporter Matthew Cooper -- who then got if confirmed by Libby.

"Q Were you aware of any communications by Mr. Rove about Joe Wilson or Valerie Plame Wilson with the Office of the Vice President?

"A You know, it is -- that investigation was so lengthy that the timing of all of the conversations is not really clear in my mind. I believe he did talk to the Vice President's Office about it, but I just don't remember when, with whom, the context.

"Q Why do you believe that he talked with that office about this subject?

"A. I just have a vague recollection that he and Scooter Libby talked about this subject often.

"Q. Often?

"A. Often.

"Q. During what time frame?

"A. I don't know. I mean, I -- it is really hard for me to say. . . .

"Q. Do you have any information about how Mr. Rove learned that Valerie Wilson was an employee of the CIA?

"A. I don't remember. I think I recall he heard it through gossip.

"Q. Gossip from whom?

"A. I don't know.

"Q. Do you know who else at the Whìte House was aware of this fact that Valerie Wilson was an employee of the CIA?

"A. Well, from the press accounts I know that Scooter Libby did."

And it appears that after the investigation was launched, Rove was willing to lie about his role -- or at least issue a carefully parsed denial --- even to his confidential assistant.

"Q. Were you aware of any discussions between Karl Rove and any others about a plan to disclose information about Ms. Wilson's CIA employment to the press?

"A. Um, I don't think -- I think I have a vague recollection of it being discussed but not until after the story.

"Q. And who discussed this issue?

"A. Karl -- well, Karl may have talked about it with us in his office.

"Q. And what did he say?

"A. Well, to me personally he said that he never knew her name, and it wasn't him who disclosed it.

"Q. Do you remember when he told you that?

"A. It was sometime during the investigation."

Odds and Ends

As attached as Rove was to his BlackBerry, he apparently lost it at least once. One can only imagine what was on it at the time.

This came up as Ralston was explaining that Rove might have thought his e-mail was being backed up because of how long it took IT people to restore his mail folders: "It may have been four or five times. I can't say specifically, but it seemed to be a number of times. Karl would get a new computer. He would lose a BlackBerry. Whenever this happened, there would be some conversation with the [Information Services and Technology] people about his mail file."

And Ralston notes that Rove owns the domain.

Justice Watch

Marisa Taylor and Margaret Talev write for McClatchy Newspapers: "The investigations into the Bush administration's decision to fire nine U.S. attorneys have exposed how the administration has eroded the firewall between partisan politics and the Justice Department and compromised the independence of the nation's top law enforcement agency.

"As early as 2002, administration policymakers, Republican legislators and GOP party officials began injecting politics into criminal investigations and civil and voting rights enforcement and applying political litmus tests to judges and career lawyers at the Justice Department."

Among their conclusions: That the administration "[a]llowed political adviser Karl Rove and the White House Office of Political Affairs to become conduits for complaints about politically sensitive prosecutions. Elected officials and even lobbyists took their frustrations about individual cases or prosecutors to Rove, or to the attorney general and his aides."

Caging Watch

Lara Jakes Jordan writes for the Associated Press: "Senate Democrats urged the Justice Department on Monday to investigate whether one of its former prosecutors led attempts to suppress Florida voter turnout during the 2004 presidential election.

"The request by Sens. Edward M. Kennedy of Massachusetts and Sheldon Whitehouse of Rhode Island is the latest facet of Congress' ongoing inquiry into whether politics played a role in the firings of eight U.S. attorneys.

"One of the fired prosecutors, Bud Cummins in Little Rock, Ark., was replaced on an interim basis by Tim Griffin -- a protege of presidential political adviser Karl Rove who worked at the Republican National Committee in 2004. The two senators Monday pointed to two e-mails to Griffin -- titled 'caging' and dated August 2004 -- listing nearly 2,000 potential voters in Jacksonville, Fla. . . .

"'Caging' refers to efforts to disqualify voters who fail to sign for registered campaign mail sent to their houses."

No More Fear?

David Paul Kuhn and Jonathan Martin write in the Politico about how Republican candidates are increasingly turning on Bush to save their own skins: "The change, say GOP operatives, is the absence of fear about being perceived as something less than an ardent Bush backer. 'What's the penalty now, Karl being mad at you?' Republican pollster Tony Fabrizio asked with a laugh, referring to Bush political adviser Karl Rove. 'Who cares? Even his former chief strategist (Matthew Dowd) walked away from him and pissed all over him.'"

Next Job?

Paul Bedard writes for U.S. News: "President Bush isn't leaving it to strangers to take care of his legacy project, the George W. Bush Presidential Library and Museum. Playing key roles are political aide Karl Rove, first lady Laura Bush, and former Chief of Staff Andy Card. The trio has been interviewing architects and touring similar research campuses for tips. We hear that some are urging Bush to put Rove in charge once it's built."

Signing Statements Watch

The big question that has long been hovering over the debate about Bush's unprecedented use of signing statement is this: Did he actually act on his assertion that he could ignore the law?

The first study aimed at answering that question suggests that the answer is yes -- it wasn't just empty rhetoric.

Charlie Savage writes in the Boston Globe: "Federal officials have disobeyed at least six new laws that President Bush challenged in his signing statements, a government study disclosed yesterday. The report provides the first evidence that the government may have acted on claims by Bush that he can set aside laws under his executive powers.

"In a report to Congress, the non partisan Government Accountability Office studied a small sample of the bill provisions that Bush has signed into law but also challenged with signing statements. The GAO found that agencies disobeyed six such laws, while enforcing 10 others as written even though Bush had challenged them. . . .

"'The administration is thumbing its nose at the law,' said [House Judiciary Committee chairman John] Conyers, one of the lawmakers who commissioned the GAO study."

Jonathan Weisman writes in The Washington Post: "The instances of noncompliance were not as dramatic as some of the signing statements that have caused the most stir, such as Bush's suggestion that he was not bound by a ban on torture in U.S. military detention facilities. But congressional aides said they were significant.

"For example, Congress directed U.S. Customs and Border Protection to relocate its checkpoints around Tucson every seven days to improve efforts to combat illegal immigration. But the agency took the law as an 'advisory provision' that was 'not always consistent with CBP's mission requirements.' Instead, the agency periodically shut down its checkpoints for short periods of time, believing that would comply with congressional demands."

Jim Abrams writes for the Associated Press: "The White House defends the [signing] statements, saying presidents have the prerogative to address matters of national security and express reservations about the constitutionality of legislation.

"'We expect to continue to use statements where appropriate, on a bill-by-bill basis,' White House spokesman Tony Fratto said. 'The opportunities in this Congress have been limited since we've mostly only received bills to name post offices and federal buildings.'"

Here is the GAO report. Two other examples of noncompliance:

"The Federal Emergency Management Agency (FEMA) did not submit a proposal and expenditure plan for housing as directed by Congress in the appropriations act because, according to FEMA, it does not normally produce such plans. . . .

"The Department of Defense (DOD) did not include as part of the fiscal year 2007 budget submission to Congress separate budget justification documents for the costs of all contingency operations for the Military Personnel, Operation and Maintenance, and Procurement accounts. DOD did provide a separate justification document that included the costs of contingency operations in the Balkans and Guantanamo Bay but did not include costs for any other contingency operations, such as those in Iraq."


Lara Jakes Jordan writes for the Associated Press: "President Bush had a nearly hour-long secure video teleconference with Iraqi leaders on Monday and came away impressed and reassured by the progress they're making on political, security and economic reforms, the White House said."

Reassured? Alas, Tony Snow couldn't exactly say why.

"Q But, Tony, can you give us some sense of why he felt reassured, given that we've heard reassurances before?

"MR. SNOW: Well, again, it is clear that you've got an environment now where the key leaders are working together on these issues. And, yes, we have heard a lot of these things before, but without -- and I'm not in a position to go into the details and what they were saying, but there are reasons we think they're very serious in moving forward on the key items.

"Q But, Tony, we've heard that before, many times.

"MR. SNOW: I understand. I understand."

Interrogation Watch

Karen DeYoung writes in The Washington Post: "Eight months after President Bush signed a bill authorizing the CIA to resume using 'enhanced interrogation techniques' on terrorism suspects, the administration has been unable to agree on what constitutes 'humiliating and degrading treatment' of detainees.

"The CIA program remains in limbo, awaiting an executive order about the techniques that has become the subject of tense discussions within the administration and between the White House and the Senate Select Committee on Intelligence. . . .

"In a further complication, the Senate panel demanded that Bush obtain a Justice Department review of the interpretation and guidelines, and provide a copy of the review to the committee. The administration is believed to have already obtained the review but is unlikely to turn it over to Congress, the administration official said. Lawmakers will be asked to accept Bush's assurance in the executive order that the program has been deemed lawful. . . .

"The issue is expected to receive a rare public airing today as the committee holds a confirmation hearing for John A. Rizzo, nominated by Bush in March 2006 as the CIA's legal counsel. Senators plan to ask Rizzo, a 30-year CIA veteran who is serving as acting counsel, about his involvement in past interrogation policymaking as well as the pending guidelines."

Mark Mazzetti and Scott Shane write in the New York Times: "In the months after the Sept. 11 attacks, at a time when the Central Intelligence Agency had long been out of the interrogation business, senior C.I.A. officers scrambled to build a program to question terror suspects in secret jails abroad.

"To check on the legality of the harsh interrogation techniques they proposed, they turned to John A. Rizzo, who was then acting as the agency's top lawyer. . . .

"John Radsan, who worked as a C.I.A. lawyer from 2002 to 2004 but is critical of the detention program, said Mr. Rizzo 'bears a share of responsibility' for the program and perhaps should have counseled against actions that were 'technically legal but wrongheaded.'

"But Mr. Radsan said top Bush administration officials deserved greater blame 'for asking to push things right to the point of illegality.'"

Mazzetti and Shane write that "approved options were first applied after the capture in March 2002 of Abu Zubaydah, a senior Qaeda figure. Mr. Rizzo was responsible for the legal advice to the officers holding him in Thailand as they escalated physical and mental pressure."

But as I noted in my June 20, 2006 column, author Ron Suskind reported in his book, "The One Percent Doctrine," that Zubaydah was a minor al Qaeda player -- and a split-personality schizophrenic -- who 'confessed' under torture to many plots that never existed. I hope someone will ask Rizzo about that today.

Scooter Libby Watch

The Dallas Morning News editorial board writes that "letting Mr. Libby avoid paying for his crime would only increase cynicism about elite privilege in American public life."

DeWayne Wickham writes in his USA Today opinion column: "Libby's bad deeds apparently resulted from a plan hatched in Cheney's office to counter Wilson's criticism of the president. While no one else has been charged, it is not a stretch to suggest that Libby's crimes might have been committed in support of the White House effort to strike back at one of the president's enemies."

Wickham warns that "a pardon for Libby might cause the Democratic-controlled Congress and many other Americans to think he acted out of self-interest -- to bury the full truth. . . .

"There is no evidence to suggest that President Bush was involved in any illegal acts. But a pardon for Libby -- if it comes -- should cause congressional investigators to probe more deeply the White House plot to strike at one of the president's political enemies."

Richard Cohen, in his Washington Post op-ed column, gives voice to the media elite's contempt for an investigation that disturbed the cozy relationship between Washington journalists and politicians: "This is not an entirely trivial matter since government officials should not lie to grand juries, but neither should they be called to account for practicing the dark art of politics. As with sex or real estate, it is often best to keep the lights off. . . .

"The upshot was a train wreck -- mile after mile of shame, infamy, embarrassment and occasional farce. . . .

"I have come to hate the war and I cannot approve of lying under oath -- not by Scooter, not by Bill Clinton, not by anybody. But the underlying crime is absent, the sentence is excessive and the investigation should not have been conducted in the first place. This is a mess. Should Libby be pardoned? Maybe. Should his sentence be commuted? Definitely."

In other words, says Cohen: Turn the lights back off.

Froomkin Watch

No column tomorrow -- I'm appearing on a panel about mainstream media political coverage at the Take Back America 2007 conference.

Happy Birthday, Mr. President

Laura Bush is asking people on the RNC e-mail list: "Please help me celebrate a very special birthday.

"On July 6, President Bush will turn 61 years old. In our family, birthdays are special occasions that always include family and close friends.

"I know George will appreciate receiving warm wishes from loyal supporters on his special day. Please take a moment to add your name to the RNC's e-card.

"And if you can, please consider commemorating President Bush's 61st birthday with a gift our entire Party can share. Your secure online gift of $61 or whatever you can afford -- $25, $75, $100, $500 or even $1,000 -- will go a long way toward helping the RNC lay the foundation for electing more Republicans in the 2007 state and 2008 national elections."

But guess what? Go to the Web page in question and it's impossible to add your name (and message) without making a contribution. At least I couldn't find a way.

Cartoon Watch

Ann Telnaes on Rove as greased pig.

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