The Washington Post’s Dan Froomkin participated in a White House conference call with journalists yesterday, on which White House spokesman Scott Stanzel explained that countless emails from presidential aides are “lost.” Stanzel acknowledged that staffers neglected to follow official policy (i.e., the law) related to the communications system, but spread the blame around, suggesting staffers didn’t “seek guidance,” while the White House “did not give clear enough guidance.”
Yes, we’re still in the dog-ate-my-emails phase of the scandal.
But Froomkin adds an important piece to the puzzle, detailing the policy what White House officials are required to follow, but in this case, didn’t.
“Federal law requires the preservation of electronic communications sent or received by White House staff,” says the handbook that all staffers are given and expected to read and comply with.
“As a result, personnel working on behalf of the EOP [Executive Office of the President] are expected to only use government-provided e-mail services for all official communication.”
The handbook further explains: “The official EOP e-mail system is designed to automatically comply with records management requirements.”
And if that wasn’t clear enough, the handbook notes — as was the case in the Clinton administration — that “commercial or free e-mail sites and chat rooms are blocked from the EOP network to help staff members ensure compliance and to prevent the circumvention of the records management requirements.”
Froomkin asked if the White House would release the relevant portions of the staff manual, so we could see what guidance Rove and others were given. Stanzel refused. Froomkin asked if he could make public the transcript of yesterday’s call. Stanzel refused that, too.
Stanzel was willing to acknowledge that dozens of White House staffers have been violating policy for years, but in case there was any doubt, there won’t be any consequences.
So is anyone in trouble? Apparently not. Stanzel was careful to apportion blame widely and generically. “This issue is not the fault of one individual,” he said. He refused even to acknowledge that it is the White House counsel’s office that is responsible for the establishment and oversight of internal rules of conduct. The White House counsel during Bush’s entire first term, of course, was Alberto Gonzales, now the embattled attorney general. […]
Stanzel was joined in the conference call by a White House lawyer who Stanzel insisted not be referred to by name. What is the penalty for violating internal White House policy, I asked? “I don’t believe the staff manual contains penalties for failure to preserve,” the lawyer said.
Stanzel, possibly unwittingly, offered one possible explanation for why the rule on preservation was flaunted so widely: Because there was apparently no prospect of personal consequences. “There are no personal violations of the Presidential Records Act, but you can have a personal violation of the Hatch Act,” he said.
The lawyer criticized the crystal-clear (to me) ban on using non-White House e-mail for official purposes as being “too concise” and described a new, more extensive White House policy that has now been issued that further clarifies the obligations of those staffers who have RNC accounts. Stanzel also described another recent change; White House staffers no longer have the ability to delete their RNC e-mail under any circumstances.
Great. Only six years too late.
I also wanted to highlight an excellent post from my friend, Anonymous Liberal, whose work as a lawyer adds a valuable perspective.
As an attorney who deals with subpoenas and requests for electronic documents on a regular basis, I can tell you that if a private entity — particularly one subject to legally mandated record keeping requirements — were to inform government investigators seeking such documents that they had been “mishandled” and were now “lost,” that entity would immediately find itself in a world of hurt and would be lucky if it survived the aftermath. No amount of talking would be enough to convince the authorities that there was an innocent explanation for the missing documents. They would be absolutely convinced that the “mishandled” documents were intentionally destroyed in order to cover up wrongdoing. […]
If these emails truly are gone forever, the White House should be subject to the very same presumption of wrongdoing that any other entity would under similar circumstances. Indeed, given this White House’s track record, that sort of negative inference is even more justified. Simply put, there is no reason that any intelligent person should take the White House’s explanation here at face value. They had a legal obligation to preserve official emails and only now, after they’ve been requested by Congress in connection with a high-profile investigation, are we informed that they have been “lost.” Henry Waxman, Patrick Leahy, and the other members of Congress investigating this matter have every right to be incredulous. This is just totally unacceptable.
Stay tuned.