The hidden scandal within the prosecutor purge

Posted by Melissa McEwan at 5:43 AM on March 21, 2007.

Written and researched by Joseph Hughes of Hughes for America and Melissa McEwan of Shakespeare's Sister

Between the thousand-page document dumps, somewhat rejuvenated press corps and always up-to-the-second reporting from the progressive blogosphere, the prosecutor purge scandal is exploding at a seemingly exponential rate. Every hour, the story grows in new and different directions, and now clearly threatens the job security of Attorney General Alberto Gonzales and others in the Department of Justice. Further, it now appears as though the scandal's tentacles reach into the uppermost echelons of the Bush White House, including, as recent administration controversies almost always do, Karl Rove. While the endgame of this saga is far from decided, what is already apparent is that a vital facet of the story -- the administration's seeming unwillingness to comply with both the law and a fundamental cornerstone of our American system -- is in danger of being lost in the shuffle of the overarching stampede. And, if we can no longer expect our government's top officials -- including the top official, the president -- to obey the law and adhere to the bedrock standard of open government, then the questions about whether or not we still live in a democracy are no longer so far-fetched.

Here, in concise a listing as possible, is what we now know:

1. President Bush does not use e-mail. Our evidence for this comes both from the president himself, as well as an exchange between George H.W. Bush, Barbara Bush and Greta Van Susteren. The president, as seen in this telling video, said, of e-mail: "I tend not to e-mail -- not only tend not to e-mail, I don't e-mail, uh, because of, uh, the different record requests that could happen to a president. I don't want to receive e-mails, 'cause, you know, there's no telling what somebody would e-mail me and it would show up as, uh, you know, part of some kind of a story that -- and I wouldn't be able to say, 'Well, I didn't read the e-mail' -- 'But I sent it your address; how can you say you didn't?' So, in other words, I'm very cautious about e-mailing." As mentioned, the president's father and mother have spoken about his avoidance of e-mail as well:

H.W. BUSH: ... I think it's too bad in a way that e-mail will detract from the historical record of presidents. I don't think that the President Bush uses e-mail.

BARBARA BUSH: He doesn't.

H.W. BUSH: You worry about it. People are going to subpoena the email records and we are going to, you know, you've gotta prove that you were telling the truth and all this stuff. I mean, it's gotten so adversarial that it's ugly.

3. Secretary of State Condoleeza Rice, at least as of March of 2004, does not use e-mail. From an interview the then-National Security Advisor gave to wire and print journalists, we see this: "That's how I do business. I don't use e-mail for business. I think it's intemperate, and I don't communicate by e-mail." Curiously, however, in the same response, Rice said, "I did have to send Dick [Clarke] two e-mails telling him, come to my staff meetings, because he kept being too busy. I finally told him that it was important that he not be too busy." If that, too, is true and Rice herself -- though she had just told reporters that she didn't "use e-mail for business" -- did indeed e-mail Richard Clarke, this suggests a selective use of e-mail for business that, to be sure, is also suspicious.

4. Former Secretary of Defense Donald Rumsfeld and current Secretary of Homeland Security Michael Chertoff, at least as of February of 2006, did/do not use e-mail. What was suspected about Rumsfeld in late 2004 was confirmed a little more than a year later when, in the midst of the congressional investigation of the official government response to Hurricane Katrina, we saw this: "When it came to documentation of how Secretaries Michael Chertoff and Donald Rumsfeld responded to Katrina, however, congressional investigators got a different answer from the administration. The House committee established to investigate Katrina was 'informed that neither Secretary Chertoff nor Secretary Rumsfeld use e-mail,' reported Reps. Charlie Melancon and William Jefferson, two Louisiana Democrats who participated in the inquiry despite a boycott by other House Democrats who felt that the inquiry was too partisan."

5. Per a Citizens for Responsibility and Ethics in Washington (CREW) letter to Henry Waxman calling for an investigation into "whether the White House has violated its mandatory record-keeping obligation under the Presidential Records Act (PRA)", we learned the following:

One email, sent to Justice Department Chief of Staff D. Kyle Sampson from J. Scott Jennings, White House Deputy Political Director, uses an email account, SJennings@gwb43.com, on a server owned by the Republican National Committee. This raises serious questions about whether the White House was trying to deliberately evade its responsibilities under the PRA, which directs the president to take all necessary steps to maintain presidential records to provide a full accounting of all activities during his tenure.

A number of other emails from Deputy Chief of Staff Karl Rove's former assistant Susan Ralston to convicted lobbyist Jack Abramoff document Ms. Ralston's use of three outside domains: rnchq.com (used for the headquarters of the Republican National Committee), georgebush.com and aol.com. In many of these emails Ms. Ralston is communicating inside White House information to Mr. Abramoff in response to Mr. Abramoff's efforts to broker deals for his clients and place specified individuals in positions within the administration.

CREW has learned that to 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.

One other question remains unanswered: What about the law? In an informative New York Times piece, Adam Cohen sketches out four potential crimes that may one day be associated with the prosecutor purge. About his first instance, "Misrepresentations to Congress", Cohen writes, "It is illegal to lie to Congress, and also to 'impede' it in getting information." It doesn't take much of an imagination to see how an orchestrated refusal among top administration officials to use e-mail for even basic communications could be construed as an intent to impede Congress from getting information. Especially considering the information Chuck Schumer relayed Tuesday when discussing the initial offer from the White House to allow Rove and Harriet Miers to testify before Congress, though unsworn, not under oath, not in public and with no transcript: "They [the White House] did offer to turn over documents, but that too was extremely incomplete because the only documents they'd turn over to us are communications from the White House to the Justice Department, from the White House to other third parties, and back. But no intra-White House communications. So, if Karl Rove sent a communication to Harriet Miers and said, and this is purely hypothetical, 'We have to get rid of US Attorney Lam. Come up with a good reason ...' and the only communication we get is the good reason that Harriet Miers sent to the Justice department in terms of getting rid is."

This is not to mention the notion that administration avoidance and misdirection thwarts the American citizenry from keeping tabs on their government. Consider the Presidential Records Act, referenced by CREW, whose release -- as mentioned above -- points to the idea that "to 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." Pretty cut-and-dried. Beyond using non-White House e-mails, what about not using e-mail altogether? If the administration, as in this case, appears willing to skirt the law regarding one form of communication, one wonders how closely they're toeing the line regarding others. The bottom line of the matter is this: Potential lawbreaking aside, there's a definite appearance of impropriety in this pattern of behavior.

If you couple the president's obvious distrust of e-mail communications with the fact that both he and other top officials don't use e-mail, a picture begins to emerge. When you add to these facts the notion that other administration officials are conducting official business using unofficial e-mail addresses, the picture becomes clearer. Given this administration's history of avoidance of openness and distrust of democracy, this matter is definitely worthy of further discussion and research. One doesn't doubt that, the more stones we overturn, the more we'll find. And something else lost in this is that these are our employees. They work for us. They may not think so, but the inconvenient truth is that they do. And when they're conducting our business, their communications should be subject to our oversight. Anything short of that, anything that attempts to either cloud or circumvent the transparency that lies at the heart of our democracy is, quite simply, un-American. Do you have something to hide, Mr. President? Does your administration? America deserves an answer.

[CREW; Think Progress. Crossposted at Hughes for America and Shakespeare's Sister.]

Tagged as: prosecutorgate

Melissa McEwan writes and edits the blog Shakespeare's Sister.