< The Email Trail

Transcript

Friday, March 30, 2007

BOB GARFIELD:
The storm over the firing of eight U.S. attorneys continues to swirl in Washington. On Thursday, senators grilled former Justice Department operative D. Kyle Sampson, who said that his boss, Attorney General Alberto Gonzalez, did have a direct hand in the dismissals.

Gonzales had earlier claimed he wasn't personally involved, and on that point the paper trail didn't contradict him. Because in all the thousands of pages of emails released by the White House so far, there's not one email from the Attorney General himself. Apparently he doesn't use email.

And he's not the only Cabinet official. Donald Rumsfeld claimed not to use it. Ditto for Condoleezza Rice and Michael Chertoff. In fact, the President himself told CNBC last year that he didn't touch the stuff.
PRESIDENT GEORGE BUSH:
I tend not to email – or not only tend not to email -I don't email, because of the different record requests that could happen to a president. I don't want to receive emails, ‘cause, you know, there's no telling what somebody would e-mail me - and it would show up as a, you know, a part some kind of a story. And I wouldn't be able to say, well, I didn't read the email. But I sent it to your address. How can you say you didn't? So, in other words, I'm very cautious about e mailing.
BOB GARFIELD:
In the wake of the prosecutor purge, some are questioning whether Bush and his staffers are really steering clear of email altogether or just their official White House accounts.

Recently released documents show that one aide to Karl Rove helped orchestrate the firings using an account registered to the Republican National Committee. And Rove himself reportedly uses his RNC account for about 95 percent of his emailing.

The watchdog group Citizens for Responsibility and Ethics in Washington doesn't like the look of that one bit, and has asked Congress to investigate. I'm joined now by the group's top watchdog, Melanie Sloan. Melanie, welcome to On the Media.
MELANIE SLOAN:
Thank you.
BOB GARFIELD:
So let's just say White House staffers are routinely using outside accounts. Is there any legal responsibility to use their government-issued email accounts?
MELANIE SLOAN:
There is, in fact. There's something called the Presidential Records Act that requires individuals who are employed in the White House by the Executive Office of the President to maintain all communications, all email correspondence. And if you are not using a White House account, which has an automatic backup system, then you are, in fact, in violation of the Presidential Records Act.

BOB GARFIELD:
But my understanding of the law was that there is no explicit mandate to use only White House email accounts for official communication.
MELANIE SLOAN:
Well, that's an interesting question. We sent a letter over to the Office of Administration in the Executive Office of the President to ask about their policies. There was, in fact, a very explicit policy in the Clinton Administration specifically prohibiting staff from using commercial email systems.
BOB GARFIELD:
Irrespective of whether it's actually illegal, can we assume that this is being done in order to evade the requirement?
MELANIE SLOAN:
We can be sure that it's being done to evade the requirement, because we've seen emails that so indicate. There was some correspondence with Jack Abramoff back in 2003 where he said he had accidentally sent an email to Susan Ralston, who was a former assistant to Karl Rove, on her White House account, and that was a mistake. They didn't want to end up with emails being preserved.

Even today, I read something where a bunch of White House staff have expressed concern that it's coming out that they were using RNC email accounts, so a couple have gone out and gotten their own BlackBerrys with private email accounts, as if somehow that's the solution. That's just another way that they're evading the law, again, which requires all emails from White House staffers to be maintained.
BOB GARFIELD:
Melanie Sloan is executive director of the Citizens for Responsibility and Ethics in Washington.

The White House didn't return our calls for comment on this matter of executive record-keeping, but Anna Nelson did. She's a presidential historian at American University. Back in the '70s, she worked on a governmental commission that helped draft the Presidential Records Act – invoked by Melanie Sloan in connection with the White House email.

Nelson says that before Richard Nixon, presidents and their heirs had willingly donated their papers to the National Archives – eventually. But when Watergate happened, Congress had to intervene to keep the president from destroying his records.
ANNA NELSON:
He was about to throw his tapes in the Potomac. Then suddenly it occurred to people that while presidents had been so good about giving their papers, they didn't have to. They could give whatever they wanted. There was no view that the papers that they owned were public papers. And it was out of that that the Congress put together the Presidential Records Act.
BOB GARFIELD:
Which I guess had two basic provisions - one, that records from the White House were to be protected and not destroyed and that they be released within a reasonable amount of time of a president leaving office. The period of time specified was 12 years. Why 12 years?
ANNA NELSON:
I think it was an arbitrary number. You can look at it from the standpoint that three elections down the road they'll open the papers of a past President.
BOB GARFIELD:
Well, this gets to Presidential Executive Order 13233, signed by President Bush in 2001. Tell me what the order says and what it has hindered journalists and historians from doing.
ANNA NELSON:
This order has a couple of provisions. One is that whereas the Presidential Records Act deliberately did not allow heirs or family members of any kind, or executors, to decide in the future what was going to be released, this provision on the Bush act does allow, in perpetuity actually -- there's no restriction -- for the president's heirs or executors to determine whether or not things can be opened or not.

The second thing is that there is no deadline for the current president to actually decide on whether a paper can be released. So as far as journalists are concerned, your story is long going to be over before you see any papers under this executive order.
BOB GARFIELD:
So is it fair to say that President Bush, by executive fiat, negated the Records Act and sent us back to the pre-1978 ways of doing business?
ANNA NELSON:
He sent us back in access. Of course, the papers are still government-owned papers – he didn't deny that – so that the government can still protect them. When we get to see them is the issue.
BOB GARFIELD:
The House of Representatives two weeks ago approved a measure that would, in fact, overturn President Bush's executive order. Assuming the Senate does the same and this results in a bill being placed on the president's desk, do you expect him to sign that bill into law?
ANNA NELSON:
I think he'll work very hard to keep the Senate from passing it. I think if it's passed that he may veto it. But it would not be very smart politically, because, I mean, how are you going to explain to the American people that you don't want to open records, that you don't want to tell them what you did or you don't want to tell them what your father did, or you want all the presidents who follow you not to be able to tell us what goes on? That's going to be tough to explain. It's more involved than that, but, you know, that's the way it's going to come out.
BOB GARFIELD:
Anna, thank you so much for joining us.
ANNA NELSON:
You're welcome.
BOB GARFIELD:
Anna Nelson is the distinguished historian-in-residence at American University in Washington, DC.