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When President Bush took office, he said he would not use e-mail in the White House so that his communications could not be subpoenaed.
But the White House, no less than any other operation today, can’t do business without e-mail. Bush’s aides do use e-mail and now, true to the president’s prediction, their communications have been subpoenaed.
Official communications through the White House computer system are preserved and eventually will be archived and made public. But the picture becomes murkier where private e-mail accounts are involved.
Rep. Henry Waxman, D-Calif., chairman of a House committee on government oversight, says he has evidence that senior White House officials used private, nongovernmental e-mail accounts, generally belonging to the Republican National Committee, “to avoid leaving a record of official communications.”
If so, this is a violation of at least the spirit of the 1978 Presidential Records Act, which says that White House documents generated in the course of official business are public property and must be preserved.
The White House insists that the use of private e-mail accounts through the RNC is to avoid running afoul of the Hatch Act, which restricts the use of government employees and property for partisan political purposes.
However, in the White House the distinction between the official and the political is not always so easy to draw. But Waxman’s investigators say that White House aides clearly crossed the line in three instances: The private accounts were used to plan the firings of eight U.S. attorneys the White House wanted to get rid of; to circulate to Bush appointees a presentation on Democrats targeted for defeat in 2008; and to communicate with since-disgraced lobbyist Jack Abramoff.
Based on what’s known so far, and especially given the secrecy of the Bush White House, it does look as if at least some Bush aides were trying to circumvent the Presidential Records Act.
While that’s being sorted out, it might be a good time to revisit the Act to specify more precisely what are governmental and nongovernmental communications, and to bring the law generally up to date with the world of e-mail and instant messaging.
Unlike Bush, future presidents may not have the luxury of avoiding them.