As the Bush administration and Congress fight over the firing eight U.S. attorneys, the latest test of wills involves possible missing e-mails to and from White House officials.
The White House says some of the e-mails have been lost, because the officials were using e-mail accounts from the Republican National Committee, rather than their official White House accounts.
Some RNC-based e-mails appeared in thousands of pages of documents turned over to Congress by the Justice Department. On Thursday morning, Senate Judiciary Committee chairman Patrick Leahy said on the Senate floor that the White House is hiding other e-mails from those RNC accounts.
"They say they have not been preserved," Leahy said. "I don't believe that. You can't erase e-mails. They've gone through too many servers. They can't say that they're lost. That's like saying the dog ate my homework. Those e-mails are there. They just don't want to produce them."
At the White House press briefing Thursday afternoon, spokeswoman Dana Perino said that the policy on preserving emails should have been clearer. "We screwed up, and we're trying to fix it," she said. And she took a swipe at Leahy: "I don't know if Sen. Leahy is also an IT expert, but I can assure you that we are working very hard to assure that we find the e-mails that were potentially lost.
But Bush administration's problem is starting to sound like one from the last administration — the problem of separating politics from governing.
Back in the Clinton years, Vice President Al Gore used a White House phone, but a Democratic National Committee phone card, to make fundraising calls. In explaining it, he used a phrase that would dog him through his own presidential bid in 2000: "My counsel advises me, let me repeat, that there was no controlling legal authority."
Says Paul Light, professor of public service at New York University, "Whenever you hear somebody say there's no controlling legal authority, you should start thinking about the appearance of a conflict or violation of law that motivates them to say something like that. "
Light says that applies in the case of the missing e-mails. And he warns that regardless of the motives of the e-mail authors — prudent caution or partisan wile — the e-mails won't be pretty when they become public.
"Can you imagine what the first e-mail might have said?" Light asked. "An e-mail going out from the political people saying, 'If you have anybody you want removed, let us know.'"
And as for those controlling legal authorities, two laws are central. The Presidential Records Act requires the administration to preserve official documents, including e-mail. At the same time, the Hatch Act penalizes government workers who use government offices, equipment or time for partisan politics.
Washington ethics lawyer Jan Baran points out that federal workers can be penalized for violating the Hatch Act. But when it comes to violations of the Presidential Records Act, it's the administration that has to take the rap.
And whatever the law says, there's always the problem of appearances. An official document is an official document, whoever owns the computer it's on. And if the Bush administration used to let the RNC purge e-mail servers every thirty days — as they say they did — that creates at least the appearance of having something to hide.
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