04-14-2007

Congress - Gonzales on the Griddle

Alexis Simendinger (Email this author)
© National Journal Group, Inc.


During his 11th week as president in 2001, George W. Bush confided to an audience that he was worried about his private communications being preserved for history in the National Archives. For that reason, he said, he'd halted a practice he enjoyed as governor of Texas.


"I'll give you one area ... where I'm very cautious, and that's about e-mailing," Bush told a gathering of the American Society of Newspaper Editors that spring. "I used to be an avid e-mailer, and I e-mailed to my daughters or e-mailed to my father, for example. And I don't want those e-mails to be in public -- in the public domain. So I don't e-mail any more, out of concern for freedom of information laws, but also concern for my privacy."


The subject of presidential records was much on his mind, Bush told the journalists: "The interesting problem I have, or for me as the president, is what's personal and what's not personal. Frankly, I haven't been on the job long enough to ... have had to make those choices."


As Bush soon discovered, the 1978 Presidential Records Act provided that purely political materials are deemed personal to a president and thus would not be subject to public disclosure through the Archives. It is the president who ultimately determines which political or private materials in the White House records, including e-mails, are released to the public.


The person Bush consulted to sort out those choices was his new White House counsel, Alberto Gonzales, a trusted confidante he had brought from Texas. Gonzales crafted Bush's first policies for White House staffers: He described their responsibilities to retain official records under the post-Watergate law, and to abide by the Hatch Act, which governs how federal workers, including White House aides such as then-senior adviser Karl Rove, are expected to conduct political business for Bush. Gonzales also described the full range of executive powers available to Bush to comply with or resist requests to disclose White House information.


Gonzales had access to ready-made CliffsNotes in the form of memos prepared for President Clinton in the 1990s by his White House counsels, as well as a 2000 National Archives and Records Administration document (accompanying a White House staff manual) titled "Sample Memo Briefing White House Staff on Their Presidential Records Act Obligations."


Next week, Attorney General Gonzales will be grilled by the Senate Judiciary Committee about his involvement in the firing of eight U.S. attorneys. Panel members are expected to ask him again about possible political aims communicated to the Justice Department from the White House, including messages sent using the Republican National Committee's e-mail system or RNC-issued equipment. Gonzales initially approved the use of RNC accounts by Bush aides -- 22 staff members today, and between 50 and 60 since 2001. His successor as White House counsel, Harriet Miers, also had full knowledge of the use of RNC equipment and the e-mail system, and she was privy to concerns about whether official presidential records were being preserved, according to records and interviews.


Gonzales not only wrote Bush's controversial 2001 executive order on implementing the Presidential Records Act, he also met regularly with a group of historians and political scientists who aired their concerns about preserving and releasing records. His former deputy, Brett Kavanaugh, assured Sen. Patrick Leahy, D-Vt., in testimony on April 27, 2004, and in written responses to Leahy that Gonzales met twice a year with the group "to discuss any problems ... with the order, and to help improve it." The historians and political scientists continued to meet with Miers, and in March 2006 raised with her a concern that official White House business transacted via the RNC e-mail system was not being archived. She assured them that official records were being preserved on the White House system.


Bush attorneys, including Deputy Counsel Emmet Flood, this week told Congress that the White House only recently -- in the context of the fired attorneys -- discovered that official business had been conducted through the RNC e-mail system, and that there were problems with the preservation of such communications as presidential records.


Congress has asked for White House records created or archived on the RNC system that may be relevant to ongoing investigations, but lawyers for the president and the RNC told House investigators this week that official presidential records have likely been lost on the RNC system and that "forensic" efforts are under way to try to retrieve the data. The RNC is first turning over recovered e-mails to the administration, "to allow the White House to review contents before commenting on them," said RNC spokeswoman Tracey Schmitt.





 

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