The Administration's "Two Hats" Excuse

Since it first became apparent a few weeks ago that high-level White House staffers had been conducting official business on private RNC email accounts--in blatant violation of Presidential Records Act--for virtually the entire Bush presidency, the White House has been trying very hard to spin this as a situation in which honest civil servants were struggling to comply with two contradictory sets of legal mandates. Here's acting White House press secretary Dana Perino on March 27:

What I know -- I checked into this -- is that certain White House officials and staff members who have responsibilities that straddle both worlds, that have responsibilities in communication, regular interface with political organizations, do have a separate email account for those political communications. That is entirely appropriate, especially when you think of it in this case, that the practice is in place and followed precisely to avoid any inadvertent violations of what is called the Hatch Act. And so there are some members of the administration that do straddle both worlds. And so under an abundance of caution so that they don't violate the Hatch Act, they have these separate emails.

Perino and others have been so successful at framing the issue this way that yesterday the New York Times repeated this talking point without attribution:

At issue is how the White House complies with two seemingly competing laws. One is the 1978 Presidential Records Act, which requires the administration to ensure that its decisions and deliberations are “adequately documented” and that records flowing out of those decisions are preserved.

The other is the Hatch Act, which prohibits federal officials from engaging in political business on government time.

But here's the thing. The Presidential Records Act and the Hatch Act aren't "competing" laws in any reasonable sense of the term. It's remarkably easy to comply with both. All you have to do is save your official communications. The White House archiving system is set up to facilitate compliance with the Presidential Records Act, but it is not the exclusive means of doing so. The PRA simply provides that:

Through the implementation of records management controls and other necessary actions, the President shall take all such steps as may be necessary to assure that the activities, deliberations, decisions, and policies that reflect the performance of his constitutional, statutory, or other official or ceremonial duties are adequately documented . . . .

In other words, the problem here wasn't the use of the RNC accounts per se, but the fact that no one bothered to set up any controls on the RNC accounts to ensure that emails would be retained. A simple archiving program and some restrictions on manual deletions would have solved the problem. I mean, who ever heard of a 30-day purge policy for email? If the entire White House staff had used free Gmail accounts, they would have had far better document retention than that.

Then again, that was the whole point, wasn't it? As John Cole put it earlier:

Losing emails from non-official servers run by the Republican party is not a bug, it is a feature. This wasn’t a mistake- it was a plan.

Moreover, the notion that compliance with the Hatch Act is anything other than an obvious pretext for conducting official business off the record is just not credible. As their behavior in other contexts makes clear, Karl Rove and his staff had no problem whatsoever committing the most blatant violations of the Hatch Act. Are we really supposed to believe that the use of email was the one area where these guys were hyper-cautious about violating that law? What evidence is there that they even knew there was such a law?

And, on the flip side, if you feel that compliance with the Hatch Act requires you to conduct 95% of your business through a private RNC account, as Karl Rove apparently did, then what business do have being on the public payroll at all? Perhaps Rove's should give back 95% of his salary over the last six years.

Finally, on a more general level, this is a White House that has, from the beginning, been remarkably cavalier in its approach to rules, regulations, and the rule of law generally. And until very recently, these guys had no fear whatsoever that their actions would ever be subjected to any meaningful Congressional oversight. So why on earth would they have been so concerned with the exceedingly remote possibility that some of their emails would someday be found to be in technical violation of the Hatch Act? I don't buy that for a second. Concern for the Hatch Act was pretext and nothing more. It's was a convenient excuse for setting up a separate, shadow email system that could operate outside of the established archiving procedures and was therefore less likely to create a trail of discoverable emails.

There was no reason these RNC accounts had to be used to the extent they were, and there is no reason they had to have such draconian deletion policies. The Hatch Act and the Presidential Records Act do not create onerous compliance burdens, much less conflicting ones. There is just no excuse for years' worth of official White House emails to be missing.