The Presumption of Wrongdoing

From the AP (via TPM):

The White House said Wednesday it had mishandled Republican Party-sponsored e-mail accounts used by nearly two dozen presidential aides, resulting in the loss of an undetermined number of e-mails concerning official White House business.

Congressional investigators looking into the administration's firing of eight federal prosecutors already had the nongovernmental e-mail accounts in their sights because some White House aides used them to help plan the U.S. attorneys' ouster. Democrats were questioning whether the use of the GOP-provided e-mail accounts was proof that the firings were political.

Democrats also have been asking if White House officials are purposely conducting sensitive official presidential business via nongovernmental accounts to get around a law requiring preservation - and eventual disclosure - of presidential records. The announcement of the lost e-mails - a rare admission of error from the Bush White House at a delicate time for the administration's relations with Democratically controlled Capitol Hill - gave new fodder for inquiry on this front.

I'll say. As an attorney who deals with subpoenas and requests for electronic documents on a regular basis, I can tell you that if a private entity--particularly one subject to legally mandated record keeping requirements--were to inform government investigators seeking such documents that they had been "mishandled" and were now "lost," that entity would immediately find itself in a world of hurt and would be lucky if it survived the aftermath. No amount of talking would be enough to convince the authorities that there was an innocent explanation for the missing documents. They would be absolutely convinced that the "mishandled" documents were intentionally destroyed in order to cover up wrongdoing.

And rightfully so. One of the first things you learn as a litigator is that emails live forever. They can almost always be retrieved. As this diarist at Daily Kos explains:

As an IT guy, I know all too well that emails are nearly impossible to "lose," especially if one really wants to find them. . . . I find it very difficult to believe that copies of these little devils aren't lurking on various electronic devices hither and thither throughout the country (if not the world). Unless a Department of Defense grade hard drive wipe was initiated on every single workstation or device that came in contact with the emails in question, they can be found.

If these emails truly are gone forever, the White House should be subject to the very same presumption of wrongdoing that any other entity would under similar circumstances. Indeed, given this White House's track record, that sort of negative inference is even more justified. Simply put, there is no reason that any intelligent person should take the White House's explanation here at face value. They had a legal obligation to preserve official emails and only now, after they've been requested by Congress in connection with a high-profile investigation, are we informed that they have been "lost." Henry Waxman, Patrick Leahy, and the other members of Congress investigating this matter have every right to be incredulous. This is just totally unacceptable.

The New York Times version of the story contains this rather pathetic explanation:

In order to comply with the Hatch act, the Clinton administration also permitted certain officials to hold dual e-mail accounts. But Bush White House officials say theirs is the first administration to operate in the era of instant communications.

They say compliance has grown more complicated, and the White House rules have not kept pace with technology. As a result of their review, Mr. Stanzel and the senior official said the White House has put into effect a policy requiring, among other things, that officials with national committee e-mail accounts obtain permission for those accounts from the White House counsel’s office.

The new policy also requires officials with two accounts to sign a “statement of understanding, saying they understand their obligations here and intend to comply with them,” the senior official said.

I see, the Bush administration is the first "to operate in the era of instant communications." That explains everything. Apparently email was invented in 2001. Who knew? And apparently the White House had no occasion until now--over six years into the administration and with subpoenas looming--to re-examine its email policy.

What's particularly preposterous about this explanation is that the White House's dual email system was almost surely the subject of intense discussion in early 2004, when emails were subpoenaed in connection with the CIA leak investigation. In fact, the seemingly inexplicable delay in turning over the most discussed piece of evidence in that case, Karl Rove's email to Stephen Hadley, makes a lot more sense now that we know Rove does 95% of his email on a separate RNC account. This would also explain Patrick Fitzgerald's apparent assertion that "many emails from Cheney's office at the time of the Plame leak in 2003 have been deleted contrary to White House policy."

In other words, the White House has been on notice since early 2004 at the latest that official emails, which are required by law to be retained, were not being retained. It is ludicrous that the White House is just now endeavoring to re-examine its policy and just now setting new rules and guidelines for the use of these RNC accounts.

There should be, without question, a strong presumption of wrongdoing here. If the White House can rebut that presumption, more power to them, but under these circumstance, no one should simply accept the White House's claim that this was all just an innocent mistake.