Truthout.org: White House Wants First Crack at RNC Emails

By Matt Renner
t r u t h o u t Report

In a letter to the RNC, the White House instructed the committee to turn the emails over to the president's lawyers before Congress has access to them.


There are signs that the White House is preparing to invoke executive privilege to prevent the RNC from turning the emails over to Congress. The Supreme Court has recognized the right of presidents to refuse to give certain types of information to Congress or the Judicial Branch.
According to Colombia University Law Professor Michael Dorf, in the area of executive privilege, "the law remains remarkably unclear."


Neither the White House nor the RNC returned repeated requests for comment for this article.
However, a letter Tuesday, written to RNC lawyers by Special Counsel to the President Emmet Flood, instructs the RNC to turn over email records to the White House on the grounds of executive privilege. In response to the request by the House Judiciary Committee for email records pertaining to the US attorney firing investigation, Flood said "[w]e understand that ... you will provide the Office of Counsel to the President with an opportunity to review such material before communicating it to any other person."


In the White House letter, Flood states that such preemptive access is necessary "to determine, among other things, (1) whether any materials implicating the Presidential Records Act are, in fact, involved, and (2) whether, the Executive Branch may need to take measures necessary to protect its other legal interests in communications responsive to [Congressional] requests."


In response to this letter, Anne Weisman, chief counsel for the nonpartisan government watchdog group Citizens for Responsibility and Ethics in Washington (CREW), said, "We do not see any legitimate claim of [executive] privilege here, given that White House officials were using outside email accounts, subject to outside control, and therefore with no legitimate expectation for [presidential] privacy."
After hearing testimony from Attorney General Alberto Gonzales, Sen. Charles Schumer (D-New York) addressed the possible claims of executive privilege regarding the RNC emails. "Look at the history here. The claims of privilege almost never work." He added, "[a]nd it doesn't take a year or two, it happens quickly."

According to Peter Shane, an Ohio State University law professor who specializes in separation of powers issues, executive privilege is "subject to balancing," meaning that the right to withhold information from Congress is not absolute and would have to be determined by the Supreme Court. Documents or communications regarding state secrets or national security are considered to be the "most privileged," and the hardest for Congress to gain access to. State secrets are not at issue in this situation. Instead, the White House would rely on the less-weighty "Presidential Privacy Privilege," which is meant to allow presidential advisers to communicate freely, without fear of their statements being made public.


Shane says that the president's privacy privilege is outweighed in this case by the Congressional need to conduct investigations. Also, a claim to executive privilege in this case could backfire as it would be an admission that privileged communications were made using an email system under the control of an outside agency. According to Shane this would be a violation of the Presidential Records Act.
"This is the Catch-22 the Bush administration is caught in," Shane said. "If they say that the subject matter of these communications makes them susceptible to executive privilege claims, then they should have been sent through official government channels, not through unofficial emails. If these communications are of this kind, the Bush administration is clearly in violation of the Presidential Records Act." More on the story.