GOP Issues a Warning on E-mail Probe

Posted April 23, 2007 at 6:43pm

As Democrats gear up for a broad investigation of Republican e-mail accounts, GOP staff warn that the issue could come back to haunt Democrats, as the minority is looking for ways to extend the issue into Democratic e-mails as well.

The revelation that top White House officials, including Karl Rove, may have conducted official government business over Republican National Committee e-mail accounts has launched a broad series of inquiries among Democrats trying to get their hands on some of these messages.

House Oversight and Government Reform Chairman Henry Waxman (D-Calif.) has called a meeting for Wednesday to consider issuing a subpoena to the RNC to force the committee to produce information about these e-mail accounts dating back as far as 2001. Waxman also has asked federal agencies to preserve any e-mails they have received from these accounts. The Democratic National Committee has filed a Freedom of Information Act request with the Justice Department, seeking communications between Justice officials and anyone using an RNC e-mail account regarding the firing of eight U.S. attorneys. Last week the DNC filed suit against the department for failing to timely respond to the FOIA request.

But Brian McNicoll, a spokesman for Oversight and Government Reform Committee Republicans, warned that if Democrats want to broadly investigate the use of party e-mail accounts by administration officials, Republicans could extend this investigation back to the end of the Clinton administration as well.

“If you can go back through five years of e-mails, you can go back 10 years of e-mails,” McNicoll said. “The Clinton administration was doing this too — they were using e-mail accounts that were outside the presidential records system,” the system that requires preservation of official White House communications. Republicans are “looking into” the possibility of sweeping some of this activity into the Waxman investigation, he said.

David Marin, the committee’s Republican staff director, said in an e-mail, “It’s our hope that none of the threatened subpoenas is actually issued come Wednesday, since they all deal with yesterday’s news, or matters in which the would-be targets are cooperating fully with Chairman Waxman, or both. Regardless, we’ll be ready to help set the record straight on Wednesday.”

Waxman’s decision to call for subpoenas followed an April 18 letter from RNC attorney Robert Kelner, which said the party is taking steps to preserve e-mails and is working with Waxman’s staff and the White House to sort out a timeline for producing documents and vetting them for potential executive privilege concerns. “We would again respectfully caution against premature, inflammatory, and potentially misleading assertions by the Committee concerning whether e-mails may have been preserved for any particular period or person.”

Outside experts suggest that any Congressional investigation into misuse of e-mail accounts could be fraught with peril for members of Congress and their staff, who must assiduously separate official from political communications.

In the era of the constant campaign, both Members and staffers use e-mail to communicate with their own campaign committees, as well as their parties’ campaign arms like the Democratic Congressional Campaign Committee and the National Republican Senatorial Committee. However, there are no rules governing the retention of such e-mails, according to senior House and Senate aides. If they are retained, that is done according to offices’ individual policies.

But unlike the White House system, aides to these party committees said no staffers, not even senior aides, have been assigned e-mail addresses at the campaign offices with a dccc.com domain. The lawmakers in charge of the committees, however, may have DCCC or NRSC e-mail addresses that they use while working out of those buildings.

“There are no official Congressional staffers who have DCCC e-mails,” said a DCCC spokesman. “Any time that there is any sort of exchange between the committee and official staffers it’s always done via personal e-mail addresses.”

“Both sides understand the sensitivity of the issue,” the aide added. “It is pretty much universally followed.”

NRSC spokeswoman Rebecca Fisher said that the same policy is in place for Republican Senate aides. If she needs to reach them via e-mail, she sends the message to their personal addresses and assumes it won’t be checked until an aide is able to get to his or her home computer outside of a Congressional office.

“It’s definitely a struggle, but at this point we’re able to get done what we need to get done,” Fisher commented.

Both House and Senate rules prohibit using office computers to send political e-mails, even if a personal e-mail address is used. But in relatively recent changes to guidelines, the House and Senate now both allow Members and staffers to purchase a “hand-held communications device” such as a BlackBerry with campaign funds, and use the device for both official and political business. The House ethics committee issued a July 26, 2006, “pink sheet” on the issue, while the Senate guidelines were changed on Feb. 14, 2002.

But in both chambers, there are restrictions on where and how political e-mails can be sent. The rules broadly prohibit using the device for any political activity, such as responding to campaign e-mails, while on House or Senate premises. They cannot solicit funds using their BlackBerrys while in the Capitol, even if using personal e-mail accounts. And both chambers’ rules strictly prohibit downloading information from official databases and using it for political purposes.

Howard Gantman, staff director for the Senate Rules and Administration Committee, which governs the use of e-mails, said a review of e-mail and Internet policy is again under way to deal with the rapidly changing technology.

“The Rules Committee has begun an examination of these regulations,” Gantman said, pointing to new Internet phenomena like YouTube and podcasts. “It’s clear that there needs to be clearer guidelines and a broader discussion.”

Former RNC general counsel Jan Baran points out that Democrats in Congress may find there are times that they, too, would want to limit e-mail investigations.

“If somebody wants to investigate a Congressman — like maybe [Rep. William] Jefferson — and the Department of Justice attorney issues subpoenas or search warrants … is the House going to say, ‘That’s fine’, or are they going to raise a fuss?” Baran asked.

Jefferson, the Louisiana Democrat who is the target of a bribery probe, has gone to court to challenge an FBI search of his Congressional office, during which agents removed paper documents as well as computer hard drives. Supported by several former Speakers of the House, including Rep. Dennis Hastert (R-Ill.), Jefferson has argued that the search of his office violated his right to assert protection under the constitutional provision that prohibits prosecution of Members for their participation in “speech or debate” in the Congress.

Paul Orfanedes, director of litigation at Judicial Watch, which has filed an amicus brief supporting the FBI search, points out that the Jefferson case centers not on a subpoena, but on a search carried out in a Congressional office. Judicial Watch, in its brief, argued that Jefferson has not proven that the activities in question were legitimate legislative act, and therefore should not be protected under the Constitution’s Speech or Debate Clause.