What does the Presidential Records Act have to do with this?

From the Spring 2007 issue of The News Media & The Law, page 17.

In the dispute over congressional access to information related to the recent firing of eight U.S. attorneys, details have emerged over White House staffers’ use of external servers owned by the Republican National Committee (RNC) to send and receive e-mail messages. The committee has provided a list of about three dozen White House staffers with RNC accounts, including Karl Rove, deputy chief of staff and senior adviser to the president, and Dan Bartlett, counselor to the president.

Here are answers to some of the legal questions surrounding this practice:

Do presidential staffers need RNC accounts? Isn’t the White House required to keep political activity separate from official government business?

In defending their use of outside RNC e-mail servers, administration officials have pointed to a federal law that forbids use of government funds to pay for political activity.

Critics of the administration say this argument is a red herring, pointing out that political activity relates to the president’s standing as a candidate and head of a political party. The firing of U.S. attorneys is related to a president’s official duties, even if the underlying reasons for the dismissals are political in nature.

Why does it matter which e-mail system White House staffers use?

The concern is that official records may not be adequately preserved if they are maintained on computer servers outside the Executive Office of the President.

For example, a lawyer for the RNC has told Congress that the committee is missing four years worth of e-mail messages from Rove and that the RNC subsequently blocked Rove’s ability to delete e-mail messages from its system. Because the e-mail is missing, no one is sure whether the messages are the types of official records a president is legally required to maintain while in office.

What records are presidents required to keep?

The Presidential Records Act, passed by Congress in the wake of the fight for President Richard Nixon’s White House records, says the president must “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 and that such records are maintained as Presidential records.”

In addition to the missing records that had been stored on outside servers, the administration has admitted it is missing official e-mail messages that had been maintained on its own internal computer system. The administration blamed the loss on the upgrading of computer systems and said it is trying to recover the missing messages.

When a president leaves office, what happens to his records?

The National Archives and Records Administration assumes custody of the records and prepares them for preservation and eventual release. The records are made available at that president’s official library. These presidential libraries are administered by the National Archives and located throughout the United States. ­–NW