1 Boring Old Man

The Oversight Committee has been investigating whether White House officials violated the Presidential Records Act by using e-mail accounts maintained by the Republican National Committee and the Bush Cheney ‘04 campaign for official White House communications. This interim staff report provides a summary of the evidence the Committee has received to date, along with recommendations for next steps in the investigation.

The information the Committee has received in the investigation reveals:

• The number of White House officials given RNC e-mail accounts is higher than previously disclosed. In March 2007, White House spokesperson Dana Perino said that only a “handful of officials” had RNC e-mail accounts. In later statements, her estimate rose to “50 over the course of the administration.” In fact, the Committee has learned from the RNC that at least 88 White House officials had RNC e-mail accounts. The officials with RNC e-mail accounts include Karl Rove, the President’s senior advisor; Andrew Card, the former White House Chief of Staff; Ken Mehlman, the former White House Director of Political Affairs; and many other officials in the Office of Political Affairs, the Office of Communications, and the Office of the Vice President.
• White House officials made extensive use of their RNC e-mail accounts. The RNC has preserved 140,216 e-mails sent or received by Karl Rove. Over half of these e-mails (75,374) were sent to or received from individuals using official “.gov” e-mail accounts. Other heavy users of RNC e-mail accounts include former White House Director of Political Affairs Sara Taylor (66,018 e-mails) and Deputy Director of Political Affairs Scott Jennings (35,198 e-mails). These e-mail accounts were used by White House officials for official purposes, such as communicating with federal agencies about federal appointments and policies.
• There has been extensive destruction of the e-mails of White House officials by the RNC. Of the 88 White House officials who received RNC e-mail accounts, the RNC has preserved no e-mails for 51 officials. In a deposition, Susan Ralston, Mr. Rove’s former executive assistant, testified that many of the White House officials for whom the RNC has no e-mail records were regular users of their RNC e-mail accounts. Although the RNC has preserved no e-mail records for Ken Mehlman, the former Director of Political Affairs, Ms. Ralston testified that Mr. Mehlman used his account “frequently, daily.” In addition, there are major gaps in the e-mail records of the 37 White House officials for whom the RNC did preserve e-mails. The RNC has preserved only 130 e-mails sent to Mr. Rove during President Bush’s first term and no e-mails sent by Mr. Rove prior to November 2003. For many other White House officials, the RNC has no e-mails from before the fall of 2006.
• There is evidence that the Office of White House Counsel under Alberto Gonzales may have known that White House officials were using RNC e-mail accounts for official business, but took no action to preserve these presidential records. In her deposition, Ms. Ralston testified that she searched Mr. Rove’s RNC e-mail account in response to an Enron-related investigation in 2001 and the investigation of Special Prosecutor Patrick Fitzgerald later in the Administration. According to Ms. Ralston, the White House Counsel’s office knew about these e-mails because “all of the documents we collected were then turned over to the White House Counsel’s office.” There is no evidence, however, that White House Counsel Gonzales initiated any action to ensure the preservation of the e-mail records that were destroyed by the RNC.

The Presidential Records Act requires the President to “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 maintained as Presidential records.” To implement this legal requirement, the White House Counsel issued clear written policies in February 2001 instructing White House staff to use only the official White House e-mail system for official communications and to retain any official e-mails they received on a nongovernmental account.

The evidence obtained by the Committee indicates that White House officials used their RNC e-mail accounts in a manner that circumvented these requirements. At this point in the investigation, it is not possible to determine precisely how many presidential records may have been destroyed by the RNC. Given the heavy reliance by White House officials on RNC e-mail accounts, the high rank of the White House officials involved, and the large quantity of missing e-mails, the potential violation of the Presidential Records Act may be extensive.

There are several next steps that should be pursued in the investigation into the use of RNC e-mail accounts by White House officials.

• First, the records of federal agencies should be examined to assess whether they may contain some of the White House e-mails that have been destroyed by the RNC. The Committee has already written to 25 federal agencies to inquire about the e-mail records they may have retained from White House officials who used RNC and Bush Cheney ’04 e-mail accounts. Preliminary responses from the agencies indicate that they may have preserved official communications that were destroyed by the RNC.
• Second, the Committee should investigate what former White House Counsel Alberto Gonzales knew about the use of political e-mail accounts by White House officials. If Susan Ralston’s testimony to the Committee is accurate, there is evidence that Mr. Gonzales or counsels working in his office knew in 2001 that Karl Rove was using his RNC e-mail account to communicate about official business, but took no action to preserve Mr. Rove’s official communications.
• Third, the Committee may need to issue compulsory process to obtain the cooperation of the Bush Cheney ’04 campaign. The campaign has informed the Committee that it provided e-mail accounts to 11 White House officials, but the campaign has unjustifiably refused to provide the Committee with basic information about these accounts, such as the identity of the White House officials and the number of e-mails that have been preserved.

The Oversight Committee first learned that White House officials might be using RNC e-mail accounts to avoid leaving a record of official communications during the Committee’s investigation last year into White House contacts with convicted lobbyist Jack Abramoff. That investigation revealed that Susan Ralston regularly communicated with Mr. Abramoff regarding federal agency decisions, political appointments, and other official business on nongovernmental accounts. In one e-mail, Ms. Ralston wrote Mr. Abramoff’s associate Todd Boulanger: “I now have an RNC blackberry which you can use to e-mail me at any time. No security issues like my WH e-mail.”1 In another e-mail, Mr. Abramoff was informed by an associate that a White House staff member advised the lobbyist not to send communications through the official White House e-mail system because “to put this stuff in writing in their e-mail system … might actually limit what they can do to help us.”

Additional evidence that White House officials have used RNC e-mail accounts for official communications arose as part of two other investigations: (1) the investigation by the Senate and House Judiciary Committees into the firings of U.S. Attorneys and (2) the investigation by the Oversight Committee into White House political presentations to federal agencies. One e-mail sent through the RNC account of the assistant to Scott Jennings, Karl Rove’s deputy, transmitted a political presentation to the General Services Administration, advising: “It is a close hold and we’re not supposed to be emailing it around.”

On March 26, 2007, the Oversight Committee sent a letter to the RNC and the Bush Cheney ‘04 campaign asking both entities to preserve all records of e-mails sent to or from White House officials.4 On April 4, 2007, the Committee wrote again to the RNC and the Bush Cheney ’04 campaign requesting e-mails relating to political briefings provided to agency officials and the use of federal agencies and federal resources for partisan political purposes.5 When the RNC failed to cooperate voluntarily, the Committee issued two subpoenas to the RNC on April 25, 2007. These subpoenas sought statistical information about White House officials’ use of the accounts as well as the e-mails that had previously been requested.

In response to the Committee’s first subpoena, the RNC has provided the Committee with a list of White House officials who held RNC accounts as well as information about the total number of e-mails preserved by the RNC for each of these officials, the number of e-mails preserved for each official on a daily basis, and the number of e-mails preserved that were sent to or from federal “.gov” e-mail accounts.

The Committee obtained additional information about the use of RNC accounts by White House officials when the Committee deposed Susan Ralston on May 10, 2007. In addition, the White House has provided the Committee with redacted policies and memoranda relating to e-mail use and preservation. Several federal agencies have also provided the Committee with partial inventories of e-mail communications with White House officials who used RNC and Bush Cheney ’04 e-mail accounts.

The RNC has identified 88 current and former White House officials who held RNC e-mail accounts while on staff at the White House, as well as one account that was held by an unnamed intern or interns in the Office of Political Affairs. This is a larger number than previously acknowledged by the White House. On March 27, 2007, when White House spokesperson Dana Perino was first asked about the use of political e-mail accounts by White House officials, she stated that only a “handful of officials” had access to these accounts.6 In later statements, Ms. Perino said that the total set of account holders was “50 over the course of the administration.”

The list of White House officials who held these accounts include Karl Rove, the President’s senior advisor; Andrew Card, the former White House Chief of Staff; and Dan Bartlett, the Counselor to the President. The list also includes all four Directors of Political Affairs that have served in the Bush White House: Ken Mehlman (2001-2003), Matt Schlapp (2003-2005), Sara Taylor (2005-2007), and Jonathan Felts (2007), the newly named Director of Political Affairs who previously worked for Vice President Cheney. Many of the account holders worked under Karl Rove in the Office of Political Affairs or the Office of Strategic Initiatives. Others worked in the Office of Communications or the Office of the Vice President. Individuals from the Vice President’s office with RNC e-mail accounts include Mel Raines and Kara Ahern, both of whom served as Political Director for the Vice President. Appendix 1 contains the complete list of White House officials who were provided with RNC e-mail accounts.

The Bush Cheney ’04 campaign has provided only limited information to the Committee about White House officials who held campaign e-mails accounts. According to the campaign, 11 officials were provided with Bush Cheney ’04 campaign accounts. The campaign has identified only six of the account holders, including Dan Bartlett and Karl Rove, all of whom also held RNC accounts.

Although 88 White House officials received RNC e-mail accounts, the RNC says that it retains e-mail records for only 37 of these officials. For these 37 officials and the unnamed intern in the Office of Political Affairs, the RNC has preserved 674,367 e-mails sent to and from their RNC-maintained accounts. Usage patterns documented by the RNC show that these accounts were used by White House officials on a regular and consistent basis.9 A list of the 37 officials for whom the RNC provided data, along with the number of e-mails sent and received by each of these officials, is contained in Appendix 2. According to the data provided to the Committee, the RNC has preserved 140,216 e-mails sent to and from Mr. Rove’s RNC e-mail account between January 2002 and April 2007, the most of any White House official. The second most prolific user of the RNC account was Sara Taylor, the former White House Director of Political Affairs. The RNC has preserved 66,018 of her e-mails. Ten other users have more than 20,000 e-mails preserved by the RNC. These include Jane Cherry (27,482), Raul Damas (38,034), Melissa Danforth (38,802), Paris Dennard (33,370), Michael Ellis (22,004), Jonathan Felts (29,011), Scott Jennings (35,198), Mindy McLaughlin (23,346), Susan Ralston (35,665), and Steven Soper (33,382).

Some officials relied heavily on these accounts, sending and receiving many e-mails each day. According to the data provided to the Committee, two account holders averaged more than 200 e-mails each weekday. The RNC has e-mail records for Brad Smith, an executive assistant in the Office of Political Affairs, for the period between January 10, 2007, and April 27, 2007. During this period, Mr. Smith sent 6,954 e-mails and received 9,812 e-mails, for an average of 217 per weekday. Steven Soper, an associate director of the Office of Political Affairs, was another frequent user with 33,382 e-mails sent and received in the eight months between September 2006 and April 2007, an average of 202 per weekday.

Mr. Rove and six other White House officials — Mike Britt, Jonathan Felts, Korinne Kubenna, Mindy McLaughlin, Cliff Rosenberger, and Nick Sinatra — all averaged more than 100 e-mails sent or received each weekday that their accounts were active.11 In 2007, Mr. Rove frequently sent more than 100 e-mails per day through his RNC e-mail account and received more than 200 per day.

The Committee asked the RNC to provide data on how many e-mails each White House official sent to or received from official “.gov” e-mail accounts. According to the information from the RNC, virtually all of the 37 White House officials used their RNC accounts to communicate with government officials with official “.gov” e-mail accounts. Of the 674,367 e-mails preserved by the RNC, 240,922 e-mails (36%) were sent to or received from government e-mail accounts. Four White House officials — Karl Rove, Jason Huntsberry, Melissa Danforth, and Emily Willeford — conducted more than half of their communications on their RNC accounts with government officials who were using official “.gov” accounts.12 Mr. Rove alone sent or received 75,374 “.gov” e-mails using his RNC e-mail account.

In response to the request from the Committee, a few agencies have provided partial inventories of e-mails exchanged between agency officials and White House officials using RNC and Bush Cheney ’04 e-mail accounts. These limited inventories indicate that White House officials used their RNC e-mail accounts to conduct official business. For example, the inventories provided by the Environmental Protection Agency, the Department of Transportation, and the Federal Elections Commission all list numerous e-mails that involve official appointments and other personnel matters.13 The EPA inventory includes several e-mail exchanges about “EPA Grants” and “grant announcements,” as well as e-mails about a “watershed project.” The inventory the Committee received from the General Services Administration includes several e-mail exchanges between GSA officials and Jane Cherry in the White House Office of Political Affairs regarding an “African Burial Ground.” This e-mail exchange occurred in the weeks before the GSA held a ceremonial groundbreaking in September 2005 in New York City for a memorial at the African Burial Ground National Landmark Site. The GSA inventory also lists several e-mails in February 2007 between Scott Jennings in the Office of Political Affairs and a GSA official regarding a “San Francisco Fed Building Opening.”

Whether intentionally or inadvertently, it appears that the RNC has destroyed a large volume of the e-mails of White House officials who used RNC e-mail accounts. The RNC has told the Committee that it had a “document retention” policy under which e-mails that are more than 30 days old are deleted. In addition, the RNC has said that individual account holders had the ability to delete permanently e-mails less than 30 days old. As a result of these policies, potentially hundreds of thousands of White House e-mails have been destroyed, many of which may be presidential records. One indication of the scale of the loss of White House e-mail is the fact that the RNC has retained no e-mail messages whatsoever for 51 of the 88 White House officials with RNC e-mail accounts. It is possible that some of these individuals made minimal or no use of their accounts, but there is evidence that indicates that many of them used their accounts on a regular basis.

The Oversight Committee took the deposition of Susan Ralston, Karl Rove’s former executive assistant, on May 10, 2007. At the time of the deposition, the Committee had been informed by the RNC of 36 White House officials who had RNC accounts but for whom the RNC had no e-mail records. Ms. Ralston testified that at least 20 of these officials used their RNC e-mail accounts, often regularly. Of the remaining 16 officials, Ms. Ralston testified that she did not know whether they used their accounts or not.

During the deposition, Ms. Ralston was asked about the e-mail practices of Ken Mehlman, the former White House Political Director. Ms. Ralston testified that Mr. Mehlman used his e-mail account “frequently, daily.”15 The RNC, however, has not retained a single e-mail to or from Mr. Mehlman during his period as White House Political Director. Ms. Ralston testified that Israel Hernandez, a former assistant to Mr. Rove, used his RNC account “regularly,” but the RNC has no record of any e-mails sent by Mr. Hernandez from his RNC account. Ms. Ralston stated that several officials who served in the White House Office of Political Affairs — among them Paul Dyck, Angela Flood, Leonard Rodriguez, Alicia Davis, and Mike Davis — all held RNC accounts that she believed were used “daily” or “regularly.”16 The RNC has not retained a single e-mail to or from any of these officials.

Moreover, even for White House officials for whom the RNC has e-mail records, these records appear to be incomplete. Of the 37 officials for whom the RNC has retained e-mails, only 15 have any e-mail records that date from before 2006. Of those, seven have virtually no e-mails dating to those earlier years. The RNC has reported that the first available e-mail for Scott Jennings is dated January 1, 2003. However, the RNC has only preserved four of Mr. Jennings’s e-mails dated earlier than August 2006. In contrast, the RNC has over 35,000 e-mails sent and received by Mr. Jennings during the nine months between August 2006 and April 2007.

An analysis of Karl Rove’s e-mail records shows major gaps in the preservation of his e-mails. According to Susan Ralston, who began working for Karl Rove in February 2001, Mr. Rove used his political e-mail account frequently during the entire period that she worked for him. She told the Committee that he used this account many times per day.17 Yet the RNC has preserved only 130 e-mails sent to Mr. Rove during the entire first term of the Bush Administration. The first e-mail sent by Mr. Rove that the RNC has preserved is dated November 26, 2003.

Mr. Rove has frequently been described in the media as a constant Blackberry user whose “BlackBerry has every appearance of being surgically attached to his hand.”18 A 2002 article about technology in the White House noted: “Even before the BlackBerry passed its recent technology review, Karl Rove, the president’s chief political strategist, was an early adopter at the White House.”19 According to Ms. Ralston’s testimony, the only Blackberry Mr. Rove used was one issued to him by the RNC.20 If this is true, few of Mr. Rove’s Blackberry e-mail communications from President Bush’s first term have been preserved by the White House or the RNC.

During her deposition, Ms. Ralston told the Committee that her “general understanding was that [Mr. Rove] thought that the e-mails were being preserved.”21 She stated that “during the first four years or so,” when Mr. Rove’s computer equipment was upgraded or his Blackberry was replaced, RNC staff explained that “because they saved Karl’s e-mails, that it would take a long time to load up his e-mail file folders.”22 The Committee has received no explanation for the discrepancy between Ms. Ralston’s belief that Mr. Rove’s e-mails were being preserved by the RNC and the RNC’s assertions to the Committee that the RNC has virtually no e-mails from Mr. Rove for the President’s first years in office.

The partial e-mail inventories provided to the Committee by federal agencies provide a further indication that official records may have been lost. As discussed in the previous section, the General Services Administration provided the Committee with a summary of September 2005 e-mails between Jane Cherry at the White House and a GSA official regarding an African Burial Ground. According to the RNC, however, the earliest e-mail preserved by the RNC on Ms. Cherry’s account is from December 2005.

Like the RNC, the Bush Cheney ’04 campaign has told the Committee that it had a 30-day deletion policy, which creates the possibility that the campaign also destroyed an extensive volume of White House e-mails. The extent to which the Bush Cheney ’04 campaign destroyed or preserved the e-mails cannot be assessed by the Committee, however, because the campaign has refused to provide the Committee with statistics about e-mail usage and retention.

When concerns were first raised publicly about the use of RNC e-mail accounts by White House officials, the White House stated that the problems arose, in large part, from a lack of clear guidance from the White House regarding the handling of e-mail and the separation of official and political work.23 According to White House spokesperson Dana Perino, the White House implemented a new e-mail policy this year because the existing “policy wasn’t very clear, and that people needed a clearer policy.”

In fact, the White House policy from the first days of the Bush Administration has been clear: use only the official e-mail system for official communications and retain any official e-mails received on a nongovernmental account. A February 26, 2001, memorandum from Alberto Gonzales, Counsel to the President, to White House staff stated:

The February 2001 White House Staff Manual similarly stated:

Ms. Ralston’s deposition provides evidence that the White House Counsel’s office under Alberto Gonzales may have been aware as early as 2001 that White House officials were not complying with the policies regarding preservation of official e-mail. Ms. Ralston told the Committee that she and Mr. Rove twice searched for e-mails on his political accounts in response to investigative requests. Ms. Ralston stated that in 2001, Mr. Rove was asked to search his political computer in response to a request relating to an investigation of Enron. She testified that the White House Counsel’s office would have known about these searches “because all of the documents that we collected were then turned over to the White House Counsel’s office.”27 According to Ms. Ralston, this investigation was related to the Vice President’s energy task force and contacts with Enron.28 In addition, Ms. Ralston testified that Mr. Rove searched his RNC e-mail account in response to several subpoenas from Patrick Fitzgerald during the investigation of the leak of the identity of CIA officer Valerie Plame Wilson. She testified that the White House Counsel’s office also knew about these searches and received copies of the search results.

Ms. Ralston’s testimony about these searches raises several questions. If her testimony is accurate, former White House Counsel Gonzales may have been aware in 2001 that Mr. Rove was using RNC e-mail accounts for official communications. Yet it was not until six years later that the White House wrote to the RNC instructing it to preserve any “emails or documents that may relate to the official business of the Executive Office of the President that may be in the possession of the RNC.”

The Presidential Records Act was enacted in 1978 to ensure that White House records are preserved and made available to the public and historians. The Act establishes that the records of a president, his immediate staff, and certain units of the Executive Office of the President belong to the United States, not to the individual president or his staff. The law provides:

The Committee has obtained evidence of potentially extensive violations of the Presidential Records Act by senior White House officials. During President Bush’s first term, momentous decisions were made, such as the decision to go to war in Iraq. Yet many e-mail communications during this period involving the President’s most senior advisors, including Karl Rove, were destroyed by the RNC. These violations could be the most serious breach of the Presidential Records Act in the 30-year history of the law.

There are three next steps in the Committee’s investigation.

• First, the Committee will continue its efforts to survey federal agencies for the missing presidential records. The Committee has written 25 agencies to request inventories of e-mails with White House officials using RNC and Bush Cheney ’04 e-mail accounts that the agencies may retain. The data received from the RNC will allow the Committee and the agencies to target their efforts upon officials and periods of time for which the RNC appears to have destroyed its e-mail records.
• Second, the Committee will seek additional information about the White House role in the failure to preserve these e-mails, especially the role of former White House Counsel Alberto Gonzales. Mr. Gonzales issued the right policies in February 2001, but failed to enforce them. Moreover, Ms. Ralston’s testimony provides evidence that Mr. Gonzales or others in the White House Counsel’s office may have failed to act even after receiving information about Mr. Rove’s use of the RNC accounts for official communications.
• Finally, the Committee may need to issue compulsory process to the Bush Cheney ’04 campaign. The campaign acknowledges that at least 11 White House officials used campaign e-mails, but it refuses to identify the full list of officials or provide basic statistical information to the Committee. This recalcitrance is an unwarranted obstacle to the Committee’s inquiry into potential violations of the Presidential Records Act.