The One-Party State of Fred Fielding

By Scott Horton

Politico reports that White House counsel Fred Fielding has responded to a request for certain emails written by White House staffers using Republic National Committee email accounts:

the White House has not budged in its refusal to allow the panels to question several White House aides, including Karl Rove, about what they know regarding the firing of eight U.S. Attorneys, moving the two sides closer to a constitutional battle over the scandal.

Fielding also appears to be trying to head off an attempt by [Congressman John] Conyers to obtain e-mails and documents from the Republican National Committee regarding the firings. Roughly 50 White House officials, including 22 curent aides, used e-mail accounts controlled by the R.N.C. to send messages, including some related to the prosecutor firings, and Conyers asked R.N.C. Chairman Mike Duncan to turn over those records today.

Fielding's position supposes that communications carried out through the Republican National Committee are subject to the same claim of Executive Privilege that might apply to internal White House communications. This in turn supposes the legal unity of the Executive Branch and the Republican Party. Granted, this is the likely aspiration of Mr. Rove and his team, but things haven't quite progressed that far. As Congressman Conyers stated in his response:

“The White House position seems to be that executive privilege not only applies in the Oval Office, but to the RNC as well. There is absolutely no basis in law or fact for such a claim.”

Meanwhile, the New York Times stresses the connection between this dispute and the spiraling scandal concerning the decision to cashier eight or more U.S. attorneys.

The White House said Thursday that missing e-mail messages sent on Republican Party accounts may include some relating to the firing of eight United States attorneys.

The disclosure became a fresh political problem for the White House, as Democrats stepped up their inquiry into whether Karl Rove and other top aides to President Bush used the e-mail accounts maintained by the Republican National Committee to circumvent record-keeping requirements.

It also exposed the dual electronic lives led by Mr. Rove and 22 other White House officials who maintain separate e-mail accounts for government business and work on political campaigns — and raised serious questions, in the eyes of Democrats, about whether political accounts were used to conduct official work without leaving a paper trail.

The Times also noted that the Republican National Committee appears to have adopted a policy of destroying Karl Rove's emails within 30 days:

According to the congressman's account of Thursday's meeting with Mr. Kelner, the R.N.C. lawyer, as well as an interview with a Republican official familiar with the committee's e-mail practices, the committee has a large cache of communications from White House officials. But there are none before 2005, when the committee “began to treat Mr. Rove's e-mails in a special fashion,” Mr. Waxman wrote.

The committee appears to have changed its e-mail retention policies twice, possibly in response to the investigation by a special prosecutor, Patrick J. Fitzgerald, into the leak of the name of a C.I.A. officer. When that inquiry began, in early 2004, the committee's practice was to purge all e-mail from its servers after 30 days.

So wait, did we hear that correctly? In view of the pendency of a criminal investigation in which Rove figures prominently, the Republican National Committee began to destroy Rove's emails? This seems very strange given that standard practice in any investigation of this order would have been the issuance of instructions demanding that the emails be retained. Stay tuned for clarifications.