The Presidential Records Act of 1978 states that the records of a president, his immediate staff, and specific areas of the Executive Office of the President belong to the United States, not to the individual president or his staff. The act further states, "the president shall 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 pursuant to the requirements of this section and other provisions of law."

The Chairman of the Oversight Committee, Representative Henry Waxman (D-California) issued a statement about the findings of the report. He said, "We now know that senior officials in the White House made extensive use of their [unofficial] Republican National Committee (RNC) email accounts; that these accounts were used for official communications; and that the RNC destroyed an enormous volume of these communications."

Despite the conclusions of the report, it is not yet clear whether Congress is willing to use its subpoena power and fight the Bush Administration in court. A spokesperson for Speaker of the House Nancy Pelosi said that they are in full support of the investigations and the actions taken by the Democratic Committee chairmen.

Watchdog lawyer Anne Weismann said that Congress should act more aggressively. "The White House is running out the clock. Congress has subpoena power. They could subpoena the White House. They could pass legislation that ties the White House's budget to their compliance with archiving procedures. It is time they bring out the big guns because the White House has every incentive to delay," Weismann said. Weismann's organization, Citizens for Responsibility and Ethics in Washington, has been tracking the Bush Administration's non-compliance with presidential archiving procedures.

The Committee report, titled "Investigation of Possible Presidential Records Act Violations," is based on an ongoing investigation that was initiated shortly after the Democrats gained control of Congress. The report contrasts the stated email policies of the Bush Administration with documented evidence that at least 88 White House officials held unofficial, unarchived email accounts. Evidence that these accounts were used for official business, a direct violation of the law, is also provided. The report points out that the Bush Administration's response to this issue underrepresented the number of White House officials involved. Dana Perino, spokesperson for the White House, said that a "handful of officials" used RNC email accounts. Perino made a subsequent estimate of "50 [individuals] over the course of the administration" who held RNC accounts.

According to the RNC, of the known 88 Bush Administration officials who held RNC accounts, documents exist for only 37 of them. The records that do exist were proved incomplete by the Congressional investigators. The report states that, "Whether intentionally or inadvertently, it appears that the RNC has destroyed a large volume of the emails of the White House officials." According to the RNC, it had a "document retention" policy under which they erased emails from their servers after 30 days. The RNC policy did not prevent users from accessing the server and manually deleting their email. The report states that "as a result of these policies, potentially hundreds of thousands of White House emails have been destroyed."

The White House staff manual contains a February 26, 2001, memorandum from then Counsel to the President Alberto Gonzales which stated that "email is no different from other kinds of documents. Any email relating to official business therefore qualifies as a Presidential record... [I]f you happen to receive an email on a personal email account that otherwise qualifies as a Presidential record, it is your duty to ensure that it is preserved and filed as such by printing it out and saving it or by forwarding it to your White House email account."

The report states that Gonzales may have known about violations of White House email policy by Presidential Advisor Karl Rove, who, according to the Republican National Committee, often sent more than 100 emails and received over 200 emails per day using his RNC account in 2007. In a sworn deposition to congressional investigators, former Aide to Rove Susan Ralston said that the White House Counsel's office knew about Rove's violation of email policy as far back as 2001, when his email was searched in connection with investigations into the Enron scandal and the leak of CIA officer Valerie Plame Wilson's identity. According to Ralston, "all of the documents that we collected [for investigators] were then turned over to the White House Counsel's office."

In addressing this apparent discrepancy, the report suggests that Gonzales may have been complicit in the destruction of Rove's email records: "former White House Counsel Gonzales may have been aware in 2001 that Mr. Rove was using RNC email accounts for official communications. Yet it was not until six years later that the White House wrote to the RNC instructing them 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.'"

This is not the first time Gonzales has been accused of complicity in the destruction of White House records that were sought by investigators. When Special Prosecutor Patrick Fitzgerald began his investigation into the leak of Plame Wilson's identity, then White House Counsel Gonzales informed Bush's Chief of Staff Andrew Card that the Department of Justice was investigating the issue immediately but waited 12 hours before officially notifying other White House staff to preserve all of their documents. Democrats later questioned whether Card or Gonzales had informed anyone else of the impending order to preserve documents, allowing them time to destroy evidence.

Many top-level White House officials were cited by the report for their use of these RNC email addresses, including Presidential Adviser Karl Rove, former Chief of Staff Andrew Card, and former Counselor to the President Dan Bartlett. The RNC emails were also used by every person to hold the position of Director of Political Affairs under the Bush Administration, including Sara Taylor, who was recently subpoenaed by the Senate Judiciary Committee as part of their investigation into the firing of nine US attorneys.

Senator Patrick Leahy (D-Vermont) said, "Now that we know more than 100,000 of Mr. Rove's secret emails have not been destroyed, I hope the White House will respond to my request for any emails from his account that are relevant to the Judiciary Committee's investigation," adding, "I look forward to Ms. Taylor searching the thousands of emails from her account in accordance with a subpoena she was issued last week."

According to information given to Waxman's Committee, the RNC has possession of 140,216 emails from Rove's account and 66,018 emails from Taylor's. The White House sought preemptive access to these and other RNC emails and has not yet turned the emails over to congressional investigators. House Judiciary Chairman John Conyers (D-Michigan) sent a letter to the RNC requesting emails relating to the US attorney firing scandal. The White House intervened, threatening to invoke claims of executive privilege to prevent Congress from acquiring the documents.

Inherent in a claim of executive privilege would be an admission of a violation of the Presidential Records Act. Ohio State Law Professor Peter Shane described the situation as a legal "catch-22" for the Bush Administration. Shane said previously, "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."

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Matt Renner is a reporter for Truthout.

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