Sunday, April 15, 2007

on the hatch act and presidential records act interface. . .

or, "how to stuff your homework into the dog's mouth. . ."

anonymous liberal at crooks
and liars
has a very sensible
piece this morning on why the
white house's spin on the R.N.C.
server e-mails is not credible.

the dana perino spin is that,
in an abundance of caution about
the hatch act, rove (and 35 other
white house/administration officials!)
conducted "political" business out-
side the .gov addresses, not to avoid
being detected, but to avoid doing
"political" work on government time,
in arguable violation of the hatch act,
all while not running afoul of the
presidential records act.


here's the rub, though -- and
perhaps the anonymous liberal
could have made this point more
forcefully: these dana perino
(white house spokeperson) ideas/
talking points/spin/dissemblers
work PERFECTLY -- they are logical,
concise and cogent. . . IF.

they are, IF one starts from the
premise that "political" e-mail
MUST NOT -- as opposed to MAY NOT -- be
preserved. but nothing in the hatch
act contemplates that
. and everything
in the 1978 presidential records act
contemplates the opposite outcome.

that outcome (see below the line
for full-text of the act) -- is the
preservation of all deliberative re-
cords of the presidency.

and so, there is only ONE reason
why any administration official would
INSIST that "political" e-mail NOT be
preserved. of course, that reason is: this
administration is doing unlawful, or
at least, unsavory things, and
captioning them as "political" things.

things that must not see the light of day.

there is NO other reason.

so -- her talking points work, largely
because they prey upon an unstated, but
completely accepted, assumption, we
all make -- press, bloggers, pundits,
progressives, democrats and even red
republicans, alike. that is, this
rove-ian brand of "politics" selects particularly
unsavory end-goals, and often employs
unlawful means to acheive those goals.


here endeth my sermon, but so we
all are on the same page, here is
the 1978 presidential records act in full:

44 U.S.C. § 2203. Management and
Custody of Presidential Records

(a) Through the implementation of records management controls and other necessary actions, 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.

(b) Documentary materials produced or received by the President, his staff, or units or individuals in the Executive Office of the President the function of which is to advise and assist the President, shall, to the extent practicable, be categorized as Presidential records or personal records upon their creation or receipt and be filed separately.

(c) During his term of office, the President may dispose of those of his Presidential records that no longer have administrative, historical, informational, or evidentiary value if—

1) the President obtains the views, in writing, of the Archivist concerning the proposed disposal of such Presidential records; and

(2) the Archivist states that he does not intend to take any action under subsection (e) of this section.

(d) In the event the Archivist notifies the President under subsection (c) that he does intend to take action under subsection (e), the President may dispose of such Presidential rec­ords if copies of the disposal schedule are submitted to the appropriate Congressional Committees at least 60 calendar days of continuous session of Congress in advance of the proposed disposal date. For the purpose of this section, continuity of session is broken only by an adjournment of Congress sine die, and the days on which either House is not in session because of an adjournment of more than three days to a day certain are excluded in the computation of the days in which Congress is in continuous session.

(e) The Archivist shall request the advice of the Committee on Rules and Administration and the Committee on Governmental Affairs of the Senate and the Committee on House Oversight and the Committee on Government Operations of the House of Representatives with respect to any proposed disposal of Presidential records whenever he considers that—

(1) these particular records may be of special interest to the Congress; or

(2) consultation with the Congress regarding the disposal of these particular records is in the public interest.


(1) Upon the conclusion of a President’s term of office, or if a President serves consecutive terms upon the conclusion of the last term, the Archivist of the United States shall assume responsibility for the custody, control, and preservation of, and access to, the Presidential records of that President. The Archivist shall have an affirmative duty to make such records available to the public as rapidly and completely as possible consistent with the provisions of this Act.

(2) The Archivist shall deposit all such Presidential records in a Presidential archival depository or another archival facility operated by the United States. The Archivist is authorized to designate, after consultation with the former President, a director at each depository or facility, who shall be responsible for the care and preservation of such records.

(3) The Archivist is authorized to dispose of such Presidential records which he has appraised and determined to have insufficient administrative, historical, informational, or evidentiary value to warrant their continued preservation. Notice of such disposal shall be published in the Federal Register at least 60 days in advance of the proposed disposal date. Publication of such notice shall constitute a final agency action for purposes of review under chapter 7 of title 5, United States Code.


Daniel DiRito said...

See a pithy tongue-in-cheek visual that skewers Karl Rove and the Bush administration's disregard for

nolo said...

he he!

good one!

thanks! -- well-done.