Editore"s Note
Tilting at Windmills

Email Newsletter icon, E-mail Newsletter icon, Email List icon, E-mail List icon Sign up for Free News & Updates

March 28, 2007
By: Kevin Drum

EXECUTIVE PRIVILEGE....Last week we learned that Karl Rove and the White House staff have routinely used their RNC accounts to send email as a way of evading congressional oversight. "We knew E-mails could be subpoenaed," an aide told U.S. News & World Report. "We saw that with the Clintons but I don't think anybody saw that we were doing anything wrong."

So what does this mean? NYU law professor Daniel Shaviro says, "The easy and obvious point is that anything Rove sent out in an e-mail from his RNC address is not privileged." But then, drawing on an analogy with attorney-client privilege, he suggests it may mean even more:

A further interesting question is the extent to which using RNC e-mails to communicate stuff about meetings with Bush et al should be viewed as a further waiver of other executive privilege claims, at the limit on everything pertaining to the meetings and topics discussed in the RNC e-mails. On this point I would have to defer to those more knowledgeable than I am about how the attorney-client privilege is interpreted and applied.

In other words, if staffers were primarily discussing the U.S. Attorney firings on personal and RNC accounts, that implicitly means that they themselves weren't treating it as the kind of official business that would be protected by executive privilege. Alternatively, if they were using private accounts specifically to evade legitimate congressional oversight, then executive privilege claims might also fail for all their other communications as well.

So: too clever by half, as Josh Marshall asks? Is it possible that by using RNC accounts they've essentially waived executive privilege claims completely in this matter? It's an intriguing suggestion, isn't it?

Kevin Drum 1:42 PM Permalink | Trackbacks | Comments (126)

Bookmark and Share
 
Comments

I don't know the law, but it sounds too good to be true. I would think that privilege would be defined in terms of who is talking to whom, not where or on what nedium.

Posted by: The Fool on March 28, 2007 at 2:21 PM | PERMALINK

Kevin,

There's also a national security interest involved. Using an unsecured E-mail network to send communications about Executive Branch activities puts our national security in danger.

There, that's my one responsible comment for the day.

Posted by: Norman Rogers on March 28, 2007 at 2:24 PM | PERMALINK

Plus, if they're using external servers specifically to avoid the net of potential Congressional oversight, isn't that prima faciae obstruction of justice?

Posted by: Chocolate Thunder on March 28, 2007 at 2:25 PM | PERMALINK

It would also seem to be a violation of the Presidential Records Act:

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.

44 U.S.C. 2203. (a)

Posted by: NewMexiKen on March 28, 2007 at 2:26 PM | PERMALINK

Use it on them. Theories only matter if we use them.

Posted by: An Anonymous Patriot on March 28, 2007 at 2:28 PM | PERMALINK

AH, federal gov't computers are excellent. Unlike your ill-informed line of reasoning.

Posted by: Chocolate Thunder on March 28, 2007 at 2:28 PM | PERMALINK

I don't know the 'ins and outs' of privilege, because it's never been an issue in my practice.

I *do* know that privilege can be easily waived. If there is something that is sensitive and there is another person in the room, that privilege is waived.

One of the things about privilege is that it's private and you have a right to that privacy. By making something public and not treating it as private yourself, you waive the privilege.

That being said, we are talking about 'executive privilege' for the president and not attorney/client privilege. I would imagine most of the issues are rather similar though.

Without researching the situation, it does seem to be a 'too clever by half' or 'hoist by their own petard' situation.

Posted by: Dave on March 28, 2007 at 2:28 PM | PERMALINK

Without getting into the merits of claim of Executive Privilege, I don't think the fact that the use of RNC email accounts is dispositive of the issue. In other words, it's the substance of the email that would matter, not the particular medium. So if the Pres and his Chief of Staff engaged in an email conversation on RNC accounts on a matter that would be covered by Exec Privilege, the fact that a non-WH account was used would not necessarily vitiate the claim of privilege.

The question I'm more interested in is whether they think they are avoiding record-keeping requirements by using RNC accounts. Assuming those accounts are used for the transaction of public business (a broad category that would probably encompass all the political machinations they engage in), it's not as if they can erase those emails at their own leisure. They should still be subject to the same preservation requirements of the Records Act just as they would if crafted on a WH server.

Posted by: benjamin on March 28, 2007 at 2:29 PM | PERMALINK

Hoisted on their own petard? Sweet.
Government officials using no-government servers are acting for private reasons, not governmental. That's no more executive privilege involved here then when Roger Ailes and Rove email each other.

Posted by: Mike on March 28, 2007 at 2:29 PM | PERMALINK

The phrase hoisted on their own petards comes to mind.

American Hawk: Are you a character from a comic book or SNL, you know, like Nathan Thurm ?

Posted by: Ralph on March 28, 2007 at 2:32 PM | PERMALINK

Have you ever used government computers? They probably used RNC email simply because government computers are slow and always down.


BZZZZTTT!!!! Wrong again! As per usual, you are totally clueless and grasping at straws. I use government computers on a semi-regular basis, and you are nuts. Hell, the VA platform is the envy of HIS systems everywhere.

Posted by: Blue Girl, Red State (aka G.C) on March 28, 2007 at 2:32 PM | PERMALINK

Yes, they were using RNC email to evade subpoenas. Yes, it is likely illegal if it was used to circumvent records rules, and yes it likely voids any legal claim of executive privilege.

But no, it will probably not have any real effect, because the liar in chief will still assert executive privilege, regardless of legal opinions, and the wrangling will go on until it is too late in his term to matter. People who already understand what a vat of slime the white house is will have their feelings confirmed by the whole process, and those who do not will keep their heads up their asses and not be moved by it.

Posted by: anandine on March 28, 2007 at 2:40 PM | PERMALINK

There's also a national security interest involved. Using an unsecured E-mail network to send communications about Executive Branch activities puts our national security in danger.

Good lord Norman, you did say something somewhat reasonable.

If I may, let me just add that this is yet another in a long line of examples of how this administration puts politics above everything

This administration as Kevin highlighted recently, knows nothing about real policy. Its politics 24/7.

Posted by: Simp on March 28, 2007 at 2:41 PM | PERMALINK

Good lord Norman, you did say something somewhat reasonable.

Perhaps. Shhh!

Posted by: Norman Rogers on March 28, 2007 at 2:44 PM | PERMALINK

Damn the liberals! Full server purge ahead!

Posted by: Karl Rove on March 28, 2007 at 2:51 PM | PERMALINK

Chocolate Thunder and NewMexiKen beat me to it.

1) There is the legal requirement to preserve records. 2) Deliberately bipassing same is an illegal act.

Really. It's time to pull the rug from under the whole rotten lot of them.

I don't think "...I don't think anybody saw that we were doing anything wrong" cuts it as a defence.

Posted by: notthere on March 28, 2007 at 2:52 PM | PERMALINK

Don't shred the drives until you see the pink in the pinko's eyes.

Posted by: Karl Rove on March 28, 2007 at 2:53 PM | PERMALINK

I was thinking something more along the lines of Executive Branch as an arm of the Republican Party, and vice versa.

Posted by: dr2chase on March 28, 2007 at 2:54 PM | PERMALINK

I won't believe that Norm is a Princeton graduate until he starts to use his alumni email account.

Posted by: Disputo on March 28, 2007 at 2:56 PM | PERMALINK

Every day brings new delights.
The next Bush scandal: Violating the Hatch Act
…"We learned on Monday that GSA Administrator Lurita Alexis Doan and White House Deputy Political Director Scott Jennings joined in a videoconference in January to discuss how the agency could be used to help Republican congressional candidates nationwide. Jennings delivered an obviously-partisan PowerPoint presentation, which Doan followed by asking GSA political appointees how they could “help ‘our candidates’” in the 2008 elections....
Rep. Bruce Braley (D-IA) grills her on a PowerPoint presentation (pdf) given by Karl Rove’s deputy Scott Jennings to GSA personnel in January. The slides (13 pages) detailed which seats were “House Targets” and which “Senate Targets”, which states were “Republican Offense,” and which “Republican Defense.” After the presentation, Doan reportedly asked other employees how the agency could help “our candidates.” The GSA, remember, is the government’s contracting agency, in charge of almost $60 billion each year. All of this seems like a clear violation of the Hatch Act, which prohibits using federal resources to aid political parties....…
"

Posted by: Mike on March 28, 2007 at 2:58 PM | PERMALINK

"It's an intriguing suggestion, isn't it?"

Um, no, the whole subject is contrived and boring every time you try to make it interesting.
This is a fishing expedition.

How about a discussion on what will happen when Iran tries to seize an American Naval vessel?

Posted by: Orwell on March 28, 2007 at 2:59 PM | PERMALINK

I don't know the law, but it sounds too good to be true. I would think that privilege would be defined in terms of who is talking to whom, not where or on what nedium.

No, not really. The method of communication is taken into account as well. If for example my client and I communicate by shouting at each other across a crowded square our claim that the conversation was privileged is weak indeed. If you communicate in a non-confidential forum you cannot reasonably claim confidentiality for such communications.

Posted by: Stefan on March 28, 2007 at 3:01 PM | PERMALINK

Of course, PROVING all this assumes that there are still ANY emails left on the RNC server to review.

Waxman may have "requested" or "instructed" (or some other commanding-sounding verb) the RNC to preserve communications, but short of an order by a judge, or a subpoena from the committee, it's not clear to me that the RNC is legally constrained from purging, reformatting, and physically destroying storage media as fast as their computer minions can move.

(And of course, I wouldn't put it at all past them to do so anyway, even if they WERE legally constrained. I mean, can you say "Enron"? Or "Rose Mary Woods?")

Posted by: bleh on March 28, 2007 at 3:02 PM | PERMALINK

GSA hearings. Watch if you can. It's a scream.

Posted by: shortstop on March 28, 2007 at 3:03 PM | PERMALINK

I think using non-White House email accounts is strong evidence against privilege, but the president can seek advice from people outside his closest advisors for the purpose of making executive decisions, too. The threshold question isn't (or at least shouldn't be) whether a communication took place over a WH phone line or email account; it's whether the communication was intended to give the president the information and advice he needed to do his job.

You don't determine whether a conversation with a lawyer is privileged by looking at whether it took place in his office; you look at the purpose of the conversation. I think this is similar. The use of RNC email addresses is evidence that the purpose of the communications was political maneuvering.

Posted by: dj moonbat on March 28, 2007 at 3:04 PM | PERMALINK

Orwell,

If things are so "boring" here then go away and quit trying to change the subject. Or better yet - start you own blog.

Posted by: Robert on March 28, 2007 at 3:06 PM | PERMALINK

Mike, have you seen the video. She uses the old, "I honestly don't remember anything he said, nor do I remember anything I said" defense. She did remember there was a meeting and she was there. She remembered she had a brown bag lunch. She remembered everybody in the room, but she just couldn'g remember Scott Jennings power point. Nor could she remember that she had asked "what can we do to help our candidates in 2008." Funny but the congressman named several other people who were in the room who had no problem remembering either the power point or what she said when asked by committee investigators.

Here is the interesting point. This is March. The 2006 election was in November 2006. This power point happened after the November election. She knew that the Democrats had won the election. Apparently it never occured to her that they might engage in oversight. Nor did it occure to Scott Jennings. What hopeless morons.

Truly must see tv.

Posted by: Ron Byers on March 28, 2007 at 3:06 PM | PERMALINK

Have you ever used government computers? They probably used RNC email simply because government computers are slow and always down. It's nonsensical that they should have to wait for the government computers to actually be up to get anything done, or risk losing an important part of the constitutional balance of powers.

BWAHAHAHAHAHAHAHA!! I wish they would try to use that argument.

Posted by: Nikki on March 28, 2007 at 3:07 PM | PERMALINK

So if the Pres and his Chief of Staff engaged in an email conversation on RNC accounts on a matter that would be covered by Exec Privilege, the fact that a non-WH account was used would not necessarily vitiate the claim of privilege.

Not necessarily. As we saw in U.S. v. Nixon (1974) claims of executive privilege are strongest when the claim is made that the conversation applies to sensitive diplomatic, military, or national security secrets. By using non-secure RNC servers, however, they are implicitly conceding that they do not consider the subject of their conversations to relate to such sensitive diplomatic, military, or national security secrets (otherwise it would be a grave breach of security to communicate in such a manner) and therefore the claim of privilege is weakened.

Posted by: Stefan on March 28, 2007 at 3:07 PM | PERMALINK

benjamin, 2:29:

"Without getting into the merits of claim of Executive Privilege, I don't think the fact that the use of RNC email accounts is dispositive of the issue. In other words, it's the substance of the email that would matter, not the particular medium."

"The question I'm more interested in is whether they think they are avoiding record-keeping requirements by using RNC accounts. Assuming those accounts are used for the transaction of public business (a broad category that would probably encompass all the political machinations they engage in), it's not as if they can erase those emails at their own leisure. They should still be subject to the same preservation requirements of the Records Act just as they would if crafted on a WH server."

Thank you. That first point makes sense to me, and it's tough to imagine that Rove would leave his ass hanging out in the breeze like that, especially after having gone through what he did with Fitzgerald. Possible, but not likely.

The question you raise makes me wonder what prevents anyone in the administration (or in any presidential administration) from using private e-mail accounts to communicate information they wouldn't want on the record. Sure, the threat of a penalty exists, but only if they get caught. Assuming that Rove & Gonzalez could exchange e-mails between the addresses of fatboy@yahoo.com & abuyourmomma@hotmail.com, how would anyone ever find out?

Posted by: chaunceyatrest on March 28, 2007 at 3:10 PM | PERMALINK

Well, they wouldn't have, chaunceypants, but now thanks to you...

Posted by: fatboy and abu on March 28, 2007 at 3:12 PM | PERMALINK

I think dj moonbat's got it pretty much right. The fact that it is on an RNC email rather than the WH would not be dispositive, but it would be a piece of evidence against privilege, given that the ostensible purpose of giving Rove and his minions an RNC account is that it's for political business as opposed to performance of official duties.

Posted by: Glenn on March 28, 2007 at 3:13 PM | PERMALINK

That was dumb even by American Hawk standards. Do we now have Parody American Hawk?

Posted by: jerry on March 28, 2007 at 3:13 PM | PERMALINK

Oh my...

May I be the first to declare:

OPEN SEASON on crooks and cockroaches!
OPEN SEASON on cockroaches and crooks!

Stamp these fuckers out!

Posted by: ROTFLMLiberalAO on March 28, 2007 at 3:14 PM | PERMALINK

I was a shift supervisor in a HCA lab for several years. Has I EVER conducted company business off the books, so to speak, I would have lost my job and probably faced criminal charges. Is the business of Hospital Corporation of American more important and sacred than issues that have direct implications on issues of national security?

Aomehow, I think not.

Posted by: Blue Girl, Red State (aka G.C) on March 28, 2007 at 3:15 PM | PERMALINK

Glenn

Here they are using their non-GI email accounts for "official" business--giving guidance to the DoJ. The real issue has to do with their willingness to use unsecured email servers to communicate what they claim is sensitive information. That claim is badly shaken by the use of unsecured servers.

Anyway just get copies off the RNC servers. If they were "erased" as part of a "normal" email dump, scan the harddrives. I bet you find them.

Posted by: Ron Byers on March 28, 2007 at 3:17 PM | PERMALINK

By using non-secure RNC servers, however, they are implicitly conceding that they do not consider the subject of their conversations to relate to such sensitive diplomatic, military, or national security secrets (otherwise it would be a grave breach of security to communicate in such a manner) and therefore the claim of privilege is weakened.

Yes, it seriously weakens a claim of privilege, but I do think it's weird the way people are saying that use of outside email addresses would serve as a per se bar to an assertion of privilege.

Posted by: dj moonbat on March 28, 2007 at 3:18 PM | PERMALINK

Oy. Preview woulda been my friend that time. Sorry all.

Posted by: Blue Girl, Red State (aka G.C) on March 28, 2007 at 3:18 PM | PERMALINK

In what ways is using RNC computing resources like Al Gore making fundraising phone calls from the wrong telephone or in the wrong office?

I don't know the answer. I am just asking the question.

Is the Administration allowed to do RNC work from the White House on taxpayer time?

I do think they should be nailed on evading the recording acts.

I can see the point about atty/client priv not being revoked, but I think that exec priv is different. And almost by definition, exec priv must be done with executive resources and not over RNC channels.

Posted by: jerry on March 28, 2007 at 3:19 PM | PERMALINK

Assuming that Rove & Gonzalez could exchange e-mails between the addresses of fatboy@yahoo.com & abuyourmomma@hotmail.com, how would anyone ever find out?

Posted by: chaunceyatres

The IP address?????

I do not understand why Waxman just doesn't send one of his aides to the server room in the capitol and just take the rnc server and see whats on it.

Posted by: jerri on March 28, 2007 at 3:24 PM | PERMALINK

"So if the Pres and his Chief of Staff engaged in an email conversation on RNC accounts on a matter that would be covered by Exec Privilege, the fact that a non-WH account was used would not necessarily vitiate the claim of privilege."

Here's the thing. Using RNC e-mails for discussions probably made those e-mails accessible by non-executive, non-government persons. Such as the head of the RNC, etc. If the contents of the e-mails could thus readily be revealed to mere political functionaries, who are not part of the executive or any other branch of the government, the claim that keeping them private is necessary to further governmental functions, and that they cannot even be revealed to members of Congress, becomes frivolous.

Posted by: David in NY on March 28, 2007 at 3:26 PM | PERMALINK

Government computers must be slow because...they're unionized...so you can't fire...I mean kill...processes that aren't doing their job. Because of card check, I bet.

Posted by: DonBoy on March 28, 2007 at 3:27 PM | PERMALINK

So if the President scribbles a note using his own pen, rather than a government issued Bic, the note isn't priviledged?

Come on, folks. I doubt that even you really believe that.

Posted by: Al on March 28, 2007 at 3:27 PM | PERMALINK

DJ Moonbat, I think Stefan is correct in insisting that location is important.

A lawyer and her client shouting the details of a case across a crowded public square would have "no expectation of privacy".

I think the same "no expectation of privacy" argument holds in this case too.

Posted by: Dr. Morpheus on March 28, 2007 at 3:28 PM | PERMALINK

American Hawk: "Have you ever used government computers? They probably used RNC email simply because government computers are slow and always down. It's nonsensical that they should have to wait for the government computers to actually be up to get anything done, or risk losing an important part of the constitutional balance of powers."

Be sure to wash your hands whenever you pull something outlandish like that out of your own ass.

Posted by: Donald from Hawaii on March 28, 2007 at 3:30 PM | PERMALINK

OPEN SEASON on crooks and cockroaches!

Feet on fire!
Feet on fire!
Feet on fire!

Posted by: Richard Clarke on March 28, 2007 at 3:32 PM | PERMALINK

I think the same "no expectation of privacy" argument holds in this case too.

Again, I think the use of RNC servers is powerful evidence that they didn't have a reasonable expectation of confidentiality. But analogizing to a lawyer shouting across a crowded square is a bit too far. It's more like a lawyer sending a client an email at their Hotmail account.

Posted by: dj moonbat on March 28, 2007 at 3:32 PM | PERMALINK

(shiver) This is getting fun.

Posted by: katiebird on March 28, 2007 at 3:35 PM | PERMALINK

I think the use of RNC servers is powerful evidence that they didn't have a reasonable expectation of confidentiality.

Posted by: dj moonbat on March 28, 2007 at 3:32 PM

On the contrary, they knew they had a DECREASED expectation of privacy if they used government computers. They knew that liberals were scheming for ways to launch a witch hunt and suponae the government emails.

The only way they could conduct government business in private was to use non-government computers.

Posted by: Al on March 28, 2007 at 3:37 PM | PERMALINK

stefan--

I don't think we're necessarily in disagreement-- I just don't buy the argument that the use of RNC accounts *automatically* defeats a claim of privilege.
Folks have been treating the revelation of the WH's use of these private accounts as if these emails are now all subject to complete discloure, which I do not beleive to be the case. The claim of privilege is not waived simply by using a private account. If the purpose of the email was to discuss a matter covered under the privilege, and it is being sent by the Pres to his chief of staff, it is equally as implicit that the confidentiality of that conversation is still in full effect.

Still, i wonder what sort of advice the WH counsel is providing that led them to use RNC accounts. The argument cuts both ways---they may still be able to raise Exec Privilege but they must also abide by record preservation requirements. Not that I expect this particular administration to appreciate that point.

Posted by: benjamin on March 28, 2007 at 3:38 PM | PERMALINK

jerri:

"The IP address?????"

Okay, I'm not versed in either the tech or legal aspects of this, but wouldn't an anonymizer take care of that? And would you need to know that there was something there before you went looking for it? Call it paranoia, but I can imagine administration officials using fourth or fifth laptops that are dedicated exclusively to this kind of correspondence. I guess my question is, how would anybody know?

Posted by: chaunceyatrest on March 28, 2007 at 3:38 PM | PERMALINK

US chickenheart, Al et al do not live in a fact based world. Just like their political masters, any statement may be made and assumes the authority of fact if it supports your current argument. This may, in time, lead to contradictory statements but results in no embarassment or guilt as they have the morality of a morai. If the argument "that was then, this is now" fails, turning up the volume, stonewalling until the inconvenient interest recedes, or the "look over here, something new going on" tactics are employed.

Remember, the name of the game is power and money, not responsible government.

What a bunch of losers.

Posted by: notthere on March 28, 2007 at 3:40 PM | PERMALINK

Al makes a funny: The only way they could conduct government business in private was to use non-government computers.

I think the claims of privilege are big-time losers, but I think benjamin's got the right idea: using RNC email isn't dispositive, but it shreds their arguments pretty badly.

Posted by: dj moonbat on March 28, 2007 at 3:40 PM | PERMALINK

Oh, and if they DO assert a claim of privilege, benjamin's right that they should be estopped from making an argument that the emails are not covered by the preservation requirements.

Posted by: dj moonbat on March 28, 2007 at 3:44 PM | PERMALINK

it will probably not have any real effect, because the liar in chief will still assert executive privilege, regardless of legal opinions, and the wrangling will go on until it is too late in his term to matter

I think this is about right. Basically it's another chance for the courts to say: "You two kids fight it out among yourselves."

Posted by: Peter Principle on March 28, 2007 at 3:44 PM | PERMALINK

If AC privilege is model, fact that communication was insecure does go to whether information was maintained such as to keep privilege intact, and use of "public" or non-gov't accounts might not be determinative, but it sure doesn't help the case -- especially if policies of account domain owner assert ownership of accounts and contents thereof (lots do). What will make it doubly difficult, however, is for a WH employee to maintain ex post facto that a communication was official WH business when it is clear that a contrary judgment was being made contemporaneously to the creation of the record, for purposes of PRA. This would be like trying to play offense and defense on the same side of the court and AC privilege has been revoked in similar situations.

Posted by: Barbara on March 28, 2007 at 3:45 PM | PERMALINK

I don't think we're necessarily in disagreement-- I just don't buy the argument that the use of RNC accounts *automatically* defeats a claim of privilege.

Well no, it's not automatic, and I don't believe I said it was. Privilege is a defense that has to be raised in court, and therefore it's up to the court to weigh the competing claims and interests. While not automatic the use of outside servers is, however, highly dispositive.

Posted by: Stefan on March 28, 2007 at 3:46 PM | PERMALINK

It's more like a lawyer sending a client an email at their Hotmail account.

The Bush administration is already arguing that email can be treated like a postcard in regular mail.

So, once again, hoisted on their own petard!

Posted by: Dr. Morpheus on March 28, 2007 at 3:46 PM | PERMALINK

"The only way they could conduct government business in private was to use non-government computers."

Government business. In private. I don't even know where to begin with this statement.


Posted by: benjamin on March 28, 2007 at 3:47 PM | PERMALINK

False equivalency, Al, but you know that you are the very definition of disingenuous.

A handwritten note has the same expectation of security in the chain of custody no matter what freakin' pen is used, but electronic communications are an entirely different creature, and you damn well know it. You are just obstinate and obdurate.

Next.

Posted by: Blue Girl, Red State (aka G.C) on March 28, 2007 at 3:48 PM | PERMALINK

If the purpose of the email was to discuss a matter covered under the privilege, and it is being sent by the Pres to his chief of staff, it is equally as implicit that the confidentiality of that conversation is still in full effect.

Also, since executive privilege applies most strongly to sensitive diplomatic, military, or national security secrets, one wonders then why the President and his chief of staff, say, would have conversations about such matters on the non-secure servers of a political party rather than on highly secure government lines.

One is led to conclude that either they are (a) flagrantly breaching security themselves and thus undermining their claims to privilege or (b) lying about the subject matter of their communications and thus undermining their claim to privilege.

Posted by: Stefan on March 28, 2007 at 3:50 PM | PERMALINK

I really hate lawyer talk, especially when it is completely unnecessary.

dispositive == legally sufficient
estopped == prohibited
arguendo == assuming that

I am glad so many of us at this forum have a law degree. Hope you die.

Posted by: jerry on March 28, 2007 at 3:50 PM | PERMALINK

This is slightly off topic here, but you all are doing a fine job already on the existing discussions (even Norman Rogers!). The gripe that has been bugging me for over 24 hours now is how in the hell did Monica Goodling get her job? Have you seen her background? She did not even graduate law school until mid to late 1999. Is she even a member of a state bar anywhere? If so, I can find no evidence of it. Does she have ANY prosecutorial experience; again, if so I can find no record. From what I have seen, this girl does not have the bonafides to be hired as a line level municipal prosecutor of petty offenses and small misdemeanors. How did she become Senior Counselor to the Attorney General of the United States and Liason to the White House/Executive Office? This is truly amazing. Heckuva Job Brownie was fucking overqualified compared to Ms. Goodling.

Posted by: bmaz on March 28, 2007 at 3:55 PM | PERMALINK

Somehow this administration keeps using their rights (executive privilege) while denying and violating our rights.
They violate the 1st Amendment by opening mail, caging demonstrators and banning books like "America Deceived" from Amazon.
They violate the 2nd Amendment by confiscating guns during Katrina.
They violate the 4th Amendment by conducting warrant-less wiretaps.
They violate the 5th and 6th Amendment by suspending habeas corpus.
They violate the 8th Amendment by torturing.
The violate the entire Constitution by starting 2 illegal wars based on lies and on behalf of a foriegn gov't.
Impeach them all.
Last link (unless Google Books caves to the gov't and drops the title):
America Deceived (book)

Posted by: David H on March 28, 2007 at 3:55 PM | PERMALINK

"While not automatic the use of outside servers is, however, highly dispositive."

Sure. It would be a tough argument to defend, not to mention how unseemly it is to have the WH use RNC accounts in a pretty transparent attempt to shield themselves from accountability.

In reality I'm not really sure if what it is they're trying to accomplish here. My guess is that it is first and foremest an attempt to evade record-keeping requirments. The Exec Privilege argument, to the exent one has even been fleshed out, comes second. But knowing this WH, they probably took the ruling on Cheney's Energy cabal to mean that they could get away with a stunt like this.

Posted by: benjamin on March 28, 2007 at 3:56 PM | PERMALINK

estopped == prohibited

No, estopped != prohibited. Estoppel is a particular kind of prohibition, a bar on having one's legal cake and eating it too.

Posted by: dj moonbat on March 28, 2007 at 3:57 PM | PERMALINK

Alternatively, if they were using private accounts specifically to evade legitimate congressional oversight...

Ding, ding, ding. We have a winner.

Posted by: ckelly on March 28, 2007 at 4:00 PM | PERMALINK

dj moonbat: "I think using non-White House email accounts is strong evidence against privilege, but the president can seek advice from people outside his closest advisors for the purpose of making executive decisions, too."

Wasn't the initial White House claim that the firings were essentially an internal DOJ staff decision, and explicitly did not involve White House executive personnel?

If that's the case, then I would think that any federal court duly considering such a White House assertion of executive privilege in this particular context, ought to also give great weight to the ever-shifting rationales offered by AG Gonzales and President Bush regarding the events in question.

It's been my experience Federal courts aren't prone to issuing in a complete vaccuum important rulings involving potential legal precedents -- obvious political hacks like Supreme Court Justice Antonin Scalia and U.S. Judge Lawrence Silberman excepted, of course.

Posted by: Donald from Hawaii on March 28, 2007 at 4:01 PM | PERMALINK

"The real issue has to do with their willingness to use unsecured email servers to communicate what they claim is sensitive information. That claim is badly shaken by the use of unsecured servers"

to put it fucking mildly!!

Posted by: shams on March 28, 2007 at 4:01 PM | PERMALINK

Jerry--

wait until we start throwing out pretentious-sounding latin phrases. that will likely render you non compos mentis.

Posted by: benjamin on March 28, 2007 at 4:02 PM | PERMALINK

Where I work - we build government computers. I'm not offended by AH's obvious ignorance.

And, where I work, we have zero access to outside mail servers - BECAUSE it is a major security risk. (though we can blog - plain-text is not as much a risk as email attachments which could (and often do) contain malicious code).

In fact; I am appalled that they have access to third-party email at the White House. Not because they may be conducting business "off the books" - but because they almost certainly are exposing vital national security information to foreign intelligence agents via trojans, viruses, and spyware.

Posted by: Extradite Rumsfeld on March 28, 2007 at 4:03 PM | PERMALINK

I cannot believe that these numskulls aren't using encryption and digital sigs, much less sending clear text emails through unsecured servers.

If I knew how easy it was to spoof Rove sending email to Miers, I would have been having alot more fun these last several years.

Posted by: Disputo on March 28, 2007 at 4:03 PM | PERMALINK

non compos mentis == no breath mints in the garden.

Posted by: jerry on March 28, 2007 at 4:04 PM | PERMALINK

Hey, just estop it with the lawyer bashing.

Posted by: bmaz on March 28, 2007 at 4:04 PM | PERMALINK

golf clap for that one jerry :)

Posted by: shams on March 28, 2007 at 4:05 PM | PERMALINK

I really hate lawyer talk, especially when it is completely unnecessary.

Me too, but you forgot
Executive privilige == I'm guilty

Posted by: asdfg on March 28, 2007 at 4:06 PM | PERMALINK

Wasn't the initial White House claim that the firings were essentially an internal DOJ staff decision, and explicitly did not involve White House executive personnel?

I feel like I'm giving people the wrong idea here. Yes: If they claim privilege, and it goes to court, they would lose, for lots of reasons. My only point is that the use of RNC servers doesn't itself end the argument. You have to put it together with the other data like the point you mention to end the argument.

Posted by: dj moonbat on March 28, 2007 at 4:07 PM | PERMALINK

dj moonbat, first let me apologize, "hope you die" was way too harsh to be said. (Though if you're in danger of not dying you probably have worse problems.)

To all you lawyers out there....

If estopple was necessary to the point you were making, as in, "I sure hope someone reading this realizes they can be estopped" then I would recommend you use the word estopped. But if "dispositive" can be replaced with "legally sufficient" then I would say it is better in your writing to use "estopped" when necessary than to use "dispositive" when you can. Because at that point us unwashed masses will realize that you are using estopped for necessary reasons and not just to amortize daddy's loan on your law degree.

And never ever use "arguendo" when what you mean is "assuming for the sake of argument." Yes, one word is shorter than six, but that one word says you are a fucktard. IMNSHO.

/end of rant.
//sorry
///slashies!

Posted by: jerry on March 28, 2007 at 4:14 PM | PERMALINK

Mike: Every day brings new delights.

As Josh Marshall said, "Behold! Karl Rove's list of targetted House and Senate races for 2008." At TPM Cafe/Election Central by Eric Kleefeld, which appears to be House targets.

Posted by: Apollo 13 on March 28, 2007 at 4:18 PM | PERMALINK

I won't believe that Norm is a Princeton graduate until he starts to use his alumni email account.

I do not use any such thing. I use this thing called "hotmail" because it is just the right price--free.

What all of you fail to understand is that the surreptitious collection of all E-mail is already being done by the government to catch terrorists. So if Mr. Rove talks about terror and the like, the government already has a record of his E-mail and is storing it and using what those of us in the know like to call "data mining" in order to identify him.

Because we need to protect our nation against terrorists, you can be rest assured that the E-mails he has sent over the last few years are, thankfully, preserved.

Too responsible for you? Why do I have to do all your thinking for you, liberals?

Bah!

Posted by: Norman Rogers on March 28, 2007 at 4:20 PM | PERMALINK

Al: "They knew that liberals were scheming for ways to launch a witch hunt and suponae the government emails."

Which reminds me, fellow liberals and left-wing extremists:

This week's secret plenary session regarding our nefarious scheme to overthrow the Bush administration -- and thereafterward impose upon this great nation and its God-fearing citizens a morally-corrosive, San Francisco values-based secular humanist provisional authority under the benevolent guidance Nancy Pelosi and Michael Moore (All Hail!) -- has been postponed until next week Thursday because the chair is finalizing his plans to attend the NCAA Men's Final Four in Atlanta.

Posted by: Comrade Donald from Secular Hawaii on March 28, 2007 at 4:23 PM | PERMALINK

Normie - you are gullible.
(which is why you're a Libertarian, also).

Hotmail is not free.

Hotmail is funded through the sale of your email address to spam advertisers.

It's only free if you don't value your privacy.

Posted by: Extradite Rumsfeld on March 28, 2007 at 4:25 PM | PERMALINK

Yikes. Jerry is likely to go into seizure when cmdicely chimes in.

Posted by: Disputo on March 28, 2007 at 4:26 PM | PERMALINK

As Josh Marshall said, "Behold! Karl Rove's list of targetted House and Senate races for 2008." At TPM Cafe/Election Central by Eric Kleefeld, which appears to be House targets.
Posted by: Apollo 13 on March 28, 2007 at 4:18 PM | PERMALINK

I wonder if they map at all to his list of USA's he wanted replaced.

Posted by: Extradite Rumsfeld on March 28, 2007 at 4:28 PM | PERMALINK

Hotmail is funded through the sale of your email address to spam advertisers.

Yes, and when they sell it, I celebrate the free market and capitalism, something that you foolish liberals would never understand.

It's all well and good to talk about scandals, children, but I'm afraid that the use of a non-secure system to send E-mails is something I know a little bit about.

It's actually what was used against me in court. My E-mails from 1993 through 1995 were introduced as evidence against me and I was, to put it politely, held as a guest of the Federal prison system, minimum security, of course. It gives me great pains to see that the Republican Party has committed an error that those of us in the know were apprised of over TEN YEARS AGO. It is circulated widely and throughout the circles that I socialize in that E-mail is NOT the way to communicate about anything other than golf, boobies or sports scores.

Now, I am NOT an unreasonable person. Yes, this is bad for the people I support. But shame on them--everyone knows you don't talk serious matters in E-mail, for crying out loud.

These are the kinds of things that remind me of my Libertarian leanings, good people.

Posted by: Norman Rogers on March 28, 2007 at 4:33 PM | PERMALINK

Without researching the situation, it does seem to be a 'too clever by half' or 'hoist by their own petard' situation.
Posted by: Dave

Another manifestation of Smartest Guy in the Room Syndrome.

Posted by: MsNThrope on March 28, 2007 at 4:34 PM | PERMALINK

Another manifestation of Smartest Guy in the Room Syndrome.

I am the smartest Guy in the Room here, by a wide, wide margin, of course...no need to draw attention to it.

Posted by: Norman Rogers on March 28, 2007 at 4:38 PM | PERMALINK

Jerry: "I am glad so many of us at this forum have a law degree. Hope you die."

Not me. But as I once told a state legislator who insisted that her JD degree trumped my ten-plus-years' experience as a senior legislative policy analyst:

"It's your job to practice the law -- it's my job to actually write it."

Posted by: Comrade Donald from Secular Hawaii on March 28, 2007 at 4:40 PM | PERMALINK

The GSA, remember, is the government’s contracting agency, in charge of almost $60 billion each year. All of this seems like a clear violation of the Hatch Act, which prohibits using federal resources to aid political parties....…"
Posted by: Mike

Wow.

Posted by: MsNThrope on March 28, 2007 at 4:41 PM | PERMALINK

I am the smartest Guy in the Room here, by a wide, wide margin, of course...no need to draw attention to it.
Posted by: Norman Rogers


Then it's good thing, isn't it, that many of the smartest people in this room aren't 'guys' at all?

Blue girl, shortstop, wisely...

Posted by: MsNThrope on March 28, 2007 at 4:45 PM | PERMALINK

Extradite Rumsfeld: "Hotmail is not free. Hotmail is funded through the sale of your email address to spam advertisers. It's only free if you don't value your privacy."

That's why I maintain two personal e-mail accounts -- Hotmail for my personal e-correspondence, and another that's hosted on a secure server and used strictly for my business.

Posted by: Donald from Hawaii on March 28, 2007 at 4:47 PM | PERMALINK

Posted by: bmaz on March 28, 2007 at 3:55 PM asks a damn good question. I have been wondering about that too. I probably know hundreds of lawyers with better resumes. Who does she know? Who are her parents? What are her connections?

When you read the emails it is clear she was a real player. I haven't found any published articles with her name on them. Near as I can tell she didn't clerk for anybody let alone anybody important. I can't imagine the guys at Main Justice paying any attention to her unless she has a big giant connection to somebody really important.

Posted by: Ron Byers on March 28, 2007 at 4:49 PM | PERMALINK

The gripe that has been bugging me for over 24 hours now is how in the hell did Monica Goodling get her job?

How? Ha! Why, she's a graduate of the finest law school in the country - Regent University, Pat Robertson's very own college of wingnut knowledge, which has supplied over a hundred faithful Eichmanns to the George W. Bullshit Administration.

Needless to say her "knowledge" and "experience" are secondary. What matters is her commitment to the Movement.

Posted by: Alek Hidell on March 28, 2007 at 4:52 PM | PERMALINK

Right about now, agents of this government should be seizing the servers of the RNC and putting them into evidence lockers.

Sorry, flashbacks.

To this day, I do not know who has the servers that were seized from the corporate server room where I worked.

And it is sexist to specify genders around here. You are all Godless liberals to me. If you are male, female, assorted other parts--it doesn't matter to me. I treat you all with the same contempt, of course. I am an equal opportunity type fellow.

Posted by: Norman Rogers on March 28, 2007 at 4:54 PM | PERMALINK

"It's your job to practice the law -- it's my job to actually write it."
Posted by: Comrade Donald from Secular Hawaii

Now that's a masterful put-down done up in a pretty ribbon.

Bravo.

Posted by: MsNThrope on March 28, 2007 at 4:57 PM | PERMALINK

Very interesting GOP insider info from Rove's shop on elections in the PDF, "Full Presentation from January 26, 2007" provided by the Committee on Oversight and Govt. Reform (Waxman). You can get all the docs and emails here.

Recommended reading!

Posted by: Apollo 13 on March 28, 2007 at 5:09 PM | PERMALINK

bmaz wondered: The gripe that has been bugging me for over 24 hours now is how in the hell did Monica Goodling get her job

Professor Kleiman explains it all for you.

Posted by: Gregory on March 28, 2007 at 5:14 PM | PERMALINK

Karl Rove is like Hitler, and really every other fascist conservative Bushlicker, in that he's willing to attack Russia in the middle of the winter, which is why he failed in 2006 and why Bush is failing in Iraq.

They are all megalomaniacs whose arrogance convinces them that they may do anything at all at any time and in any manner without any repurcussions or responsibility for the consequences and they end up alone hunkered down in a bunker committing suicide by refusing to acknowlege the reality of the predicament they've gotten themselves into.

I'm glad there are conservatives like Boehner still sticking with Bush because they will sink with his ship, like fellow rats.

Posted by: anonymous on March 28, 2007 at 5:19 PM | PERMALINK

Gregory - Thank you (I think) for that cite. However that piece explains WHY but not HOW she got her job. There is no question she is a fundie accolyte; but how the hell did she get that job? Ron Byers' questions are the ones I want answered.

Posted by: bmaz on March 28, 2007 at 5:40 PM | PERMALINK

I am the smartest Guy in the Room here, by a wide, wide margin, of course...no need to draw attention to it.

Posted by: Norman Rogers

But your best quality is your humility.

Posted by: DJ on March 28, 2007 at 6:06 PM | PERMALINK

In connection with the RNC E-mails, note one of Abraoff's most recently released ones ( http://www.oversight.house.gov/Documents/20070326112419-30085.pdf , pg. 2).

Posted by: Bruce Moomaw on March 28, 2007 at 6:11 PM | PERMALINK

I wonder if they map at all to his list of USA's he wanted replaced.
Posted by: Extradite Rumsfeld

Referring to the McClatchy Washington Bureau's, "New U.S. attorneys seem to have partisan records," Mar. 23, 2007:

"Rove gave a speech in Washington to the Republican National Lawyers Association. He ticked off 11 states that he said could be pivotal in the 2008 elections. Bush has appointed new U.S. attorneys in nine of them since 2005: Florida, Colorado, Wisconsin, Minnesota, Iowa, Arkansas, Michigan, Nevada and New Mexico. U.S. attorneys in the latter four were among those fired."

Add in the other states involved in the USA firings: Washington, California, and Arizona.

I've boldfaced the nine states with new USA appointed since 2005 overlapped with the states from which the Gonzales 8 hailed (haven't checked to see where the Reps' districts are) and this is what you get:

The Priority Defense list--House:
Jim Gerlach, Pennsylvania
Vern Buchanan, Florida
Robin Hayes, North Carolina
Heather Wilson, New Mexico
Marilyn Musgrave, Colorado
Peter Roskam, Illinois
Chris Shays, Connecticut
Jean Schmidt, Ohio
Thelma Drake, Virginia
Barbara Cubin, Wyoming (Note: Rove also says that Cubin might not seek re-election.)
John Doolittle, California
Jon Porter, Nevada
Jim Walsh, New York
Deborah Pryce, Ohio
Randy Kuhl, New York
Mike Ferguson, New Jersey
Joe Knollenberg, Michigan

And the targeted Dems list--House:
Nick Lampson, Texas
Tim Mahoney, Florida
Jerry McNerney, California
Zack Space, Ohio
Baron Hill, Indiana
Chris Carney, Pennsylvania
Patrick Murphy, Pennsylvania
Nancy Boyda, Kansas
Joe Sestak, Pennsylvania
Brad Ellsworth, Indiana
Heath Shuler, North Carolina
Ciro Rodriguez, Texas
Steve Kagen, Wisconsin
Jim Marshall, Georgia
Joe Donnelly, Indiana
John Barrow, Georgia
Jason Altmire, Pennsylvania
John Hall, New York
Kirsten Gillibrand, New York
Stephanie Herseth, South Dakota

Going through the Jan. 26, 2007 (full) PDF provided by the Committee on Oversight and Govt. Reform (Waxman) for the Senate targets, on page 27 of 28 lists the states...

For Repub Offense--Senate:
Arkansas
Iowa
South Dakota
Montana
Louisiana
New Jersey

For Repub Defense--Senate:
Colorado
New Mexico
Mississippi
Virginia
Minnesota
Maine
New Hampshire

(Another 21 senatorial states are listed as non-competitive.)

For governor races, states listed are...

Repub Offense--Governors
Washington
Montana
Louisiana
North Carolina

Repub Defense--Governors
Missouri
Mississippi
Indiana
Kentucky
Vermont

What's missing is Arizona. However, none of the above factors in disruption of corruption scandals. i.e., Rep. Rick Renzi of Arizona, what USA Carol Lam was pursuing, etc.

Posted by: Apollo 13 on March 28, 2007 at 6:24 PM | PERMALINK

Which reminds me, fellow liberals and left-wing extremists:

This week's secret plenary session regarding our nefarious scheme to overthrow the Bush administration -- and thereafterward impose upon this great nation and its God-fearing citizens a morally-corrosive, San Francisco values-based secular humanist provisional authority under the benevolent guidance Nancy Pelosi and Michael Moore (All Hail!) -- has been postponed until next week Thursday because the chair is finalizing his plans to attend the NCAA Men's Final Four in Atlanta.

Posted by: Comrade Donald from Secular Hawaii

Please put me on your group's e-mail list. Got any membership info? Where can I sign up?

Posted by: FitterDon on March 28, 2007 at 6:28 PM | PERMALINK

The point of using the private servers is to evade the requirements to keep records.

How long did the RNC servers keep records of the emails?

Was there software to expedite deleting emails?

Posted by: Carl Nyberg on March 28, 2007 at 6:34 PM | PERMALINK

FitterDon: Next time you visit the left side of our red state, I'll teach you the secret handshake...

Posted by: Blue Girl, Red State (aka G.C) on March 28, 2007 at 6:38 PM | PERMALINK

Another manifestation of Smartest Guy in the Room Syndrome.

I am the smartest Guy in the Room here, by a wide, wide margin, of course...no need to draw attention to it.

Posted by: Norman Rogers on March 28, 2007 at 4:38 PM

Would that be the room in your mom's basement?

If you were as smart as you think you'd know the difference between educated and smart. You sound educated but I'm not sure anyone here thinks you're smart.

Posted by: FitterDon on March 28, 2007 at 6:41 PM | PERMALINK

BGRS, sounds good to me.
Idiotland is kind of taking on a purple hue.
If I didn't know better I'd say Baby Guv wants it that way. His career in public service should be over in about 18 months. And then we can fit him and daddy with orange jumpsuits.
I'll check you later. Gonna go watch a lacrosse match.

Posted by: FitterDon on March 28, 2007 at 6:52 PM | PERMALINK
…have you seen the video…
Yeah Ron, loved it. Video at Crooks&Liars [scroll down, it's been a busy Bushy day.]
How long did the RNC servers keep records of the emails?… Carl Nyberg at 6:34 PM
They are on notice from Waxman not to delete anything.
…I treat you all with the same contempt… Norman Rogers at 4:54 PM
Not to worry, I have far greater contempt for you. Any fool should know that messing with Calpundit women is a deathwish in action. If you haven't realized that, you're even lower on the foolchain. Posted by: Mike on March 28, 2007 at 7:11 PM | PERMALINK

Monica Gooding in violation of False Statements statute, 18 USC 1001?
That would be grounds for pleading the Fifth, not the BS her lawyer is claiming as her rationale.

Posted by: Mike on March 28, 2007 at 7:20 PM | PERMALINK

I don't think that there is any dispute that Goodling probably has sufficient reason to plead the fifth. Her lawyer just never bothered making that case, because he was more interested in attacking congress.

Posted by: Disputo on March 28, 2007 at 7:36 PM | PERMALINK

Apollo: Recommended reading!

I was snuffling through that site like a pig after truffles earlier today, not too put too finely elegant a point on it.

I love being around other geeks when these situations come up. So much scandal, so little time!

As for the path to greatness traveled by Monica Goodling (or "that Goodling woman," as Mike K, suspended in 1928, calls her), I suspect that Papa Goodling or some similarly close relative is a major Bush donor, Texas oilman or both.

Posted by: shortstop on March 28, 2007 at 7:41 PM | PERMALINK

TPM is reporting that the upcoming doc dump is going to be bad for the WH.

Posted by: Disputo on March 28, 2007 at 7:41 PM | PERMALINK

Disputo: I don't think that there is any dispute that Goodling probably has sufficient reason to plead the fifth. Her lawyer just never bothered making that case, because he was more interested in attacking congress.

Yep, and probably also in trying to calm down the WH, which can't have been happy that she wouldn't get up there and try to brazen it out.

Don't think this has been discussed here today--TPM reports that Goodling was on the call when Domenici leaned on McKay. This Christian leadership they forge at Regent U, ooooooeeeee.

Posted by: shortstop on March 28, 2007 at 7:44 PM | PERMALINK

FitterDon, "Norman Rogers" is a parody. I will admit that there is a small question as to whether or not "Norman Rogers" knows that he is a parody.

Posted by: mwg on March 28, 2007 at 7:57 PM | PERMALINK

Shortstop, I saw that too, but if you check the link, it is not that unambiguous. Josh says that Goodling was "on the call". The original link says:

"Goodling was involved in an April Sixth, 2006, phone call between the Justice Department and New Mexico Republican Senator Pete Domenici."

"Involved in" could mean many things. I think Josh blew that one.

Posted by: Disputo on March 28, 2007 at 8:09 PM | PERMALINK

Josh Marshall:

Not good, not good. The White House Counsel's Office gave explicit sign off to the DOJ's letter falsely claiming Rove and Miers played no role in Tim Griffin's appointment as US Attorney. And the sign off came from Chris Oprison, the guy at the Counsel's office who Sampson had told about Rove's and Miers' role only a couple months earlier.
Details at TPMMuckraker.

Posted by: Apollo 13 on March 28, 2007 at 8:12 PM | PERMALINK

FitterDon, "Norman Rogers" is a parody. I will admit that there is a small question as to whether or not "Norman Rogers" knows that he is a parody.

Okay, Bob. Thanks for the update.

Meanwhile, have you noticed that first I was being reasonable, then I was somewhat right, and now everyone is taking shots at me?

I must have done SOMETHING right. Goodness.

Posted by: Norman Rogers on March 28, 2007 at 8:33 PM | PERMALINK

"Involved in" could mean many things. I think Josh blew that one.

Could be, Disputo. Thanks for catching that.

Posted by: shortstop on March 28, 2007 at 8:51 PM | PERMALINK

a;: So if the President scribbles a note using his own pen, rather than a government issued Bic, the note isn't priviledged?

It's not how you produce the message, its how you transfer and store it.

Posted by: bobo the chimp on March 28, 2007 at 8:56 PM | PERMALINK

I think some smart Democratic techies need to hack Turdblossom's e-mail account and flush this piece of human sewage away, once and for all.

Posted by: The Conservative Deflator on March 28, 2007 at 10:38 PM | PERMALINK

It's like I told my old department chair the day I walked out of that job -- you can afford to be evil or you can afford to be stupid and have some prospect of being successful at it. But you can't afford to be both.

Posted by: pjcamp on March 28, 2007 at 10:44 PM | PERMALINK

For Repub Offense--Senate:
Arkansas
Iowa
South Dakota
Montana
Louisiana
New Jersey

For the life of me I can't imagine why they'd have the hots to get rid of Mary Landrieu. She's given them 98% of everything they've ever put before her.

I just got an email from poor Mary asking me for a campaign contribution. That's gonna happen at approximately the same time pigs sprout wings, jet engines and 'Fasten Your Seatbelt' signs.

Posted by: MsNThrope on March 29, 2007 at 9:25 AM | PERMALINK

As a non-lawyer, I don't see how using an RNC account is automatically a waiver of privilege, especially since we're not talking about attorney client privilege, about which I'm gueesing there's plenty of case law, but executive privilege, which continues to be mushy. I think a parallel would be if Rove takes a call on his personal cell phone. Does that mean the conversation is automatically not privileged? My instinct says no.

I think a bigger issue I never see addressed is ther entire rationale for executive privilege. Certainly there are conversations within the White House that need to remain confidential. But the argument that the President won't get the best possible advice if his advisors think their correspondence will be subject to scrutiny is weak. In the case of an investigation into possible illegal activity, why should a Presidential advisor be immune from scrutiny? If an advisor is recommending illegal actions, and actually committing them to writing, why should he or she not be accountable?

Not to mention the obvious joke that Bush has hardly been getting the best advice possible. We may have all been better served if some of the yahoos in his administration had felt a little more constrained from offering up their thoughts.

Posted by: ChrisO on March 29, 2007 at 9:55 AM | PERMALINK

ChrisO: I think a parallel would be if Rove takes a call on his personal cell phone.

This is not the correct analogy.

The parallel would be Rove taking a call on an unsecured cell phone belonging to a RNC staffer.

Any privilege, of any type, is waived if communicated to a third party who is not a part of the group to whom the privilege extends or if the person treats the information as unprivileged by taking actions inconsistent with confining the information to the group to which the privilege extends.

By allowing information to be placed on and through RNC servers where persons outside the privileged group, at the very least RNC network administrators, Rove was treating the information in a manner inconsistent with a need to confine access to the information to the privileged group.

Posted by: anonymous on March 29, 2007 at 10:23 AM | PERMALINK

I'm not sure I buy that argument. There's a difference between providing access to a third party, and using a communications medium where a third party can access the information. Because a network administrator can access Rove's e-mail, it doesn't mean he's authorized to. An "unsecured" cell phone is only an issue if national security is at stake. Otherwise, any lawyer using his private e-mail account, or talking on an unsecured cell phone, could arguably be waiving privilege.

Posted by: ChrisO on March 29, 2007 at 10:34 AM | PERMALINK

Otherwise, any lawyer using his private e-mail account, or talking on an unsecured cell phone, could arguably be waiving privilege.

Yes, he could be. That's precisely how it works. That's why, for example, I don't use my Hotmail account for my client communications.

Posted by: Stefan on March 29, 2007 at 11:56 AM | PERMALINK




 

 

Read Jonathan Rowe remembrance and articles
Email Newsletter icon, E-mail Newsletter icon, Email List icon, E-mail List icon Sign up for Free News & Updates

Advertise in WM



buy from Amazon and
support the Monthly