The DNC Email Ruling
The folks that read and participate at Emptywheel are, in my humble opinion, without any question the best anywhere at deconstructing email issues and cases, and it sure looks to me like some of the people litigating these various matters are picking up on that too. That being the case, who could possibly deny you more fodder?
The Democratic National Committee has been suing the DOJ in DC District Court to obtain some 68 pages of emails relaing to the US Attorney purge. The main reporting to date has been from Politico:
A federal judge has handed the White House a legal victory in a battle with the Democratic National Committee over e-mails related to U.S. attorney firings.
District Judge Ellen Huvelle of the U.S. District Court for the District of Columbia ruled Thursday that the DNC does not have a right under the Freedom of Information Act to 68 pages of e-mails sent between White House and Justice Department officials simply because the White House e-mail traffic was transmitted on a server controlled by the Republican National Committee.
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In dismissing the DNC lawsuit, Huvelle ruled that it was "based on the false factual premise that White House officials only used their RNC e-mail accounts for political communications."Additionally, Huvelle decided that just because an RNC server was used to send the messages — 68 pages out of more than 5,000 which have been denied to the DNC — it is not enough to automatically disqualify the Justice Department from claiming a FOIA exemption in refusing to release them.
"It is therefore clear that RNC e-mail accounts were used (rightly or wrongly) both for official and RNC business, and thus the nature of the server is not necessarily informative as to whether the document contained official or political communications," Huvelle wrote in her opinion.
I think there are two issues to be contemplated here. The first is the relative propriety of Huvelle’s decision, and foundation therefor, in the DNC case, and the second is what implications it may have for the greater mass of contentious email issues that are percolating in our midst. Here is the full opinion rendered by Judge Huvelle in Democratic National Committee v. United States Department of Justice, CV 20070-712 (ESH-DDC).
There were originally 5,337 pages of emails responsive to the DNC’s FOIA request, but agreement was reached as to all but 68 pages. All of the e-mails at issue were sent between officials in the White House and the Department of Justice and were sent to or from an e-mail address with the domain name “GWB43.com” pertain to matters such as "responding to an upcoming Congressional hearing, formulating official responses to inquiries from outside the Executive Branch, suggesting a plan of action for the appointment of a U.S. Attorney or conferring on issues arising from such appointments, recommending revisions to documents, and pfor the hiring of new Department personnel." The sole basis for the DOJ production refusal was FOIA Exception Number 5, contained in 5 USC 552 (b)(5) which provides that the FOIA
does not apply to matters that are . . . inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency . . . .
The critical discussion by Judge Huville is, in condensed form, as follows:
First, plaintiff’s position is based on the false factual premise that White House officials only used their RNC e-mail accounts for political communications. While plaintiff is correct that RNC e-mail accounts were originally “supposed” to be used exclusively for political communications (see Pl.’s Ex. 3 at 5), it is clear from plaintiff’s own exhibits that, in fact, this supposition did not become reality.
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It is therefore clear that RNC e-mail accounts were used (rightly or wrongly) both for official and RNC business, and thus the nature of the server is not necessarily informative as to whether the document contained official or political communications.
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Given this apparently flagrant violation of the Presidential Records Act, plaintiff contends the Court should not treat the requested e-mails as official presidential communications to which the presidential communications privilege applies under FOIA.
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However, the administration’s violation of the Presidential Records Act is, as plaintiff acknowleges (id. 8), not before this Court, and it cannot serve as a basis for determining whether the government has properly invoked Exemption 5. Moreover, plaintiff fails to point to any case law that would indicate that the server where an e-mail is housed is relevant to its treatment under FOIA. Rather, under D.C. Circuit precedent, it is the content, not the form, of the communication that determines whether it is properly exempt under Exemption 5.
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Therefore, because the form of the document does not factor into the analysis under FOIA, the Court cannot adopt a per se rule that any e-mails sent on the RNC servers are not covered by FOIA. In the absence of such a per se rule, the remainder of plaintiff’s argument collapses.
That is the Reader’s Digest synopsis, but the devil is always in the details, so if this really interests you, by all means, read the entire decision with footnotes. I think the first thing to keep in mind is that this decision was made strictly within the context of a FOIA request; the DNC would not have had standing in any other circumstance, so this is a pretty limited ruling and I don’t think anyone should get to exercised that it went south.
Notwithstanding the above, I have some issue with the way the decision blithely dispensed with the executive privilege element, which really was given short shrift. The court strains to make the claim that the DNC relies solely on the argument that the emails are reachable because they were on the RNC server; however, skips right over the impact that the fact that they were distributed to the independent third party and how that seriously undermines the executive deliberative process privilege claim. The White House knowingly and intentionally used this non-secure and violative means of communication, that distributed through non-involved parties; if they don’t act in any manner consistent with a privileged communication, how is this not a privilege buster? There are certainly arguments that might could be made to overcome the thought that this was a direct waiver of privilege, but it is pretty hard to understand how the Court, even on it’s own if necessary, didn’t address the clear prima facie appearance of a direct waiver. Bottom line, if it is viewed through the restricted lens the court set forth, this might be a correct decision; given the more detailed full view that should have occurred, not so much maybe.
Now for the more fun part of this exercise, namely what can we take away from the decision? I think there are several goodies in there that may be useful in various places of interest to us. First off, even Judge Huvelle can’t escape making the conclusion that the facts exhibit willful violations of the PRA and Hatch Act, notwithstanding her reticence in making such a formal determination because that was not issue before the court. Albeit it in dicta, there is a good deal that supports a lot of arguments and suppositions that have long been made in the discussions at Emptywheel and TNH. I believe Marcy, and many others will find the contents of Footnote 3 of the decision to be of interest.
Pustay has categorized the 68 contested pages into six numbered groups. Group 3 includes an e-mail from the White House to DOJ forwarding an e-mail about an impending Congressional hearing and soliciting assistance and an e-mail chain regarding an internal White House discussion about how to respond to an inquiry from the North Dakota Attorney General’s Office. Group 6 includes a set of e-mails from the White House to members of the Judicial Selection Committee (“JSC”) advising on dates, times, and locations of JSC meetings and listing the participants and portions of two e-mail communications discussing a proposed plan of action regarding nominations. Group 21 includes one e-mail chain between the White House and DOJ in which the correspondents discuss potential candidates for a United States Attorney position and develop a selection process. Group 25 includes portions of two e-mails chains discussing how to handle DOJ’s response to a controversy regarding the nomination of a United States Attorney and portions of one e-mail chain in which the response to a news article about the replacement of a U.S. Attorney is discussed. Group 26 consists of various e-mails regarding the impending appointment of United States Attorneys, including a discussion of hiring issues and background information on the candidates. Finally, Group 28 is comprised of portions of e-mail communications discussing the merits and logistics of hiring of a particular individual to work at DOJ.
As I’ve read through your post bmaz, these questions arise:
1. Can/should this ruling instigate CREW and/or NS Archives to bring suit against both the NARA and the RNC wrt showing that they are maintaining all such email “records” under penalty of the FRA, and that a plan exists to transfer these records to the NARA at the end of this Administration?
2. Can/should Congress subpoena these email “records” from the RNC in their investigation of the US Attorney firings?
3. While I’ve not yet finished reading the Judge’s entire ruling, I wonder if the use of the “GWB43.com” domain for emails was only by WH officials. Do we know if folks at the DOJ were also using it too?
4. Congress and all other interested parties (like CREW and us) should press the DOJ for an outside Special Prosecutor to investigate the likely criminal Hatch Act violations in the use of “GWB43.com” for non-political purposes.
Given Mukasey’s refusal to “see” any violations of law in many other Administration matters, I don’t expect a positive response, but as a “political” sledgehammer, tis worth swinging all by itself.
5. Lastly, what was Howard Dean and the DNC doing filing this suit under FOIA? I would have thought that Congress and “interested” 3rd parties (like CREW, and perhaps even the DNC) would be attacking this via the FRA just like CREW is doing with the “missing emails”.
1) Yes
2) Yes, and I would love to see them take a run at deconstructing the privilege assertion.
3) No clue, fair chance in relation to the “liasons” though, such as dear Miss Goodling.
4) No kidding; little chance though, and Mukasey has said just that. No reason not to keep hammering though.
5) Great question. Really, I guess it doesn’t matter, it could have been you or me; FOIA is for the public; but just superficially it doesn’t look real compelling does it? Good thing that wasn’t the issue, because they wouldn’t come close to standing if it was. My guess is they were looking for a way to pimp the RNC and figured any results would have the extra bonus of putting the wood to the Bushies. I think some of the facts adduced in this case, that have been around a while now, sure could have been used effectively in some of those other forums, yet I have seen little particular evidence of it.
By the way, when I started this thing, I thought I was going to be able to wrangle more out of it than it turned out happening. A little anti-climatic if you will. Sorry about that, but I had enough time invested that I went ahead and posted it anyway. It is a goofy case that is, itself, not compelling; but there are some things that might be fairly valuable collaterally.
Can this ruling be appealed?
Bob in HI
Sure, if the DNC is so inclined. Not great odds of success, but might be worth having some staff level DNC attorney take a run at it just for grins.
As we discussed on an earlier thread, the DC Circuit has become even more conservative under Bush. Neophyte party stalwarts, with virtually none of the normally required experience – notably, Brett Kavanaugh – were added to its ranks. They wouldn’t dream of disagreeing with Big Dick or Little Addington. The Supreme Court is also notably conservative, so the odds of a successful appeal on a case with as narrow a holding as this one seem low.
You know, legally, under the FOIA it just doesn’t matter who the requester is, but superficially it is just hard, even for me, to get to worked up over the DNC as the plaintiff here. And I know better and am sympathetic. No reason in the world that Congress, the IG and a couple of others shouldn’t have these 68 pages by now; and if they don’t, they damn well should asap with the foundation laid open here.
As to your comment @5, that is exactly what I was suggesting in the post. Maybe, with some creative effort, the DOJ/WH could make the privilege stand up; but it looks really flaky on the surface the way it was exposed to outside parties of unknown proportion, maybe quite large. How this was not at least discussed by the court in reaching it’s conclusion is beyond me. Even if the parties did not argue it with great emphasis, it is there clear enough that the court needed to address it. I got tired of this thing (dinner cocktails and basketball might have intervened too) and wanted to get it up tonight so that Marcy had a clean slate for tomorrow; but maybe I will go into PACER and see how the parties addressed this aspect in their pleading papers in a bit or tomorrow. This isn’t classified information that stays that way no matter how many people rightfully or wrongfully know about it, or even if it was once public. Privileges give way to waiver and abandonment.
So, after reading reviewing the arguments, will you have any guesses as to whether this constitutes incompetence or lack of will on the part of the plaintiffs or would-be plaintiffs (congress)? This seems so obvious even to a non-lawyer type like me.
I suspect the following:
1. The White House communications with the RNC were obvious and massive.
2. The data was intentionally co-mingled, with no access or use restrictions on the “government business” portion, a distinction the White House would claim with a Rovian twang it is “naturally impossible” to make. (Just as they “previously” allowed free access for all e-mail users to system features normally tightly restricted to administrators).
3. The court reflexively and without argument or comment came down in favor of privilege and non-disclosure because it’s the White House.
This episode merely illustrates one of the administration’s defining characteristics: hiding large-scale, corruption behind the emotional firewall of day-to-day deference and expectations. Respect for the law by judge, jury and defendant is twisted into the political prosecutions of Don Siegelman and dozens of other prominent Democrats. Deference to authority is twisted into freedom from liability for wrongful conduct, whether it be a war founded on lies, the negligent design or manufacture medical devices, or massive and illegal spying on fellow Americans.
By definition, the “privilege” at issue is one of confidentiality, the right not to disclose information except to those persons within a legally authorized loop. Voluntary disclosure outside the loop results in loss of the privilege. Disclosure to the RNC should bust the privilege.
An exception might exist if the RNC’s role was limited to providing secure data services under a formal agreement that included non-use and non-disclosure provisions. Where’s the contract? What are its terms, what does it cost? But if the RNC accessed and manipulated White House communications about US Government business for any other purpose the privilege should have been lost.
One of the arguments was that the data running through the RNC server included both governmental and party business. The White House certainly had the ability to pursue party business by communicating with the RNC. But if the data was co-mingled, without access or use restrictions on the governmental business, the privilege should have been lost.
The co-mingling aspect is very troubling. To me, it’s like a dirty or incompetent general counsel intentionally marking every corporate document as subject to “attorney client” or “work product” privilege in an attempt to shield all corporate documents from disclosure in litigation or criminal investigation. That’s an abuse. My limited understanding is that if you abuse it, you lose it. That should have happened here.
How could this not be part of the investigation into attorney firings? I thought it was already.
I wonder why they talk about “pages” of e-mails rather than # of e-mails. Have they defined the number anywhere. When you start getting into chains of e-mails every response typically contains all of the previous ones. What looks like a high volume of e-mails might not actually be all that many.
Out of the huge volume there are probably just 2-3% that are really dammning I guess.
Seems to me “behind the scenes” Addington has read all the decisions irt Nixon and co to know where the “holes” are historically and is ready to argue anything. Thus, I think he has been “coaching” everybody DOJ and beyond on many cases including this one. That being said and not being a legal eagle here, I am brought to this wording on privilege in the U.S. vs Nixon 418 U.S. 683:
I am trying to find how or why the DNC did not more clearly tie the FOIA to evidence for a criminal trial? Or did they and I missed it?
I realize this Nixon case law was a special prosecutor vs a president, not a political party vs a president and his party via a politicized DOJ… but in reality, the special pros in 1974 was representing the laws broken which violated one political party…
How can we get this to move on criminal activity notion? Again a question from a non legal eagle which may not even apply here… Thanks for being patient with my questions folks…
Resurrected from the previous thread:
The FOIA didn’t hinge on executive privilege, but a statutory exception from disclosure in the FOIA statute itself. But you’re right, the Dems seem exceptionally leery of resting their claims against privilege on a formal or criminal investigation. Then again, preventing them from doing that has been one of Gonzales’ and now Mukasey’s principal jobs, which they’ve done very well.
Case in point, though OT. A Times editorial today complains that Bush is hindering the government from doing its job by stubbornly insisting on radical nominees that the Senate has repeatedly refused to confirm. I think that’s being willfully credulous. The Times should ask why the president is intentionally stopping the Department of Justice and key regulators of business from doing their jobs. Given the scope of potential criminal wrongdoing by this administration and its reliance on corporate support for its meager electoral prospects, the answer should be obvious.
Thanks for your response.
I imagine the court decision in: Association of American Physicians and Surgeons, Inc. v. Hillary Clinton does not help in any way…
So, could the WH claim RNC falls under FACA?
Additionally, why not have the dismissed attorneys file for this FOIA in regards to “wrongful dismissal”? Would that have had more weight? Again, these may be “low level” legal questions. I am not a legal eagle…
What immediately comes to my mind is, who were the recipients of these emails? Were the recipients confined to DoJ or WH, or at least government offices? If there was a single recipient outside of those protected by privilege, isn’t privilege lost for that email? Isn’t that the crux of the argument?
The systemic and unregulated features of the White House e-mail system, and the White House’s use of RNC servers to process undifferentiated US government and Republican Party business share another common feature. Edgar Allan Poe’s Purloined Letter and Agatha Christie’s ABC Murders illustrate it.
The best place to hide what you most want hidden is out in the open, among what you expect to see every day and therefore ignore. A shelf full of books or random, violent crimes. The ability to erase your work or use government power for corrupt partisan purposes.
Out of hundreds of White House actors, few would have known how their e-mails were routed or stored, or that they could freely erase them without trace. Fewer would have used that knowledge, fewer still would have had the power to impose those “features” on the system. Among the latter were Cheney and Rove, actors who also harbor the greatest paranoia about protecting their communications.
For the non-legals here is case law on Presidential Privilege in the U.S. vs Nixon 418 U.S. 683:
http://caselaw.lp.findlaw.com/…..;invol=683
IANAL, you know.
What effect will a change of admin and thank the Lord DOJ have on the RNC emails in this or any case?
I have a tendency to read acronyms phonetically, so I can’t help but hear “I anal” when I see “IANAL.” This amuses me every time, since — forgive me in advance — I also see being anal as a prerequisite for being a good lawyer.
Back on topic: I had no idea that there was a legal precedent out there for the idea that the First Spouse is a gov’t officer. Interesting.
Let’s pretend:
I’m getting a divorce in a community-property state.
Some portion of my soon-to-be-ex-husband’s assets is the result of illegal activities.
He tells the judge that some portion of his assets is illegally acquired.
He is hiding some portion of his assets from disclosure.
He tells the judge he’s hiding some assets.
He claims some portion of his assets is exempt from disclosure because it isn’t community property on some grounds that the judge will just have to take his word for.
So the judge decides that she can’t order him to disclose the hidden assets because I haven’t countered his exemption claim (because he won’t say what it is), and because I haven’t proven precisely which portion of the hidden assets is legal and which is illegal, and because the divorce court can’t pursue the question of his illegally acquired assets, and because the criminal court hasn’t chosen to pursue the illegal activities that resulted in some portion of the hidden assets?
And the judge further decides that she can’t reach the question of the validity of his exemption claim because that would necessarily take her into the legal/illegal assets territory where she can’t go?
Is this pretend scenario remotely analogous to what Huvelle has decided?
[Hi NSA — this is all made-up, I’m single and have never been married to or divorced from anybody engaged in illegal activities.]
rincewind, IANAL, but i am anal, and i find your analogy pretty compelling. at any rate, it raises the same sorts of concerns i had just intuitively.
but you did a bangup job of drawing all the point to point mappings.
Some of the pacer documents might be interesting, as judge Huvelle’s memorandumOpinion only summarizes the topics in the messaging. I am glad Dean stepped forward to cause as much as this case already reveals to become available to the public, but it is a political more than electronics technology matter as framed, at least as far as the judge’s narrowly construed narrative in the document linked, above. Her writing is helpful for its oscillation between subjects she explicitly states she is avoiding, and the still mysterious UnitaryExecutive issue she is willing to review. The affair reminds me of the Reagan era privatization of government, still a plank in the Republican platform; in this instance privatization of presidential and DoJ messaging hosting. I hope congress preserves interest in oversight of the matter, though the president pretty much has placed people in office, with congress’ confirmation, who will remain barriers to congress’ ever obtaining the actual documents which show the numerous overstepping incidents in the melee to obliterate uncooperative US attorneys. It is worth remaining mindful that a principal objective for the politicization of DoJ and midterm firing of recalcitrant US attorneys related to the still ongoing Republican effort to suppress the vote. The latter being fundamentally and salaciously appetizing to congresspeople of both political parties as their innate field of expertise, congress is likely to continue various forms of oversight. In a barely reported newsitem recently there has been a dispute over votemachines in one county in NJ; for a neat tech feat description of how even a nontech poll worker covert activist could redirect all votes from the voter’s party of choice into secret aggregation into totals for the opposing party, the reader is referred to this interesting lowbudget blog explanation of how easy it was for Union County NJ pollworkers to make this surreptitious shift; that the easy hack was in play in the recent NJ election was evidenced by the dissonance in the reported outcomes at many pollstations and in the canvass. In fact, the unexpected reported numbers were the evidence which led election integrity investigators to trace the source of the problem. The difficult implication of the news, however, is identical machines are what PA plans to employ for its approaching primary.
At the risk of confusing myself by getting lost in the details on this thread, here’s what I see:
1. An extremely dangerous, flawed legal decision. Because the judge appears to extend ‘executive privilege’ to:
1.1. a partisan server.
1.2 a private, partisan domain.
She appears to be saying, ‘yes, the emails were supposed to be private, but maybe someone screwed up and mixed up private/partisan work with public work. They mixed stuff up, so you can’t see any of it.’
That gives the benefit to the people who created the problem and caused it.
That tells everyone else, ‘just act like you made a mistake and screwed up – there’s precedent for screwing up so you’ll be off the hook, don’t worry’.
By failing to draw clear, bright lines between private (in this case, partisan) activities and communications, the judge blurs the distinctions between partisan activity and government jobs. Don’t know anything about this judge, but the way I read it she bent over backward to accommodate the RNC.