The "gray area" that isn't

Why the White House explanation for missing e-mails doesn't hold up.

By Tim Grieve
Published April 12, 2007 6:01PM (EDT)

In trying to explain away the White House's failure to maintain e-mail messages Karl Rove and more than 50 other administration officials have sent using private, RNC e-mail accounts, White House spokesman Scott Stanzel suggested today that the e-mails might have fallen into some sort of hard-to-navigate "gray area" in the law.

"There are official business e-mails, there are political business e-mails, and then there is also this gray area," Stanzel explained. "And that's where employees have to make a judgment. And some employees, out of an abundance of caution, could have been sending official business e-mails on their RNC political account."

The problem with Stanzel's argument: The Presidential Records Act specifically acknowledges the existence of communications that are part official and part political -- and it requires that they be preserved.

From 44 U.S.C. Section 2201: "The term 'presidential records' means documentary materials ... created or received by the president, his immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise and assist the president, in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the president. Such term ... includes any documentary materials relating to the political activities of the president or members of his staff, but only if such activities relate to or have a direct effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the president."

And from 44 U.S.C. Section 2202: "The United States shall reserve and retain complete ownership, possession, and control of presidential records; and such records shall be administered in accordance with the provisions of this chapter."

The not-so-hard-to-understand import of it all: Even if an e-mail message involves "the political activities of the president or members of his staff," it belongs to the United States -- and therefore must be preserved -- so long as it relates to the official duties of the president.

In other words, the "gray area" isn't gray at all.

Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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