E-mails? What e-mails??

Lawyer Andrew Cohen analyzes legal affairs for CBS News and CBSNews.com.
Let's play a game this Tuesday. See if you can guess who/which organization offered this gem: "The rule of law, the very foundation for a free society, has been under assault, not only by criminals from the ground up, but also from the top down. An administration that lives by evasion, coverup, stonewalling, and duplicity has given us a totally discredited Department of Justice. The credibility of those who now manage the nation's top law enforcement agency is tragically eroded. We are fortunate to have its dedicated career workforce, especially its criminal prosecutors, who have faced the unprecedented politicization of decisions regarding both personnel and investigations."

Is the answer: 1) A Democratic loudmouth on the Senate Judiciary Committee? 2) A smarmy Democratic presidential candidate? 3) The relentless folks from moveon.org? 4) That guy on HBO who is less funny than he thinks he is? Nope. The correct answer is, surprise surprise, the 2000 Republican National Platform. That's right. The platform upon which President George W. Bush first ran for and won the presidency contained precisely the sort of language that his most strident critics might be tempted to use today as the U.S. Attorney scandal swirls downward to a whole new level.

I found the quote researching Monday's news from the House of Representatives Oversight and Government Reform Committee, which issued a draft report highly critical of the White House's use of Republican National Committee email accounts for official business. Worse, many of those emails now apparently are missing, which means that White House officials were effectively able through use of their RNC accounts to make an end-run around the Presidential Records Act. Their communications now are not part of the historical record of the Bush Administration, circa 2001-2009, despite the federal law that requires the maintenance of such records.

The White House said Monday that the RNC accounts were used so that government officials could not be accused of violating the Hatch Act, a federal law that prohibits federal employees from using governmental facilities (like email accounts) for partisan political purposes. And, indeed, if all this were about were White House officials using partisan political email accounts to conduct partisan political business it would be no big deal. But this story is about a lot more because investigators now will be unable to determine fully whether or not those RNC accounts were used for official (i.e. taxpayer-funded business).

Even if you are unwilling to assume the worst, which is that these officials purposely used their RNC email accounts to evade their legal duties under the Records Act, the result is unacceptable. One of the ways in which we can hold accountable our public officials is to be able, contemporarily or retrospectively, to check upon the details of their day-to-day work on our behalf. You take away the chance to check the books and you take away a large part of the oversight function that the President Records Act was designed to ensure.

In other words, the Hatch Act and the Presidential Records Act were never meant to be mutually exclusive. White House officials for decades have been able to comply with both. People wonder why Congressional Democrats keep pushing ahead with the U.S. Attorney investigation. Monday's dismaying news about hidden emails is just one of many reasons.