Ethics

One thing we teach in lawyers' ethics is that performing two roles can be dangerous.  Representing two clients, representing one client and the interests of one's own law firm, or any other situation where a lawyer wears two hats instead of one is the beginning of a potential ethics problem.

The same is true for the White House.  The two most common roles there are the official capacity work of a government employee and the personal capacity political work that the Hatch Act allows many political appointees to do during working hours and on government property provided they do not do so at government expense.

I don't like these two concurrent roles and for this reason I urge in Chapter 10 of my book on government ethics that partisan political activity be barred from the White House.  That, however, is not the law.  White House staff members continue to do official and political work concurrently.

They are supposed to use political email accounts and equipment for political work; official email accounts and equipment for official work.  They are supposed to switch between the two depending on which is which.  That is what we tell them in the ethics lectures and that is what the White House staff manual says.. 

The problem with this arrangement is that the staffer is caught between the Hatch Act and the Presidential Records Act.  Send a political email on a government account and you will be accused of violating the Hatch Act.   Send an official email on a political account and then, if the RNC or DNC loses the email, you will be accused of violating the Presidential Records Act.  This Catch-22 sounds all too familiar.

So now we hear that Andrew Romanoff confirmed that Deputy Chief of Staff Jim Messina's email came from a government issued White House account. 

Critics of the Administration claim this in and of itself violates the Hatch Act because the email was political and had to be sent on a political email account.  Not so fast.  If there was any official content in the email -- if it discussed any official government business such as an Administration job -- it was potentially a Presidential record and must be preserved.  Sending it on a DNC email account leaves a Presidential record at the mercy of a DNC server which might be like a certain RNC server we learned about a few years back.  We've been there, done that.

When in doubt, or if an email has both political and official content, the best thing is probably to send it on the official server.  There is almost certainly no added cost to the government, making the risk of a Hatch Act violation minimal.  The alternative of allowing a Presidential record to escape from the White House email system is not a risk worth taking.  If the record is lost, you will be accused of violating the Presidential Records Act and perhaps of engaging in a "cover up".  Maybe even obstruction of justice. 

Of course the best alternative is for a White House staffer not to send email that has any political content on any email account, official or political.   That is the approach I suggest in my book, but unfortunately that is not the law.

It was only time before we would have yet another White House email controversy, and here it is. Wearing two hats while holding two Blackberries just doesn't work.  Never has; never will.