John McCain has caught his share of flak for not knowing his way around e-mail. But as his running mate has been discovering over the past week, being a bit too clever with e-mail has its pitfalls as well. As Sarah Palin seeks to beat back charges that she improperly used her position as governor to urge the firing of her estranged brother-in-law, an Alaska state trooper, internal documents suggest that her staff may have hoped to channel sensitive correspondence through unofficial personal e-mail accounts to evade potential subpoenas.
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"Troopergate," as the iron laws of American political scandal nomenclature dictated the fracas would be dubbed, began as a dispute worthy of Judge Judy: Palin's sister was embroiled in a nasty divorce and custody dispute with State Trooper Mike Wooten, and the newly elected governor made no secret of her displeasure that the ex-in-law was not yet an ex-lawman. The family tiff blossomed into a full-blown ethics investigation after Palin dismissed public safety commissioner Walt Monegan, who has claimed his refusal to fire Wooten led to his own termination.
Palin has indicated she won't cooperate with the investigation, which she regards as "tainted" by political motivations, but the McCain-Palin campaign yesterday released a batch of e-mails that her lawyers say demonstrate Monegan was fired for insubordination. But over the past week, press attention has focused on other e-mails that Palin appears more reticent about releasing. In response to a request filed by a conservative activist under Alaska's Public Records Act, Palin sought to invoke executive privilege in order to withhold some 1,100 e-mails (PDF), many of whose subject lines suggest little connection to sensitive policy deliberation.
Gov. Sarah Palin Moreover, Palin's appeal to executive privilege appears to be at odds with a strategy she discussed with aides in correspondence obtained by the Washington Post and New York Times: using unofficial e-mail accounts, like "gov.sarah@yahoo.com" and personal devices like BlackBerries to shield communications from subpoenas as official public records. As bloggers were quick to note, this was the same tactic adopted by White House aides worried that their correspondence could be disclosed to investigators probing the allegedly political firing of US attorneys.
Even before the US attorney scandal, the present administration had exhibited a spectacular gift for losing track of digital correspondence. Thanks to a purported upgrade implemented soon after the Clintons cleared out, the White House e-mail system was left without an effective means of archiving correspondence. Millions of e-mails vanished at least temporarily, and thousands may well be gone for good: A leaked memo suggested, at any rate, that there is little hope of completing the recovery before a new president is sworn in.
Whether the Yahoo-loophole exploited by Palin holds up would depend on how courts interpret the relevant Alaska statues, according to Meredith Fuchs, an attorney with the National Security Archive at George Washington University. "It is a basic tenet of legal ethics that records should not be destroyed if litigation is anticipated," Fuchs told Ars. "If one anticipates litigation, then the destruction of the evidence is called 'spoliation' and in some cases is subject to court sanctions."
That's not to say that alternation between official and unofficial channels is some nefarious Republican invention. One former Democratic congressional staffer with whom Ars spoke noted that colleagues would typically switch to personal mobile phones or e-mail accounts when discussing electoral campaign activities—a form of fuzzy half-compliance with the ban on using congressional office resources for partisan campaign purposes. (Perhaps that's why Palin staffer Ivy Frye waited until a Saturday evening to phone up blogger
Sherry Whistine. Whistine, a conservative critic of Palin's, told Ars that Frye angrily demanded she—and perhaps others on what the blogger termed the "Poison Ivy call list"—stop attacking the governor.)
Even if all this proves technically permissible, however, it can't do much good for Palin's straight-shooting reformer image to have traded her official account for Yahoo as a means of avoiding transparency. As with so many political scandals, the cover-up may prove more damaging than the underlying controversy. But if a suit launched Tuesday by five GOP state legislators that aims to end or delay the Troopergate probe until after the election succeeds, Palin stands a good chance of shrugging off the fracas. And it seems even more unlikely that the Bush administration will face any real consequences for its record-keeping failures.
One nagging question, then, is whether these cases don't illustrate the double-edged nature of transparency and "sunshine" rules. Regulation of the intelligence community may make abuse of power less likely, but it makes it downright inconceivable a future generation of spymasters would pen the candid memos, openly admitting criminality, uncovered by the Church Commission in the 1970s. Faced with strong disclosure obligations, public officials may find ways to game the rules and simply avoid leaving trails—paper or pixelated—if there's the slightest doubt about the propriety of their communications. That's surely no reason to abandon the ideal of more open government, but is a reminder that the law of unintended consequences remains in effect. In some cases, at least, eternal sunshine yields the spotless drive.
Read MoreLabels: abuse of power, emails, Independent Investigation, sarah palin, sherry whitstine, yahoo email server
