Executive Privilege

EXECUTIVE PRIVILEGE….Last week we learned that Karl Rove and the White House staff have routinely used their RNC accounts to send email as a way of evading congressional oversight. “We knew E-mails could be subpoenaed,” an aide told U.S. News & World Report. “We saw that with the Clintons but I don’t think anybody saw that we were doing anything wrong.”

So what does this mean? NYU law professor Daniel Shaviro says, “The easy and obvious point is that anything Rove sent out in an e-mail from his RNC address is not privileged.” But then, drawing on an analogy with attorney-client privilege, he suggests it may mean even more:

A further interesting question is the extent to which using RNC e-mails to communicate stuff about meetings with Bush et al should be viewed as a further waiver of other executive privilege claims, at the limit on everything pertaining to the meetings and topics discussed in the RNC e-mails. On this point I would have to defer to those more knowledgeable than I am about how the attorney-client privilege is interpreted and applied.

In other words, if staffers were primarily discussing the U.S. Attorney firings on personal and RNC accounts, that implicitly means that they themselves weren’t treating it as the kind of official business that would be protected by executive privilege. Alternatively, if they were using private accounts specifically to evade legitimate congressional oversight, then executive privilege claims might also fail for all their other communications as well.

So: too clever by half, as Josh Marshall asks? Is it possible that by using RNC accounts they’ve essentially waived executive privilege claims completely in this matter? It’s an intriguing suggestion, isn’t it?