While Congress has been sharply critical of the executive branch for large gaps in its e-mail archives, both the House and the Senate would fare much worse if their own e-mail preservation systems were to come under the same scrutiny.
It’s not a difference of capability as much a difference of Constitutional roles, legal experts say. The Constitution gives the executive branch a clear-cut hierarchy — hence a bureaucracy that naturally would preserve its records.
But Congress is set up as hundreds of autonomous, elected offices — an archivist’s worst nightmare.
“The fact of the matter is Congress still is decentralized. Each Member, each committee makes its own decision,” said Stan Brand, a former House general counsel. “Each office is unique in terms of how Members decide to represent constituents and that flows down to what kind of records to keep. There’s a reluctance to regulate that.”
Still, the importance of such records in government investigations is self-evident: Most recently, critics berated the White House for deleting several years’ worth of electronic records by reusing backup tapes — a move that may have erased important information on the lead-up to the Iraq War.
Similarly, the thousands of e-mails that Members and staffers send every day can re-create the entire legislative process, from negotiations on bill language to discussions of floor votes.
They also include the mundane, the personal, the flippant — and in same cases, the criminal.
But if the House or Senate were pressed to produce those e-mails, it probably would come up with even fewer than the White House.
Neither the House nor the Senate have a centralized system that preserves e-mails. And they’re not held to public-records laws such as the Freedom of Information Act.
“The statutes, the legislation, the laws that govern the executive branch don’t apply,” said Charles Tiefer, a former longtime deputy House counsel who is now a law professor at the University of Baltimore. “That’s not from a desire of Members to keep themselves immune from the law. Rather, it’s that basically the executive branch is a bureaucracy and the idea is that a bureaucracy should have the time to keep records.”
But should Congress begin to address the preservation of e-mails, despite its statutory exemption and constitutional structure?
The issue is now more relevant than ever: Former Rep. Mark Foley (R-Fla.) used e-mails and instant messages to send lewd comments to underage pages, and Rep. William Jefferson (D-La.) is in the middle of a battle over whether his computer files were legally taken by FBI agents investigating whether the lawmaker took bribes from officials in Nigeria and other African countries.
“It might be that the House rule about the handling of records under subpoena should include a provision addressing the handling of e-mail and computer records under investigation,” Tiefer said. “That would save the House from embarrassment when a Congressman like Foley is able to stall out an investigation for lack of any effective way to resolve issues about his e-mail.”
But any such step seems a ways off.
The House Administration Committee is looking into ways to archive House committee electronic records, spokesman Kyle Anderson said. But how they will do that is not yet clear.
The committee has the power to set regulations for the legislative records of House committees, which must hand over certain documents to the National Archives for storage. Most of those records are held for 30 years before becoming public.
Currently, the Clerk of the House gives recommendations to committees on which records to archive. But the committees still make the final decision, which means committee staffers and members, not outside archivists, decide which e-mails are important for preserving the legislative historical record.
In the Senate, preserving e-mails and other electronic files is “an evolving process,” said Karen Paul, an archivist in the Senate Historical Office. Since its establishment in 1975, the office has actively sought ways to preserve electronic records, she said. Record-keeping systems have changed constantly, “starting with typewriters,” she said.
By the end of the 109th Congress, one Senator’s office became the first to archive all of its records electronically. Most offices still keep much of their legislative record on paper — including e-mails, which they print out before storing. Paul’s office gives recommendations on what to keep, but for the most part, offices make their decisions on their own.
“There are a hundred Member offices,” she said, “and they do set their own retention policies.”
There is even less guidance on whether and how to save personal and nonlegislative e-mails — the kind investigators find especially useful in criminal investigations.
In the Senate, a server keeps e-mails from a majority of offices for two weeks; then, much like the White House, the backup tape is overwritten with new e-mails.
The House preserves its server information for a specific period of time, though officials wouldn’t give any details on the system because of “information security.”
In both bodies, the purpose of any backup is not preservation; rather, it keeps immediate records safe in case of a computer failure.
It’s partly a problem of quantity. The vast majority of the e-mail that goes in and out of Congress is constituent correspondence, Tiefer said. Saving and organizing all of it would mean more record keepers, more money — essentially, more bureaucracy.
And it’s not just a question of the number of e-mails, Paul added. E-mails are essentially useless unless they’re categorized, because it would take “zillions” of hours to find one otherwise, she said. That became clear when the National Archives collected the endless batches of e-mails saved during the Clinton administration.
Instead, Members and staffers have to learn which e-mails are important and save those messages themselves, she said. But they can erase or throw away what they choose.
“The challenge is to get people to archive,” Paul said. “In terms of e-mail, I think it’s always going to be that way, unless you got a system that takes it and is smart enough to categorize it.”
But Congress is still fairly new to e-mail security. Unlike the executive branch, it hasn’t had widespread scandals that include electronic records, Tiefer said.
The White House, on the other hand, has been dealing with it for years. Intranet messages, a precursor to e-mails, were used during the Iran-Contra scandal in the late 1980s, opening the door for tightened rules on what electronic records needed to be kept, and what is open to investigation.
The Jefferson and Foley scandals may have a similar effect in Congress, Tiefer said.