As if a political wormhole has opened up between Raleigh and Jefferson City, Missouri Gov. Matt Blunt has been sued over his administration's alleged deletion of e-mail backup tapes to avoid releasing messages concerning the wholesale destruction of public records and the firing of a whistle-blowing state employee.
The story should sound vaguely familiar to North Carolinians who have seen a flap over e-mail destruction arise in the wake of the firing of a state employee, Michael Biesecker reports. Here, it was a group of newspapers that sued the Gov. Mike Easley, and not a special investigative team that sued Missouri's governor, according to a story in the St. Louis Post-Dispatch.
The suit was filed in Cole County Circuit Court by the special investigation team set up by Attorney General Jay Nixon last November to probe allegations that Blunt's staff were destroying office e-mails in violating of state laws governing open-records requests and preservation of public documents.
The suit is filed against Blunt and Dan Ross, the state's custodian of records who works in the Office of Administration and oversees the computer system that handles and preserves e-mails for most of state government.
The suit says the order to delete was made on Oct. 31, less than a week after news broke about the firing a month earlier of Blunt's former deputy counsel, Scott Eckersley. The lawyer maintained that he was fired after raising concerns that the governor's staff was intentionally destroying e-mails that should be preserved as public records.
Blunt has maintained that Eckersley was fired for unrelated reasons.
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Re: Missouri, N.C. e-mail parallels continue
Again, we have the fundamental question: when is it supposed that emails constitute a public document? How many public appointments or public addresses does the governor of Missouri make through the communications tecehnology of personal email? Jeffersonian and Madisonian prerogatives of confidentiality of inter-departmental communications are once agian being nullified or infringed upon through efforts by the press, the legislative branch or other offices of the executive branch to substitute their own opinions for those of the governor as the constitutional head of the executive branch of state government.
It would be interesting to determine to what extent these suits against the right of the governor as head of the executive branch to be the arbiter or editor, in effect, of public disclosure of internal executive branch communications are "journalism-driven." Both states, North Carolina and Missouri, are homes to highly respected schools of journalism and moreover, schools of law, on the flagship campuses of their respective state university systems. Therefore, one hopes that there will be some clarification of the question of whether the University of Missouri and University of North Carolina journalism schools are academically or philosphically neutral as to the merits of these lawasuits or whether they are actively or coincidentally supportive of them.
But since Watergate, we have seen at the federal and state level the activity of offices of attorneys general, press institutions and other governmental and non-governmental entities in seeking to contest or intervene in the administrative decisions of elected heads of executive branches of government. Yet constitutionally, the ultimate remedy for disallowing the actions of a head of an executive branch department is often by the process of impeachment unless individual disagreements can be resolved through judicial rulings in those specific cases.
Nearly every few months or so, we witness the continued and measured release of previous executive branch communications of the presidential administration of Lyndon Johnson by those properly entrusted with the maintenance and oversight of these records in behalf of the former Johnson presidency under the auspices of the LBJ Library at the University of Texas in Austin. It would be interesting to hear the views of such an erudite and articulate former assistant in the Johnson administration as Bill Moyers on the procedures by which judgments over public disclosure of LBJ White House communications have been rendered in the particular case of the Johnson presidential archives as compared with what has happened elsewhere at the federal and state levels in executive branch administrations whose active terms of office have not even been completed.
The open opportunity made available to members of the Nixon administration in the 1970s by Sen. Sam J. Ervin Jr. as chairman of the Senate Watergate Committee to bring forward certain pertinent information relative to the committee's investigation of the Watergate break-in was not fully and frankly accepted and acted upon by some officials from both the Nixon administration itself and the Committee to Re-Elect the President (in the 1972 election), and therefore this missed opportunity by some officials of the Nixon administration to take the lead in providing information to the Ervin committee on just how it had been seeking to determine the facts of the matter and establish the true responsibility for the actual Watergate break-in may eventually have complicated the efforts of subsequent presidential and gubernatorial administrations at the federal and state levels to resolve records-disclosure problems not necessarily related to criminal wrong-doing.
But should the press or should offices of attorneys general have the right to supervise or regulate internal communications among officers of executive branch offices and departments before such times as those officers are lawfully or constitutionally required or obliged to report certain information or disclose certain records to their legislative branch counterparts or to the public?
One possible response to perceived infringements upon their constitutional prerogatives in such cases would be for elected heads of executive branch departments at the federal or state level, whether a President or a governor, to proceed to make their own direct cases and, if necessary, appeals to the judicial branch and argue in the courts in favor of their presumed rights to release various records and make public such informative in a manner and in a time frame consistent with their judgments as to how to carry out the responsibilities of their offices properly and "see to it that the laws are faithfully executed."
Rather than wait for protracted legal actions to be waged against them in such disputes, elected heads of executive branch departmentments, whether in Washington or in the state capitals, should "take the bull by the horns" and actively seek a satisfactorily resolution to questions in these areas of contention before efforts by others to intervene in executive judgments and evaluations take on such momentum and velocity that they become a sort of political driving force in executive branch determinations, stampeding the more deliberate progression of steady reliance upon the constitutionally instructed guidance of these decisions by the executive branch heads themselves.
Of course, in some circumstances executive decisions have to be made promptly or almost immediately to respond to some developing crisis, so there is no substitute for a timely disposition of matters requiring urgent attention. But these disputes over what constitutes an actual and specific "public record" of some sort which therefore ought to be protected or even dislosed to the legislative branch at the appropriate time are generally in a different category.
Meanwhile, press organizations should reflect on whether they cherish their traditional role as "the Fourth Estate" in American republican democracy or whether they aspire instead to a new political status as a veritable fourth branch of government.
David McKnight