Kushner’s Use of Personal Email is No Minor Error
"The role of transparency in a democracy cannot be overstated."
The new revelations of widespread use of personal email for official business by Jared Kushner and five other White House advisers are no minor indiscretion. Rather, they represent the latest episode in a critical systems failure in the Trump presidency — one that strikes at the heart of our democracy.
At issue is the Presidential Records Act, a post-Watergate statute Congress enacted to establish public ownership of presidential (and vice-presidential) records. It obligates the White House and those who work there to preserve all records relating to their official duties. Despite these legal requirements, the first eight months of President Trump’s administration have been marked by stories of deleted presidential tweets, by the use within the White House of messaging applications that destroy the contents of messages as soon as they are read, and now by White House staff using personal email accounts to conduct government business.
Initially there may have been room to argue that the president and his team were simply ignorant of their record-keeping responsibilities, but the emerging pattern makes clear these are the actions of public officials who fail to respect and observe the rule of law. (Disclosure: That is why our organization, Citizens for Responsibility and Ethics in Washington, along with the National Security Archive, sued the president and Executive Office of the President in June to enforce the PRA.)
Trump, like all presidents since 1978, must comply with the PRA. This means he must document and maintain “the activities, deliberations, decisions, and policies that reflect the performance of his constitutional, statutory, or other official or ceremonial duties” — basically everything he does as president, whether it is from the Oval Office or Mar-a-Lago, whether he is using his official Twitter account, @POTUS, or his personal one, @realDonaldTrump.
Just as important, the president can destroy presidential records only after completing a carefully formulated multistep process. First, he must affirmatively determine the non-personal records “no longer have administrative, historical, or evidentiary value.” Second, he must obtain the written views of the archivist of the United States that the archivist does not intend to take contrary action. And third, once he has obtained the archivist’s views, the president must notify the appropriate congressional committee 60 days before the proposed disposal date.
From the president’s own deletion of tweets to the reported use by six members of his senior staff of personal email accounts to conduct White House business, administration members have shown contempt toward these responsibilities. Their actions provide us with little confidence that the president is deleting presidential records only after complying with the PRA’s mandatory three-step process, or that Kushner and other senior staff are taking care to preserve in the White House record-keeping system their emails sent through private email accounts.
These and other lapses are not simply “technical” violations of a somewhat obscure law; they have real-life consequences on matters of great public interest and urgency. Failure to comply with the PRA deprives congressional investigators and special counsel Robert S. Mueller III of a full factual record from which to evaluate claims that Trump’s campaign colluded with Russia in influencing our electoral process, or allegations that the president obstructed justice in his efforts to terminate the FBI’s ongoing investigation. The same failure to follow the PRA may frustrate judicial review of presidential actions; the true purpose of the travel ban Trump imposed by executive order was revealed through presidential tweets. And it leaves the public with a gaping hole in our national history, making it that much more difficult to learn from past mistakes.
While minor, occasional violations of federal record-keeping laws may be common across administrations, the Trump administration has shown a flagrant disregard for these laws, and the result is a systemic pattern of violations. Nor do comparisons to Hillary Clinton’s conduct excuse this behavior. Although she also improperly used a private email account, she admitted her mistake and apologized. The Trump campaign attacked her fiercely and repeatedly for that use, yet top campaign officials such as Kushner went on to knowingly do the same.
The role of transparency in a democracy cannot be overstated. As the Supreme Court has acknowledged in discussing the Freedom of Information Act, an “informed citizenry” is “vital to the functioning of a democratic society” and “needed to check against corruption and to hold the governors accountable to the governed.” The court stressed that for citizens knowing “what their Government is up to” “defines a structural necessity in a real democracy.”
These principles are being sorely tested by a president who seeks to cloak his administration in secrecy to avoid public scrutiny and criticism, whether through the use of hidden unofficial email accounts, the destruction of presidential records, or the refusal to disclose records of visitors to the White House and the “winter White House,” Mar-a-Lago. We can take some comfort in the existence of a legal structure to counter at least some of these actions at the agency level, through statutes such as FOIA and the Federal Records Act. But the president is exempt from these laws, leaving only the PRA as a safeguard against document destruction. It is now up to the courts to hold the president accountable to those he governs by affirming his and his staff’s obligations to maintain and preserve records. Our democracy itself is at stake.