Security TV: Beware of the early morning phish
There comes a time in every news cycle when we need (once again, in an apparently never-ending process) to educate over-enthusiastic and somewhat less-than-informed journalists about the laws pertaining to White House email.
This time, it's Politico, which headlined with "Kushner used private email to conduct White House business," and Newsweek with "Ivanka Trump used a personal email account for government work: exclusive."
Before I dive back into the facts of White House email life once again, let's get the inevitable political squabble over with. This article will not declare President Donald Trump's son-in-law, Senior Advisor to the President and Director of Office of American Innovation Jared Kushner, or the First Daughter and Advisor to the President Ivanka Trump guilty or innocent of anything, email or otherwise.
Instead, we're simply going to look at the question of private email and White House business, whatever that might entail.
What the law says
Let's get started with the big fact that many journalists either overlook or don't understand. The law requires that individuals in the White House sometimes use personal (i.e., not government operated) email.
As absurd as it may seem -- and it is absurd -- there is a law, called the Hatch Act that specifically prevents government resources from being used for certain White House communications. You could write a book about the national security problems this law creates (and, in fact, I did), but the bottom line remains the same. White House officials must -- must, must, must by law -- sometimes use personal, private resources to communicate.
The Hatch Act, formally "An Act to Prevent Pernicious Political Activities," was passed in 1939. The astute student of technology history will notice that the law predates email. Initially sponsored by Democratic Senator Carl Hatch of New Mexico, the act was proposed to federal employees from using federal funds or federal resources for political activities.
Since 1939, the Hatch Act has been interpreted to prevent the use of resources, like government email systems, for political activities. There are some loopholes. Certain executive branch officials can use government resources while campaigning, like the President's use of Air Force One during a campaign.
Even so, most employees of the executive branch have been asked to exercise what Bush Administration Deputy Press Secretary Dana Perino described as "an abundance of caution," and use personal email whenever something with a political element might be discussed.
The next law journalists need to be familiar with is the Presidential Records Act (PRA). This bit of legislation goes back to 1978 and is not nearly as simplistic as most reporters would imply. The PRA governs who owns presidential records, who controls and manages presidential records, and when presidential records become available for the public to see.
Of most import to our discussion, the Presidential Records Act also specifies what is considered a record, and therefore exactly what needs to be stored, managed, and eventually made public. Here's a hint: It's not everything.
The best document I've found on understanding the Presidential Records Act and the White House is the National Archives Guidance on Presidential Records, published by Archivist of the US David S. Ferriero in 2016.
The key takeaway from the guidance is that there are personal records and presidential records. Presidential records must be preserved. Personal records are not subject to PRA preservation requirements. Ferriero cites 44 U.S.C. § 2201(3) as "documentary materials or any reasonably segregable portion thereof" that are "are of a purely private or nonpublic character, which do not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President."
The Act includes in its definition of personal records this description: "diaries, journals, or other personal notes serving as the functional equivalent of a diary or journal which are not prepared or utilized for, or circulated or communicated in the course of, transacting Government business," "private political associations," and "materials relating exclusively to the President's own election to the office of the Presidency."
If there's a discussion about the national security implications of imposing sanctions on North Korea, it's a presidential record. If it's a discussion about whether imposing those sanctions will poll well, it's not a presidential record.
There's a bottom line to all this that journalists can keep in mind. If the records or communication are specifically about the running of the country, then they're probably presidential records. But if the communication is about all the political tomfoolery that surrounds running the country, it doesn't qualify as a presidential record, the National Archives doesn't want it, and would generally prefer that it all be discussed outside of government channels.
Evaluating the two news stories: Are they really news?
Given what we now know, let's subject the two reports I cited above to that rubric. First, let's look at Politico's discussion of Kushner conducting "White House business."
From a headline perspective alone, there's no way to tell if Kushner's emails qualify as presidential records or political machinations. The relevant quote from the article is the following:
Kushner uses his private account alongside his official White House email account, sometimes trading emails with senior White House officials, outside advisers and others about media coverage, event planning and other subjects, according to four people familiar with the correspondence.
While the description of email content is vague, discussions about media coverage and event planning (unless it's plans from the Secret Service advance security teams) clearly do not qualify as presidential records. The phrase "other subjects" leaves the question open, but from the way the article is written, it's entirely likely that there's no news here. The "White House business" Kushner discussed using "personal email" was most probably both subject to Hatch Act restrictions and qualified as personal, not presidential records.
The Newsweek article is equally questionable. Here's the smoking gun statement from the article:
The documents show that on February 28, Trump-identifying herself as Ivanka Kushner-emailed Linda McMahon, the administrator of the United States Small Business Administration, from a personal domain. At the time, Trump was operating inside the White House in a non-official capacity. She wrote that she wanted McMahon's agency and her staff to "explore opportunities to collaborate" on issues related to "women's entrepreneurship." She copied on the correspondence the government email addresses for two other federal employees, Dina Powell and Julie Radford.
Given that the First Daughter was not an official member of the administration at the time, none of her communication would be subject to the PRA in any way. In fact, it would, at the time, have been inappropriate for her to be using government email services. Once she became Advisor to the President, an unpaid government employee position, it would be more appropriate for her to use government email services for government business.
Even were Ms. Trump to have been a government employee at the time, it's unclear whether an offer to collaborate would meet the rubric of a presidential record: "conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President."
I've looked at that email chain, provided through a Freedom of Information Act request by the nonprofit American Oversight. While an offer to collaborate with a government agency may meet the rubric of a presidential record, there's one other fact to keep in mind. Presidential records do not need to be created only using government communication systems.
In fact, the way email was recorded as a government record for a very long time was to print it out. In an April 12, 2007 press briefing, then-Deputy Press Secretary Perino described the White House's approach to archiving email:
So you would either print it off, or you would forward it to another email, to your personal account -- I'm sorry, to your White House account, in some way keep that so that in the future, if the Counsel's Office needed to look back at those records, that they would have access to that. And in addition to that, I believe that individuals will just have to sign off that they got the policy and that they understand it, and that they will follow it.
This means that even if Ms. Trump were using a personal email account to discuss non-classified government business (like setting up a meeting), and even if it were to be considered valid as a presidential record, all that would be required to meet the standards of the Act is to print out or forward a copy of the message for archiving.
The bottom line
There are serious concerns with the current administration, as evidenced by the existence of special counsel Robert Mueller's investigation. It is therefore particularly important for reporters and members of the press to get their facts right.
While neither of those reports really qualify as what the president tweets as #FAKENEWS, the fact is neither report is complete or accurate. If those reports were complete, they would, in fact, be non-stories.
Are there real smoking guns in the Trump administration? We'll have to wait for Mueller's report to find out. But if the press wants to investigate this (or any other president, as I did when President Bush was in office), it's absolutely necessary to research carefully, report honestly, and not "cry wolf" at every story that might drive a few clicks.
You can follow my day-to-day project updates on social media. Be sure to follow me on Twitter at @DavidGewirtz, on Facebook at Facebook.com/DavidGewirtz, on Instagram at Instagram.com/DavidGewirtz, and on YouTube at YouTube.com/DavidGewirtzTV.
PREVIOUS AND RELATED COVERAGE
It's important to remember that whatever you post on social media may be around forever.
Federal law actually requires private email server use. White House email expert David Gewirtz sets the record straight and details the true risks of the president's use of Android and Twitter.