January 09, 2017 | Tom Fitton
Many officials in the Obama administration, and not just Hillary Clinton, improperly used personal email accounts to conduct official business. And we are concerned that they will destroy these emails when they leave office this month.
For that reason, we asked a federal court to preserve the personal email accounts of Department of Homeland Security Secretary Jeh Johnson and other top officials. Judge Randolph D. Moss held a court hearing last week.
We had filed a Freedom of Information Act (FOIA) lawsuit seeking agency records in the personal email accounts used by Secretary Johnson, Deputy Secretary Alejandro Mayorkas, Chief of Staff Christian Marrone, and General Counsel Stevan Bunnell to conduct official government business (Judicial Watch v. U.S. Department of Homeland Security (No. 1:16-cv-00967)).
The lawsuit has already uncovered documents showing that Johnson and other top DHS officials were exempted from a strict ban placed on web-based personal email accounts despite heightened security concerns.
The order for the hearing follows a Motion for Preservation Order filed by Judicial Watch on December 22. In that filing Judicial Watch asked the court to issue a preservation order for the non-.gov emails of Johnson, Mayorkas and Bunnell because their departure from government service is anticipated upon the installation of the new administration and Homeland Security will no longer have any control over these individuals:
“The records at issue are in the physical possession of three current agency officials and one former agency official. With the upcoming change in administrations on January 20, 2017, it is likely that the three officials currently in office (Secretary Jeh Johnson, Deputy Secretary Alejandro Mayorkas, and General Counsel Stevan Bunnell) will leave government service.
“Counsel for DHS has informed [Judicial Watch’s] counsel that DHS has ‘asked’ these officials to preserve the agency records in their possession. DHS’ counsel declined to provide any evidence supporting this assertion. Because [Judicial Watch] does not know specifically what DHS asked its employees to do and what, if any, other steps DHS has taken to ensure preservation, Plaintiff is concerned DHS’s mere requests to its employees are insufficient. This will be particularly concerning once the officials possessing the emails leave government employment, as the agency will have no control over the actions of these officials.
“A court order requiring preservation of these emails is particularly necessary now as DHS has suggested that these officials may have been acting without authorization by sending emails from these accounts … . As such, there is no assurance that these officials will abide by a ‘request’ by the agency to preserve these emails, particularly after their employment ends.
“An order requiring DHS to take steps to preserve the agency records at issue is consistent with an agency’s recordkeeping responsibilities to retain and manage government records subject to the Federal Records Act … . If the agency officials are permitted to leave their employment while retaining agency records in their personal email accounts, it risks creating a situation comparable to that of former Secretary of State Hillary Clinton. In that instance, it is undisputed that only a portion of Secretary Clinton’s emails eventually were returned to the agency.
“[Judicial Watch] respectfully requests expedited consideration of this motion in light of the likely imminent departure from government service of the three agency officials possessing agency records in their personal email accounts.”
The court hearing exposed that the Obama administration has done absolutely nothing to retrieve the government records likely on these accounts. The transcript reads:
THE COURT: “But you say to me there’s no reason to doubt that the agency will pursue the records and that they’ll be returned, but it’s been six months. Is there any evidence that anything has been done to retrieve those documents or records?”
MR. HEAPS: “I think that the six months though, your Honor, refers to the time in a FOIA request which is independent of any obligations under the Federal Records Act. And I don’t think we would be in this position with respect to the FOIA case had a valid request been filed or submitted.”
THE COURT: “But put that aside for a second. I mean, the government has been on notice at least since May though that there’s reason to believe that there are e-mails that are residing on individuals’ private servers that are government records, right?”
MR. HEAPS: “Your Honor, the first thing I would point out – and I think it’s important because we’re going back and forth between FOIA and the Federal Records Act, is we don’t have reason to believe – or let me be clear, we don’t know that there are federal records that are in the personal e-mail accounts.”
THE COURT: “So has anyone checked to see if there are? Has anyone asked a question, anything to try and figure that out?”
MR. HEAPS: “I can’t represent one way or the other to that, your Honor.”
As you see in the transcript, we didn’t get our requested preservation order yesterday. But the court did require the government to provide more information and may take action soon. Judge Moss’s follow-up order reads:
“On or before 1/12/2017, the Government is to produce, under seal, for in-camera submission, the preservation requests that it sent to all four of the individuals; The Government is also to file a notice on the public record, on or before 1/12/2017, regarding the in-camera filing, and to indicate the individuals’ intentions with respect to abiding by the preservation requests.”
I told reporters after the hearing that Obama administration was creating another “Hillary Clinton-type email disaster with eyes wide open.” But as with the Clinton emails, Judicial Watch is on the case, and our attorneys will try to use the courts to enforce the rule of law and preserve your right to know.
Tom Fitton is the President of Judicial Watch, the public interest group that investigates and prosecutes government corruption.