Archives probe

National Archives probes Wilbur Ross’ use of private email

By JOSH GERSTEIN

The National Archives and Records Administration has launched an investigation into Commerce Secretary Wilbur Ross’ use of private email for official business, according to a letter made public this week.

The inquiry was triggered by an unflattering profile of Ross last month in the Washington Post, which cited government-related emails the watchdog group Democracy Forward received from Ross’ private account. The group obtained the messages through a Freedom of Information Act lawsuit.

“The National Archives and Records Administration (NARA) has become aware of a potential unauthorized disposition of U.S. Department of Commerce records,” Archives official Laurence Brewer wrote in an Oct. 9 letter to Jennifer Jessup, who serves as Commerce’s Chief Information Officer.

Brewer, who holds the title of Chief Records Officer of the U.S. Government, cited the Washington Post article and noted that it asserted that Ross “used personal email for official business.”

Brewer asked for a response from Commerce within 30 days.

Word of the National Archives inquiry comes as a court fight escalates over Ross’ emails, creating parallels with legal battles during the Obama administration over access to government officials’ personal email accounts. The most famous showdown was over Secretary of State Hillary Clinton’s personal account, which she used in lieu of an official State Department email address during her four years in the Cabinet.

In a court filing Wednesday night, Justice Department attorneys said the Commerce Department should not be required to conduct a direct search of Ross’ personal email accounts even though searches of Commerce Department accounts found 280 email chains over a 16-month period that contained references to one of more of the four private accounts he used.

Many of the messages pertain to Ross’ travel arrangements through a jet-sharing service, NetJets, and were also sent to government accounts to update Ross’ official calendars, the court submissions say. Other emails involve outsiders, including at least one reporter, who initiated contact with Ross through his private accounts.

“On multiple occasions, the Secretary…directed the initial email sender to use his official government email address on future communications regarding agency business,” Commerce attorney Michael Cannon wrote.

The government lawyers stopped short of saying explicitly that they were certain Ross had complied in every instance with a 2014 law that requires federal employees forward official records contained in private accounts to a government account within 20 days. However, Justice Department attorney Johnny Walker suggested that a search of Ross’ private accounts would not result in the watchdog group receiving any messages not already on Commerce’s system.

“Even if the Secretary did occasionally use a personal email account in connection with agency business, those communications are documented in the files already produced,” Walker wrote.

“At issue here is whether Commerce must access and search a high-level official’s personal email account for merely duplicative emails. It should not.”

While the lawyers seem reluctant to ask Ross to search his private accounts for work-related emails, the lawsuit has already led to one request to the secretary: He was asked for and provided his personal email addresses so that searches for related messages could be conducted in official systems.

After Democracy Forward files a response to the government’s submission, U.S. District Court Judge Dabney Friedrich — an appointee of President Donald Trump — will have to decide whether Commerce has met its legal obligations or is required to do more searching.

The D.C. Circuit Court of Appeals ruled in 2016 that emails a government official keeps on a private server or account are not automatically beyond the reach of FOIA. However, the court did not provide clear guidance on how often or under what circumstances federal agencies would be required to search private accounts.

Asked about the National Archives’ inquiry into Ross’ email practices, a Commerce spokesperson told POLITICO Wednesday that the agency is committed to resolving those concerns.

“We look forward to engaging and cooperating with the National Archives and Records Administration on their investigation,” said the spokesperson, who asked not to be named.

In the Post article last month, Ross was quoted as rejecting claims he was defying federal record-keeping laws. “These hysterical, baseless allegations of illegal activity are without merit,” the Cabinet official said, according to the newspaper.

Through the FOIA suit, Democracy Forward obtained evidence that Ross used non-government accounts to send or receive official correspondence about interactions with European trade officials, as well as details on meetings with a German carmakers and American billionaire Bill Koch, the Post reported.

NARA’s inquiry is one of dozens it conducts each year to explore reports and complaints that federal records have been waylaid or destroyed due to accidents or deliberate acts.

Clinton’s use of a private email account as secretary of State became a central issue in the 2016 presidential election, with many Republicans blasting her practice as an affront to transparency and a danger to national security.

However, as many as eight current and former senior Trump administration officials have been reported to use their personal email to conduct official business at least occasionally, including President Donald Trump’s daughter, Ivanka Trump, and son-in-law, Jared Kushner, who serve as senior White House advisers. Ivanka Trump dismissed the reports, saying there was “no equivalency” between her conduct and Clinton’s.