Update 6/20/18: CoA Institute President and CEO John Vecchione discussed this issue with Lars Larson on 6/18/18. Listen to the interview here.
A bombshell report released last week by the Department of Justice Office of the Inspector General (“DOJ IG”) revealed “numerous instances” where former FBI director James Comey improperly used his personal Gmail account to conduct official FBI business. In response, Cause of Action Institute (“CoA Institute”) has filed Freedom of Information Act (“FOIA”) requests with both the Federal Bureau of Investigation (“FBI”) and DOJ IG. CoA Institute has requested access to all emails sent or received by either Comey or former FBI Chief of Staff James Rybricki on any personal, non-FBI account that was used for official government business.
Although the DOJ IG report cites only five examples of Comey’s email misconduct, the report’s language suggests there may have been more incidents. “We found that, given the absence of exigent circumstances and the frequency with which the use of personal email occurred, Comey’s use of a personal email account on multiple occasions for unclassified FBI business to be inconsistent with the DOJ Policy Statement,” the report reads.
Ironically, the DOJ IG’s investigation of Comey’s leadership during the FBI’s investigation into former Secretary Hillary Clinton’s improper use of a personal email server led to the discovery that Comey and Clinton acted with similar poor judgment. “The IG report raises serious questions about Director Comey’s ‘extremely careless’ use of personal email for official government business while investigating Secretary Clinton for similar conduct,” said Kevin Schmidt, the Director of Investigations at CoA Institute in a comment to the Washington Free Beacon. “The report notes that there were ‘numerous instances’ of Comey using a Gmail account for FBI business, and that’s why we have opened an investigation to uncover the full extent of his problematic use of personal email.”
When government employees use unofficial channels to conduct agency business, the Federal Records Act (“FRA”) triggers certain record-keeping mandates to ensure the records generated through these alternate channels are properly captured and retained in accordance with the law. The law requires that if an employee uses an unofficial email account, he or she must provide a copy of that email to the agency. However, in recent years, CoA Institute has learned of numerous instances of federal bureaucrats using unofficial channels to conduct official business and failing, intentionally or neglectfully, to take measures to comply with agency policy and the FRA.
One of CoA Institute’s guiding principles is that Americans deserve an efficient, effective federal government that works for them, not the politically powerful. At Cause of Action Institute, we advocate for a transparent and accountable government free from waste, fraud, abuse, and cronyism, and as such we have been working to prevent government officials from using personal email accounts to skirt transparency and accountability laws.
In 2016, we filed a lawsuit in the U.S. District Court for the District of Columbia to recover all of former Secretary Colin Powell’s work-related email records from a personal email service provider (AOL) after former Secretary John Kerry and Archivist of the United States David Ferriero failed to act on CoA Institute’s FRA notice and FOIA request. Although CoA Institute later won in court when a U.S. District Court Judge denied the federal government’s motion to dismiss, the State Department responded by saying that the emails were “fatally lost” or, even if the State Department cannot prove fatal loss, their obligation to attempt to recover the documents is excusable if they have no “reason to believe” such records are recoverable. This claim contorts both the FRA statute and existing case law on the question. The emails are not those for the State Department to lose; the emails belong to the American people and their fatal loss is unacceptable.
In the DOJ IG report, Comey stated that he did not have any concerns about conducting FBI business on his personal email “because it was incidental and I was always making sure that the work got forwarded to the government account to either my own account or Rybicki, so I wasn’t worried from a record-keeping perspective[.]”
Unfortunately, the key word in the statement is “I.” Comey asks the American people to trust him, and trust that Comey properly submitted all his documents and emails and records to the FBI system. Sound familiar?
Trust is not good enough. FOIA, FRA, and other transparency laws are in place as a safeguard against officials who abuse the public trust. The American people have a right to be suspicious because we have seen that when official government business is conducted outside official channels, documents and information can be “fatally lost.”
Chris Klein is a Research Fellow at Cause of Action Institute.
