“[L]ack of transparency is a huge political advantage. And basically, call it the ‘stupidity of the American voter’ or whatever, but basically that was really, really critical to getting the thing to pass.” – Jonathan Gruber, architect of Obamacare.
A fundamental pillar of an open and free society is a transparent and accountable government and the reason why Cause of Action Institute (“CoA Institute”) is investigating the use of non-governmental email for official government business by current and former high-level employees at the Department of Justice.
On March 1, 2017, Politico’s Edward-Isaac Dovere tweeted Sarah Isgur Flores, the new spokesperson at the U.S. Department of Justice, used her personal Gmail account to send out an official statement.
Sessions spox & now DOJ employee Sarah Isgur Flores is responding to Washington Post story w/pushback sent from her personal Gmail account
— Edward-Isaac Dovere (@IsaacDovere) March 2, 2017
While public officials, by accident or necesity, use personal devices from time-to-time, the Obama Administration was notorious for using personal email and secretive government email accounts to avoid disclosure.
CoA Institute filed a Freedom of Information Act (“FOIA”) request the next day seeking the statement allegedly sent from Flores’ Gmail account along with all emails sent or received by Flores from a non-governmental email account since January 20, 2017, when the Trump Administration took office.
After a year and a half of waiting for a response, we filed suit on August 1, 2018 to obtain the documents. On September 27, 2018, the DOJ Office of Information Policy (“OIP”) provided a final response on the Flores request and claimed that the records were located in an official DOJ email account:
As is evident from the enclosed records, Ms. Flores forwarded emails sent to her personal account to her official Department of Justice email account, including through an automatic forward. As such, all of these emails were located pursuant to our search of Ms. Flores’ official Department of Justice email account.
OIP’s production included 112 pages of emails showing Flores either forwarding or carbon copying her official DOJ email in late February through the end of March 2017. Yet despite the assurance from OIP that they have provided all the emails sent from a non-governmental account, OIP failed to include the original March 1, 2017 press statement that prompted CoA Institute’s FOIA request. It’s unclear whether Flores failed to forward it to her official account, or if OIP failed to identify and include it in its document production.
The Flores records are only the first production owed to CoA Institute from DOJ in this litigation. The other records at issue concern the use of non-governmental email accounts by former FBI Director James Comey and former FBI Chief of Staff James Rybicki. In a September 20, 2018 Joint Status Report, the FBI’s search for records uncovered more then “1,200 potentially responsive records”:
The FBI has completed its search and has located approximately 1,200 potentially responsive records, some of which may require consulting subject matter experts or referrals to other agencies. It anticipates a four-month processing timeline with the first release on October 31, 2018, and additional releases following on a monthly basis.
The 1,200 potentially responsive records is significant because the June 2018 Department of Justice Office of Inspector General (“IG”) report found “numerous instances in which Comey used a personal email account (a Gmail account) to conduct FBI business,” but only cited five examples. Further, Rybicki claimed that the use of non-governmental accounts was “rare”, and Comey stated that it was only used for documents that would be “disseminated broadly.” From the DOJ IG report:
Comey stated that he did not use his personal email or laptop for classified or sensitive information, such as grand jury information. Comey told us that he only used his personal email and laptop “when I needed to word process an unclassified [document] that was going to be disseminated broadly, [such as a] public speech or public email to the whole organization.”
We also asked Rybicki about Comey’s use of a personal email account. In response to the OIG’s questions and in consultation with Comey, Rybicki sent the OIG an email on April 20, 2017, that stated: In rare circumstances during his tenure, Director Comey sends unclassified emails from his official FBI.gov email account address to [his Gmail account]. (emphasis added)
The information we have thus far casts doubt on Comey and Rybicki’s statements to the IG about the frequency and nature of their use of non-governmental email accounts. As James Comey recently wrote, “little lies point to bigger lies.” Stay tuned.
Kevin Schmidt is Director of Investigations for Cause of Action Institute. You can follow him on Twitter @KevinSchmidt8