Last Monday, the New York Times reported that at least six members of President Trump’s White House team used private email accounts to discuss government business.
According to the Times and a separate report by Politico this week, the president’s son-in-law and adviser Jared Kushner, along with daughter and adviser Ivanka Trump, former chief strategist Stephen Bannon, former Chief of Staff Reince Priebus, and advisers Stephen Miller and Gary Cohn, used personal email accounts to conduct White House business.
Hillary Clinton called this the “height of hypocrisy,” since Trump spent much of his campaign calling for her to be locked up for her use of a private email server while serving as secretary of state.
But is it actually illegal for White House staffers to use private email to conduct government work? I reached out to seven legal experts and asked for clarification.
Most agree that we don’t know enough to draw any definitive conclusions. But former federal prosecutor Renato Mariotti told me it could be “a violation of a non-criminal law called the Presidential Records Act unless they forwarded all of the private emails to their public accounts within 20 days.”
That 20-day mark will become extremely significant if the reports are proven accurate. If private email correspondence was forwarded to public accounts within this window, there is virtually no chance of criminal charges. If not, everyone above could face legal issues.
Another potential crime has to do with the sharing of classified information. According to Lisa Kern Griffin, a law professor at Duke University, “If classified information was transmitted over personal accounts, that may have compromised national security.” Since we don’t yet know what was discussed on these private emails, this remains an open question.
Nearly all the experts agreed on at least one non-legal point: If there were a law against hypocrisy, the Trump administration would be guilty a hundred times over. And while that may not result in legal issues, it ought to be a political problem for an administration already awash in scandals.
The seven legal experts’ full responses, edited for clarity and style, are below.
Renato Mariotti, former federal prosecutor, 2007-’16
While it’s ironic that White House officials are using private email accounts for official business, given Trump’s calls to “lock up” Hillary Clinton for her use of a private server, their use of private email is almost certainly not a crime. But it is a violation of a non-criminal law called the Presidential Records Act unless they forwarded all of the private emails to their public accounts within 20 days.
In addition, there are rules requiring government employees to encrypt “For Official Use Only” information when sending it via email. Violating the Presidential Records Act or these rules would likely result in discipline or termination, depending on the seriousness of the infraction.
Lisa Kern Griffin, law professor, Duke University
In the firestorm of profiteering, norm violating, and potential criminality that characterizes the Trump administration, the private email accounts may be yet another story that is quickly forgotten. But whether or not the emails create new legal issues, they should be a political problem.
Hillary Clinton’s allegedly “corrupt” use of private email was a flashpoint throughout the campaign, and President Trump continues to whip his supporters into chants of “lock her up” even though the FBI investigation is closed. That Jared Kushner and Ivanka Trump set up a private domain of their own during the transition reaches new heights of hypocrisy, arrogance, and above-the-law-ism.
As for whether use of their private accounts violated the law, that remains to be seen. If government-related correspondence was not copied and retained, that would be a violation of the Presidential Records Act. If classified information was transmitted over personal accounts, that may have compromised national security. White House aides who used their private email were certainly foolish and were also flouting express warnings from the National Security Agency about breaches by foreign intelligence.
It is also possible that this forms part of a pattern of concealing communications with the Russians, a pattern in which the Senate Intelligence Committee and special counsel Robert Mueller are clearly interested and which may help prove an intent to obstruct.
Andy Wright, law professor, Savannah Law School
All the Trump White House staff who have communicated on non-official devices over 20 days ago without forwarding them to an archived account have violated the law. The Presidential Records Act requires that almost all communications with White House staff on official matters need to be preserved.
The act, 44 USC Chapter 22, requires that records “demonstrating the activities, deliberations, decisions, and policies that reflect the Performance of the President’s constitutional, statutory, or other official or ceremonial duties” be “preserved and maintained.”
Section 2209 says White House staff such as Jared Kushner “may not create or send a Presidential or Vice-Presidential record using a non-official electronic message account” unless they copy an official account or forward it to an official account “not later than 20 days” after it was created. If they failed to do so intentionally, they may be subject under the act to administrative sanctions including removal, suspension, demotion, or pay penalty.
The more significant issue is how personal device use will affect ongoing criminal and congressional investigations. Widespread use of non-archived devices raises investigator suspicions. The White House staff who have engaged in such conduct have now jeopardized the privacy of their personal email accounts, text messages, and social media accounts. It will make it harder for the White House to narrow the scope of document productions.
Recall that email production compliance related to Benghazi morphed into investigative interest in all of Secretary Hillary Clinton’s emails. It has already prompted a separate, bipartisan records management investigation by my old committee, House Oversight and Government Reform.
Jessica Levinson, law professor, Loyola Law School
When it comes to the use of private email accounts by White House officials, what we are worried about is preserving public records. White House officials who use private email accounts for government business must forward those emails to government accounts, as these emails must be preserved under the public records law.
The issue here is really one of irony and hypocrisy more than illegality.
Victoria Nourse, law professor, Georgetown University
The use of personal email for official business was barred by the Presidential Records Act Amendments of 2014. Here is the specific language:
An officer or employee of an executive agency may not create or send a record using a non-official electronic messaging account unless such officer or employee — (1) copies an official electronic messaging account of the officer or employee in the original creation or transmission of the record; or (2) forwards a complete copy of the record to an official electronic messaging account of the officer or employee not later than 20 days after the original creation or transmission of the record.
Intentional violation of this provision subjects the employee to internal disciplinary action by the express terms of the same amendments to the Presidential Records Act. As in many instances, the real sanction here is likely to come if one has lied about this to a congressional committee or in other proceedings under oath. If asked about the use of personal email in such a proceeding, a false statement is subject to penalty for perjury.
Heidi Kitrosser, law professor, University of Minnesota
Two potential legal issues that come to mind involve compliance with the Presidential Records Act (PRA) and the possibility that classified information was transmitted via these private email accounts. As for the former, PRA violations might have occurred if officials used private accounts for government business without copying the relevant emails to their official accounts for preservation under the PRA. With respect to the latter, given rampant overclassification, there is a reasonable possibility that classified information might inadvertently have been sent or received on these private accounts.
Legal issues aside, I think the larger issue here is the administration’s astounding hypocrisy. Throughout the campaign, President Trump and his supporters focused relentlessly on Hillary Clinton’s use of a private email server, describing it as “bigger than Watergate” and the like. At best, Trump administration officials’ own email practices suggest that they never believed what they said throughout the campaign about the perils of private email usage. At worst, their behavior reflects their belief that the rules simply don’t apply to them.
Eric Columbus, former official at Department of Justice (2009-’14) and Department of Homeland Security (2014-’17)
It’s not illegal for White House staffers to use private email to discuss official unclassified matters as long as they send a copy of the email to their official accounts within 20 days. The specific time limit is mandated by the Presidential and Federal Records Act Amendments of 2014, codified at 44 USC 2209. Notably, this law applies to texts as well, so any staffer who texted about official matters from a private phone but didn’t forward the text to his or her official account within 20 days has violated the law. This isn't a crime, but the law provides that intentional violations “shall be a basis for disciplinary action.”
Incidentally, a different portion of the same law extends this requirement to federal agency officers and employees. But because the law wasn’t passed until after Hillary Clinton had left government, we didn’t hear much about it during the presidential campaign.