Trump Aide Navarro Sued by US Over Private Email Account Records

Bloomberg Law reports that:

The US Justice Department sued former White House trade adviser Peter Navarro, claiming he’s refused to provide the National Archives with emails retained on a private account he used while working for President Donald Trump.

“Mr. Navarro is wrongfully retaining presidential records that are the property of the United States, and which constitute part of the permanent historical record of the prior administration,” the Justice Department said a in complaint filed Wednesday in federal court in Washington, DC.

The US said Navarro used an account on the non-official service called “ProtonMail” to send and receive message that it says constitute “Presidential records.”

Navarro didn’t copy each email that he sent or received on this non-official account to his official government email account and later failed respond to official inquiries from the National Archives, according to the US

Patricia Hurtado, Trump Aide Navarro Sued by US Over Private Email Account Records (bloomberglaw.com), Aug. 3, 2022.

Of course, there is nothing new about this type of activity. See Colin Powell and Condoleezza Rice used private accounts for classified emails, But their emails: Seven members of Trump’s team have used unofficial communication tools – The Washington Post, Ivanka Trump used a personal email account to send hundreds of emails about government business last year – The Washington Post and  Hillary Clinton used private server for official email | PBS NewsHour

A few years ago, in Anne Arundel County, MD:

County Executive Steve Schuh said he uses both a county email address and his personal AOL account to talk about work. He said this is acceptable because Maryland law makes it clear all of that information is subject to public inspection.

“We’re agnostic about what devices people use as long as any county business is disclosable,” Schuh said.

This month, the Schuh administration released thousands of emails from his government and personal accounts in response to a Maryland Public Information Act request from The Capital.

Rema Rahman, Local officials vary on private email use for public business – Capital Gazette (Mar. 15, 2015).

The Maryland Attorney General’s Public Information Manual, states that “email communications from private email accounts and text messages stored on private devices” are public records subject to disclosure under Maryland’s Public Information Act, “if they are made or received by a custodian in connection with the transaction of public business….”  In short, the Maryland Attorney General’s view is that: “Public records are any records that are made or received by a covered public agency in connection with the transaction of public business.”  Id.

Setting aside any statutory record-keeping mandates, one problem with the use of private email accounts is that they may be beyond the control of the governmental entity or private employer, yet within the scope of the duty to preserve.  Clearly, the better practice is to use official government email and devices for governmental communications and official business email for business communications.

The Editorial Advisory Board of the Maryland Daily Record recently wrote an opinion piece, Editorial Advisory Board: Hogan and aides need to get off Wickr | Maryland Daily Record (thedailyrecord.com) (Jan. 24, 2022), stating:

Maryland law provides that: “All persons are entitled to have access to information about the affairs of government and the official acts of public officials and employees.” Some records or  information  are exempt due to privacy or confidentiality concerns; some records may be withheld if the custodian agency determines release is contrary to the public interest. That determination can be challenged.

The Board also wrote:

Compliance with the law and challenges to claimed exemptions become impossible if elected officials send content to other government officials or agencies using software such as Wickr that allows the sender to make the message disappear in, say, two days. This is exactly what Gov. Larry Hogan has been doing.

He recently defended his practice by self-characterizing his communications as “casual conversations or chats with people inside and outside the government about things that are happening in the paper.” He defends his practice by claiming that his messages are not official materials. Problem is, we will never have a chance to independently review these records and verify his self-determination…

The citizens of Maryland should not be required to take Hogan‘s word, or rely on his sole judgment, that these communications are not the subject of the affairs of government, or they are not official acts and were therefore need not be maintained. Even if he was acting in good faith, he may be wrong and his use of the Wickr  software makes independent review impossible.

In response, two legislators, a senator and a delegate, are looking to intervene with a new law. Questions have also been raised by good government advocates asking whether the governor’s use of Wickr violates the Maryland public records requirements, ostensibly enacted to enable public access to archived communications….

There needs to be the opportunity for oversight, and his use of Wickr makes that impossible. There needs to be a chance to contest his determinations that these texts would not have been available in state archives due to their nature. He made that impossible, as well.

We encourage the efforts of members of the legislature to halt the use by elected officials of software that deletes their communications made to anyone in government. Use  of software such as Wickr sends (and erases) the wrong message.

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