Some members of President Trump's Commission on Election Integrity have used personal email accounts for official business — a practice that lawyers for a civil rights group suing the commission over transparency say violates federal law.
BuzzFeed News has confirmed that at least two commission members, Maine Secretary of State Matthew Dunlap and Alan King, a probate judge and election official in Alabama, sent or received messages about commission business at a personal email account.
A spokesperson for Dunlap — one of the Democrats on the committee — said on Wednesday that Dunlap provided personal and work contact information to commission staff when he agreed to serve, and that emails about commission business were sent to his personal account until he asked in early August to use his state government account.
King, also a Democrat, said in an email to BuzzFeed News that he had used a personal email account to exchange a handful of emails with Andrew Kossack, the federal official in charge of managing the commission. King said that he was not told he couldn't use a personal email account, and that his messages with Kossack were about "simple, procedural topics such as when the next meeting will be and where it will be held."
The claims of personal email use came from the Lawyers' Committee for Civil Rights Under Law, which filed a lawsuit against the commission in July claiming it violated federal laws by failing to produce commission records to the public. Lawyers for the group said in a court filing on Tuesday that they learned in a recent conversation with US Department of Justice lawyers that commission members were not using federal government email accounts to do commission business. They said that the use of personal email accounts would violate the federal Presidential Records Act.
Trump made Hillary Clinton's use of a personal email server when she led the US Department of State a central feature of his presidential campaign. His supporters chanted "lock her up" at campaign rallies, in a nod to allegations by her opponents — she was never criminally charged — that she violated federal laws by not using a government account for official business.
Representatives for Vice President Mike Pence, who chairs the election integrity commission, and Kansas Secretary of State Kris Kobach, the vice chair, did not immediately return requests for comment.
Jon Greenbaum, the chief counsel for the Lawyers' Committee, told BuzzFeed News on Wednesday that the group's lawyers had asked DOJ lawyers during a phone call on Sept. 1 how they would review commission members' personal email accounts for any records that needed to be produced to the public. The Justice Department lawyers said they were not going to search personal accounts, Greenbaum said, and would rely on commission members to produce relevant messages.
Greenbaum said the Lawyers' Committee's lawyers took the Justice Department's response as confirmation that commission members were using personal email accounts. He said that DOJ did not provide details about which commission members had used a personal account.
"Everyone is supposed to be using a federal government email account. The statute talks about it," Greenbaum said.
In Tuesday's court filing, lawyers for the Justice Department said they did not recall "making any definitive statements as to email addresses being used by non-federal commissioners," and that the type of email account was not relevant for determining what records had to be produced under the Federal Advisory Committee Act. However, they said that appropriate instructions had been given about preserving documents. A Justice Department spokesperson declined to comment.
Under the Presidential Records Act, which applies to the presidentially created election integrity commission, official records are not allowed to be written or sent via a "non-official electronic message account." There is an exception to that rule if the records are also copied to an official email account.
King, Dunlap's spokesperson and another member of the commission, Mark Rhodes, a county clerk for Woods County, West Virginia, said they had not received federal government email accounts. Dunlap's spokesperson said that Dunlap had forwarded emails sent to his personal account to his state government account, and his office had kept a folder with commission-related correspondence. Rhodes said that he was using his county government email account.
Other members of the 12-person commission did not immediately return requests for comment or referred questions to Pence's office.
The federal district judge presiding over the Lawyers Committee's case, US District Judge Colleen Kollar-Kotelly in Washington, DC, criticized the commission at a hearing on Aug. 30 for failing to follow through on a promise to disclose documents related to commission business before a July 19 meeting, according to the Washington Post.
According to a status report filed in court on Sept. 5 by the lawyers on both sides — the filing that included the Lawyers Committee's claims of personal email account use by commission members — the commission plans to upload materials for its next meeting, scheduled for Sept. 12, to a public website by Sept. 8.
Kollar-Kotelly ordered the commission to file declarations explaining what categories of documents should be subject to public disclosure and how it planned to identify those documents. She also ordered the commission to put together an index listing documents that the commission had collected so far, whether they'd been disclosed, and, if not, how come. The commission is set to file those declarations by Sept. 29.
An attorney for the Lawyers' Committee raised the issue of personal email accounts at the Aug. 30 hearing. According to a transcript, Kollar-Kotelly indicated that the substance of emails, not the type of email account, was what mattered in determining what should be disclosed. She said at the time that the lawyers should discuss how the commission would explain any efforts to collect records from personal email accounts in its forthcoming declarations.
UPDATE
This story has been updated with comments from Alan King.