November 20, 2018 The Honorable Harold “Trey” Gowdy III Chairman House Committee on Oversight & Government Reform 2157 Rayburn House Office Building Washington, DC 20515 The Honorable Elijah Cummings Ranking Member House Committee on Oversight & Government Reform 2157 Rayburn House Office Building Washington, DC 20515 The Honorable Charles Grassley Chairman Senate Committee on the Judiciary 224 Dirksen Senate Office Building Washington, DC 20510 The Honorable Dianne Feinstein Ranking Member Senate Committee on the Judiciary 224 Dirksen Senate Office Building Washington, DC 20510 Dear Chairmen and Ranking Members: On November 19, 2018, the Washington Post reported that Ivanka Trump, Advisor to the President, made extensive use of a personal email account for official business during 2017.1 The report raises serious concerns about violations of law, including the Presidential Records Act, and risks to national security. According to the Post, the only reason Ms. Trump’s personal email use came to the attention of White House officials—and therefore the only reason Ms. Trump has since stopped using her personal email for official business—was that American Oversight submitted Freedom of Information Act requests for her communications. Americans expect public officials to comply with the law all the time, not just after their transgressions are discovered. Moreover, given the extent to which her father has publicly fixated upon the issue of personal email use by government officials, both during his campaign and since taking office, there can be no doubt that Ms. Trump knew her use of personal email broke the law. As you know, the Presidential Records Act requires the preservation of all official communications, requiring that any communications created or sent using an unofficial account 1 Carol Leonnig & Josh Dawsey, Ivanka Trump used a personal email account to send hundreds of emails about government business last year, Wash. Post, Nov. 19, 2018, https://www.washingtonpost.com/politics/ivanka-trumpused-a-personal-email-account-to-send-hundreds-of-emails-about-government-business-lastyear/2018/11/19/6515d1e0-e7a1-11e8-a939-9469f1166f9d_story.html?utm_term=.a2b2c29afc45. 1030 15th Street NW, Suite B255, Washington, DC 20005 AmericanOversight.org must be forwarded to an official account “not later than 20 days” after it was created.2 It is incumbent on Congress to investigate this matter immediately. Summary of Findings In early 2017, American Oversight submitted Freedom of Information Act (FOIA) requests to several federal agencies requesting their communications with Ms. Trump.3 At the time, Ms. Trump’s unusual position at the White House was under scrutiny. Though clearly engaged in official White House business, the White House insisted Ms. Trump was not a White House employee and therefore, officials argued, she was not subject to government ethics or financial disclosure obligations. American Oversight submitted its FOIA requests to investigate the nature of Ms. Trump’s engagement with federal agencies to assess the legitimacy of the White House’s assertions. Soon thereafter, Ms. Trump succumbed to public pressure and agreed to become an official government employee and to obey the rules applicable to such employees. Based on the public evidence available, this merely formalized what had been true all along; Ms. Trump should have been following ethics and disclosure rules from the beginning. She also should have been obeying cybersecurity rules and recordkeeping laws. In May 2017, American Oversight filed litigation to enforce its FOIA requests and subsequently received copies of emails between agency officials and Ms. Trump.4 The messages revealed that Ms. Trump used personal email for official business after her father took office.5 American Oversight publicized its findings,6 which was newsworthy because Donald Trump, both as a candidate and as president, repeatedly called for former Secretary of State Hillary 2 44 U.S.C. § 2209. On March 31, 2017, American Oversight submitted FOIA requests to several federal agencies: Department of Labor (https://www.americanoversight.org/document/foia-request-to-dol-communications-and-records-of-meetingswith-ivanka-trump); Education (https://www.americanoversight.org/document/foia-request-to-educationdepartment-communications-and-records-of-meetings-with-ivanka-trump); Small Business Administration (https://www.americanoversight.org/document/foia-request-to-sba-communications-and-records-of-meetings-withivanka-trump); Department of Commerce (https://www.americanoversight.org/document/foia-request-to-commercedepartment-communications-and-records-of-meetings-with-ivanka-trump); and Department of Treasury (https://www.americanoversight.org/document/foia-request-to-treasury-department-communications-and-records-ofmeetings-with-ivanka-trump). 4 On May 17, 2017, American Oversight filed suit against five agencies for failure to respond to FOIA requests. On June 8, 2017, American Oversight moved to dismiss SBA from the lawsuit after the agency told us it would comply with the FOIA request and produce records voluntarily. Both the complaint and the SBA dismissal are available on American Oversight’s website (https://www.americanoversight.org/document/complaint-american-oversight-vdepartment-of-commerce-et-al-ivanka-emails). 5 The documents American Oversight received, including messages bearing Ms. Trump’s personal email account, are available here: Treasury (https://www.americanoversight.org/document/ivanka-trump-emails-treasury); SBA (https://www.americanoversight.org/document/sba-correspondence-ivanka-trump); Commerce (https://www.americanoversight.org/document/commerce-ivanka-emails); Education (https://www.americanoversight.org/document/documents-ed-containing-emails-ivanka-trumps-staff). 6 Emails Show Ivanka Trump Used Personal Email Account at White House, available at https://www.americanoversight.org/emails-show-ivanka-trump-used-personal-email-account-white-house. 3 2 Clinton to be jailed for her use of personal email.7 At the time, the extent of Ms. Trump’s use of personal email or the steps she took to preserve her work-related emails were unclear. According to the Post, the answers to those questions are highly problematic. Ms. Trump reportedly used personal email for official business extensively—hundreds of times in only a few months—and did not undertake a preservation practice until after she was discovered by White House lawyers. The Post further reported that, of all White House officials, Ms. Trump was the “worst offender” when it came to personal email use. At the discovery of this fact, precipitated by American Oversight’s FOIA requests, White House officials were “startled” and “taken aback.” Following weeks of non-compliance with the law, once the White House engaged with Ms. Trump about her personal email use, it appears that she, her attorneys, and the White House made efforts to ensure official records were recovered and archived. However, the process of reviewing Ms. Trump’s personal emails and determining which were personal and which were official was reportedly overseen by her personal attorney and it is unclear what role Ms. Trump played in the review or what standard her attorneys used for making the determinations. According to the Post, the White House was never given access to Ms. Trump’s email account, meaning the scope of what was withheld is unknown. At this time, the Post reports that Ms. Trump claims she has turned records over to the White House and that she now uses only her government-issued email account for official purposes. However, the extent to which this is true, and the completeness of her efforts to remedy her conduct, remain unclear. At this time, we are reliant on her word. Investigation Is Required The parallels between Ms. Trump’s conduct and that of Secretary Clinton are inescapable. In both her use of personal email and post-discovery preservation efforts, Ms. Trump appears to have done exactly what Secretary Clinton did—conduct over which President Trump and many members of Congress regularly lambasted Secretary Clinton and which, they asserted, demonstrated her unfitness for office. While much of the rhetoric surrounding Secretary Clinton’s use of personal email was hyperbolic and untethered to the law or facts, the extensive use of personal email by a senior public official raises important questions that merit investigation. • Adequacy of the Collection. Secretary Clinton asserted that she relied on her personal attorneys to review her emails and turn over her official messages to the State Department. She and her attorneys claimed they had been over inclusive in their definition of official, “erring on the side of including anything that might potentially be a 7 Brandon Carter & Megan Wilson, Watchdog: Ivanka Trump used personal email account for government business, The Hill, Sept. 25, 2017, https://thehill.com/homenews/administration/352297-ivanka-trump-used-personal-emailaccount-for-government-business. 3 federal record.”8 Nevertheless, then-candidate Trump and members of your committees raised serious questions both about whether Secretary Clinton turned over all of her official email as well as the propriety of relying on her personal attorneys to conduct the review. As recently as July 2018, President Trump raised the issue of 33,000 allegedly missing Clinton emails at a joint press conference with Russian President Vladimir Putin.9 While it may not have been improper for Ms. Trump to enlist her personal counsel to review her emails in a similar fashion, the public is entitled to know what standards Ms. Trump and her lawyers used when conducting the review. For example, it would not be enough to limit the collection to emails Ms. Trump exchanged with government officials using “.gov” email addresses. As an advisor in the White House, any discussion of current events or public policy issues could qualify as a government record, regardless of whether Ms. Trump was corresponding with a White House aide, a Trump Organization employee, or a personal friend. Questions that merit investigation include: o What guidance did the White House provide to Ms. Trump and her attorneys for reviewing her emails? o Did Ms. Trump delete any messages prior to turning her emails over to her attorneys? If so, what efforts have been made to recover them? o Did the White House or Ms. Trump consult with the National Archives about Ms. Trump’s email use? Have the Archives approved of the process Ms. Trump followed to archive her material? o Did Ms. Trump forward her emails to an official account within 20 days as required by the Presidential Records Act (PRA)? If not, why not? o What training have White House officials undergone to ensure they are complying with both the PRA and other record-keeping laws and regulations? • Classified or Sensitive Information. Under Executive Order 15326, information that could damage national security or foreign relations is properly classified.10 If Ms. Trump sent messages within or outside the administration concerning foreign affairs—including her personal assessment of foreign leaders (such as the Prime Minister of Japan whom she met at Trump Tower) or insight into her father’s thinking about foreign affairs—that information likely is classified. Foreign actors would be highly interested in Ms. Trump’s views on such matters. It is not enough, as the country learned in 2016, that her messages were not marked as classified at the time they were sent; it is the content of the messages that controls. It is imperative for Congress to investigate: 8 Clinton Office Statement on Email Use, Oct. 21, 2015, https://www.nytimes.com/interactive/2015/10/20/us/politics/hillary-clinton-campaign-statement-march-2015.html. 9 Jane C. Timm, NBC News, Fact Check: Trump promoted conspiracy theories. Here’s the truth, July 16, 2017, https://www.nbcnews.com/politics/donald-trump/fact-check-trump-promoted-conspiracy-theories-here-s-truthn891756. 10 E.O. 15326 § 1.4. 4 o What actions, if any, has the administration taken to assess whether Ms. Trump improperly emailed classified information on her personal system? o Were any individuals, including Ms. Trump’s attorneys or any of her interlocutors, exposed to classified or sensitive information without authorization? For example, did Ms. Trump share classified or security-related information with her household staff? • Cybersecurity. According to reports, Ms. Trump used a “homebrew” server (as opposed to a commercial vendor like Gmail) for her email domain, ijkfamily.com. As of November 19, 2018, publicly-available domain registries confirmed prior reports that Ms. Trump’s domain was hosted on Trump Organization servers.11 Accordingly, it is essential for Congress to investigate the following non-exhaustive list of questions: o What cybersecurity measures were in place on Ms. Trump’s family server before and after it was moved to the Trump Organization servers? o Have Ms. Trump’s servers been examined for intrusion by hostile actors or malware? Will Ms. Trump or the Trump Organization turn her servers over to the Secret Service, FBI, or any other agency to examine them? If not, why not? With respect to Secretary Clinton, the FBI concluded that it could find no evidence of intrusion but also could not rule out intrusions.12 Is Ms. Trump able to reach a higher degree of confidence than the FBI? o Do any non-governmental systems—including Ms. Trump’s family server and her attorneys’ computers and the computers of any of her interlocutors—still have Ms. Trump’s official emails on them? If so, what steps are being taken to remove them? o Assuming that Ms. Trump did not personally set up, configure, and administer her private email system—before or after its move to the Trump Organizatio’s servers—did the information technology (IT) personnel employed by Ms. Trump and her husband, Jared Kushner, or the Trump Organization to set up and run this system have access to classified or sensitive government information? Do the IT personnel currently overseeing the email systems hosted on the Trump Organization’s servers have access to classified or sensitive government information? And do those personnel have the appropriate security clearances for the level of access that they may have? • Scope. Given that Ms. Trump undoubtedly knew her use of personal email for official business was not allowed, Congress should investigate what other ways she may have circumvented recordkeeping rules, such as through the use of encrypted chat or message programs, or through third-party direct messaging services on platforms such as 11 American Oversight used the website MXToolbox.com on November 19, 2018, to look up the domain ijkfamily.com. The site returned information that the mail server for the ijkfamily.com domain shared an IP address with the Trump Organization’s mail server. 12 FBI: No evidence Clinton server hacked despite Trump tweet, AP, Aug. 29, 2018, https://www.apnews.com/380b995c9fd94e03b09e6c0fcacf1023. 5 Facebook, Instagram, Gmail, or Twitter. • Consequences. Ms. Trump is an official government employee. Congress should investigate what consequences she faced for violating record preservation requirements. In addition, Congress should investigate what additional training Ms. Trump underwent to ensure she understands the scope of her obligations. • Beyond Ms. Trump. From the outset of the administration, reports indicated senior White House officials made regular use of non-governmental systems to hide their communications. The White House claimed that it had taken steps to ensure it was acting in compliance with the law, including the PRA, and to curtail any misuse of inappropriate communications systems.13 Yet it now appears that Ms. Trump continued to violate the rules long after the White House claimed it had educated employees about their obligations. Accordingly, there is reason to doubt the efficacy of the White House’s efforts. Congress should investigate the steps the White House has taken to ensure employees beyond Ms. Trump are following the law.14 *** Federal law does not prohibit occasional use of personal email for official purposes provided steps are taken to preserve the messages and provided unsecure channels are not used for sensitive or classified information. As the Post’s report shows, however, Ms. Trump’s use of personal email for official business was pervasive. Further, in blatant derogation of the law, she failed to take steps to preserve her messages when she clearly knew that her conduct violated the law. The American public insists that all public officials, including the president’s daughter, comply with federal law. American Oversight looks forward to your prompt and thorough investigation of this serious matter. Sincerely, Austin R. Evers Executive Director American Oversight 13 Dylan Byers, Spicer cracks down on White House leaks, CNN, Feb. 27, 2018, https://www.cnn.com/2017/02/26/politics/spicer-leaks-crackdown/. 14 American Oversight has submitted FOIA requests to federal agencies requesting copies of correspondence involving Jared Kushner’s personal email account or accounts, as well. The requests are available on our website (https://www.americanoversight.org/documents?fwp_document_type=foiarequest&fwp_keyword=kushner%20email). 6 cc: The Honorable David S. Ferriero Archivist of the United States U.S. National Archives and Records Administration 700 Pennsylvania Avenue, N.W. Washington, D.C. 20408 Director Christopher Wray Federal Bureau of Investigation U.S. Department of Justice 935 Pennsylvania Avenue NW Washington, DC 20535 7