Federal officials still use personal emails

Opinion

Of Ryan Mulvey and Kevin Schmidt

March 18, 2023 | 14:00

It’s been more than a decade since Hillary Clinton set up a private email server for the “convenience” of using her personal Blackberry instead of carrying a separate work device.

Since then, various federal agencies have developed warnings and prohibitions against public officials using third-party communications systems to avoid conflicting with federal records laws.

But it keeps happening.

The latest culprit: Homeland Security Secretary Alejandro Mayorkas.

Records recently disclosed by DHS to our organization, the Americans for Prosperity Foundation (AFPF), reveal that the agency’s Assistant Secretary for Public Affairs on at least one occasion sent work-related activity to Mayorkas’ unsecured personal email account last year, with Mayorkas. reply back with that account.

The email focused on a “press summary” of media coverage, most of which was redacted as too sensitive for release.

Why a senior DHS communications official would have corresponded with the secretary at a private address remains unknown, but the ease of this act suggests they may have done so before.

As the Clinton case illustrates, public officials using private email and messaging apps for government business is nothing new.

Some may do it to avoid transparency obligations, others just for convenience.

Just last month, for example, the Defense Department’s internal watchdog issued a report that found defense personnel using unauthorized mobile applications for official business, including apps that automatically delete messages.

Because private accounts are generally not subject to federal records laws—and cannot be easily searched through agency records tools—these unofficial communication channels essentially operate in a cloak of secrecy.

And it’s difficult to convince a federal judge that private accounts contain official records, making them challenging to recover.

The records of Mayorkas were disclosed and confirmed to the AFPF under the Freedom of Information Act (FOIA) as part of our ongoing investigation and litigation regarding the Disinformation Governance Board.

DHS insists it has no reason to believe there are more emails from the secretary’s private account. Maybe. But the full extent of the secretary’s use of private email has yet to be determined.

What is most notable here is that evidence of the Secretary’s use of unofficial communication channels arose in the context of the now-disbanded Disinformation Governance Board.

DHS publicly announced the creation of the board last April as part of an effort to “coordinate the fight against misinformation related to homeland security, particularly focused on irregular migration and Russia.”

The development of the board proved controversial, raising concerns about First Amendment violations and suppression of speech.

In fact, DHS failed to detail why it had the authority to set up such a board, as well as its overall goals, mission, and mandate.

These red flags led to skepticism from groups across the ideological spectrum, including American Civil Liberties UnionKnight First Amendment Institute, the Heritage Foundation and Republican members of Congress.

Those concerns were clearly heard, and DHS first put the board on hiatus in May before terminating the charter in August.

Mayorkas’ receipt of work-related email on his personal account may have been a one-time event, but this seems unlikely given federal officials’ findings and the general lack of transparency at DHS.

That’s why AFPF filed a new FOIA request last month to find out exactly how often Mayorkas uses his private email for government business, either intentionally or because other officials send him messages.

DHS failed to respond to this request, forcing us to file another lawsuit last month to secure the release of the requested records. We are still waiting for a response.

This is not the first time Mayorkas and DHS have had problems with the use of private email.

Back in 2014, DHS banned the use of private e-mail for personal use on the agency’s computers, but granted waivers on a case-by-case basis to top officials, including then-Secretary Jeh Johnson and current Secretary Mayorkas, who was then the head of US Citizenship and Immigration Services.

The government never explained why these exceptions to DHS policy were even entertained.

DHS eventually rescinded the exemptions after they were exposed by the media, but cybersecurity experts at the time noted how any private email use created serious security vulnerabilities.

Transparency advocates also expressed concern about the moral hazard of allowing agency leadership to use private email to correspond among themselves, especially when it could lead to federal records being included.

That’s exactly what happened later in 2015 when the private emails of Johnson and then-CIA Director John Brennan were hacked.

Johnson was later forced to also review 26,000 of his private emails to ensure he turned over all official records to DHS.

It’s because of situations like these—both the misuse of private emails along with dubious government programs that threaten free speech—that tools like FOIA have become so important in preventing impunity.

Because from Clinton a decade ago to Mayorkas more recently, the track record of federal officials shows they may not always deserve the benefit of the doubt.

Ryan Mulvey is a policy advisor and Kevin Schmidt is director of research at the Americans for Prosperity Foundation.