During the 2016 election cycle, many news outlets treated the fact that former Secretary of State Hillary Clinton used a personal email account to conduct work business as the single most important issue facing voters. The New York Times, according to the Columbia Journalism Review, “ran as many cover stories about Hillary Clinton’s emails as they did about all policy issues combined in the 69 days leading up to the election.”
In reality, few people actually believe that a government official using a personal email address for work business is a world-historic crisis. As a federal court explains in a decision handed down Tuesday, “the use of private email accounts to conduct official business has become commonplace” — and yet the issue largely disappeared from newspapers and broadcast news after it could no longer be used to score political points against Clinton.
Nevertheless, the court’s decision in Brennan Center for Justice v. United States Department of Justice highlights a legitimate problem that can arise when government officials conduct business outside of their official email accounts.
Two Justice Department attorneys, including John Gore, who at the time served as acting assistant attorney general in charge of the Civil Rights Division, received emails from members of President Donald Trump’s Advisory Commission on Election Integrity in their personal inboxes. At least some of these emails concerned the commission’s official business.
Had these lawyers not forwarded at least some of these emails to their official account, however, it is likely these communications would have remained secret — and thus never would have come to the attention to advocacy groups seeking information regarding the commission through the Freedom of Information Act.
The commission, which Trump disbanded in January of 2018, was widely viewed as a ham-handed attempt to justify voter suppression. Much of its work was led by commission Vice Chair Kris Kobach, the former Kansas secretary of state whose efforts to defend a state voter suppression law turned into a comedy of errors that climaxed in a court order requiring Kobach to attend remedial classes on legal procedure.
Other commission members included Hans von Spakovsky, a voter suppression lawyer with the conservative Heritage Foundation who was criticized by his former Justice Department colleagues for his “unprecedented intrusion of partisan political factors into decision-making,” and J. Christian Adams, another voter suppression attorney who falsely claims that there is an “alien invasion” at the polls.
The upshot of Judge Alvin Hellerstein’s opinion in the Brennan Center case is that government officials must search Gore and Riordan’s personal email accounts for communications related to “voter fraud,” “election integrity,” and similar code words often used by proponents of voter suppression, and turn over any emails that are discovered which fit within the advocacy groups’ Freedom of Information Act request.