President Donald Trump’s voter fraud commission came under fire earlier this month when a lawsuit and media reports revealed that the commissioners were using private emails to conduct public business. Commission co-chair Kris Kobach confirmed this week that most of them continue to do so. Experts say the commission’s email practices do not appear to comport with federal law. “The statute here is clear,” said Jason Baron, a lawyer at Drinker Biddle and former director of litigation at the National Archives and Records Administration. Essentially, Baron said, the commissioners have three options: 1. They can use a government email address; 2. They can use a private email address but copy every message to a government account; or 3. They can use a private email address and forward each message to a government account within 20 days. According to Baron, those are the requirements of the Presidential Records Act (PRA) of 1978, which the commission must comply with under its charter.
“All written communications between or among its members involving commission business are permanent records destined to be preserved at the National Archives,” said Baron. “Without specific guidance, commission members may not realize that their email communications about commission business constitute White House records.”
ProPublica reviewed dozens of emails to and from members of the commission as well as written directives on records retention. The commissioners appear to have been given no instructions to use government email or copy or forward messages to a government account.
Commissioner Matthew Dunlap, the secretary of state for Maine, confirmed that he’d received no such directives. “That’s news to me,” he said, when read the PRA provision governing emails. “I think it would be a little cleaner if I had a us.gov email account.”