But His Emails! Kushner’s Unique Exposure under the Presidential Records Act

The focus on what Trump will burn down in his final days as President has brought renewed focus on whether Trump will manage to destroy evidence on his way out. For example, Trump’s refusal to concede defeat may have delayed the normal archiving process, not to mention the instructions to White House employee that there needed to be an archiving process.

When Trump lost the November election, records staffers were in position to transfer electronic records, pack up the paper ones and move them to the National Archives by Jan. 20, as required by law. But Trump’s reluctance to concede has meant they will miss the deadline.

“Necessary funding from the (White House) Office of Management and Budget was delayed for many weeks after the election, which has caused delays in arranging for the transfer of the Trump presidential records into the National Archives’ custody,” the National Archives said in a statement to The Associated Press. “Even though the transfer of these records will not be completed until after Jan. 20, the National Archives will assume legal custody of them on Jan. 20 in accordance with the Presidential Records Act.”

White House spokesman Judd Deere said Saturday that contesting the election did not cause the delay in getting the president’s records transferred to the archives and that guidance was available to staffers on how to pack up their materials.

One person familiar with the transition said guidance typically emailed to executive branch employees explaining how to turn in equipment and pack up their offices was sent out in December, but quickly rescinded because Trump insisted on contesting the election.

With little guidance, some staffers in the White House started quietly calling records workers to find out what to do.

In early December, CREW and the National Security Archive tried to sue to preserve records, requesting a Temporary Restraining Order. While a key part of that suit — which the parties may be moving to novel litigation over — pertains to whether it’s enough to take a screen shot of an electronic communication, the suit also focuses on Jared Kushner’s well-documented habit of using private communications.

72. Notwithstanding these requests and the preservation directive, Mr. Kushner and his wife and Advisor to the President Ivanka Trump reportedly re-routed their personal email accounts to Trump Organization computers within one to two days of receiving the September 25, 2017 letters. Mar. 21, 2019 Oversight Letter, at 3.

73. In a December 2018 interview with then-House Oversight and Government Reform Chairman Gowdy and Ranking Member Cummings, Mr. Kushner’s counsel “confirmed that Mr. Kushner has used—and continues to use—WhatsApp” to create or send Presidential records, including to communicate “with people outside the United States.” Mar. 21, 2019 Oversight Letter, at 6. When asked by Rep. Cummings if “Mr. Kushner has ever used WhatsApp to discuss classified information,” his counsel replied, “That’s above my pay grade.” Id.

74. WhatsApp is a non-official, encrypted electronic messaging application.

75. Mr. Kushner’s lawyer further explained that Mr. Kushner preserves Presidential records created or sent from his WhatsApp account by “tak[ing] ‘screenshots’ of these communications and forward[ing] them to his official White House email account or to the National Security Council.” Mar. 21, 2019 Oversight Letter, at 6 (emphasis added).

76. Mr. Kushner’s attorney also admitted that between January and August 2017, Mr. Kushner used his personal email account to send and receive official emails. Mar. 21, 2019 Oversight Letter, at 2-3.

The government is trying to make all this go away quickly though, arguing, in part, that the NGOs suing have no private right of action under the Presidential Records Act (meaning there’s no way for them to demand more diligent treatment of records).

Here, Plaintiffs cannot make such a showing; not only does the PRA lack any private right of action, see Judicial Watch, Inc. v. NARA, 845 F. Supp. 2d 288, 299 n.5 (D.D.C. 2012), but, as discussed above, the D.C. Circuit has concluded that it affirmatively precludes judicial review.

That’s one of the reasons I’m so interested in what happened in the last week in another lawsuit, Andrew McCabe’s lawsuit against DOJ for being fired as a result of Trump’s personal retaliation against him.

Whereas CREW and NSA sued in December, McCabe instead submitted a document subpoena to the Executive Office of the President on November 4 asking for materials relating to McCabe and his firing. Since then, the parties have been squabbling over how to deal with the subpoena and, specifically, how to make sure that relevant records stored on private accounts would be preserved.

In a mid-December hearing, Judge Randolph Moss endorsed, in principle, that such records should be preserved both by those who’ve already left government and those who remained at the White House.

That’s when things got interesting.

According to a status report submitted the day of the insurrection, even though this dispute was primarily about those still in the White House, the government tried to claim it would be too onerous to ask current White House employees — McCabe focused specifically on Hope Hicks, Dan Scavino, Stephen Miller, and Jared Kushner — to simply ask these four specifically whether they have archived their private server emails and WhatsApp chats properly and if not, to both do so and tell McCabe’s team if they haven’t.

Defendants’ position is as follows: Plaintiff asks that Defendants apply the procedure outlined in paragraph five above to four current EOP employees (Hope Hicks, Jared Kushner, Stephen Miller, and Daniel Scavino) to ensure that the individuals have copied any PRA records to an official EOP account before the end of their service at the White House. The White House has reminded all employees since the November election of their existing obligation to do just that—ensure that any official communications conducted on personal devices have been preserved on an official EOP account before the transition. Thus, there is no need to provide additional reminders to these individuals, particularly where there is no reason to presume that they have not complied with their obligations to preserve records. The benefit, if any, of requiring another reminder is outweighed by the burden on the EOP and its employees, especially given the deference owed to the White House in matters of discovery, see Cheney v. United States District Court for the District of Columbia, 542 U.S. 367, 387 (2004), and the alleged peripheral, at best, role of the four EOP employees in this litigation, as to which the White House is not even a defendant.

As McCabe’s team pointed out, it’s not enough to say these White House employees have a general obligation under the toothless PRA; these employees should also know they have a specific obligation under a lawsuit in which discovery has already been granted.

Moreover, a general post-election reminder to preserve documents does not suffice to inform the four current EOP employees of their obligation, specific to this litigation, to preserve relevant documents.

There’s no reason for DOJ to react in the way they did unless they had reason to believe the simple document retention request would cause problems. That’s particularly true given that, over the course of the Mueller investigation, DOJ has learned over and over that Jared (and people like Steve Bannon) weren’t archiving official records on specifically this topic. They already know details about what Jared (and Bannon) destroyed, which may explain why they responded in this fashion.

On January 8, Judge Moss sided with McCabe on this dispute, and ordered DOJ to give the four people specific warnings.

I assume, like everyone else, that Trump and his spawn have been lighting bonfires on their way out.

But in Jared’s case, he will now be asked, legally, whether he has done so.

The PRA still doesn’t have any teeth. But we may learn whether DOJ has been covering for Jared’s past document destruction, including on matters pertaining to the Mueller investigation and Trump’s vengeance for the investigation.

51 replies
  1. BobCon says:

    I’d really love to know what kind of liability Kushner and the rest are going to have regarding classified info they undoubtably have squirreled away on phones and private email and probably printouts lying around the house.

    I have to assume for the top level info there are strict accounting rules and as long as he has a top level clearance he is subject to questioning under oath about what he has and how he is handling it.

    The benefit of doing everything on government systems and devices is that personal liability is much more containable. I don’t know how he is going to deal with it now. He had to have briefings where he attested to knowing the rules, so claiming ignorance will be a lot harder.

    • taluslope says:

      Kushner will have no liability because he won’t have any secure information squirreled away, anywhere. He won’t have anything on his personal phone because it won’t be allowed in a secure area. He won’t have classified on his personal email because he won’t have access to an open network while in a secure area. He won’t have documents around his house because he is not allowed to remove secure data from a secure area.

      A couple of caveats: While not impossible, agencies make it really hard to breach these rules. If you make a mistake you have to announce it immediately so steps can be take to contain the breach. If you don’t announce or do it intentionally, you are screwed.

      The difficulty is that Mr. Kushner may actually produce (accidentally or otherwise) classified information in his personal emails. We can only pray this is the case because wouldn’t you love to know about the late night conversations he has had with MBS.

      • taluslope says:

        Back in the good old days (about 20 years ago) Los Alamos didn’t try very hard to make it difficult to make mistakes while working with classified data. Thus the discovery of a classified removable disk drive lost behind a paper copier. Thus the discovery of a classified thumb drive during a drug bust (turns out the girl friend was trying to get extra work done after hours at home while the boy friend was doing his thing).

        The obvious remedy was to make all workstations diskless so you can’t take the damn data home.

      • BobCon says:

        There is a difference between classified information and classified source materials.

        Source materials get tightly controlled distribution. Information can’t be so tightly wrapped up.

        So Kushner shouldn’t be able to take presidential briefings home (although I wouldn’t rule out this White House failing to stop him). But as you note about his emails, there is nothing to stop him from having all kinds of classified information in his giant pile of personal data — names, outlines of secret projects, etc.

        He is absolutely at risk of liabilty for improper handling and distribution of highly classified information. You are definitely held to a similar standard regarding your handling of your notes on classified information as your handling of the source materials themselves.

        Prosecution gets tough when it is a single violation where you write an email about something you read three years ago. But it gets much easier if there is a pattern of writing down classified information and failing to handle it correctly.

        If all of that note taking and communicating is handled within standard protocols, the presidential transition provides a straightforward way to close the books that minimizes personal liability. I’m really curious how Kushner will try to handle that with any of his communications that didn’t follow protocols.

        • DaveC says:

          Indeed. The “difference between classified information and classified source materials” was central to the allegations that Hillary put classified information on private personal email. I believe that ultimately, all the classified information found on the her private email had become classified after the messages were sent

  2. timbo says:

    I bet the judge just loves all the lying from the government. It’s time that someone turned the tables on these bozos so kudos to McCabe’s lawyers.

  3. Dizz says:

    Perfectly normal to release three Presidential Executive Orders in one day – two days before the end of a term.
    Presidential Actions January 18, 2021

    Executive Order on Protecting Americans From Overcriminalization Through Regulatory Reform
    Executive Order on Protecting Law Enforcement Officers, Judges, Prosecutors, And Their Families
    Executive Order on Building the National Garden of American Heroes

    Also proclaiming Friday to be ‘National Sanctity of Human Life Day’.

    • Teddy says:

      So, even though the March for Life has been canceled–“cancel everything else,” says Abortion Action Fund!–this outgoing Administration still designates this Friday as their Special Fetal Tissue Day. I wonder if this is a trial balloon to designate special Days from this side of the Inauguration: shall we see “National Never Prosecute Anyone Named Trump* Day” announced tomorrow, to apply to January 21, 2021 until December 31, 2401?

      *Not applicable to Mary or (maybe) Eric

    • Dizz says:

      Two more EOs (for a total of 5 today) plus a second Proclamation:

      Executive Order on Ensuring Democratic Accountability in Agency Rulemaking
      Executive Order on Protecting The United States From Certain Unmanned Aircraft Systems
      Proclamation Terminating Restrictions on Entry of Certain Travelers from the Schengen Area, the United Kingdom, the Republic of Ireland, and Brazil

      ~40 hours to go.

    • Ginevra diBenci says:

      Sanctity of Human Life. While in Terre Haute we kill off three more federal prisoners, just to make sure the Trump/Barr message about Law’n’Order gets across. And never mind those families destroyed at the border in the name of protecting The American Family with all its supposed Values.

  4. P J Evans says:

    More things for the to-do list:
    put teeth in the PRA
    include enforcement of regulations and laws applying to the WH and other executive-branch offices

    • Stacey says:

      Snark alert: Can we call it “The Butt Her Emails” law? That should get the RWNJ’s to trip over themselves voting for it even if they don’t bother to read it!

      It’s beyond over-the-top irony that the entire Trump family engaged in everything they accused Hillary of doing with communications times, what? 52?

      I’d say it’s far past time that any govt regulation related to communications preservation be seriously overhauled. At this point, there’s just no way our understanding at the time those were written is commensurate with the current technology landscape and enough outside the rule options exist that we can’t leave any of it up to the good will of what we now know is 95% of the Republican Party.

      If the NSA can make an invisible to the naked eye water mark appear on any printout to identify where it was printed why the hell can’t every govt device have serious “no backsies” software on it that will not allow the individual to have any agency or privacy with their govt communications?

      Is this really that hard?

  5. Nehoa says:

    Question. When someone has a high-level security clearance are they subject to polygraph-monitored questioning after they leave service?

    • taluslope says:

      No, although perhaps it depends on the agency; just because you have a clearance doesn’t mean you lose your legal rights. However, if you misbehave you very quickly get your clearance yanked (and likely lose your job because it may depend on you having an active clearance). I have heard of lawyers that claim they can help you get your clearance reinstated but good luck with that.

      So back to your question; after your service ends, rarely will you keep your clearance, you are a free citizen. Except for the bits of knowledge bouncing around in your brain that you will never, ever, be able to talk to anyone about again.

      • BobCon says:

        People keep clearances all the time after government service ends, It’s a valuable credential for private employers who work on government projects, and there are tons of private citizens who are work on projects for the DOD, NSA, CIA, etc. who have high level clearance.

        It’s a pain to maintain — you need to be prepared to keep detailed financial records more detailed than what the IRS requires, and lists of contacts with foreign nationals in order to file for renewal. So people will generally let it end if they aren’t planning on staying in that field.

        • DaveC says:

          Also, doesn’t some entity have to pay for / sponsor / maintain a clearance for any individual who leaves employment in a position that includes classified duties? Typically a subsequent employer takes on the clearance to keep it active?

          • BobCon says:

            I can’t speak across the board at all levels, but it’s pretty common for contractors to ping pong between jobs and employers in fields like foreign development and IT, and keep clearance despite moving between jobs where it’s needed and not needed.

      • @pwrchip says:

        I had a TSecret Clearance in the Marines only bc, the unit I was at in Vietnam in the 1st two weeks in country that had a UHF radio scrambler called the KY8 that hadn’t been used for 9mos prior. Only because no one knew how to configure it so on a radio watch I asked if I could read the manual that was sitting on top of it and within 30′ I told the officer in charge if I could configure it & secure comm. I did, which surprise the Officer, later the CO came to me and padded me on the back while still on my watch and ordered me to train 3 other Marines before leaving the unit within 10days. So I did, but to my surprise when I got back to the states 15mos later I was assigned to monitor a teletype at Cp. Pendleton bc of my clearance for what I had done in Vietnam.
        But my point is, is that I was ordered not to divulge how the KY8 operated or its components, that I had to keep its operations secret for a minimum of 18 years after leaving the Marines.

  6. John L says:

    reminds me of Sunday’s Doonesbury.

    Trump dumping files into the fireplace with his bloody hands “…just fake evidence”

    • bmaz says:

      This is the absolute last time I will warn you to not sock puppet this blog. You will have to be either “John Langston” or “John L”, but you will not be both.

  7. Marjorie S Campbell says:

    God, it irks me!!! I work for the Federal government (DOD), and we have to do annual trainings. One is on preserving records- what is a record, how do you handle it, how long does it have to be preserved. And I have to do operational security, ethics training and the OGE 450, reporting of outside income. When I do these, I just burn with anger at the hypocrisy of holding regular government employees to standards that the administration flouts so egregiously.

      • taluslope says:

        bmaz, here is a question for you (taken from comments on MSNBC). It was suggested that Flynn could be called back to active duty and court-martialed. Given that the courts are different, what effect would the pardon have? Especially since Flynn’s call to martial law so we could have an election makeover doesn’t seem to have anything to do with the pardon.

        • bmaz says:

          The pardon would apply to any offenses up to the date of the pardon, including under the UCMJ. As to after the date of the pardon, it is highly unlikely he would be recalled and courtmartialed, and became even more unlikely after a decision in a different case in DC District at the end of last November that found doing so was unconstitutional (although there may be a question of how it applies to different levels of former service members).

    • Chris.EL says:

      What must it be like — to be Trump — to wake up every morning, to live every day in that *skin* — makes me shudder!
      A glorious gorgeous day in sweet California today — it did this last year too — warm in February, grass was growing an inch an hour; then it rained for weeks.

      Ha, ha, ha — Trump can’t have the golden state! LOSER

      From Twitter:
      “Gallup’s final polling for the Trump presidency is out. His final approval rating was 34%.

      He leaves the only president never to hit 50% job approval at any point in his presidency and is the least popular president in Gallup’s polling history.” …
      Ha, ha, ha, … ad nauseum…

  8. Peterr says:

    Once upon a time, there was a professor who was notorious for not turning in his grades on time. In some cases, months would go by without grades being submitted, causing no end of grief for students who needed these to apply for scholarships or do other things.

    One day, a new dean took over, and at the first faculty meeting of the semester he announced (among other things) that if grades were not turned in by the deadline set by the registrar, paychecks would be withheld. This was greeted with much laughter.

    The semester came to an end, and as usual, the lazy faculty member did not get his grades in on time. The following Friday, he went to his mailbox to pick up his paycheck, and it was not there. He went up to the office of VP for Finance and said “Is there some problem with the computers and paychecks? Mine isn’t in my box.” The VP pulled out a file, opened it up, then closed it again. “No, the computers are fine. It seems the dean has put a hold on your paycheck because you didn’t get your grades turned in for two of your classes.” The prof was incredulous. “WHAT!?!? He can’t do that.” The VP was unmoved. “I’m afraid he can, and I know he told all the faculty that he was going to do this. Once your grades get turned in, the registrar has orders to let me know immediately and we’ll hand you your paycheck.” Two hours later, the grades got turned in.


    It’s a bit late in the game now for Jared et al., but had the WH Counsel taken a similar approach with these folks who flaunt the law, this could have been dealt with. “I’m sorry, Mr. Kushner, but your WH pass has been suspended as has permission for you to undertake official travel either domestically or internationally until you provide proof that you’ve complied with the PRA relative to retaining your conversations via non-USG email systems and other apps.”

    • BobCon says:

      Kushner is going to keep trying to broker business deals overseas and he is going to waltz into US embassies demanding help getting contacts and setting up meetings.

      He is going to find a lot of people lining up to tell him to get bent. He will also find a lot of supposed friends in other countries not returning his calls anymore.

      He’d better hope none of those people don’t do worse and start handing over their end of official communications he claimed he lost or never happened.

      • paulpfixion says:

        “He’d better hope none of those people don’t do worse and start handing over their end of official communications he claimed he lost or never happened.”

        I would be very curious to know anything regarding the extent to which this happens after government transitions historically.

        • BobCon says:

          I think it’s a very small percentage because most people take the risks and reponsibilities of handling classified information seriously.

          I think a good insight into Kushner’s method of operating is his management of the COVID taskforce. He completely failed to understand how infections spread, which suggest he has no clue how information can be propagated, and he stupidly trusted people based on the outcomes he hoped he would get, instead of what reason would tell him.

          • Ginevra diBenci says:

            Vanity Fair’s (IIRC; might be Atlantic) excellent reporting on this suggests that Kushner knew perfectly well how the infection was spreading, but upon perceiving it as affecting mainly Democratic voters he made the calculation to let it rip. This was the main reason why Scott Atlas and the “herd immunity” concept got embraced–as cover for a political decision made months earlier.

            • BobCon says:

              I’ve seen that argued, but it doesn’t support Kushner having a clue about the virus — all it meant was red counties were hit later, closer to the election, and often horribly so. The virus wasn’t going to respect party lines and it did what epidemiologists thought, not what Kushner thought.

      • e.a.f. says:

        Kushner wasn’t much of anything until his father in law became President of the U.S.A. Then suddenly he was “some body” to some. It is doubtful that many of those who sought him out, will be interested in speaking with him now.
        He always looked a little vacant.

  9. Worried says:

    Too late now, I guess.

    What would be the most outrageous pardons Trump releases tomorrow? (Excluding family).

    Steve Bannon? Stephen Miller? Rudy Giuliani? Trump’s CPA? Proud Boys Guys? KT McFarland?

    Heaven only knows…..

    Actually the most shocking would be Benedict Arnold.

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