America’s Public Records Laws Are Too Broken to Keep Up With Presidents’ Emails
Top officials have a lot of power over what is actually archived.
In June 2014, Hunter Biden sent an email to his dad proposing a candidate for a job at the White House. Then-Vice President Joe Biden responded within less than a half-hour, writing back simply: “Re Johnny call me right away, Dad.”
John McGrail — a Georgetown classmate of Hunter’s who was then a senior lawyer at the Treasury Department — was hired as deputy counsel to the vice president that August, according to his LinkedIn.
The public knows about the email, sent from one of Biden’s Gmail accounts, because of the leaked materials on Hunter Biden’s laptop. Less clear, however, is whether this exchange — between family members, but about White House personnel decisions — was recorded in the National Archives for posterity. Or whether it needed to be at all.
GOP House Oversight Committee Chairman Rep. James Comer said he’s being “stonewalled” by the National Archives over emails from various accounts Joe Biden used while he was vice president (a GOP aide said the White House agreed to release only some emails). But we don’t know how many emails from alias or personal accounts the Archives actually has preserved — of Biden’s, Donald Trump’s, Barack Obama’s, George W. Bush’s or any of their top officials.
The nation’s aging public records laws aren’t keeping pace with the realities of the digital communications revolution, historians and security experts tell NOTUS. As a result, top officials have far too much power and discretion in choosing what they leave behind for archivists by picking and choosing what digital account or platform they use.
“People who shop in a grocery store — they do not get to decide what shoplifting is. An individual should not be able to decide whether or not the records they create are federal records,” James Grossman, the executive director of the American Historical Association, said.
Biden used at least six different email accounts, including some nongovernment email addresses sent from Gmail and gmx.com domains, according to materials from the Hunter Biden laptop that have been circulating in Washington circles for more than four years. Some but not all of the accounts appear to have been set up for the vice president by the government, part of a byzantine system of email pseudonyms generated to help top officials communicate.
The documents show that Biden was a prolific emailer with his family and friends and that he and his top aides frequently used a combination of their personal and official accounts, sometimes switching between the two in the same email chain.
The White House declined to answer questions about who reviewed Biden’s personal accounts for the presence of possible official business amongst his personal papers. A special counsel, Robert Hur, is currently probing the presence of some classified material at the Penn Biden Center for Diplomacy and Global Engagement and his Delaware home.
The National Archives said in a statement to NOTUS that anything on a .gov email system was archived properly and that it had emails from six of Biden’s known aliases, both personal and governmental, in their collection. The Archives has indicated Biden sent roughly 5,000 such emails under three such pseudonyms: email@example.com, JRBWare@gmail.com and Robert.L.Peters@pci.gov. He also used firstname.lastname@example.org and several att.blackberry.net addresses.
House Republicans’ pursuit over Biden’s records is the latest in a long line of record controversies dating back decades. Both the George W. Bush and Barack Obama administrations came under fire at various points over top officials using private email accounts. Hillary Clinton spent much of the 2016 presidential campaign dogged over her use of a private email server and the subsequent discovery of classified information on it.
Meanwhile, Donald Trump has been charged criminally for allegedly absconding with hundreds of classified documents after leaving office and refusing requests from the government to return them. Biden is also under investigation by a special prosecutor after his team notified the National Archives of a small number of classified papers from his vice presidency found in his residence and at the Penn Biden Center for Diplomacy and Global Engagement.
The American Historical Association, led by Grossman, was part of an unsuccessful lawsuit in 2020 against the Trump administration over reports of ripped-up official memos and robust use of personal email accounts or ephemeral messaging apps by top staff.
Grossman believes the issue deserves bipartisan attention outside of the context of what party is in power at a given moment. And he’s not alone. Presidents and their top officials have become more tech savvy, and the nation’s laws around records keeping aren’t quite up to the times.
“People can blame Obama for different things that may or may not be true. But he demanded a phone when he got to the White House, and he demanded an email account,” said Donald Mihalek, who served for two decades in the Secret Service. “Before that, presidents did not use email. They did not carry cell phones. They did not make a phone call. If they wanted to make a phone call, they used a phone that an aide carried for them.”
Presidential records are preserved under a federal law passed after the Watergate scandal. Congress feared that the previous practice of allowing presidents to control their own papers would deprive the country of a full knowledge of what happened during the Nixon administration.
Any emails sent by the president or vice president pertaining to White House business are captured and kept by the National Archives after a president leaves office. If a White House official sends an email on their personal email, they have to forward that email within 20 days to official accounts for preservation.
But the line between what is and is not a federal record is sometimes more of an art than a science — truly campaign-related communications are not supposed to be stored on government computer systems, for example. And with an all-encompassing 24/7 job like the presidency or vice presidency, the line between what’s political, what’s personal and what’s official government business can get murky fast.
For instance, in 2014, a White House official forwarded to Biden’s Gmail the text of a Wall Street Journal article that said Hunter Biden was discharged from the Navy after he tested positive for cocaine. Biden forwarded it to his family and wrote: “Good as it could be. Time to move on, Love Dad.”
The exchange is emblematic of the difficulty of determining where the vice presidency ends and family life begins. Hunter Biden was serving in the Navy. The White House communications operation was involved in managing the story, the records show. It is not clear whether the message was archived.
In another email to his daughter Ashley Biden, the former vice president sent a Washington Post op-ed on the tax code for married couples, saying, “We Should talk about this Mike.” CC’d were Biden’s longtime aides Mike Donilon and Bruce Reed’s personal AOL accounts.
“Everyone is entitled to personal records, even high-level government officials. The Presidential Records Act exempts personal records from preservation and disclosure requirements,” said Margaret Kwoka, an Ohio State University law professor and expert in records laws.
But “that determination is often being made either by the officials themselves or sometimes their lawyers. And it may well be that some amount of oversight into those issues would be beneficial for the public interest,” said Kwoka.
The White House declined to respond to several questions from NOTUS on the use and retention process of Biden’s private emails. Plagued with similar questions about pseudonymous work email accounts in 2013, then-Obama White House press secretary Jay Carney famously said, “This is a practice consistent with prior administrations of both parties.”
But for private emails — which would include Biden accounts at Gmail and GMX — Carney stated, “It is obviously counseled very clearly that we do not use and should not use private email accounts for work.”
Former officials responsible for security interviewed by NOTUS say the pseudonyms were part of a secretive system that helps the world’s most powerful people communicate with some level of privacy. Because people like the then-vice president are major targets for everything from espionage and criminal hacking to nuisances like huge volumes of spam, they are given pseudonyms for both their government and personal email accounts.
After all, if Biden’s email was something easily guessable like email@example.com or firstname.lastname@example.org, the account would be quickly overwhelmed by spam and become an immediate target for hackers.
That’s not to say that all email pseudonyms are totally anonymous.
When Biden sent emails from email@example.com, for example, it was with a nod to one of his favorite belongings: a 1967 Corvette.