- - Tuesday, November 22, 2022

Editor’s note: This is one in a series examining the Constitution and Federalist Papers in today’s America.

Recently, the Securities and Exchange Commission and Commodity Futures Trading Commission fined 11 Wall Street firms $1.8 billion because “the firms’ employees routinely communicated about business matters using text messaging applications on their personal devices.” Unfortunately, and in violation of federal record-keeping requirements, the banks “frequently did not search for relevant records contained on the personal devices of its employees.” 

In a statement, SEC Enforcement Director Gurbir Grewal vowed that these massive fines “underscore the importance of record-keeping requirements: They’re sacrosanct … we must be able to examine a firm’s books and records to determine what happened.” 

The hypocrisy is breathtaking — laws such as the Freedom of Information Act and the Federal Records Act bind political appointees and other federal regulators by requirements just like those covering banks and traders.

Nonetheless, then-Secretary of State Hillary Clinton was far from the last government official to routinely engage in practices obscuring her own written records. This obscuration is contrary to the law and frustrates FOIA requesters, Congress and even the public’s ability to defend themselves when targeted by government.

The tone is set from the top. President Obama’s Environmental Protection Agency Administrator Lisa Jackson used a private Verizon account for agency correspondence as well as a false identity “.gov” address using the alias “Richard Windsor.” Her colleagues were, of course, in on the scheme.

More recently, public records litigation in which we are engaged indicates that Federal Energy Regulatory Commission Chairman Richard Glick uses solely a personal number and phone for official text correspondence. The same proceedings indicate that Mr. Glick’s team at FERC and White House officials correspond with Mr. Glick this way, enabling the violation of federal law.

In this and other lawsuits, I represent policy organizations seeking texts and other “non-email communications” — what the SEC calls text, Signal or WhatsApp messages, Teams or Zoom “Chats,” and direct messages on other platforms – from Biden administration officials. 

Information we have obtained proves that Biden administration officials use such media promiscuously as an alternative to official government email accounts, and evidence strongly suggests that these are going unsearched in response to many requests for correspondence.

We know how the SEC feels about such things – ask the 11 Wall Street firms that were fined — though it is unlikely any appointees will face stiff penalties.

Both the SEC and FERC — “independent commissions” under the law — are fighting in court to not produce texts and chats on the grounds that the White House must rule on what they should and should not release. Both agencies also cite as a reason for not producing certain “chat” correspondence that the Teams or Zoom meetings were actually hosted by outside parties, either the White House or environmentalist pressure groups.

As such, the regulators say, they have no way to produce the correspondence because someone else controls it.

If letting environmental activists host your meeting means the records are lost to the taxpayer, then a federal official isn’t supposed to participate. Instead, the federal employee must run the meeting, on a government-controlled platform, so the government controls its records. Yet that’s not what’s going on.

Although conducting federal correspondence on chat functions or texting is legally appropriate if controlled by the agency, using encrypted applications ensures the records never see the light of day.

In fact, the decision to use the applications evinces precisely the intent to do just that. It is not difficult to identify individuals’ nonofficial email accounts and mobile device numbers and which applications are associated with specific phone numbers. From this we can’t help notice that appointees in specific agencies prefer specific applications. SEC officials like Signal, FERC appointees prefer WhatsApp, etc.

“But we never sent messages about work!” Maybe. Maybe not.

Ultimately, the SEC’s enforcement actions in the face of its own behavior suggest two sets of rules and two systems of justice.

As the Supreme Court once wrote of FOIA, the citizens have a right “to know ‘what their government is up to.’” The courts have a role in bringing reluctant politicos to account.

In Federalist #27, Alexander Hamilton offered: “I believe it may be laid down as a general rule that [citizens’] confidence in and obedience to a government will commonly be proportioned to the goodness or badness of its administration.”

The next Congress, which already has its plate full with oversight priorities, now has yet one more: to investigate the record-keeping practices of pretty much all federal officials and to recover and recreate the required records of how federal institutions — so often weaponized against political opponents — have been used, by and with whom, and at whose request.

• Chris Horner is a lawyer in Washington whose practice extensively uses the open records laws.

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