News broke last Thursday that Centers for Medicare and Medicaid Services administrator Marilyn Tavenner had probably deleted e-mails related to the glitchy rollout of Healthcare.gov — e-mails that had been subpoenaed by Congress.
CMS has insisted it’s just a benign accident. “In order to stay below the agency’s Microsoft Outlook email size limit, Tavenner would regularly delete emails after copying or forwarding them to her staff for retention,” MSNBC wrote when it broke this story. “However, Tavenner didn’t follow that procedure every time, meaning some emails never made it to her staff for safekeeping before being deleted.”
In other words: Oops, but no biggie — right?
Wrong. Tavenner knows — or at least should know — that deleting correspondence isn’t okay. After all, protecting the integrity of records is a fundamental part of her job.
Federal law tasks the heads of all federal agencies (CMS included) with “mak[ing] and preserv[ing] records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the agency and designed to furnish the information necessary to protect the legal and financial rights of the Government and of persons directly affected by the agency’s activities.”
Tavenner was also legally required to “establish safeguards against the removal or loss of records . . . determine[d] to be necessary and required by regulations of the archivist.”
So in the best-case scenario, Tavenner willfully ignored her legal responsibilities as head of CMS, not to mention the Federal Records Act and the regulations of the National Archives and Records Administration.
And in the worst-case scenario, Tavenner is participating in a cover-up.
If the latter is the case, she has committed a serious crime; federal law says that anyone who “willfully and unlawfully conceals, removes, mutilates, obliterates, or destroys” public records can face up to three years in prison.
It is also notable that a pattern has begun to emerge linking this incident to the Internal Revenue Service’s elusive Lois Lerner e-mails: Obama-administration records requested by Congress conveniently go missing, and the agency in question remains silent until Congress finally gets suspicious and forces it to ’fess up and admit that the records are nowhere to be found. In this case, the Department of Health and Human Services did not admit that Tavenner’s e-mails were gone until nearly a year after the House Oversight Committee had requested them.
The IRS’s crashed-computer excuses may stretch credibility. But regardless of Tavenner’s motive, the admission that she regularly deleted e-mails without backing them up constitutes a serious blow to the credibility of the Obama administration.
The president is fond of claiming he presides over the most transparent administration in history. But the chiefs of his agencies must not have saved that memo.
— Jillian Kay Melchior writes for National Review as a Thomas L. Rhodes Fellow for the Franklin Center. She is also a senior fellow at the Independent Women’s Forum.