Tavenner to Subordinate: ‘Please Delete’ HealthCare.gov E-mails with White House

by Jillian Kay Melchior

During the first week of HealthCare.gov’s troubled launch, Marilyn Tavenner, the chief of Centers for Medicare and Medicaid Services, told an agency spokesperson to delete an e-mail exchange with the White House and the Department of Health and Human Services, according to new records released by the House Energy and Commerce Committee.

This development comes just a week after CMS’s admission that Tavenner had probably deleted e-mails that may be public record — “in order to stay below the agency’s Microsoft Outlook email size limit,” wrote MSNBC, which broke the story on August 7.  

But today’s letter from the House committee to Tavenner says: “One of the e-mails in this production shows that you directed a subordinate to delete an e-mail communication featuring a number of White House representatives. This e-mail is an October 5, 2013, communication in which you forwarded a discussion with White House representatives to the Director of Communications for CMS with the message: ‘Please delete this email- but please see if we can work on call script.’”

The committee concludes: “This contradicts the letter [CMS recently] sent to the National Archives, which explained that your practice was to instruct subordinates to retain copies of e-mails.”

The Department of Health and Human Services redacted the names of some recipients included on that October 5, 2013, correspondence, justifying it by claiming this information was withheld to address “longstanding Executive Branch institutional interests.”

That may be a reference to White House Equity, a new practice introduced by White House counsel Gregory Craig in April 2009 that allows White House lawyers to review before release some records requested by Congress, inspectors general. or journalists. Although the 2009 memo doesn’t define what constitutes White House Equity, it appears to cover all correspondences involving the White House as an interlocutor.

The committee leaders asked in their letter, “What are the Executive Branch interest(s) that are being redacted in the email that you are asking to be deleted?”

Committee leaders have also requested Tavenner to further explain why she told a subordinate to delete correspondence, also asking whether she “direct[ed] HHS or CMS staff to delete or otherwise destroy e-mails, communications, or any other documents relating to HealthCare.gov.”

Under federal law, Tavenner is responsible for “mak[ing] and preserv[ing] records” and “establish[ing] safeguards against the removal or loss of records . . . determine[d] to be necessary and required by the regulations of the archivist.”

Likewise, the federal criminal code states that anyone who “willfully and unlawfully conceals, removes, mutilates, obliterates, or destroys” public records can face up to three years in prison.

— 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.