As a single party takes the presidency and both houses of Congress, the normal oversight system of checks and balances becomes endangered. Watchdogs — non-profits, journalists, activists, and civic technologists—take on an even more important role in holding the incoming administration accountable. Yet doing so requires a certain level of access to governmental activities.
“You have an opportunity as incoming president to set the tone for your staff speaking on the record for the sake of transparency,” 18 leading journalism institutions told President-elect Donald Trump in a November 16 letter. “We also hope your administration will improve response rates to [Freedom of Information Act] requests as a way to show the American people, and the world, that the republic belongs to the people. A great America depends on having sunlight on its leaders.”
But Trump and Vice President-elect Mike Pence’s records on disclosures suggest the incoming administration will derail the open government movement’s slow gains.
Trump’s stunning refusal to release his own tax and medical records — which made him the most secretive major presidential candidate in U.S. history — is just the tip of the iceberg.
“A great America depends on having sunlight on its leaders.”
During his campaign, he retaliated against critical journalists by denying them press credentials and blacklisting outlets. Within his first two weeks as president-elect, Trump refused reporters access to historic transition meetings and basic information about his whereabouts. He spoke with dozens of world leaders over his private cellphone — unsecured— without informing press.
Seeing such disdain for traditions of transparency tied with clear conflicts of interest and promises to roll back civil liberties, watchdogs are readying themselves to perform in-depth investigations. “We’re listening and watching and organizing ourselves,” said Patrice McDermott, director of the Open the Government coalition. “People who litigate are building up their capacity to do so, because they think it will be necessary.”
— Ryan Shapiro (@_rshapiro) November 12, 2016
“Transparency luminaries” Ryan Shapiro and Jeffrey Light, for instance, have crowdfunded over $30,000 so far to repeatedly sue and request documents from the Trump administration. And as activists work to archive federal data that could be removed under a new administration —like the End of Term Presidential Harvest 2016, a crowdsourced spreadsheet of major climate databases to download, and the nonprofit Internet Archive’s new backup archive in Canada where it is safer from potential U.S. interference — the fragility of federal transparency becomes increasingly clear.
Walking back progress
In October, a Newsweek investigation found that Trump’s businesses have “systematically destroyed or hidden thousands of emails, digital records and paper documents demanded in official proceedings,” dragging out lawsuits against the Trumps as they ignored court deadlines to hand over documents. The details of these cases are chilling to watchdogs planning to file FOIA requests and lawsuits under his administration.
To be sure, the Presidential Record Act and federal records preservation standards mean Trump can’t run the White House like he does his companies, as the non-profit Sunlight Foundation notes. And the machinery is already in place for federal electronic data collection and dissemination.
But there are still ways the president can reverse gains in transparency. Soon after the election, the Sunlight Foundation published about 40 questions its staff was considering to grapple with the implications of Trump’s administration: would he keep the Open Government Directive, which put forth actionable goals to institutionalize openness, in force? What does the Freedom of Information Act look like under him — will Obama’s “presumption in favor of disclosure” stand? Will he hold onto President Barack Obama’s 2013 executive order that said all government information should be made machine-readable and open by default?
On Obama’s first full day in office, he signed that executive order and two presidential memoranda heralding a “new era of openness.” The National Security Archive called it “the earliest and most emphatic call for open government from any president in history.” Shortly afterward, the administration directed every federal agency to publish three high-value data sets online within 45 days. Now, Obama’s White House has opened up about 180,000 federal data sets to citizens.
“Same $hit, different administration.”
That’s not to say radical reform took place under Obama. Open government advocates say he has fallen far short of his signature promise to create the most transparent U.S. government possible. While Congress passed a FOIA reform bill in March to codify Obama’s so-called presumption of openness, it experienced intense Department of Justice lobbying against the measure. His administration has continually set records for withholding FOIA requests. Nor can liberals ignore the rampant over-classification of documents to protect them from disclosure, including documents relating to CIA drone strikes, or Obama’s relentless crackdown on whistleblowers like Thomas Drake and Edward Snowden.
If you trust Obama’s intentions, this could suggest how it is difficult to exact change on federal disclosure policy (much like closing Guantanamo Bay has turned out to be more complicated than most people expected). That, in turn, would mean watchdogs won’t face more obstacles under Trump than they already do. After all, FOIA can only evaporate if Congress repeals it — and considering a notoriously partisan Congress passed that FOIA reform bill unanimously, that seems unlikely.
As one user wrote in a popular listserv for FOIA practitioners: “Same $hit, different administration.”
For advocates of government transparency, that may be the best-case scenario.
Traditionally, Americans have been able to find out about the inner workings of administrations and campaigns through accounts from former staffers. But Trump’s regular use of nondisclosure agreements in his businesses, throughout his campaign, and during his transition into office suggests even that option may not be available this time around.
Nearly all of Trump’s workers are made to sign legally binding NDAs that could land them in court if they revealed any “private” information or spoke out against Trump (or his family and companies) — even years later. Former campaign manager Corey Lewandowski, for instance, has refused to criticize the Trumps even after he was fired. In May, he tweeted that he is under a “strict confidentiality agreement with Mr. Trump.”
It’s not just paid staff either. Volunteers planning to make calls for the campaign from Trump Tower were made to sign similarly broad NDAs that forbade them from criticizing Trump for life. Even online volunteers needed to sign that 2,271-word legal document to phone bank for Trump.
As president, his employees would ideally sign NDAs as well, Trump told the Washington Post in April:
“I think they [employees of the federal government] should [sign nondisclosure agreements]. . . And I don’t know, there could be some kind of a law that you can’t do this. But when people are chosen by a man to go into government at high levels and then they leave government and they write a book about a man and say a lot of things that were really guarded and personal, I don’t like that. I mean, I’ll be honest. And people would say, oh, that’s terrible, you’re taking away his right to free speech. Well, he’s going in. . .
…But I will say that in the federal government it’s a different thing. So it’s something I would think about. But you know, I do right now — I have thousands and thousands of employees, many thousands, and every one of them has an agreement. . .
Could Trump implement similar confidentiality agreements in his administration? Most legal experts say they’re too broad to be enforced or to hold up in court, and McDermott agrees it’s unlikely Trump could lawfully bring NDAs with him to the government. But according to Obama’s former special counsel Norman Eisen, “Trump could likely fashion something like his non-confidentiality regime in the White House” if he issued an executive order “requiring appointees to sign a written pledge not to disclose.”
Federal workers are required to protect classified and sensitive information as part of their employment, but the First Amendment ensures their right to disparage the president freely. In the case of political appointees, Trump can fire them for anything, including disparaging him, but there’s little room for lawsuits.
According to one federal employment law expert, though, Trump could possibly issue an executive order that mandates confidentiality and non-disparagement once political appointees leave office. “[J]ust because it’s unheard of, that doesn’t mean Trump’s not going to make it happen,” she told the Daily Beast.
The attorney general and disclosure
As human sources are silenced, so might FOIA.
“I’m afraid we may go back to an attorney general memo like the one we saw under Ashcroft,” McDermott, director of Open the Government, told ThinkProgress.
Since 1970, incoming attorney generals issue memos with their interpretation of FOIA law, guiding the implementation of disclosure. In 2009, a few months after Obama’s original memoranda, then-Attorney General Eric Holder issued a memo instructing agencies to err on the side of disclosure. George W. Bush’s attorney general John Ashcroft took the opposite position in 2001, urging agencies to resist disclosure and offering legal protection: “When you carefully consider FOIA requests and decide to withhold records, in whole or in part, you can be assured that the Department of Justice will defend your decisions unless they lack a sound legal basis.”
The guidelines have consequences: according to a 2007 comparison of FOIA implementation under Bill Clinton and Bush, the percentage of requests granted in full fell by about 15 percent in 2005.
“I’m afraid we may go back to an attorney general memo like the one we saw under Ashcroft.”
So where will Sen. Jeff Sessions, the Alabama Republican that Trump selected for attorney general, stand?
“I don’t like it when a large source of money is out there funding ads and is unaccountable,” Sessions said of campaign finance in 2010. “To the extent we can, I tend to favor disclosure.”
That would be a good sign for watchdogs. But in the end, like a number of Republicans who had spoken in favor of disclosure, Sessions voted against the Democratic bill that aimed to increase campaign finance disclosure.
Sessions has also voted against a federal shield law to protect journalists’ confidential sources. And that FOIA reform bill discussed earlier? Sessions single-handedly put a hold on it twice, apparently as a result of lobbying from the Department of Justice.
On the bright side, even if Sessions were to issue an anti-disclosure memo, it may not be quite as crippling as watchdogs fear. After Ashcroft issued his tough-on-FOIA memo, the National Security Archive audited how federal agencies implemented the guidelines. They found that only five of 33 agencies surveyed indicated substantial changes in regulations, guidance, and training materials. The same number of agencies said the Ashcroft Memorandum was widely disseminated among employees.
“When they talked to all these FOIA officers, they pretty much said, ‘What AG memo?’” McDermott explained. “So it didn’t completely make its way to the people who are actually making the decisions to disclose the information.”
Pence’s muddy record
Vice President-elect Mike Pence’s record as the governor of Indiana carries red flags, too.
Chances are you barely heard mention of Pence’s email scandal during the election. For the past year and a half, Pence has been fighting to conceal from the press an attachment on a 2014 email to his chief of staff. Experts in Indiana say it set a dangerous precedent.
Democratic labor lawyer William Groth filed a public request for, among other documents, emails between Pence and the Indiana attorney general’s office about their decision to join the Texas-led federal lawsuit to overturn Obama’s executive order shielding immigrants from deportation. One of these emails was sent in November 2014 by Texas Gov. Greg Abbott’s chief of staff to several state officials pushing them to join the lawsuit. The email referenced a “white paper,” attached to the email as a PDF, which laid out the legal backing for the lawsuit.
Pence’s office refused to release the white paper. When Groth filed a lawsuit, Pence’s attorneys claimed it was redacted because of “attorney-client privilege.” They also cited an Indiana Supreme Court ruling that the judiciary shouldn’t meddle with the legislative branch’s government functions — essentially arguing that it’s not up to courts to challenge state enforcement of public records requests.
“It comes down to this: The court is giving up its ability to check another branch of government, and that should worry people,” Gerry Lanosga, an Indiana University media professor, told the Indianapolis Star. “The governor cannot put himself above the law.”
According to the Sunlight Foundation, Pence has also voted as a congressman to decrease disclosure for 527 groups (bad for transparency), signed an Indiana bill that required legislators to disclose investments totaling at least $5,000 (good for transparency), and vetoed a bill limiting police record transparency (good for transparency). So he will bring a mixed record into the White House.
The jury is out on SCOTUS picks, too
According to one report, Trump has narrowed his search for a Supreme Court nominee to two deeply conservative finalists: Judges William Pryor and Diane Sykes.
In 2007, Pryor and a panel of circuit judges unsealed affidavits in the secretive case of a company accused of killing Colombian union leaders. “The public has a right to access these documents that is more than powerful enough to overcome the negligible interest of [the company] in preventing public access,” he wrote. As Alabama attorney general, he argued in 1998 against a federal law that limited public access to personal information contained in driving records. His reasoning was grounded in states’ rights, however.
Sykes has a mixed record on openness. In 2014, she helped gut several of Wisconsin’s campaign finance disclosure provisions; in 2012, she argued that prosecuting the ACLU for recording encounters with police interferes with First Amendment rights; and in 2008, she decided the public had no right to access disciplinary records of Chicago police officers accused of misconduct.
Other potential nominees seem to be First Amendment hardliners, often erring toward disclosure. Colorado Supreme Court Justice Allison Eid dissented on a 2011 ruling that official calls the governor made on his private cellphone while in office are not public records; Margaret Ryan railed the government for denying reporters access to documents in the court-martial of military leaker Chelsea Manning; in South Florida, Federico Moreno ordered pleas agreements be available as “the public’s interest in access must prevail” over witness protection; and Texas’ Twitter-famous Justice Don Willett has spoken about the judicial branch’s need to up its own transparency. “Harnessing technology is indispensable to openness, and my Court is at the vanguard,” Willett told RefinedRight.com in an interview. “[W]ebcasting and archiving oral arguments, providing free, online access to court records, and letting Texans file documents electronically.”
While Trump has introduced a slew of contenders, it’s likely none will favor openness and free press as much as Obama’s pick, Merrick Garland. Garland has repeatedly made strong cases for reporter’s privilege and government accountability, though his many decisions on FOIA have not always prioritized transparency.
Friends on the inside
Even as watchdog journalists and civic groups build up their resources to file public records requests and lawsuits, some are counting on government employees who witness any abuses of power or questionable actions to work with them.
“I’m trying to remind folks that we do have allies within the government,” McDermott told ThinkProgress. Trump’s transition team has already requested the names of Department of Energy staffers who worked on climate change policy, for instance; the agency refused to provide them. “Within the civil service, we have people who believe that the state is accountable and must provide information to the public. But we have to be careful, and they have to be very careful.”
The risks are high. The Obama administration has already weaponized the Espionage Act against whistleblowers and surveilled journalists’ communications to crack down on sources. When Trump comes into office, one of his most dangerous tools will be the “actual use of the surveillance space to root out whistleblowers and sources within his administration, which I’m sure there will be a lot of,” Freedom of the Press Foundation Executive Director Trevor Timm said.
If you’ve got evidence showing powerful people doing the wrong thing, here’s how to leak to ProPublica https://t.co/O38JjAQgAs
— Erin McNeill (@erinmcnll) December 1, 2016
Shortly after the election, the nonprofit investigative newsroom ProPublica published an instruction manual directing potential whistleblowers on how to anonymously leak documents and information to their journalists. (ProPublica also saw a spike in resources after comedian John Oliver urged viewers to donate in his post-election show—donations were coming in at “about 10 times the rate that we’re used to,” president Richard Tofel said.)
Over at The Intercept, co-founding editor Glenn Greenwald published a treatise urging potential sources to remain on the right side of history:
Institutional inertia by itself, let alone once exacerbated by Trump’s own anti-transparency impulses, all but guarantees the Trump presidency will be aggressively antagonistic to basic public accountability. The Intercept is more determined than ever to do everything possible to enable sources, leakers, and whistleblowers to work with our journalists in the safest way possible, to ensure that information that belongs in the public domain is reported rather than hidden.
Both The Intercept and ProPublica use FPF’s confidential leak submission system SecureDrop. Between 30 and 40 news organizations currently run SecureDrop, and the waiting list is two or three times longer than that. A few major outlets will launch their installations within the next month; the New York Times launched its SecureDrop last week as part of its new guide to submitting confidential tips. “Since the elections started, we’ve received an avalanche of requests for both SecureDrop and digital security training for news organizations,” Timm told ThinkProgress.
“This guy’s a bad guy and, you know, there is still a thing called execution,” Trump said of Snowden.
In the worst case scenario of Trump’s White House, anonymous leaks may end up being the only recourse left for civil servants and journalists alike.
That’s one of the reasons activists are urging Obama to pardon whistleblowers Snowden and Manning, even partially, before he leaves office. Critics have long questioned the unprecedented prosecution of whistleblowers under Obama, as well as alarming intimidation and raids on government employees suspected of leaking information. It’s a dangerous precedent to leave for any incoming president. But in the past, Trump’s statements have shown little mercy for whistleblowers (with the notable exception of his pro-WikiLeaks comments after their hack of Hillary Clinton’s campaign chairman).
“This guy’s a bad guy and, you know, there is still a thing called execution,” Trump said of Snowden on Fox & Friends in 2013. “You really have thousands of people with access to the kind of material like this. We’re not going to have a country any longer.” Trump’s CIA pick is no more moderate: Snowden should be tried and “given a death sentence for having put friends of mine, friends of yours, who served in the military today, at enormous risk,” Rep. Mike Pompeo (R-KS) said in February.
If the crackdown on whistleblowers expands under Trump, a pardon from Obama could help ensure the rights and very existence of whistleblowers under the next administration. “A pardon by such a highly respected President as Obama would go a long way to encouraging public servants to blow the whistle if and when Trump or his appointees break the sacred trust with our constitution or the rule of law,” professors Ryan Goodman and Samuel Moyn wrote at the New York University School of Law’s Just Security blog.
Without it, Snowden and Manning’s chances will be nil for the next four years. And, perhaps, so will the chances of journalists and watchdogs relying on inside intelligence to reveal abuses of power.