First 100 Days

“Trust Me” and Transparency Do Not Mix

In mid-April, the Trump administration announced that it would discontinue the practice, established under President Obama, of releasing White House visitor logs to the public. White House Press Secretary Sean Spicer portrayed the change as a minor one, pointing out that the Obama White House itself had regularly exercised discretion to withhold some visitor records. The Obama policy, he argued, constituted “faux” openness because “it’s not really being transparent when you scrub out the names of the people that you don’t want anyone to know were here.”

Though overstated, Spicer’s point has some merit. On the one hand, it is unfair to characterize the Obama policy—under which millions of records were released in a seven-year period—as a charade. According to the executive director of the pro-transparency group the Sunlight Foundation, the Obama policy, while imperfect, “was still meaningful exposure that powered many investigative stories—how close Google was to the White House, or how lobbyists from the pharmaceutical lobby made sure health care reform didn’t go too far.” On the other hand, the Obama White House “volunteered” to disclose the logs only after Citizens for Responsibility and Ethics in Washington (“CREW”) sued to obtain them. Furthermore, the Obama administration claimed a discretion to exempt records from disclosure, and it was criticized for some strained applications of those exemptions.

What Spicer gets most wrong, however, is his assumption that transparency failings in the Obama administration justify similar, or even greater, omissions in subsequent administrations. To the contrary, the shortcomings of the Obama administration—along with those of its predecessors and successor—illustrate why fairly detailed transparency rules and standards are needed and why they cannot be drawn and enforced solely at the discretion of the executive branch. In particular, both the Obama and Trump policies demonstrate the malleability of self-declared and self-applied boundaries based on national security and privacy. In the Obama White House, these were among the major criteria for exemptions. In the Trump administration, “grave national security risks and privacy concerns” are cited to justify a categorical retreat from disclosure.

Yet, if the experiences of current and past administrations suggest the relative wisdom of statutory disclosure requirements enforceable through judicial review, they also reflect the challenges in creating and effectuating such checks.  Indeed, CREW and other groups have argued in both past and ongoing litigation that FOIA already mandates disclosure of the White House visitor logs.  In a complaint filed earlier this month, several parties also requested, pursuant to FOIA, “records of visits . . . to President Donald Trump at his Mar-a-Lago and Trump Tower residences that the Secret Service . . . maintains.”

The Obama-era litigation had two main stages. First, the Obama administration settled CREW’s lawsuit by agreeing to disclose White House visitor logs, subject to some exemptions, as of September 15, 2009.  Second, after settling with CREW, the Secret Service successfully fought a separate lawsuit brought by Judicial Watch that sought additional visitor records. The Secret Service argued that although FOIA covers its own records, the visitor records belonged not to it but to the White House, which is not a covered FOIA “agency.” The Secret Service lost in the District Court, but prevailed in the U.S. Court of Appeals for the D.C. Circuit in 2013. Although it found the question to be a close and difficult one, the D.C. Circuit ultimately sided with the Secret Service in light of “‘special policy considerations.’”1 One of those considerations was the Court’s view that “separation-of-powers concerns” would arise were FOIA construed to require the Secret Service to turn over White House visitor information.2 In particular, the Court suggested that the “Executive Branch’s interests in maintaining the autonomy of its office and safeguarding the confidentiality of its communications are implicated.”3

This history, and the experiences thus far of the Trump administration, warrant a few observations and suggestions.  First, as already noted, the less-than fully voluntary nature of the Obama administration’s openness—coupled with the greater opacity still of other administrations—reminds us of the intrinsic weakness of any transparency strategy that depends on self-policing. Second, external checks on executive secrecy themselves often run into barriers both political and legal, including invocations of executive privilege and closely related claims.  Third, as I have argued at length elsewhere, there are strong bases on which to challenge the conventional wisdom that executive privilege or similar claims should prevail over legislation that mandates information-sharing.4  These bases similarly militate against construing transparency statutes narrowly to avoid such constitutional questions.  Fourth, Congress should consider amending FOIA to cover—subject to FOIA’s usual exemptions—presidential records. I am under no illusion that Congress will take this path any time soon. It is, however, well worth making the case, with the long game in mind, for the policy wisdom and legal propriety of such action.  Indeed, the importance of such steps is heightened by the increasing centralization within the White House of substantive decision-making historically made by agencies subject to FOIA. Such centralization has been brought to levels of near-comic absurdity in the Trump administration.  For example while President Trump has yet to nominate candidates for hundreds of positions that require Senate confirmation, his son-in-law, who works as a senior White House advisor, has been given a portfolio that includes “negotiating an Israeli-Palestinian peace deal, helping oversee relations with Canada, China and Mexico and . . . reinventing the federal government through the new White House Office of American Innovation.”

The story of the White House logs is but one instance of a larger set of phenomena: the unsurprising desire of administrations to disclose as little as possible, and the early indications that the Trump Administration may push the boundaries of executive secrecy particularly far.  To cite another striking example, news reports as of April 20, 2017, indicate that the Justice Department may bring criminal charges against WikiLeaks for revealing military, intelligence, and diplomatic information. While the Obama administration cracked down notoriously hard on persons who leaked classified information, prosecuting WikiLeaks would further up the ante, laying a path to prosecute media organizations who publish leaked information. The potential ramifications of this move are sweeping considering the scale of the classification system and the fact that major media operations—ranging from the New York Times and the Washington Post to television news productions—regularly publish leaked, classified information.  Indeed, the Obama administration reportedly decided against prosecuting Wikileaks precisely for such concerns.

Furthermore, President Trump and his allies have repeatedly sought to shift the focus from politically damaging information leaks to the need to “catch” the leakers.  These statements suggest that the Trump administration may also take a very hard, and possibly politically slanted, stance against information leakers. Currently, administrations have broad statutory authority to prosecute leaks and publications of classified information, and courts have been relatively dismissive of First Amendment considerations raised by defendants in the handful of cases brought against leakers.5  The Trump administration’s recent signals about classified-information leaks and publications, like its policy on White House visitor logs, remind us of the risks of placing so much power to control the flow of information in the executive’s hands.

* Professor of law, University of Minnesota Law School. She teaches and writes about government secrecy, the constitutional separation of powers, and speech and press freedoms.

1 Judicial Watch, Inc. v. United States Secret Service, 726 F.3d 208, 213–14, 221 (D.C. Cir. 2013) (internal citation omitted).

2 Id. at 226.

3 Id. (internal citation omitted and emphasis removed).

4 See, e.g., Heidi Kitrosser, Reclaiming Accountability 52–55 (2015); Heidi Kitrosser, Secrecy and Separated Powers: Executive Privilege Revisited, 92 Iowa L. Rev. 489 (2007).

5 I elaborate on this legal framework, and on many other aspects of the topic of prosecuting leaks and publications of classified information, in Heidi Kitrosser, Reclaiming Accountability 58­­–66, 106–12, 130–42 (2015); Heidi Kitrosser, Leak Prosecutions and the First Amendment: New Developments and a Closer Look at the Feasibility of Protecting Leakers, 56 Wm. & Mary L. Rev. 1221 (2015); Heidi Kitrosser, Free Speech Aboard the Leaky Ship of State: Calibrating First Amendment Protections for Leakers of Classified Information, 6 J. Nat’l Sec. L. & Pol’y 409 (2013); Heidi Kitrosser, Classified Information Leaks and Free Speech, 2008 U. Ill. L. Rev. 881 (2008).