Open Up

By Tom Lamia

A story in the New York Times was the inspiration for today’s lesson in good government. The Democrats and their causes had extraordinary results on November 4. The swell of hubris and hand wringing that followed is leading both parties to reassess their prospects. Though unlikely to be adopted, a good start for the Trump administration would be to release its grip on information flow to the citizenry. Throughout history, information has been managed by those in charge. Congress and the courts do their business in public view, but the executive branch—the chief creator and record keeper of actions and results—is saying less and restricting more. As the country’s primary guardian of national security and strategic interests, the executive branch leads efforts to protect classified information and facilitate research for medical and industrial institutions. Not everything it knows can be shared with the public. 

The First Amendment guarantees freedom for speech, the press, religion, assembly and the right to petition the government for the redress of grievances. These are the rights of the people against their government—guarantees that are the basis for an informed electorate. To know what is or is not being done on their behalf is essential for the people if they are to vote wisely. Accordingly, it is the government’s highest responsibility to provide windows through which the public can see it at work. Press releases, public hearings, town halls and preservation of records are examples of these windows. 

The Freedom of Information Act that became law in 1967 mandates that federal agencies provide unreleased information on request, with certain exceptions. The exceptions have broadened over time through administrative interpretation. FOIA has become a useful tool for the press and individuals seeking information but it is slow, responses tend to be heavily redacted, and politics can be involved.

The Trump administration is controlling government information to an unprecedented degree. The press no longer has unrestricted access to the White House or the departments of Defense, Justice and Homeland Security. Inspectors general, judge advocates general and other neutral watchdogs are gone. Revenge prosecutions are priorities at the Justice Department. Presidential pardons without supporting mitigation or remorse are common. Dismissals and denials of promotions and honors among senior career military personnel disproportionally affect women and African Americans. Republicans have been advised not to hold town halls. The Supreme Court, overwhelmed by an avalanche of cases against the government, is following an emergency docket to catch up. Parties and judges in lower courts are left in limbo.

The Times article referenced above reported that the chairs of the Senate and House Judiciary committees (Grassley and Jordan) had written to Chief Justice John Roberts. They alleged that several dozen federal judges who were sources for a news article about the Supreme Court’s emergency docket had violated their ethics obligations. They said the court’s code of conduct requires judges to promote public confidence in the judiciary’s impartiality and to refrain from commenting on pending cases. The letter is troubling. The judicial branch, not Congress, is responsible for the ethics of federal judges. The letter writers are partisan heads of congressional committees. They are bringing political partisanship into the non-political issue of case management. That is beyond their legislative branch boundary.

Other information of importance to voters is being blocked. For example: 

• Congress is not briefed fully on issues under the management of federal agencies. Only Republican senators and representatives get briefed on national security issues. This is unprecedented and dangerous. 
• Agencies led by inexperienced political appointees cannot competently advise Congress or the people. Congressional hearings have been stalemated by witnesses at a loss for words when questioned about the operations of their agencies, resulting in unhelpful and combative testimony that fails to shed light on the subject under review. 
• Institutional knowledge and procedural norms are resisted, ignored or openly challenged by Republican appointees at top levels of federal agencies.
• The president disregards his advisers, claiming he is his own best adviser. Some humility, if only to recognize that on occasion someone might know more than he does, would build public confidence. As it is, there is reason for concern that our pilot is flying blind in a thunderstorm with all of us on board.
• The departments of Defense, Homeland Security, and Health and Human Services are led by unqualified sycophants who are widely disrespected in the areas under their control.

Corruption is significant but goes unreported or unreviewed. Information that might lead to public knowledge is walled off from a press corps that now includes only friendly faces. Pardons have been issued to Jan. 6 co-conspirators. Government largesse goes to monopolists and donors. Nothing seems beyond the chutzpah of the president, who accepts valuable gifts from foreign governments and seeks “deals” with law firms and universities.

The erosion of transparency within the executive branch has undermined public trust in government. The selective dissemination of information and deliberate obfuscation of critical details hampers accountability and fosters confusion. This climate of secrecy makes it increasingly difficult for citizens to make the informed voting decisions that are fundamental to the health of a democracy.

No immediate relief should be expected. The president is a lame duck, increasingly unable to force his will on Congress and his party. An angry and vengeful lame duck, once a soaring eagle, could further restrict information flow to the people.