Extreme Transparency & Discretionary Disclosure

These are tough times for transparency. But let’s be honest: does anyone care? The concept has an “eat your vegetables” feel to it. Deep down we know it’s good for us, but, meh.

If you think transparency and sunshine laws don’t matter, consider these recent items:

• despite enormous public interest, the federal government has declined to release a redacted report on Russian meddling in the 2016 election
• President Trump refuses to make his tax returns public and will not release White House visitor logs
• the majority leader of the United States Senate attempted to ram through a colossal change in American health care with a bill written in near-total secrecy
• the House of Representatives repealed an SEC rule requiring that extractive industries disclose payments to foreign governments, killing an effective “follow the money” transparency measure that deterred payoffs and bribes
• anonymously owned shell companies are steering billions in dirty money to U.S. luxury real-estate markets
• fighting government stonewalls, Judicial Watch has been forced to sue in federal court for former FBI Director James Comey’s memo of his meeting with President Trump, and to file five additional lawsuits related to alleged monitoring of the president and his associates in the Russia connection case

There’s plenty of blame to go around for transparency failures. But as Judicial Watch’s Director of Investigations Chris Farrell has pointed out, when it comes to sunshine actions, the Trump White House has a solution at hand that’s both elegantly simple and breathtakingly radical. The Freedom of Information Act allows for the executive branch to make “discretionary disclosures.”

Chris notes, “In plain English, that means President Trump and his cabinet secretaries can release whatever they want—whenever they wish to do so. They can exercise their discretion to release records that are of broad general and news media interest concerning important policy issues and/or the operation of the federal government. These discretionary disclosures take nothing more than the stroke of a pen.”

Remember when Candidate Trump pledged to drain the swamp? There’s no better tool for swamp-draining than extreme transparency. But as Chris reports, “the Department of Justice under Attorney General Sessions is currently making the exact same legal arguments as the Obama administration—and using all the double-talk and excuses from the Obama era, too.”

Freedom of Information Act officers in the executive branch are overworked and under-appreciated, a situation that has severely restricted the effectiveness of the law. But it doesn’t take congressional action or a spending increase to change that. President Trump could trigger a FOIA revolution simply by ordering a new era of extreme transparency and discretionary disclosure.

Extreme transparency could bring huge benefits. Swamp draining would get super-charged boosters. The president could seize the moral high ground in the Russia connection case with the release of his tax returns and all relevant White House documents. On the Judicial Watch docket, among the records that could be quickly produced are the Comey memo; records related to former National Security Adviser Susan Rice and the “unmasking” controversy; records related to the so-called “Russian dossier;” records relating to the controversial “tarmac meeting” in Arizona between former President Bill Clinton and then-Attorney General Loretta Lynch; FBI and intelligence community files on the Hillary Clinton email investigation; never-revealed draft indictments of Mrs. Clinton in the Whitewater investigation; and notes and reports to then-Secretary of State Clinton in the Benghazi affair.

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A happy Independence Day to all. Following a short break, Investigative Bulletin returns in July.

Micah Morrison is chief investigative reporter for Judicial Watch. Follow him on Twitter @micah_morrison. Tips: [email protected]

Investigative Bulletin is published weekly by Judicial Watch. Reprints and media inquiries: [email protected]