How to Drain the Swamp? Use a Flashlight

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Posted in: Government

Pardon the mixed metaphors, but the best way to drain the swamp that many see in Washington, D.C. is for the government to shine light—release emails and notes of conversations and meetings about the litany of scandals that have surrounded the last eight years.

Justice Brandeis told us over a century ago, “Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.” Shine a flashlight on the emails, internal notes, and documents, and we will know the truth. Even if the law does not compel that disclosure, the government can waive its rights and release the information.

Consider, for example, the charges against Lois Lerner, who pled the Fifth Amendment when called to testify before Congress, while insisting she did nothing wrong and that her IRS office did not discriminate against conservative organizations. After that, she and her lawyers had private conversations with lawyers in the Department of Justice (DOJ). The DOJ can release all related emails and notes of those secret meetings.

The IRS discrimination against conservative groups led to Freedom of Information Act (FOIA) lawsuits. The IRS is still withholding FOIA documents and slow walking the turnover of information. Earlier this month, the IRS admitted that it has located “an additional 6,924 documents of potentially responsive records” to a 2015 FOIA lawsuit that still ongoing. For years, the IRS has withheld documents! There is no need for any further delay. The government can simply order the IRS to turn over the documents. Nothing requires the IRS to fight this lawsuit. Even if FOIA gives a defense to disclosure, the government can waive that defense. If the IRS has nothing to hide, it can prove that by hiding nothing. The IRS does not need a FOIA lawsuit to disclose these documents. It can just disclose them voluntarily.

Maybe full disclosure of the emails and notes of the DOJ lawyers will reveal that Lois Lerner acted completely above board and did nothing to tilt the IRS against conservative groups. If so, that would be great. We could renew our faith that the IRS is nonpartisan. Or, it may show that lawyers supposedly working for the DOJ conspired with Lerner to cover up efforts to punish people because of their exercise of free speech. We should know that as well, so that we the people can make sure this never happens again. Sunlight, after all, is the best disinfectant. Disclosure will warn future IRS employees that if they politicize the IRS, they will be exposed.

Then there is Operation Fast and Furious, the unsuccessful (to put it mildly) federal firearms sting operation, which allowed about 2,000 military grade weapons to reach Mexican drug gangs and led to the death of an agent of the United States Border Patrol.

Congress, for the first time ever, held Eric Holder in contempt for his failure to release documents related to this gun transfer. President Obama also refused and pled Executive Privilege. The new president can waive executive privilege and turn over all these documents. More than mere curiosity justifies looking at the records. The documents that were grudgingly released show that Holder received memorandums regarding Operation Fast and Furious earlier than he claimed, contradicting his sworn testimony before the House Judiciary Committee.

Then there are the scandals involving the inspectors general. Each inspector general (IG) functions like an auditor of the federal agency to which the IGs are attached. The IG needs documents, and the agencies are supposed to comply. In 2014, in an unprecedented action, 47 inspectors general (out of only 73 IGs), many whom President Obama appointed, signed a letter to Congress complaining that agencies were denying and delaying access to relevant records. The Peace Corps, for example, would not release information as to how it was handling reports of sexual assault against Peace Corps volunteers.

The day after President Obama’s first inauguration, he promised, “The government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears.” A few years later, nearly two-thirds of all the inspectors general complained that they could not do their job because the “most transparent administration in history” was not transparent. The new administration can correct this oversight. It just has to order the administrative state to comply with the IG requests. It can also voluntarily make this information public.

This IG letter of August 18, 2014, complained that when the DOJ and other agencies limit access that “is inconsistent with the IG Act, at odds with the independence of Inspectors General, and risks leaving the agencies insulated from scrutiny and unacceptably vulnerable to mismanagement and misconduct—the very problems that our offices were established to review and that the American people expect us to be able to address.” The DOJ “was undermining” the independence of the OIG for the DOJ.

We know from WikiLeaks that the King of Morocco gave the Clinton Foundation $12 million for a meeting with the Secretary of State Hillary Clinton. About 6 months later, the U.S. State Department approved a sale of about $157 million in weapons to Morocco. Before the State Department could approve of this substantial sale, there must have been some emails and written notes about the deal. If so, the State Department can disclose them. If none exist, that would be mind-boggling, but the State Department could disclose that at well. It is hard to think of why there would be any national security secrets at risk if the government discloses any emails about this issue between officials in the State Department and the Clinton Foundation.

Consider immigration policy. Disclosing letters, notes, and emails will help us understand, for example, why President Obama said, shortly before his reelection, that he had no power to change the immigration laws by executive order, yet shortly after his reelection he decided that he did have that power and would exercise it. Presumably he was acting on legal advice. If so, the DOJ can disclose all of that.

And then there are the Russians. The New York Times reported on March 2, 2017, “In the Obama administration’s last days, some White House officials scrambled to spread information about Russian efforts to undermine the presidential election—and about possible contacts between associates of President-elect Donald J. Trump and Russians—across the government.” Oddly, “At intelligence agencies, there was a push to process as much raw intelligence as possible into analyses, and to keep the reports at a relatively low classification level to ensure as wide a readership as possible across the government—and, in some cases, among European allies.”

In January of this year, The New York Times also reported that Attorney General Loretta Lynch signed new rules to “significantly relax longstanding limits on what the N.S.A. may do with the information gathered by its most powerful surveillance operations, which are largely unregulated by American wiretapping laws.” Why? Why would she want unverified, unsubstantiated “raw intelligence” widely disseminated at lower levels? If you wanted to make it likely that at least one person would leak unverified information, you would do that. The emails and documents surrounding this decision could reveal some interesting information.

People now complain of a deep government that does whatever it wants no matter what the head of government says. The New York Times, which calls itself the “Paper of Record,” warns us that President Trump “is being force-fed lessons all presidents eventually learn—that the iron triangle of the Washington press corps, West Wing staff and federal bureaucracy is simply too powerful to bully.” (The Times, perhaps unthinkingly, admits that it is part of this Iron Triangle, because it is a member of the Washington press corps.)

Perhaps executive orders mandating disclosure of the documents and emails relating to Lois Lerner, the Fast and Furious scandal, IG stonewalling, and other scandals will cough up useful records. Alternatively, maybe there is a deep state and it has been successful in covering its tracks. If so, we should know that as well.

Brandeis’s advice is hardly new. Two thousand years earlier, the Book of John, 8:32, told us, “know ye the truth and the truth will set us free.” We should know the truth. The release of the documents will help us know if we should be worried or whether all is well.

Posted in: Government

Tags: FOIA, IRS, Legal

  • tommus

    why not consider the 9-11 attacks, invasions of Afghanistan and Iraq, the 2008 financial crisis… your flashlight has a curiously focused beam, Mr. Rotunda.

  • Brett

    This is an excellent article, showing some corruption in the Obama administration and putting together the indications (strong) of other, deeper corruption that in a democracy must be investigated.

  • Laurie Elza

    Thank you for airing your partisan political views. I now know what law treatises to ignore based on your post. If there is a deep state, Mr. Rotunda, its created by the GOP and their need to control all aspects of government, including the judiciary, so that their lies, half truths and smear campaigns can waste even more tax payers’ dollars. I invite scrutiny of any conservative organizations and you should do the same, if you’re concern is really about the state of our nation.. The GOP has been at the forefront of illegal and at times, immoral, behavior and continue to do so now. They have also led the charge on investigations of every non-conservative who poses a threat to them – which have led to no charges — all while ignoring the actions of their own and big business. Yet party loyalists turn a blind eye to their behavior and their ethics and continue to smear and persecute non-conservatives. There is a deep state, Mr. Rontunda — you’re just too simple minded and easily led to every realize you support it.