Opening the books on the outgoing administration would be a booster shot for democracy.
President-elect Donald Trump will face pervasive doubts about his legitimacy from the day he takes office. His opponents will likely portray him as governing in unprecedented and reckless ways. The best response to such charges is to open the books and expose how the Obama administration commandeered far more power than most Americans realized.
Trump should follow the excellent precedent set by President Obama. In 2009, shortly after he took office, Obama released many of the secret Bush administration legal memos that explained why the president was supposedly entitled to order torture, deploy troops in American towns and cities, and ignore the Fourth Amendment’s prohibition on warrantless, unreasonable searches. The disclosures signaled a new era in Washington and helped give Obama a reputation as a champion of civil liberties.
Turnabout is fair play. Trump should quickly reveal the secret memos underlying Obama’s “targeted killing” drone assassination program.
Administration lawyers defeated lawsuits by the ACLU, The New York Times, and others seeking disclosure of key legal papers on how the president became judge, jury and executioner. A Trump administration could disclose the memos and white papers without endangering anything other than the reputation of the soon-to-be former president and his policymakers.
Laying out the record could help prevent similar follies in the future. It is naive to assume that “truth will out” from federal bureaucracies.
It is vital for a Trump White House to compel disclosures because the Freedom of Information Act (FOIA) has become largely a mirage. While Obama boasted of “the most transparent administration in history,” federal agencies slammed the door on routine requests — especially from the media. The Associated Press reported in 2015 that the Obama administration “set a record again for censoring government files or outright denying access to them” under FOIA. Federal agencies were also hit by a record number of lawsuits contesting FOIA denials in 2015.
If Hillary Clinton had won the presidency, some people would have blamed the State Department’s “slow walking” of FOIA requests for her emails (which she improperly kept on a private server). The FBI worked through 650,000 emails from Anthony Weiner’s computer in eight days but the State Department claimed it needed 75 years to fully answer a FOIA request on Hillary Clinton’s aides’ emails. A federal judge and the agency’s inspector general slammed its FOIA stonewalling.
The Department of Homeland Security also has a dreadful FOIA record; the agency permitted political appointees to stifle FOIA responses in a process that “reeks of a Nixonian enemies list,” California Republican Darrell Issa said when he was chairman of the House Oversight and Government Reform Committee. Under Obama, the Transportation Security Administration, part of the DHS, became far more intrusive and abusive, launching “enhanced patdowns” that, as USA TODAY noted, “require screeners to touch passengers’ breasts and genitals.” The TSA conceals almost all information over its groping (which has caught zero terrorists, or else we would have heard about it a hundred times) with a “sensitive security information” FOIA designation that justifies perpetual secrecy. Exposing TSA coverups and reining in the agency would create a bounty of early good will for the Trump administration.
Trump’s promise to end and replace the Affordable Care Act would be greatly assisted by releasing the memos behind Obama’s endless “fixes” to that law. For instance, a van-load of senior IRS financial managers were summoned in 2014 to the Old Executive Office Building and only permitted a peak at a secret Office of Management and Budget memo explaining why the Obama administration was entitled to spend $3.9 billion on subsidies for consumer health insurance. As The New York Times reported last year, the IRS officials “were told they could read it but could not take notes or make copies. The OMB officials left the room to allow their visitors a moment to absorb the document, and then returned to answer a few questions.” Federal judge Rosemary Collyer recently slammed the administration’s actions as unconstitutional.
Many sweeping regulations have lately been rushed into law with shaky rationales or scant evidence. Obama relied on “bureaucratic bulldozing rather than legislative transparency,” according to The New York Times, issuing 50% more “major regulations” than the George W. Bush administration. The Environmental Protection Agency and other agencies have been scandalized by switcheroos to suppress information federal law required them to disclose. Opening the books would be especially helpful for the torrent of midnight edicts the Obama team has issued in recent months.
Recent polls show that fewer than 20% of Americans now trust the federal government. Excessive secrecy spurs many Americans to presume that their rulers are up to no good. Regardless of the policies that Trump chooses, it would be a booster shot for democracy to reveal the back story of the Obama era.