The Trump administration has no idea what’s coming. If President Trump and his cabinet believe they have been under the microscope for the past 15 months, they’re in for a rude awakening – and it may be coming sooner than they think.
Most of the shocking stories of corruption that we’ve heard – tales of cabinet officials’ luxury air travel, tax dollars spent on expensive dining sets, and top government positions going to grossly underqualified political loyalists – have been unearthed by the media and independent watchdog groups using tools like the Freedom of Information Act (FOIA) to extract evidence of misconduct.
Congress, meanwhile, has been sitting on the sidelines. From the now-infamous Nunes Memo to the House Oversight and Government Reform Committee failing to issue a single subpoena to the Trump administration, Congress has largely given the executive branch a pass.
That could all change in January of 2019. If the Democrats win control of either chamber of Congress in the upcoming midterm elections, a door to a new and incredibly potent mechanism to hold the Trump administration accountable would open: simultaneous, parallel investigations by Congress and outside groups filing FOIA lawsuits.
Today, American Oversight announces the Parallel Investigations Initiative to lay the groundwork for this potential surge in congressional oversight activity. We have begun proactively tracking oversight requests made by both the chairs and ranking members of key congressional committees and, in many cases, we’ve already submitted parallel FOIA requests for the same information.
Longstanding executive branch practice provides that agencies can basically ignore congressional document requests unless they are submitted by committee chairs. If today’s reluctant Republican chairs are replaced by Democrats intent on conducting aggressive investigations, American Oversight will be in a position to file FOIA lawsuits that mirror congressional document requests.
The Trump administration won’t know what hit them. Independent FOIA litigation paired with aggressive congressional oversight creates a nightmare for federal agencies because of the different levers litigants and members of Congress can pull to enforce their demands.
When backed by a committee chair, a federal agency must respond when Congress requests documents. This is an inherently political process. Federal agencies are practiced at deflecting committee questions, limiting the scope of requests, and delaying document delivery. Political appointees with close ties to leadership are often at the vanguard of negotiating what will be provided, giving the agency significant control. Agencies can get away with this because Congress has limited options to enforce its requests. Committee chairs can call hearings to publicly embarrass agency officials and issue subpoenas, but there isn’t much they can do to compel agencies to cooperate.
FOIA litigation, on the other hand, when supervised by federal court judges are less subject to political interference. If an agency has documents responsive to a FOIA request, it is required by law to produce them. The work of collecting, reviewing, and releasing documents generally is performed by apolitical, career civil servants, and judges have limited patience with delaying tactics. Slowly, but inexorably, FOIA lawsuits eventually force agencies to disclose those documents they’d prefer to keep out of public view.
When Congress and litigants are working on parallel tracks, it creates a feedback loop of oversight that is much harder to resist. Court-ordered document production deadlines in FOIA cases make it impossible for agencies to tell Congress it’s too onerous to review documents. Likewise, it is difficult for agencies to argue in court that it could take years to locate and release documents if they have already sent those same documents to the Hill. And of course, no cabinet secretary likes the idea of sitting in a televised hearing, facing an angry chair demanding to know why an outside watchdog group received documents that the committee had been denied.
Recent history demonstrates how powerful this dynamic can be. In 2014, the State Department produced a document about Benghazi in a FOIA case that the GOP-controlled House hadn’t seen previously despite years of investigation. The revelation—a single document—was the catalyst for the creation of the Select Committee on Benghazi, which in turn was the first to receive copies of emails from Hillary Clinton’s personal email account. The uproar led to outside FOIA litigants suing to see all of Clinton’s emails, not just those related to Benghazi. Operating in parallel, they left the State Department scrambling as judges scolded the agency in court and Republicans hammered it in hearings, on television, and behind closed doors.
The Trump administration might not have to wait until January to find out what this kind of scrutiny feels like. While the current Republican committee chairs have mostly looked the other way as the scandals piled up, there are signs the administration’s free ride could be coming to an end very soon.
Last month, the New York Times reported that Housing and Urban Development Secretary Ben Carson had ordered a $31,000 dining set for his office suite at taxpayer expense. American Oversight filed a FOIA lawsuit seeking any records related to Carson’s office redecoration expenses, and just a few days later, House Oversight Chairman Trey Gowdy sent a letter asking for much of the same information. Facing both requests, it took less than a week for HUD to turn over dozens of internal emails exposing Carson’s role in personally selecting the expensive furniture order, contradicting his previous public statements.
Congressional committee chairs are now also demanding documents from Environmental Protection Agency Administrator Scott Pruitt; American Oversight has several active lawsuits seeking those documents as well.
A handful of letters and committee hearings does not mean that the current Congress will suddenly start conducting aggressive oversight, but if other cabinet officials have succeeded in concealing their own expensive purchases made at taxpayer expense, it’s clear that the clock is now ticking, and sooner or later, the truth will come out.
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