Ah Change.
Blago records may stay under wraps
Posted: Dec 22, 2008 10:46 AM
By Kenneth P. Vogel
Provided by
Barack Obama is promising that next week he'll disclose contacts between his staff and disgraced Illinois Gov. Rod Blagojevich's office, but he's stopped short of pledging to release e-mails or other records that could be key to understanding those contacts.
Whatever such records exist may never see the light of day, thanks to a gap in government records disclosure laws that allows presidential transition teams to keep their documents - even those prepared using taxpayer dollars - out of the public record.
The exemption from disclosure rules surprised some records law experts, and may prompt legislation from a leading Republican transparency advocate to apply the laws to presidential transition teams, which could compel Team Obama to preserve Blagojevich-related records for inspection, if only in the distant future.
But for now, a spokeswoman for President-elect Barack Obama said the transition team was not covered by a public information law that Politico cited in requesting copies of Obama staffers' emails and notes about Blagojevich's efforts to fill the Senate seat Obama vacated after winning the presidency.
Asked if the team would voluntarily release the records, the spokeswoman, Stephanie Cutter, was non-committal. "Let's wait and see what we put out after our internal review," she told Politico. "I don't even know if there's any correspondence to be had, so one step at a time."
Blagojevich's alleged effort to sell Obama's Senate seat is the subject of an ongoing federal criminal investigation, and Obama this week explained that "the U.S. attorney's office asked us to hold off" from "releasing the findings of the review that had been done, which are thorough and comprehensive."
The Obama team would not say whether it would unveil its findings as a written report, a brief press release or a verbal statement, nor whether it would supplement the release with emails, notes or other records sent, received or maintained by the transition team - though that seems unlikely.
Records - particularly emails sent between transition team staffers or between the team and Blagojevich associates - could shed more light on what Obama's inner circle knew about Blagojevich's alleged plot, what they thought about it and whether they contacted law enforcement.
Even if Obama's records were covered by federal information laws, he likely would not be compelled to release them in the near-term - public records requests can drag on for months, while presidents' personal records aren't released until after they leave the White House - sometimes years after.
Still, representatives from a pair of leading government watchdog groups - the Center for Responsive Politics and Public Citizen - called on Obama to release any records related to Blagojevich and the Senate seat.
"There is a keen interest" in the matter, said the Center's director, Sheila Krumholz, who argued that the onus should be on transition team to explain to the public "what the damage might be if information is released or what the benefit is in withholding this information" - a legal construct used to evaluate requests made under public records laws.
It "is a gaping loophole," said Angela Canterbury, who handles open government issues for Public Citizen, referring to the federal Freedom of Information and Presidential Records acts, passed to empower the public and press to learn about their government and hold its officials accountable by accessing government records, but neither of which apply to presidential transition teams.
The Presidential Records Act, which mandates presidents' records be preserved and turned over to the National Archives for eventual release after the president leaves office, doesn't apply to Obama's personal records because he's not president yet, explained Daniel J. Metcalfe, who retired last year after a quarter century as director of the Justice Department's Office of Information and Privacy.
Additionally, Metcalf said Obama transition records are not subject to the Freedom of Information Act - which requires federal government agencies to produce most records requested by the public and media - because the transition team is technically a private entity, not a government agency, even though it gets taxpayer money.
Obama's transition team, which is set up as a private non-profit group under section 501 (c) (4) of the Internal Revenue Service code, will have its disposal $5.3 million in taxpayer money administered by the General Services Administration, not to mention office space in downtown Washington, ".gov" e-mail addresses and $1 million worth of federal training for key political appointees.
But during the 1988 transition between Presidents Ronald Reagan and George H. W. Bush, Metcalfe penned a Justice Department memo explaining that "it is executive branch control, not mere funding, that determines whether an entity is an ‘agency' for purposes of the (Freedom of Information Act)."
Still, Krumholz asserted "there should be some requirements that go along with that government support," including disclosure.
The federal funding, combined with the statutory recognition of presidential transition teams, means they could be brought under the ambit of disclosure laws, according to a GOP congressional aide, who said Sen. John Cornyn (R-Texas), a leading advocate for government transparency, is considering legislation to retroactively apply the Presidential Records Act to the Obama transition team.
Leslie Phillips, a spokeswoman to Sen. Joseph I. Lieberman (I-Conn.), who chairs the committee that oversees the Presidential Records Act, all but brushed off Cornyn's idea.
"Sen. Lieberman has been pleased with the Obama transition team's commitment to transparency and is hopeful the Obama administration will also maintain a high level of openness," Phillips said.
But the aide familiar with Cornyn's idea, who did not want to be identified talking about the Senator's plans, said the need to regulate transition team records extends beyond the Blagojevich matter to policy plans and analyses done with the cooperation of federal agencies.
"To the extent that they are currently operating with public funds and with authority given to them by federal statute and courtesies given to them by federal agencies, they ought to be under the Presidential Records Act, if not the Freedom of Information Act," said the aide.
Other than voluntary disclosure by Obama's team, there aren't a whole lot of ways that its Blagojevich-related records could come out.
The governor's office might be compelled by Illinois' public records law to release emails that may have passed between his aides and Obama's, though the state has argued - unsuccessfully so far - that it shouldn't have to release documents related to the U.S. attorney's ongoing investigation.
Also, transition team correspondence related to both Blagojevich's selection process and Obama's internal review could become public as evidence in the case against Blagojevich, which is partly why some experts questioned the wisdom behind the Obama review.
"They're creating a parallel set of evidence at a time the U.S. attorney is seeking evidence - that's not what I would be doing," said Stan Brand, a top Washington defense lawyer who represented then-White House aide George Stephanopolous in the Whitewater investigation.
And, lastly, any records that transition team staffers take with them into the White House or federal government agencies could become subject to the presidential records or freedom of information acts, respectively, according to Trevor Potter, who was the top lawyer for Obama's Republican rival John McCain and looked at records-management issues during McCain's transition planning.
If Obama wants to avoid releasing transition documents, Metcalfe said, "then he should tell his transition team not to bring them within the four walls" of the executive branch offices they will occupy after Obama's sworn in. "To be entirely safe, they should keep them at home for consultation and reference there."
Though Metcalfe now serves as executive director of the Collaboration on Government Secrecy, a center within American University's law school that advocates greater disclosure, he said applying the Freedom of Information Act to transition teams is a bad idea because it would "unduly encumber their work" and be overly burdensome.
"It is very useful for a transition team to be able to operate with the freedom that is afforded by non-disclosure and complete confidentiality," he said. "If a transition team had to operate with concern that everything it created was subject to FOIA disclosure, not to mention the statute's procedural requirements, that would not be good public policy. In fact, it could potentially bring even a well-organized transition team such as President-elect Obama's to its knees." |
