Former Attorney General Loretta Lynch set aside ethical norms and good judgment to take her secret, election-year meeting with former Present Bill Clinton at an Arizona airport. Her agency was investigating Clinton's wife, Hillary, and pondering the permutations of prosecuting her as she ran for president.
In doing so, she paved the way for then-FBI Director James Comey to take unprecedented decision-making power in the investigation of Hillary Clinton's emails.
She also plunged her department and the White House into a panic when a local reporter got wind of the meeting. We finally know a bit more about it, thanks to a Freedom of Information Act lawsuit pursued by the American Center for Law and Justice.
After an unjustifiable 12 months of resisting compliance with the Freedom of Information Act, the Justice Department has finally handed over correspondence between the FBI, the Justice Department, and White House officials about how they should handle the fallout from Lynch's meeting. Among the findings was the fact that Lynch used a pseudonymous email address.
This is not the first recent case of federal officials doing so, nor of FOIA requests being unnecessarily delayed and litigated to cover up political wrongdoing, nor, most importantly, of documents being redacted for no reason other than to avoid embarrassment.
The bottom line is that government transparency is becoming a joke, and the joke is on all of us.
Recall that Hillary Clinton used a private email account and failed contemporaneously to hand over government records she thus created. This allowed her to thwart valid FOIA requests for years, and to stonewall a congressional inquiry. In a case similar to Lynch's, former EPA Administrator Lisa Jackson went by the alias "Richard Windsor." Although both Jackson and Lynch claim that FOIA compliance officers in their agencies were aware of their aliases, was every one of them really aware of it? There is room for doubt. Was there any way to guarantee that future FOIA officers would have this information so they could respond within the law when their records were searched in the future?
Problems with FOIA go beyond efforts by senior officials to hide their identity or their correspondence from public scrutiny. It is equally if not more concerning that the Justice Department, as often occurs with politically sensitive FOIA requests, improperly dragged its feet to thwart the ACLJ's valid request for the emails about Lynch's meeting with Clinton.
Not only did the department force the matter into unnecessary litigation that has lasted nearly a year but also imposed ridiculous and unjustified redactions that exceed permitted exemptions to the Freedom of Information Act.
Talking points that DOJ wrote and sent to the White House Office of Political Affairs were completely blacked out on the basis of a b(5) exemption, which is designed to protect "inter-agency or intraagency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency."
According to DOJ's guidance on FOIA's b(5) exemption, courts have interpreted this to "exempt those documents, and only those documents that are normally privileged in the civil discovery context." It is absurd to suggest that draft media talking points, written in a panic and sent to the White House to facilitate political damage control, would qualify as exempt from discovery in a civil court case. But the b(5) exemption has been so badly abused in other contexts that it is casually referred to as "the withhold-it-because-you-want-to exemption." This indicates a much bigger problem.
President Obama famously failed to keep his promise that his administration would presume in favor of disclosure wherever there was doubt. Instead he ran an administration that set new records for non-compliance with FOIA. As a result, Congress stepped in last year with a reform bill, which Obama did at least sign, to create a statutory presumption of disclosure. But even this has failed to change officials' habits, which always seek to conceal embarrassing details as long as possible.
Congress needs to fix FOIA, because it has become a sick and ironic joke. If bureaucrats refuse to preserve and deliver requested documents in a timely fashion as the law requires, perhaps all of their communications should by default be made available online after 30 days, with exemptions applied for on a case-by-case basis and subject to court challenge. The federal bureaucracy's obstinate non-compliance with valid requests justifies extreme measures. This is the entrenched civil service acting against the public interest and the law to shield itself and its political masters from detection in wrongdoing.
We hope that Lynch's case, with all the others over the years, helps convince Congress to go back to the drawing board on FOIA. Add tougher penalties, place stricter limits on exemptions, tighten regulations for government use of email. Do whatever is necessary. But make clear that no one is above the law, and make the federal government truly transparent to the public it exists to serve.