Capitol Riot Documents, White House Visitor Logs are Back, Trump’s Presidential Library Website Launched, and Much More: FRINFORMSUM 1/22/2021

The Capitol Riot: Documents You Should Read (Part 1)

The Pentagon’s timeline of its response to the January 6, 2021 mob attack on the U.S. Capitol features multiple discrepancies with the public record, while the first federal indictment of mob participants details the specific legal charges that likely will be brought against others, according to the documents in the National Security Archive’s first “January 6 Sourcebook”.

The Sourcebook, subtitled “documents you should read,” includes:

• the Dissent Channel message signed by more than 100 State Department employees denouncing the attack as undermining the U.S. promotion of democracy abroad (published by Josh Rogin of the Washington Post in his Twitter feed);
• the earlier 2006 FBI report warning of white supremacists’ influence in far-right circles, released by the House Oversight Committee;
• the Department of Homeland Security threat assessment from October 2020 warning that violent white supremacy was “the most persistent and lethal threat in the Homeland” (published by Lawfare);
• the text of the speech by President Trump at the Ellipse just prior to the mob marching on the Capitol (published and annotated by the Washington Post);
• the federal grand jury indictment of one of the mob members, Mark Leffingwell, citing five different sections of the U.S. Code violated by the mob. (First reported by Josh Gerstein of Politico.)

The January 6 Sourcebook publication marks the beginning of a systematic campaign by the Archive, a champion of the Freedom of Information Act, to use the FOIA to open the documentary record of what the government knew and when, and what the government did and didn’t do and when, about the mob attack on the Capitol. Archive staff have already drafted more than 75 specific, targeted FOIA requests to multiple federal agencies.

Biden Pledges to Open White House Visitor Logs

Biden spokesperson Jen Psaki has pledged the new administration will resume publication of Secret Service logs of White House visitors, an Obama transparency innovation that was canceled by Donald Trump.

The Obama White House posted some six million records of visits to the White House within 90 days of the visit, enabling journalists and citizens to track lobbyists and interest groups, and even determine the relative influence of, for instance, Google, versus the other tech companies.

The Trump White House initially promised on its website to resume publication, but the National Security Archive suspected that would not happen, given President Trump’s pattern of secrecy around his tax returns. Archive senior analyst Kate Doyle filed Freedom of Information Act requests with the Secret Service, part of the Department of Homeland Security, on early visits to Trump by Mexican officials at the White House and at Trump properties like Mar-a-Lago; and soon after, in April 2017, the entire visitor log portion of the White House website went dark.

The Archive filed suit in federal court in New York, where Doyle is based, in Doyle v. DHS, with pro bono representation from attorneys Anne Weismann (later of CREW), and Jameel Jaffer and Alex Abdo of the Knight First Amendment Center at Columbia University.

Will Trump’s mishandling of records leave a hole in history?  Undoubtedly Yes – Even as his Presidential Library Website is Launched.  

Former President Donald Trump was told to stop ripping up official documents – a move that violated the Presidential Records Act and forced White House records officers to spend hours taping them back together – but he wouldn’t. He also scolded officials for taking notes during meetings with Russian President Putin during the Mueller investigation, going so far as to confiscate the interpreter’s notes. Compounding this damage, members of his staff were also found to have used personal email and disappearing messaging apps. 

To add insult to injury, the delays formalizing the official transfer of power from the Trump administration to the incoming Biden administration impaired the move of presidential records from the Trump White House to the National Archives and Records Administration (NARA), which takes legal possession of the records as soon as the chief executive leaves office. NARA told the Associated Press, “Necessary funding from the (White House) Office of Management and Budget was delayed for many weeks after the election, which has caused delays in arranging for the transfer of the Trump presidential records into the National Archives’ custody”.

Trump’s approach to records management and preservation was inexcusably cavalier. The Archive has filed several suits against his administration seeking redress on behalf of the public – including a 2017 suit filed with Citizens for Responsibility and Ethics in Washington (CREW) seeking judicial review of White House record keeping, as well as a 2019 suit filed together with CREW and Society for Historians of American Foreign Relations (SHAFR), against Secretary of State Mike Pompeo and the Department of State for violating the Federal Records Act by failing to create and preserve essential State Department records, especially those documenting foreign head-of-state conversations. 

The results of these suits were mixed – the first was ultimately lost and the second is ongoing – prompting the Archive, CREW, SHAFR, and the American Historical Association to file suit at the end of 2020 – this time against President Donald Trump in his official capacity, seeking to enforce the Presidential Records Act and prevent any destruction of records during the presidential transition. The court, however, refused to grant a temporary restraining order, citing assurances from government lawyers that White House staff had been instructed “to preserve all electronic communications in their original format until the suit was settled.”  Nonetheless, the DOJ committed to a litigation hold lasting through inauguration that resulted in three warnings from the White House Counsel’s office to White House staff, which put a stop to the practice of taking a screen shot of instant messages, preserving only the graphic content rather than a complete copy of the message.

Time will tell if the instructions were heeded. 

In the meantime, NARA has announced the launch of the Trump Presidential Library Website. Considering Trump’s disdain for recordkeeping, one hopes that Trump is funding the digitization of records that will appear on the site – just as Barack Obama did – rather than forcing taxpayers to do so.  

Fmr. Michigan Gov. Charged with Neglect in Flint Water Crisis: FOIA Plays Leading Role in Groundbreaking Charges

Former Michigan Governor Rick Snyder is being charged “with willful neglect of duty after an investigation of ruinous decisions that left Flint with lead-contaminated water and a regional outbreak of Legionnaires’ disease,” according to Politico. The misdemeanors are “punishable by up to a year in jail and a $1,000 fine.”

The Michigan state archivist said the charges against Snyder were groundbreaking, noting that no current or former governor in the state had been charged with crimes related to their time in office. 

FOIA’s role in the remarkable story must be noted: State-level FOIA releases in Michigan helped expose both the cost-driven decisions not to add corrosion controls to Flint water supply, and the cover-up to hide the grave mistake. The FOIA requests were so successful uncovering official malfeasance that they prompted Snyder – whose office was exempt from the FOIA – to release records on his own poor handling of the crisis in February 2016. The inadequacy of the governor’s response even spurred a bipartisan effort (ultimately unsuccessful) by Michigan lawmakers to introduce a series of legislation that would remove those exemptions. A deeper dive I performed into the role of FOIA in the Flint crisis can be found here. 

FOIA Shows PPP Loans Went to Anti-Vaxx Groups Spreading Misleading COVID Info

A FOIA lawsuit filed by the Washington Post and four other news organizations has won the release of Paycheck Protection Program data from the Small Business Administration. The release shows that more than $850,000 of the COVID emergency loan program went to “Five prominent anti-vaccine organizations that have been known to spread misleading information” about COVID. These organizations are the National Vaccine Information Center, Mercola Health Resources, the Informed Consent Action Network, the Children’s Health Defense and the Tenpenny Integrative Medical Center.

Prior reporting on the FOIA release shows that more than half of the SBA’s funds went to five percent of the recipients – “According to data on the government’s Paycheck Protection Program (PPP), about 600 mostly larger companies, including dozens of national chains, received the maximum amount allowed under the program of $10 million.” 

Reminder: Public Comments for NARA’s Digitization Rule Due 2/1/2021

NARA is seeking public comment on a proposed rule concerning the digitization of public records – namely, it is attempting “to amend our electronic records management regulations to add a subpart containing standards for digitizing permanent Federal records so that agencies may dispose of the original source records, where appropriate and in accordance with the Federal Records Act amendments of 2014.”

The proposed rule change poses serious concerns for historians, including:

• How much oversight will NARA have of the digitization process to ensure its carried out properly and will include all relevant metadata?
  • NARA’s oversight of agency compliance with previous rules regarding email preservation raises concerns that NARA’s approach in this instance will be relatively hands-off, and that spot checks for individual agency compliance will be few and far between. Moreover, the impending deadline of the 2019 memo, coupled with this new rule change, raises the possibility that some agencies will choose the quickest and cheapest digitization process over long-term archival requirements.
• What happens to physical records after they have been digitized? Will agencies have free reign to dispose of them?
• Will there be backups of digitized files if they become corrupted?

Public comments are sought on or before February 1, 2021.

In Brief

• Emails obtained through the Freedom of Information Act and shared with the Hill show Interior Department ethics officials concerned with the agency sharing a video on social media “touting President Trump’s conservation record”. Shared by Interior Secretary David Bernhardt, it immediately drew criticism for violating the Hatch Act. According to the FOIA release, Interior’s chief ethics official Heather Gottry wrote, “Given the proximity to the election, the overall tone and tenor of the video may be viewed by outside stakeholders as similar to campaign or other partisan political advocacy videos, and as a result may prompt questions or concerns to be raised with the U.S. Office of the Special Counsel”.
• David Kris has an incredibly useful guide to the recently published “SIGINT Annex” released by the National Security Agency. Published in Lawfare, it is a primer for the “appendix to the manual of rules that governs intelligence collection by all elements of the Department of Defense, of which the NSA is one.” As Kris notes, “The SIGINT Annex is not easy reading, in part because it is designed for professional SIGINT operators and analysts. It is one of the main ways in which the NSA talks to itself about what is, and is not, authorized at every stage of the SIGINT life cycle. This includes collecting, processing, querying, retaining and disseminating SIGINT.”’
• The National Security Council recently released a 2017 document called the “U.S. Strategic Framework for the Indo-Pacific.” The Post’s Josh Rogin notes that while the Trump administration was often criticized for not having a China strategy – it did have one. “The fundamental problem was that President Trump himself rarely followed it.”
• The Black Vault – run by John Greenewald Jr. – can now boast that it is the host of an unprecedented number of CIA documents on UFOs. Greenewald won the release of nearly 3,000 pages of documents by filing a series of FOIA requests, and the CIA says the release represents the entirety of its FOIA collection. He also spent considerable time turning the documents into searchable PDFs – they can be found here.