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01/10/2018

State Department Motion to Dismiss Denied in Colin Powell Email Case

Washington, D.C. – U.S. District Court Judge Trevor McFadden has denied the federal government’s motion to dismiss a lawsuit to compel Secretary of State Rex Tillerson and U.S. Archivist David Ferriero to fulfill their statutory obligations under the Federal Records Act (“FRA”) to recover former Secretary of State Colin Powell’s work-related email records from a personal account hosted by AOL, Inc.  Cause of Action Institute (“CoA Institute”) filed the lawsuit in October 2016 after then-Secretary John Kerry and Archivist Ferriero both failed to act on CoA Institute’s FRA notice and Freedom of Information Act (“FOIA”) request.

Although the government argued it had no reason to believe that copies of Colin Powell’s email records still existed and were recoverable from AOL servers, Judge McFadden rejected that conclusion, describing the State Department’s recovery efforts as “anemic,” particularly in light of the fruitful “leveraging” of law enforcement authority in the case of former Secretary Hillary Clinton.  “The Defendants’ refusal to turn to the law enforcement authority of the Attorney General is particularly striking in the context of a statute with explicitly mandatory language,” Judge McFadden opined.  “[T]here is a substantial likelihood that [CoA Institute’s] requested relief would yield access to at least some of the emails at issue.”

Cause of Action Institute President and CEO John J. Vecchione: “Agencies must take their responsibility to secure federal records seriously. For too long, agencies have allowed federal employees to use personal email accounts without ensuring those records are recovered and maintained in accordance with the law.  We are encouraged that the court recognized that agencies must do more to recover lost records.”

In September 2016, the House Oversight & Government Reform Committee held a hearing at which then-Under Secretary of State Patrick Kennedy testified that the State Department had undertaken minimal efforts to retrieve Colin Powell’s work-related email.  After learning that Powell no longer had access to his AOL account or its contents, the State Department merely asked Powell to contact AOL to see if anything could be retrieved.  Despite a request from the National Archives and Records Administration (“NARA”) to contact AOL directly, the State Department never did so.  Ultimately, the agency relied on unreliable hearsay—namely, the reported representations of Colin Powell’s personal secretary about an apparent phone conversation between someone at AOL and a staff member of the House Oversight Committee—to conclude that no records could be recovered.

Following yesterday’s ruling on the motion to dismiss, the government Defendants must now either comply with their non-discretionary obligations under the FRA, which requires them to initiate action through the Attorney General to recover unlawfully removed records, or they must proffer new evidence to prove the “fatal loss” and irrecoverability of Colin Powell’s email records from AOL servers.

Judge McFadden’s opinion can be accessed HERE.

For information regarding this press release, please contact Zachary Kurz, Director of Communications at CoA Institute: zachary.kurz@causeofaction.org.

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01/10/2018

IRS Dodges Oversight, Refuses to Measure Economic Impact of its Rules: Investigative Report

Washington D.C. – Cause of Action Institute (“CoA Institute”) today released a groundbreaking investigative report, Evading Oversight: The Origins and Implications of the IRS Claim that its Rules Do Not Have an Economic Impact, that reveals how the IRS has developed a series of self-bestowed exemptions allowing the agency to evade several legally required oversight mechanisms. The report outlines in detail how the IRS created this exemption to exempt itself from three critical reviews intended to provide our elected branches and the public an opportunity to assess the economic impact of rules before they are finalized.

Read about the report in today’s Wall Street Journal, including suggestions for how the White House and Congress can work together to end this harmful practice.

CoA Institute Counsel and Senior Policy Advisor James Valvo: “The IRS for too long has evaded its responsibilities to conduct and publish analysis of its rules. Rules issued by the IRS can change the economic landscape for Americans in many ways, including how the agency calculates deductions, exemptions, reporting, and recordkeeping. By creating bureaucratic loopholes, the IRS deliberately sidesteps several oversight mechanisms designed to provide a check on overly burdensome rules. The IRS should be held to the same standard as other regulatory agencies and stop avoiding its responsibilities.”

For years, the IRS has evaded several laws directing agencies to create economic impact statements for rules. These analyses are part of three oversight mechanisms: The Regulatory Flexibility Act, the Congressional Review Act, and review by the White House Office of Information and Regulatory Affairs.  All three are good-government measures designed to provide a check on abuse by the administrative state.

CoA Institute’s investigative report reveals the origins and implications of the unprecedented IRS position that its rules have no economic impact and do not require such analysis because, it claims, any impact emerges from the underlying law that authorized the rule, and not the agency’s decision to issue or alter it.

The full report, including executive summary and key findings, can be accessed HERE.

For information regarding this press release, please contact Zachary Kurz, Director of Communications at CoA Institute: zachary.kurz@causeofaction.org.

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01/5/2018

The Outer Continental Shelf Oil and Gas Leasing Program

In August of 2016, Cause of Action Institute (“CoA Institute”) submitted a Freedom of Information Act (“FOIA”) request, seeking the following information about the Outer Continental Shelf (“OCS”):

Because of the agency’s failure to release records responsive to this request, CoA Institute filed a FOIA lawsuit on November 11, 2016. Recently, the Bureau of Ocean Energy Management (“BOEM”) provided its 10th and final production. While CoA Institute is still in active litigation regarding this request, considering the new administration and its priorities, we thought it of value to discuss our findings to date. However, to fully understand the process, we believe that some background on the Outer Continental Shelf Lands Act (“OCSLA”), 43 U.S.C., is necessary.

The Outer Continental Shelf and OCSLA background

The outer continental shelf is made up of “all submerged lands lying seaward and outside of the area of lands beneath navigable waters…and of which the subsoil and seabed appertain to the United States and are subject to its jurisdiction and control.” OCSLA was enacted on August 7, 1953 and governs the policies and procedures related to the OCS. Under  OCSLA, the Secretary of Interior (the “Secretary”) is responsible for the administration of mineral exploration as well as other OCS development (i.e., wind energy).[1] Further, through OCSLA, the Secretary may grant leases to the highest qualified responsible bidder based on sealed competitive bids.[2] OCSLA also provides guidelines for implementing an OCS oil and gas exploration and development program.[3] This program, the Outer Continental Shelf Oil and Gas Leasing Program, is commonly referred to as the “Five-Year Program”.

Specifications under the Five-Year Program

As provided in the OCSLA, the Five-Year Program shall have a schedule that indicates as precisely as possible, the size, timing and location of leasing activity best suited for national energy needs during the five-year period following its approval or re-approval.[4] In reviewing the five-year program, the BOEM looks at a variety of economic and environmental factors. The timing and location of exploration, development, and production of oil and gas on the OCS shall be based on consideration of eight factors.

These factors are:

“(A) existing information concerning the geographical, geological, and ecological characteristics of such regions; (B) an equitable sharing of developmental benefits and environmental risks among the various regions; (C) the location of such regions with respect to, and the relative needs of, regional and national energy markets; (D) the location of such regions with respect to other uses of the sea and seabed, including fisheries, navigation, existing or proposed sea-lanes, potential sites of Deepwater ports, and other anticipated uses of the resources and space of the outer Continental Shelf; (E) the interest of potential oil and gas producers in the development of oil and gas resources as indicated by exploration or nomination; (F) laws, goals, and policies of affected States which have been specifically identified by the Governors of such States as relevant matters for the Secretary’s consideration; (G) the relative environmental sensitivity and marine productivity of different areas of the outer Continental Shelf; and (H) relevant environmental and predictive information for different areas of the outer Continental Shelf.”

Further, the Five-Year Program provides that the Secretary shall request and contemplate input from federal agencies and the Governor of any State that could be affected under the proposed leasing program. Suggestions from local government executives in states that may be affected, which have been previously mentioned to the Governor of such State and any other person may also be considered. Under 43 U.S.C. §1331,  the term “person” includes, in addition to a natural person, an association, a State, a political subdivision of a State, or a private, public, or municipal corporation.

The Five-Year Program “process includes three separate comment periods, two separate draft proposals, a final draft proposal, a final secretarial proposal, and development of environmental impact statement (EIS).” This process, takes approximately two and a half years to complete. As mentioned above, input from federal agencies, state and local government, and any other person, may be considered. After the Secretary approves the program, the Proposed Final Five-Year Program is sent to the President and Congress. After at least sixty days, the Secretary may approve the program. The Department of Interior cannot offer an area for lease without it being included in an approved Five-Year Program.

The Secretary shall review the leasing program approved under this section at least once a year. After Secretarial approval, the geographic scope of a lease sale area can be narrowed, cancelled, or delayed without the development of a new program. The Secretary shall, by regulation, establish procedures for various steps in the management process. Such procedures will apply to various activities, including any significant revision or reapproval of the leasing program.

This series will continue next week with a comparison between the requirements outlined above and the process that took place during the 2017-2022 planning process.

Any questions, commentary, or criticisms? Please email us at kara.mckenna@causeofaction.org and/or katie.parr@causeofaction.org

Katie Parr is a law clerk and Kara E. McKenna is a counsel at Cause of Action Institute.

[1] Bureau of Energy Management, BOEM, https://www.boem.gov/OCS-Lands-Act-History/ (last visited January 3, 2018).

[2] Id.

[3] Id.

[4] Id.

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12/19/2017

Politicizing FOIA review at the EPA and Interior

The Washington Post reported last week that “high-level officials” at the Environmental Protection Agency (“EPA”) and the Department of the Interior (“DOI”) have started to “keep closer tabs” on incoming Freedom of Information Act (“FOIA”) requests for records that may be embarrassing or politically damaging to the Trump Administration.  Whether by deliberately delaying responses or conducting pre-production review of responsive records, non-career officials have been accused of politicizing FOIA.

Politicizing FOIA is Not New

Although concern over the improper interference by political appointees in the administration of the FOIA is justified, the practice did not originate with President Trump.  For example, according to two DOI Inspector General reports—dated September 2015 and October 2010—political appointees at Interior have long been routinely made aware of “selected” FOIA requests, including those “currently in litigation” or concerning “high profile or sensitive matters.”  In some instances, requests (including those from news media requesters) were “considerably delayed . . . possibly due to political involvement.”  Moreover, the EPA Inspector General, in August 2015 and January 2011, reported that EPA regulations specifically permitted some political appointees—including the agency’s Chief FOIA Officer and the authorized disclosure official in the Administrator’s Office—to participate in approving requests and redacting records.

The Obama-era

The truth is that politicizing FOIA reached its zenith under the Obama Administration.  Despite a professed commitment to transparency, President Obama introduced the pernicious practice of “White House equities” and “sensitive review” procedures at various agencies, including the Department of Treasury, the Department of Housing and Urban Development, the EPA, the State Department, the Department of Veteran Affairs, the Department of Defense, and the Department of Homeland Security.  As part of “sensitive review,” non-career political appointees direct career FOIA staff to consult with them whenever a FOIA request could elicit media attention or potentially embarrass the White House.  It is more than a bit ironic that the Washington Post—which previously described the Obama Administration as “one of the most secretive” ever because of its historic “stonewalling or rejecting” of FOIA requests—would now forget, or least fail to mention, this long, bipartisan history of presidents abusing transparency laws to their advantage.

Of course, none of this means that the Trump Administration is adhering to best practices.  It stands to reason that FOIA politicization, and a lack of overall commitment to transparency, continues.  For example, “White House equities” review persists.  In July 2017, the General Services Administration released to CoA Institute a previously-secret White House memo detailing those procedures, thus suggesting they are still in place.  Although not directly related to the FOIA, the White House also appears to have interfered with how agencies respond to congressional oversight requests.  And, most recently, CoA Institute has investigated the National Oceanic and Atmospheric Administration’s practice of identifying “high visibility” FOIA requests, as well as its tracking of requests concerning the Trump “transition.”

The current Administration is not alone in politicizing FOIA.  Where political appointees are interfering with the disclosure of records, they are continuing a long tradition of obstructing the public’s right to access government information.  To turn the issue into a partisan one—of Trump versus the EPA #Resistance, of #DrainTheSwamp versus the “main stream” media—obscures the underlying problem and makes it more difficult to reach consensus on how to fix it.

Ryan P. Mulvey is Counsel at Cause of Action Institute.

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12/19/2017

Lawsuit against McAuliffe, GreenTech Automotive is long overdue

Ryan P. Mulvey: Lawsuit against McAuliffe, GreenTech Automotive is long overdue

It was always too good to be true.

Nearly ten years ago, when Terry McAuliffe teamed up with Chinese businessman Charles Wang to start GreenTech Automotive — and hired Hillary Clinton’s brother, Anthony Rodham, to sell the “green energy” car company to foreign investors — the principals made alluring promises to state officials in Virginia and Mississippi.

 In return for millions of dollars in public loans and tax incentives, GreenTech at one time pledged to create upwards of 25,000 jobs. According to the Memorandum of Understanding eventually signed between the company and the Mississippi Development Authority, however, McAuliffe and his cohorts ultimately only promised to invest $60 million in the state and create 350 full-time jobs within three years.

As expected by some — including Cause of Action Institute — even the company’s more modest promises of economic growth fell through. The writing was on the wall as early as May 2016when reports circulated that GreenTech employed only 75 people and had failed to sell a single vehicle.

Read the full column at Richmond Times-Dispatch

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12/18/2017

Plea Bargaining and Its Effect on The Sixth Amendment

Earlier blog posts on criminal justice and policing reform focused on overcriminalization, mandatory minimums, and other perverse incentives within our justice system. This post will focus on the Sixth Amendment and Plea Bargaining. For the purposes of this post, “plea bargaining” refers to “agreements between defendants and prosecutors where defendants agree to plead guilty to some or all the charges against them in exchange for concessions from the prosecutors.”[1]  Because of the extensive use of plea bargaining, the Sixth Amendment right to public trial is fading.

Over 200 years ago, the United States Constitution became the supreme law of the land with the later accompaniment of the Bill of Rights. Included in the Bill of Rights is the Sixth Amendment, which states: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed…; and to have the Assistance of Counsel for his defence [sic].”[2]A criminal defendant’s right to a jury trial exists to prevent the oppression from the government.[3] Further, “providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge.”[4]

As mentioned in an earlier post, we have started to see a rise in the use of mandatory minimums. Because of this, there has been a shift from using the trial process, to using a plea bargain.[5] In fact, today only 3% of federal cases are resolved by way of the Sixth Amendment.[6] According to Jenia I. Turner, PLEA BARGAINING, “plea bargains increasingly require defendants to waive important procedural rights that are designed to ensure fair and accurate outcomes.”[7] The right to remain silent, confront witnesses, have a public trial or jury trial are all inherently waived by a guilty plea.[8] Thus roughly 97% of federal cases are resolved without these procedural protections.

In many jurisdictions, judges are prohibited from participating in or commenting on the plea negotiations.[9] Most sentencing power now lies with the prosecutors, who have minimal boundaries. In fact, there is only one restriction placed on prosecutors: they cannot use illegal threats to secure a plea.[10] For example: “If a prosecutor says, ‘I’ll shoot you if you don’t plead guilty, the plea is invalid.”[11] Alternatively, if a prosecutor threatens to charge a defendant with a crime punishable by death at trial, and this threat causes the defendant to accept a plea agreement, this method is lawful.[12] Further, with the presence of probable cause, prosecutors can threaten to bring charges against the defendant’s family[13] Today, individuals who elect to use their Sixth Amendment right, essentially face harsher sentences than those who accept a plea bargain.[14] With mandatory minimums and other sentencing enhancements, prosecutors can often dictate the sentence that will be imposed.[15] According to Bill Cervone, the State Attorney in Gainesville, FL and Chief Prosecutor in Florida’s Eighth Judicial Circuit, “legally, you cannot impose a longer sentence on someone because they exercised their right to trial…factually, there are always ways to do it.”[16]

Unfortunately, as the system currently exists, there are minimal safeguards for those who pick going to trial over accepting a plea bargain. Furthermore, when defendants do accept a plea bargain, judges have limited ability to ensure that their decisions are made knowingly, voluntarily, and intelligently. As discussed in earlier posts, the Sentencing Reform and Corrections Act (“SRCA”), if signed into law, would reduce penalties for non-violent repeat offenders and restore judicial discretion in cases of low-level offenders below the mandatory minimum. These changes are important because, as the use of mandatory minimums decreases, there could be an associated decrease in the use of plea bargaining. While SRCA only addresses a portion of the much-needed criminal justice reform, passing it would be a great first step.

Katie Parr is a law clerk at Cause of Action Institute

[1] Legal Information Institute, Plea Bargain, https://www.law.cornell.edu/wex/plea_bargain

[2] U.S. const. amend. VI.

[3] See Duncan v. Louisiana, 391 U.S. 145, 156.

[4] Id. at 155.

[5] 3 Jenia I. Turner, Reforming Criminal Justice, Pretrial and Trial Processes, Plea Bargaining, 2017, at 87.

[6] Dylan Walsh, Why U.S. Criminal Courts Are So Dependent on Plea Bargaining, The Atlantic (May 2, 2017), https://www.theatlantic.com/politics/archive/2017/05/plea-bargaining-courts-prosecutors/524112/

[7] 3 Jenia I. Turner, Reforming Criminal Justice, Pretrial and Trial Processes, Plea Bargaining, 2017, at 87.

[8] Id.

[9] Turner, supra note 5, at 87.

[10] Walsh, supra note 3, at 1.

[11] Id.

[12] Id.

[13] Id.

[14] Richard A. Oppel Jr., Sentencing Shift Gives New Leverage to Prosecutors, The New York Times (Sept. 25, 2011), http://www.nytimes.com/2011/09/26/us/tough-sentences-help-prosecutors-push-for-plea-bargains.html

[15] Id.

[16] Id.

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12/13/2017

John Vecchione discusses CFPB “Dumbledore’s Army” on KZIM’s Morning News Watch

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