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07/31/2017

Senator Grassley Claims the Trump Administration is Rejecting the DOJ’s Opinion on Responding to Congressional Records Requests

At the end of last week, Senator Chuck Grassley’s office published a press release that claimed the White House “has committed to voluntarily answer all congressional inquiries, not just those from committee chairmen.” The White House’s response has seemingly resolved the Judiciary Committee Chairman’s concern that the Administration had wedded itself to what Senator Grassley described as a “nonsense” legal opinion issued by the Department of Justice’s Office of Legal Counsel (“OLC”).

Cause of Action Institute (“CoA Institute”) previously reported on the OLC opinion, arguing that the Trump Administration may be charting a course into newer and less transparent waters. The opinion was technically correct in emphasizing that individual Members of Congress lacked constitutional authority to conduct formal, compulsory oversight.  But the OLC also provided a distorted view of the law by implying that federal agencies could ignore requests, or provide limited responses on a discretionary basis, simply because of a Member’s political affiliation or position in leadership.

In response to a rebuke from Senator Grassley, who requested that the White House rescind the OLC opinion, White House Director of Legislative Affairs Marc Short clarified that the opinion did not, in fact, “set forth Administration policy,” but only “legal advice consistent with the research of the Congressional Research Service.” Mr. Short further indicated that “[t]he Administration’s policy is to respect the rights of all individual Members, regardless of party affiliation,” and to “use its best efforts to be as timely and responsive as possible . . . consistent with the need to prioritize requests from congressional Committees, with applicable resource constraints, and with any legitimate confidentiality or other institutional interest of the Executive Branch.”  Steven Engel, the Administration’s current nominee for head of OLC, has promised to revisit and clarify aspects of the OLC opinion.

Whether the White House’s response to Senator Grassley is a “commitment of cooperation” is yet to be seen. The Administration’s actual policy for responding to congressional inquiries is unclear, as CoA Institute’s ongoing efforts to investigate the General Services Administration demonstrate. Mr. Short’s letter and Mr. Engel’s confirmation hearing promises leave enough doubt as to the exact contours of the President’s transparency agenda.  The fact remains that Executive Branch officials have publicly acknowledged a “new policy,” which appears consistent with the OLC opinion.  Until more details about that policy emerge, it will be hard to evaluate whether, or to what extent, the White House has reversed course.

Ryan P. Mulvey is Counsel at Cause of Action Institute

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07/31/2017

CoA Institute Urges Court to Reveal Evidence Regarding the FBI Clinton Email Investigation

Journalist files declaration supporting public interest in release of FBI declaration

Washington D.C. – Cause of Action Institute (“CoA Institute”) has made a filing in support of its motion with the U.S. District Court for the District of Columbia, urging the judge to disclose the full contents of a redacted FBI declaration that was filed so that only the judge can review the entire statement.

The government characterized the declaration as containing new, undisclosed details about the scope of the FBI’s investigation into Hillary Clinton’s email practices as Secretary of State. Specifically, the government said the declaration includes “additional details about the grand jury process . . . as well as about other sealed proceedings” and was submitted to provide “further details of the subpoenas to establish to the Court’s satisfaction the thoroughness of the inquiries made in this regard.” As a result of this litigation, the government revealed for the first time early this summer that the FBI issued grand jury subpoenas in its criminal investigation into Clinton’s email practices.

Cause of Action Institute President and CEO John J. Vecchione: “The FBI’s revelation that grand jury subpoenas were issued during its investigation of Secretary Clinton’s emails revealed a criminal component. Details of these subpoenas could be critical to our case to recover those emails. Unfortunately, the government has taken a step back behind the curtain and submitted a supplemental declaration, in camera and ex parte, meaning only the judge and the government’s lawyers are allowed to see it. We can only surmise the declaration shows that the FBI issued subpoenas to the service providers in search of Ms. Clinton’s BlackBerry emails. Without access to the un-redacted declaration, we cannot know the scope of those subpoenas, nor will we be able to contest the relevance of new facts.

“The public interest in learning the extent of the government efforts to recover unlawfully removed records and basic notions of fair play outweigh the need to protect grand-jury secrecy, the existence of which the government has already revealed.  The government should not be permitted to use the grand jury information as a sword and also shield it from public view. Anglo American law frowns on litigation through secret filings. Accordingly, the Court should require the government to open the curtain, so we can properly respond to the new evidence.”

Matthew Continetti, editor in chief of the Washington Free Beacon, an independent news publication based in Arlington, Virginia, submitted a declaration urging full public disclosure of the government’s filing.  As Mr. Continetti explained:

This matter is one of intense public interest given Secretary Clinton’s nomination in 2016 by the Democratic Party for the presidency of the United States, high-profile positions in government, and continued involvement in public life…

It is essential for the public to understand the full scope and breadth of the FBI’s investigation into Secretary Clinton’s email server for the public to make an informed decision about what transpired during Secretary Clinton’s service to the State Department.  I believe the information sought by Plaintiffs would be of significant public interest and of interest to the readers of the Washington Free Beacon.

The Plaintiffs’ reply in support of its motion is available here.

Mr. Continetti’s declaration in support of the Plaintiffs’ motion is available here.

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

 

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07/26/2017

The GSA Has No Records on its New Policy for Congressional Oversight Requests

Last month, Cause of Action Institute (“CoA Institute”) detailed how it intended to investigate rumors of the Trump Administration directing federal agencies to ignore “oversight requests” from Democratic legislators.  Reports of the “new policy” sent the transparency community into a frenzy, particularly as they came on the heels of an opinion letter from the Department of Justice’s Office of Legal Counsel that corroborated much of the scuttlebutt. As part of its investigation, CoA Institute sent a FOIA request to the General Services Administration (“GSA”) seeking access to various records concerning the agency’s policies or procedures for handling congressional oversight requests, congressional requests for information, and congressional requests from individual Members for the disclosure of agency documents.  We also requested copies of records evidencing any White House directives on pre-production consultation or review of requests from Congress or under the FOIA.

Last week, the GSA provided its final response.  The response leaves much to be desired, as the agency released only two documents.  The first is a February 20, 2015 order regarding congressional and intergovernmental inquiries; the second is a previously-secret April 15, 2009 White House memo that CoA Institute first made publicly known in June 2013.  The GSA did not find (or at least did not produce) anything pertaining to the Trump Administration’s new policy to respond only to Republican congressional leadership.

The General Services Administration’s failure to locate relevant records is curious because its acting administrator, Timothy Horne, previously testified before Congress that “the [Trump] Administration has instituted a new policy that matters of oversight need to be requested by the Committee chair.”  Admittedly, he clarified that the White House itself hadn’t distributed a finalized, written version of its policy, but it stands to reason that the GSA would still have some record of its effort to formalize whatever oral directions were issued by the White House.  Similarly, to the extent the GSA may now be processing any congressional disclosure requests under the FOIA, the agency should have records concerning those policies and procedures.  None were given to CoA Institute.

We have filed an appeal challenging the adequacy of the General Services Administration’s search efforts.  And we are still waiting for the Office of Personnel Management to respond to a similar request.  In the meantime, CoA Institute remains committed to holding the Executive Branch accountable to one of the most important principles of good government: transparency.

Ryan Mulvey is Counsel at Cause of Action Institute.

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07/26/2017

Occupational Licensing Laws are Holding Americans Back

Occupational licensing laws are intended to protect consumers from unsafe services provided by unqualified individuals. Doctors and pilots, for instance, are licensed to guarantee that no one unqualified operates on someone or flies a plane. But recently, the practice of requiring a license has moved beyond consumer protection in highly skilled, high risk occupations, and has morphed into a barrier to entry, protecting established companies from outside competition. As states move to require licenses for more occupations, the consumer is not protected, but harmed by fewer choices, higher prices, and a shift away from customer focus.

A system that guarantees inefficiency

A license requirement disincentivizes individuals from pursuing careers in affected fields. That’s because obtaining a license requires time and money, which limits the number of individuals who would otherwise enter the marketplace. Faced with diminished competition, the negative impact on the consumer is amplified because existing businesses then have less incentive to provide a better service.

Growing trend

In the 1950s, occupational licensing laws only affected five percent of the American workforce. By 2015, nearly one in three workers now need a license to work. Far removed from simply guaranteeing safety, licensing has encroached into non-professional occupations that do not require extensive training.

These laws include licensing requirements for: hair braiding, locksmithing, packaging, auctioneering, being a florist, selling caskets, interior designing, teeth whitening, fortune telling and being a shampooer. Most consumers would unlikely be alarmed to find out their hair was braided by a renegade licenseless hair braider, or that their fortune teller failed to predict they needed a license to practice.

Costly and unnecessary

Not only do many occupational licenses seem unnecessary, but the requirements are often excessive and odd. The publication Rare reported that in Idaho, regulations make becoming a barber more difficult than a bounty hunter. In Washington, D.C., shoe-shiners are required to purchase a $337 permit. Becoming an interior decorator in Florida takes about six years. Sign language interpreter? Several states require a license for that too.

Per the Mercatus Center, preschool teachers, on average, must receive 1,728 days of training and pay more than $100 in fees to get their teaching license. Athletic trainers must pay, on average, $400 in fees. Other occupations that require more than $100 in fees include: Earth driller, cosmetologist, barber, skin care specialist and veterinary technologist. These licenses also require more than 100 days of training or experience.  These examples raise the question: who exactly is supporting this bureaucratic red tape?

Keeping people out of jobs

Unsurprisingly, the groups that lobby for the regulations tend to be the same groups that benefit from the lack of competition. The National Review reported that individuals with a certificate or license make, on average, $200 more per week than someone without one. Furthermore, the unemployment rate for individuals without a certificate or license is much higher than the unemployment rate for someone with one. For individuals who graduated from high school, but did not attend college, the unemployment rate for someone without a certificate or license is almost double that of someone who has one (5.9 and 3.1 percent, respectively). For individuals who did not graduate high school and have no certificate or license, unemployment is 8.2 percent, while for individuals with a certificate or license, it is 5.1 percent. These legal requirements are holding down the poor while artificially keeping unemployment higher than it otherwise would be.

The heavy licensing burden is an ever-growing problem. It is holding back Americans who are already in tough situations. Unnecessary licensing laws should be scaled back. If it turns out society erupts into chaos with unlicensed florists and fortune tellers, then we can re-examine the issue.

Tyler Arnold is a communications associate at Cause of Action Institute

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07/24/2017

GreenTech Automotive, Terry McAuliffe, and crony capitalism

SMOKE AND MIRROS

GreenTech Automotive, Terry McAuliffe, and crony capitalism

By John J. Vecchione and Ryan Mulvey | Jul 22, 2017

A politically connected “green energy” vehicle company that never delivered on its promises is finally being taken to task. A state auditor in Mississippi is demanding GreenTech Automotive repay its public loans after taxpayers were taken for a proverbial ride — though certainly not in one of the company’s elusive vehicles.

Read the full column at Richmond Times-Dispatch

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07/21/2017

Following CoAI’s Letter, DOJ Rejects Unlawful Slush-Fund Settlement Project in Harley-Davidson Enforcement Action

On July 20, 2017, the Department of Justice (“DOJ”) filed a substitute consent decree in the Environmental Protection Agency’s Clean Air Act enforcement action against Harley-Davidson, Inc. removing a requirement that Harley-Davidson fund a so-called Emissions Mitigation Project (“Project”).[1]  About three weeks earlier, on June 1, 2017, Cause of Action Institute (“CoA Institute”) submitted a Freedom of Information Act request to EPA requesting all documents and records related to the selection of the Project, and the American Lung Association  as the Project’s implementing entity.[2]  In conjunction with that request, we also sent a letter to EPA Administrator Pruitt asking him to reconsider the unlawful mitigation Project, because it lacked a sufficient nexus to the underlying violation.[3]  As we stated, the Project appeared to be a continuation of Obama-era practices that used consent decrees to funnel funds to favored non-governmental organizations.[4]

Fortunately, Attorney General Jeff Sessions issued a policy directing U.S. attorneys to end this practice on June 5, 2017.[5]  DOJ attorneys cite Sessions’ memorandum as a reason for rejecting the Emissions Mitigation Project and filing the new consent decree, because the original Harley-Davidson agreement failed to connect the alleged violation—excess gas and nitrogen oxides emissions nationally—to the Project—replacing wood-burning appliances in the northeast.[6]

CoA Institute applauds DOJ’s revised consent decree, which is consistent with our assessment that the Emissions Mitigation Project violates the “sufficient nexus” requirement necessary for ensuring that agencies do not abuse their enforcement power at the expense of taxpayers.

Travis Millsaps is Counsel at Cause of Action Institute

[1] Consent Decree, United States v. Harley-Davidson, Inc., No. 16-cv-01687 (D.D.C. filed July 20, 2017), ECF No. 6.

[2] FOIA Request EPA-HQ-2017-007905, Envtl. Prot. Agency (June 1, 2017), available at http://bit.ly/2tk7YY4.

[3] Letter from Travis G. Millsaps, Counsel, Cause of Action Inst., to Hon. Scott Pruitt, Adm’r, Envtl. Prot. Agency (June 1, 2017), available at http://bit.ly/2uesJGh.

[4] Blog Post, Cause of Action Inst., Cause of Action Institute Applauds AG Sessions’ Termination of Settlement Fund Payouts to Third-Party Groups (June 7, 2017), https://causeofaction.org/cause-action-institute-applauds-ag-sessions-termination-settlement-fund-payouts-third-party-groups/.

[5] Memorandum from Jeff Sessions, Attorney Gen., U.S. Dep’t of Justice, to U.S. Attorneys et al. (June 5, 2017), available at https://www.justice.gov/opa/press-release/file/971826/download.

[6] Consent Decree, supra note 1, at 2–3; Memorandum from Jeff Sessions, supra note 5; see also Letter from Travis Millsaps to Scott Pruitt, supra note 3, at 2–3.

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07/19/2017

CoAI Submits Statement for the Record to Congress: Hearing on “Exploring the Successes and Challenges of the Magnuson-Stevens Act”

Cause of Action Institute submitted a Statement for the Record today to the House Committee on Natural Resources, Subcommittee on Water, Power and Oceans.  The subcommittee is holding an important oversight hearing on domestic fisheries management and opportunities for reform of the Magnuson-Stevens Act. The statement highlights concerns with the federal government’s current efforts to expand industry-funded at-sea monitoring throughout the Atlantic region.  It also follows CoA Institute’s filing of a petition for writ of certiorari in Goethel v. Department of Commerce, which specifically concerns the legality of the Northeast multispecies sector at-sea monitoring industry funding requirement.  Learn more about David Goethel’s fight here.

Ryan Mulvey is Counsel at Cause of Action Institute.

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