Public Integrity

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Transparency under Trump: Policy and Prospects

Thomas C. Ellington

To cite this article: Thomas C. Ellington (2018): Transparency under Trump: Policy and Prospects,
Public Integrity, DOI: 10.1080/10999922.2018.1463837

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Public Integrity, 0: 1–14, 2018
Copyright # American Society for Public Administration
ISSN: 1099-9922 print/1558-0989 online
DOI: 10.1080/10999922.2018.1463837

Transparency under Trump: Policy and Prospects

Thomas C. Ellington
Wesleyan College

Donald Trump came into office succeeding a President who had a strong rhetorical commitment
to transparency, having promised to have “the most transparent administration in history.”
Indeed, as President, Barack Obama took concrete steps toward greater openness. However, most
observers hold that the Obama presidency fell short of its promise on transparency, given its con-
tinued resorting to state secrets privilege in civil cases and its aggressive pursuit and prosecution
of public-interest leakers. Trump, meanwhile, lacks even the rhetorical commitment to transpar-
ency that Obama had, and he has, at times, been openly hostile to the idea. This article examines
the actions taken during the early months of the Trump administration and their significance for
transparency in the United States. Although Trump is ill-disposed toward transparency and early
signs are worrisome for transparency advocates, that disposition has not yet translated into major
policy initiatives.

Keywords: freedom of information, secrecy, transparency, Trump

When Donald Trump assumed the American presidency in 2017, he was succeeding a
President who had promised to have “the most transparent administration in history” (Obama,
2007). While he has paid lip service to transparency at times ( Blake, 2017a; Karni, 2016),
Trump has generally been hostile to transparency as a democratic value, both during his cam-
paign and since taking office. Barack Obama did take significant steps to increase transpar-
ency in the federal government, and, by some measures, may have actually had the most
transparent administration in American history. Nevertheless, his administration also pursued
some policies that will make it easier for an anti-transparency President to increase opacity in
the years ahead. The Trump administration has unveiled no significant legislation to affect
the statutory environment for access to information, and indeed, there have not even been any
executive orders to date with significant implications for transparency. Still, between threats
to prosecute journalists for publishing classified information (Grynbaum, Ember, & Savage,
2017) and a continuation of the worst Obama-era patterns in the courtroom, it is evident that
the Trump presidency does not bode well for transparency. Already, the Trump Justice
Department has invoked the state secrets privilege in at least one case (Risen, Fink, &
Savage, 2017) and charged a leaker with violating the Espionage Act (Holpuch, 2017). In
addition, of course, there is the matter of former FBI Director James Comey, who says he
indirectly leaked a memorandum about his meeting with the President to the New York Times

Correspondence should be sent to Thomas C. Ellington, Department of History and Political Science,
Wesleyan College, 4760 Forsyth Road, Macon, GA 31210, USA. E-mail: ellington.wesleyancollege@gmail.com
2 ELLINGTON

(Barrett, Nakashima, & O’keefe, 2017). Trump is ill-disposed toward transparency, but that
disposition has not yet resulted in a coherent set of policy proposals.

TRANSPARENCY: WHAT IT IS AND WHY IT MATTERS

The concept of transparency has gained a great deal of currency in a variety of venues in the
opening decades of the twenty-first century (Ball, 2007; Fenster, 2017). Nation-states have
imposed disclosure requirements on themselves via freedom of information laws (World
Justice Project, 2016), as well as mandating disclosures by other institutions in the name of
consumer protection, financial market security and the like (Fung, Graham, & Weil, 2007).
The U.S. intelligence community has even described its ambition of being able to intercept
and interpret all global communications as “full global transparency,” (Johnson, 2018, p.
233), clearly not what advocates have in mind when they extol the democratic benefits of
transparency. For the purposes of this article, transparency is taken to be “the condition in
which knowledge of activities that are of public interest is revealed” (Sturges, 2007, p. 4),
with a focus on the policies and practices surrounding disclosure of information held by the
U.S. government. Transparency measures can take the form of statutes, such as the Freedom
of Information Act, formal written guidance from the executive, or cultural practices within
agencies regarding secrecy and disclosure.
Transparency is widely accepted as a matter of democratic concern (Ball, 2007), almost
tautologically: “Activities that are of public interest” should surely be known—or at the
least knowable—to the public. In this sense, transparency can be contrasted with secrecy
as intentional concealment (Bok, 1983). In general, democratic demands for transparency
are tempered by an understanding that some government-held information is not plausibly
related to the public interest. Imagine, for instance, an incident involving the release of
every public employee’s Social Security number: It would be difficult to identify a single
democratic purpose served by such a disclosure and quite easy to identify harm to the
individuals involved.
The most compelling claims for secrecy come in the realm of national security, for
example, the movement of troop ships during wartime or the “sources and methods” so often
cited in reference to intelligence secrets (Moynihan, 1997; Johnson, 2018). Of course, not
every secret is of that character, and one of the great challenges of any FOI regime is separat-
ing necessary from unnecessary secrecy. A major concern is that secrecy can be used not
only to protect the public interest but also to conceal incompetence and malfeasance. Thus
the primary claims made on behalf of transparency are that it makes citizens and watchdog
institutions better able to detect abuses and that it can improve the quality of democratic deci-
sion-making by allowing for greater informed participation (Worthy & Hazell, 2017), as well
as avoiding pathologies such as groupthink (Janis, 1983). Transparency promises to provide
an “apparently simple solution to complex problems—such as how to fight corruption; pro-
mote trust in government; support corporate social responsibility; and foster state
accountability” (Birchall, 2014, p. 77).
 TRANSPARENCY UNDER TRUMP 3

TRUMP AND TRANSPARENCY: FIRST IMPRESSIONS

Two high-profile cases illustrate the Trump administration’s early approach to transparency:
the arrest of National Security Agency contractor Reality Winner on Espionage Act charges
(Holpuch, 2017) and the extraordinary testimony of former FBI Director James Comey, with
the latter revealing that he had orchestrated the leaking of his notes from a meeting with
President Trump in hopes of provoking the appointment of a special prosecutor to investigate
allegations of Russian interference with the 2016 election (Barrett et al., 2017). Not only was
he successful in that regard, but this episode provides a great example of the adage, “The
ship of state is the only ship that leaks from the top.” Unusual for a high-level leaker
(Takefman, 2013), Comey was threatened with a complaint to the Senate Judiciary
Committee as well as the Office of the Inspector General at the Justice Department. If actu-
ally filed, that complaint would be at least consistent with Trump’s stated position that all
leaks are criminal in character, although unlikely to lead to any kind of legal sanction
(Zapotsky, 2017). So far, no action has followed from those threats.
The treatment of Winner, on the other hand, has become troublingly commonplace, thanks
to practices adopted under the second term of the Bush administration and continued under
Obama. Although there has been no allegation of bona fide spying, Winner has been charged
with violating the Espionage Act (Holpuch, 2017), apparently for providing the online news-
paper The Intercept with a classified document detailing alleged actions by Russia to pene-
trate systems at a company that makes electronic voting machines (Cole, Esposito, Biddle, &
Grim, 2017). Barely a decade before, this type of prosecution was practically unheard of.
Today, although the United States does not have an Official Secrets Act—and has explicitly
rejected efforts to enact one (Altschuler, 2015)—prosecutors treat the Espionage Act as a
sloppily drafted Official Secrets Act, rather than taking the traditional approach of limiting
prosecutions to actual instances of spying. It seems unlikely that Winner will be the last per-
son engaged in public-interest whistleblowing to be prosecuted under this law. Winner has
been denied bond, and has remained in federal custody since her June 3, 2017 arrest
(Hodson, 2018).

TRANSPARENCY BEFORE TRUMP

Some context is important. In 2009, Obama succeeded a President with a well-earned reputa-
tion for opacity. Upon taking office, Obama set to work at creating policy and cultural
changes to turn campaign rhetoric on transparency into action. In his inaugural address, he
promised, “Transparency and the rule of law will be the touchstones of this presidency”
(Obama, 2009a). On his first full day in office, he issued a memorandum ordering all agen-
cies to recommit to the Freedom of Information Act and to adopt a presumption favoring dis-
closure for all requests for information (Obama, 2009b), countermanding much more
restrictive guidance issued by Attorney General John Ashcroft in 2001 (McDermott, 2010).
He also issued Executive Order 13489, which reversed a Bush directive and restored compli-
ance with the Presidential Records Act of 1978. In 2011, Obama launched the Open
Government Partnership, which works with states and civil society organizations around the
world to improve transparency OGP, n.d.). In addition, the closing days of his administration
4 ELLINGTON

saw the NSA take the unusual step of demanding that Inspector General George Ellard resign
for retaliating against a whistleblower (Ware, 2016).
The Obama administration held great potential for improving transparency, and in many
ways, it lived up to that potential. The Information Security Oversight Office (2017) issues a
report annually that contains a number of useful metrics for transparency, some of which
show movement in a positive direction under Obama. Under Obama, there was a dramatic
decline in the number of persons with original classification authority. These are the individu-
als with the power to determine that information is classified under the U.S. national security
classification system. From 2008 to 2009, the first year of the Obama Presidency, there was a
38% drop, with 2,557 original classification authorities being the lowest number on record to
that time. By 2016, that number was 2,215, a marginal increase over the all-time low of
2,199, which was recorded in 2015.
Along with a decline in the number of people wielding classification authority, the Obama
years saw a general decline in the number of classification decisions. Although there were
small increases in 2010 and 2015, the general trajectory under Obama was downward, mean-
ing that the federal government created fewer secrets under Obama than his recent predeces-
sors, and for 2016, the number of original classification decisions was just 39,240, the lowest
number on record. Derivative classification decisions appeared to spike in 2009, with reported
instances more than doubling. However, this was an artifact of measurement, as electronic
documents were included in that count for the first time that year. At any rate, derivative clas-
sification totals peaked in 2012 and dropped below 2009 levels by 2015 before bumping
upward again in 2016. Derivative classification numbers are estimates, rather than actual
counts, and are “problematic for agencies to capture and ISOO to analyze accurately”
(Information Security Oversight Office, 2017, p. ii).
Among the perennial complaints about the U.S. classification system, are a defensive ten-
dency toward over classification, a failure to declassify no-longer-sensitive information in a
timely manner and the overall expense involved in keeping secrets (Moynihan, 1998). By
2010, there was a backlog of more than 400 million pages requiring declassification review.
Obama’s Executive Order 13526 established the National Declassification Center and also set
new standards for initial classification. Between 2009 and 2016, the number of pages declas-
sified annually grew from 28.8 million to 43.9 million (Information Security Oversight
Office, 2017), an improved pace, albeit one that has not yet cleared the backlog.
Another source of complaint—dating at least as far back as the final report of the
Commission on Protecting and Reducing Government Secrecy (1997)—is the financial cost
of maintaining the classification system both for the federal government itself and for associ-
ated industries. The Obama administration was far from successful in reining in costs in this
area, as the annual combined costs to government and industry nearly doubled from $9.9 bil-
lion in 2009 to $18.2 billion in 2016, and increasing every year in that period, other than a
dip between 2011 and 2012 (Information Security Oversight Office, 2017).

TREATING LEAKERS AS SPIES

In general, the ISOO numbers suggest improved transparency under Obama, an example that
his successors would seem well-advised to follow. However, the story does not end there.
 TRANSPARENCY UNDER TRUMP 5

In some significant ways, the Obama Justice Department set or extended precedent that
presents real dangers for transparency and democratic values more generally. The Obama
Justice Department prosecuted (and gained convictions of) more public-interest leakers under
the Espionage Act than all previous administrations combined, and it made copious use of
the state secrets privilege, a novel doctrine of dubious origins, to shut down judicial inquiries
into allegations of abuse by intelligence agencies. The Trump administration has already initi-
ated its first prosecution of a leaker under the Espionage Act, and has invoked the state
secrets privilege in a civil case.
Traditionally, the Espionage Act has been used, as its name would suggest, for the pros-
ecution of spies. Indeed, through two world wars and a quarter century of Cold War, there
was not a single serious attempt even to prosecute a leaker (as opposed to spies intentionally
providing sensitive information to a foreign power). There was an effort to prosecute Daniel
Ellsberg of Pentagon Papers fame, but that case was ultimately dismissed, because of pros-
ecutorial misconduct (Benkler, 2014). The first conviction of someone other than an actual
spy came in 1984, in the case of Samuel L. Morison, who had leaked spy satellite photos to
Jane’s Defence Weekly. Even Morison arguably did not fit the profile of a true whistleblower
or leaker, as he had received payment for the photographs that he provided (Tankard, 1998).
At any rate, he was pardoned by President Clinton in the waning days of his term (Loeb,
2001), just months after Clinton vetoed an appropriations measure because it contained a pro-
vision enacting a U.S. version of the Official Secrets Act (Altschuler, 2015). Sen. Daniel
Patrick Moynihan, who previously headed the Commission on the Protection and Reduction
of Government Secrecy, had urged Clinton to pardon him, arguing that it was improper to
use the Espionage Act to impede press freedom (Gerstein, 2017).
As evidenced by the ubiquity of leaks and the dearth of prosecutions, there once was a
consensus in the United States that more than the mere release of classified material was
necessary to constitute a crime. At the very least, there had been an “unspoken bargain”
(McCraw & Gikow, 2013). That bargain crumbled under Bush and Obama, and could be
obliterated altogether during the Trump Presidency, depending on the actions taken by his
Justice Department and in the courts. The current surge in Espionage Act prosecutions began
in 2004 under the Bush administration and continued under Obama, with the Obama Justice
Department prosecuting more leakers than all previous administrations combined.
Why does this matter? To begin with, leaks by whistleblowers frequently are in the public
interest, and provide an irreplaceable means of imposing democratic accountability. In some
instances, notably the case of Thomas Drake (Takefman, 2013), prosecution seems to have
been motivated by embarrassment more than any purported harm to national security. Not
every unauthorized disclosure is noble or good in character, and any state has a legitimate
interest in protecting some vital secrets. Still, the Espionage Act is a poor tool for dealing
with disclosures that do not represent bona fide espionage. Drafted and redrafted under emer-
gency wartime conditions, this statute has a troubling history (Kohn, 1994), even setting aside
its novel new usage. The text itself is problematic: “The Espionage Act is far from a para-
digm of clarity. Indeed, scholars have described it as ‘incomprehensible if read according to
the conventions of legal analysis of text, while paying fair attention to legislative history.’
One problem that arises out of this confusion is to whom exactly the Espionage Act applies”
(Feuer, 2015, p. 124). Textual confusion is what left the door open for the radical
6 ELLINGTON

reinterpretation now extant and the possibility of an even more expansive interpretation that
would encompass ordinary news-gathering activities.
In addition to discouraging potential whistleblowers, using the Espionage Act to target
public-interest leakers has a strong taint of injustice about it, as the tendency is to pursue
midlevel bureaucrats, whose revelations are seen as embarrassing, rather than other leakers at
the top levels of government, whose leaks may enjoy official imprimatur.
[I]n targeting mid-level officials, prosecutors are selecting those who will suffer the most
financially. For mid-level officials, legal costs are onerous; as opposed to the higher-ranking
officials, who can more easily rebound with consulting or university jobs after a trial or jail-
time, these officials will have a more difficult time recovering. It appears that prosecutors are
going after mid-level officials as a deterrent: Any potential leaker will have to weigh the cost of
potential financial ruin, let alone jail time. For some, the personal cost may sufficiently
outweigh the public gain in leaking. (Takefman, 2013, p. 905)
Clearly, there is a difference between someone providing sensitive information to a hostile
power and someone engaged in an act of whistleblowing in the public interest. Under the sta-
tus quo ante, this difference was recognized in practice. The trend of prosecuting leakers,
which Trump inherits, can only aid in the concealment of wrongdoing via the capricious pros-
ecution of lower-level bureaucrats.

BLOCKING LITIGATION VIA STATE SECRETS PRIVILEGE

As for the state secrets privilege, the current administration so far has invoked it at least once
since Trump took office. In March 2017, attorneys for the CIA invoked it to try to prevent
testimony by several CIA officials in a case in which former detainees have filed suit,
claiming they had been tortured at agency black sites (Risen et al., 2017). The state secrets
privilege “allows the government to withhold evidence on the grounds that revealing it either
to a judge or opposing litigants would be detrimental to national security” (Ellington, 2013,
p. 142). While the doctrine is a relatively old one, having been established in the case of
United States v. Reynolds (1953), it remained obscure and relatively unused until the first
decade of the twenty-first century. In the Bush era, alone, there were more than 100 instances
in which the state secrets doctrine was invoked, and in many instances, it was used to seek
dismissal altogether, rather than simply the withholding of a particular piece of evidence
(Donohue, 2010). Critics worry that the state secrets privilege can be used to cover up
evidence of government misconduct—as it was actually in the Reynolds case—and point out
that there are other methods such as in camera hearings for dealing with sensitive evidence—
without automatically revealing it in open court (Fisher, 2006).
At worst, the state secrets privilege allows an evidentiary double standard, with the federal
government invoking it in order to avoid civil suits, while being able to seek the use of tools
such as in camera review in criminal prosecutions involving sensitive information. In
response to criticism, Obama’s Attorney General Eric Holder ordered a review of the state
secrets privilege, but the resulting policy continued to allow “government officials to broadly
assert the privilege based on little or no evidentiary support” (Wells, 2010, p. 646), leaving a
situation ripe for further abuse, especially by an administration that opposes transparency.
 TRANSPARENCY UNDER TRUMP 7

TRUMP AND TRANSPARENCY: A DISPOSITION BUT NO AGENDA

While he has repeatedly voiced sentiments that seem hostile to democratic transparency, in
this area, Trump does not so much have a policy agenda as a disposition. He signaled his
orientation toward transparency during the campaign with his unprecedented refusal to release
his personal tax returns, something that is not legally required but that has long been custom-
ary in American presidential politics. To date, Trump’s willingness to flout norms generally
constitutes a case study in the importance of custom and convention.
While Trump seems to have preferences that do not favor transparency, these have not
translated into a top priority for his administration. His inaugural address promise to end
“American carnage” contained no commitments one way or the other with regard to transpar-
ency, and there have been no major legislative proposals dealing with freedom of information
issues one way or another, nor executive orders on classification. The most noteworthy
executive action on policy so far did not come from the White House, but was an intelligence
community directive from Director of National Intelligence Daniel R. Coats on investigating
leaks of classified information. The policy broadly defines unauthorized disclosure to cover
“communication, confirmation, acknowledgement, or physical transfer of classified
information” and specifically mandates auditing and monitoring of computer systems to
detect unauthorized disclosures (Coats, 2017, p. 2).
Of course, the Bush Presidency also did not move rapidly to increase secrecy at first. But
within weeks of the terrorist attacks of September 11, 2001, Attorney General John Ashcroft
issued a memorandum to federal agencies directing them to interpret the disclosure require-
ments of the Freedom of Information Act narrowly and promising his department’s assistance
if a decision to withhold information were to be challenged (McDermott, 2010). This signaled
the turn to secrecy under Bush, so it is possible that major initiatives could occur later in
Trump’s Presidency.
It is also worth noting that lack of direction can be a form of direction in and of itself.
The Moynihan Commission described secrecy as a form of regulation and “a normal mode
by which bureaucracies conduct their business” (Commission on Protecting & Reducing
Government Secrecy, 1997, p. xxxvi). As Weber himself explained:
The tendency toward secrecy in certain administrative fields follows their material nature:
everywhere that the power interests of the domination structure toward the outside are at stake,
whether it is an economic competitor of a private enterprise, or a foreign, potentially hostile
polity, we find secrecy. (Weber, 1997, p. 151)
The natural tendency, then, is against transparency, and left to their own devices, without
strong guidance to the contrary, agencies can be expected to favor minimal over maximal dis-
closure. Guidance to agencies in favor of greater transparency—especially in the national
security establishment—appears unlikely to come from the current administration.
Fears about information policy under Trump manifested themselves shortly after his elec-
tion. Scientists alarmed by Trump’s climate change skepticism organized “guerilla archiving”
of public data from government servers to ensure that it would not be lost even if Trump
appointees ordered it removed or deleted. While some outside efforts at archiving have
become common around presidential transitions, participants said this one seemed particularly
urgent (Dennis, 2016). Specific concerns about Trump aside, some caution about relying on
8 ELLINGTON

the continued availability of information on official Websites is well advised, as information

that is accessible today is not guaranteed to be accessible tomorrow, a fact that motivates
independent archival organizations, such as the National Security Archive or the Memory
Hole online. There are even instances of declassified information being reclassified—an inter-
esting study in efforts to turn revelations back into secrets (“National Archives to Review
Removal of Declassified Documents,” 2006; Office of the Special Inspector General for
Afghanistan Reconstruction, 2017). However, despite early concerns, the “war on data”
feared by transparency advocates has not come to pass (Vinik, 2017).
Most alarming for transparency advocates has been Trump’s aggressive attitude toward
leaks, with his suggestions that all unauthorized releases of information are criminal in
nature, along with threats to prosecute journalists for publishing classified information, some-
thing that has never been done before in the United States. Trump has not been fully consist-
ent in his approach to leaks, during the 2016 campaign embracing WikiLeaks’ revelations
about the Clinton campaign, proclaiming “I love WikiLeaks” and “nothing is secret today
when you talk about the Internet” (Shear, 2017). “Like all presidents before him, Mr. Trump
does not exactly have a zero-tolerance policy toward leaks” (Lynch, 2017). In seeking a
replacement for fired National Security Advisor Michael Flynn, Trump considered “former
General David Petraeus, who has his own history of leaking classified information” (Lynch,
2017). Even in deriding leaks of telephone conversations that he had with the leaders of
Mexico and Australia, he seemed to acknowledge some level of nuance, suggesting that not
all leaks are created equal: “I said, that’s terrible that it was leaked but it wasn’t that-
important. But then I said, what happens when I’m dealing with the problem of North Korea?
What happens when I’m dealing with the problems in the Middle East?” (Gerstein &
Bender, 2017).
In facing negative stories based on leaked information, he has more typically described
leaks as betrayals and violations of the law, writing on Twitter: “The spotlight has finally
been put on the low-life leakers! They will be caught!” (Weisman, 2017). Referring to leaks
that led to the ouster of Michael Flynn, he said: “It’s criminal actions, criminal act, and it’s
been going on for a long time—before me. But now it’s really going on, and people are try-
ing to cover up for a terrible loss that the Democrats had under Hillary Clinton” (https://
www.whitehouse.gov/briefings-statements/remarks-president-trump-prime-minister-netan-
yahu-israel-joint-press-conference). He also posted on Twitter, “Information is being illegally
given to the failing @nytimes & @washingtonpost by the intelligence community (NSA and
FBI?). Just like Russia” (https://twitter.com/realdonaldtrump/status/831840306161123328;
Landler & Perez-Pe~ na, 2017). Trump’s “war on leaks” (Blake, 2017b) has even extended to
urging the FBI director to imprison reporters who publish classified information (Grynbaum
et al., 2017). Such a move would be unprecedented, although some have called for journalists
to be prosecuted under the Espionage Act in the past (Schoenfeld, 2010). As an idle threat,
which it may very well be, Trump’s call for prosecution of journalists is concerning enough.
Translated into action, it would be an enormous step backward for transparency and press
freedom in the United States, and would likely spawn imitations elsewhere.
In other actions dealing with legislative branch relations, Trump did claim the power to
withhold information from Congress in a signing statement he attached to appropriations
legislation, objecting to a provision requiring that “funds appropriated by this Act may not be
used to initiate a special access program without prior notification 30 calendar days in
 TRANSPARENCY UNDER TRUMP 9

advance to the congressional defense committees” (H.R. 244, Div. C, §8009 [https://www.
gpo.gov/fdsys/pkg/CPRT-115HPRT25289/pdf/CPRT-115HPRT25289.pdf]; Trump, 2017).
While signing statements can be banal expressions of presidential opinion or explanations of
how the President intends to interpret a statute, they have been controversial where they con-
tain interpretations in clear conflict with the plain language of the bill being signed into law
(Bradley & Posner, 2006). Trump’s signing statement seems to fall into the latter category,
thus in one stroke, raising concerns for transparency, oversight, and separation of powers.
In one instance, Trump gained a great deal of attention for sharing classified informa-
tion—with the Russian foreign minister and the ambassador to the United States, apparently
jeopardizing “a critical source of intelligence on the Islamic State” (Miller & Jaffe, 2017)
that has since been revealed to be a penetration of the terrorist group’s computer systems
(Sanger & Schmitt, 2017). There has been no small amount of debate about the legality and
wisdom of Trump’s actions in this case (“Presidential Authority to Permit Access to National
Security Information,” 2017; Vladeck, 2017), and it is tempting to glibly cite this as an
instance of extraordinary openness by Trump. Wisdom and legality aside, and while defend-
ers cite the President’s legal authority to declassify information as he or she sees fit, there is
no evidence that Trump declassified anything or had any intention of doing so (“Can
President Donald Trump Share Top Secret Information?,” 2017). If journalists or members of
the public were to seek access to the supporting documents in this case, they would still
be denied.
In another unprecedented move, the Trump White House has ordered agencies to ignore
oversight requests from Democrats. “The idea, Republicans said, is to choke off the
Democratic congressional minorities from gaining new information that could be used to
attack the president” (Everett & Dawsey, 2017). While some foot-dragging on opposition
requests for information has been common in past administrations, this kind of blanket denial
has never been tried, and threatens the effectiveness of the legislative branch’s oversight
responsibilities—and may be a violation of the law. The approach seems to be what former
CIA operative described as treating overseers like mushrooms, “keep them in the dark and
feed them shit” (quoted in Zegart, 2011, p. 9).
Some small positive developments also bear watching. The secretary of the Air Force has
issued a directive calling for “maximum disclosure, minimum delay” in response to Freedom
of Information Act requests, a refreshing reinforcement of democratic values (“Public Web
and Social Communication,” 2017). A bipartisan measure to require declassification of docu-
ments related to incidents in which members of the U.S. military may have been exposed to
toxic substances was attached to the FY 2018 National Defense Authorization Act (“Sen.
Moran Applauds Passage of National Defense Authorization Act, Inclusion of Moran
Provisions,” 2017). In the past, the classification system has been used to evade litigation in
similar incidents. On the House side, Rep. Mike Quigley (D, IL-5) has filed the glibly named
COVFEFE Act, which would amend the Presidential Records Act to include social media
postings among the presidential records requiring preservation. The name is an acronym for
“Communications Over Various Feeds Electronically for Engagement” (Wamsley, 2017). No
action has been taken since the bill’s introduction and referral to committee in June 2017
(COVFEFE Act of 2017, 2017), and given the sponsor’s party, the short-term chances of this
legislation being enacted into law are fairly slim.
10 ELLINGTON

CONCLUSION

The United States has replaced a President with a strong commitment to transparency—at
least rhetorically—with one who is vocally hostile to the concept. The Trump Presidency has
taken some troubling steps. It has continued with the past two administrations’ misguided
practice of treating whistleblowers as spies. The Trump administration has charged its first
leaker in Reality Winner. She is unlikely to be the last. It has also invoked the highly prob-
lematic state secrets privilege in a civil trial, continuing a troubling precedent established by
its two immediate predecessors.
More alarmingly, Trump has suggested that journalists should be imprisoned for publish-
ing classified information. Where the new Espionage Act prosecution and use of state secrets
privilege were both examples of the administration following precedent—albeit bad prece-
dent—the prosecution of a journalist would break dangerous new ground, boding ill not only
for transparency but also for press freedom. Even as a bluff, it is an inappropriate position for
a President to avow. The President has also taken steps to interfere with legislative oversight
functions by intentionally withholding information. However, this hostility toward transpar-
ency has not yet resulted in a major legislative agenda or significant changes in direction via
executive action, aside from some alarming threats.
However, it would be unwise to dismiss as mere words the statements coming from the
White House simply because they do not come with carefully drafted policies attached. As
Weber (1997) and Moynihan (1998) note, secrecy, not transparency, is the default setting for
bureaucratic agencies. Efforts to instill a culture of transparency necessarily run counter to
this tendency. It remains to be seen whether Trump’s antitransparency disposition will be
taken as license in federal agencies to revert to greater opacity.
In judging the relative transparency of the Trump administration, there are a number of
things observers should look for. Some are crudely quantitative: Will the Justice Department
significantly increase—or curtail—prosecution of public-interest leakers under the Espionage
Act? Will it continue the aggressive use of the state secrets privilege? Some are qualitative:
Will the administration follow through on threats to jail journalists who publish information
from classified documents? Some actions like that would be sufficiently extreme and unpre-
cedented to weigh quite heavily in the calculus of transparency.
There are also some more conventional quantitative measures that will become available
as time passes. The Information Security Oversight Office’s annual report to the President for
2017, which will provide its first numbers from the Trump administration, is due later in
2018. Those data will be telling. Even without formal policy changes, a reversion to a more
secretive culture of information management seems likely. If federal bureaucracies follow the
lead established by the President’s words, one can expect to see an increase in the number of
original classification authorities, an increase in the number of total classification decisions
and a decline in declassification activity. Given that the pro-transparency Obama administra-
tion was largely unsuccessful in limiting the financial costs of the classification system, there
is little reason to expect the Trump administration to do better. A decrease in costs of classifi-
cation would be surprising. Outside the federal government, the World Justice Project has
recently begun collecting data on the quality of open government regimes around the world.
Consistent with the expectations established by rhetoric from the Trump administration, the
 TRANSPARENCY UNDER TRUMP 11

most recent report notes a small decline in the quality of open government in the United
States (World Justice Project, 2018).
Trump’s words suggest an administration that will be unusually secretive and hostile to prin-
ciples of transparency. It remains to be seen whether those words will be translated into action,
either in the form of new policy or in management practices that reinforce bureaucracy’s natural
tendencies toward secretiveness. For transparency advocates, initial signs are less than promising.
An earlier version of this article was presented at the Fifth Global Conference on
Transparency Research at the University of Limerick, June 19–21, 2017.

REFERENCES

Altschuler, B. E. (2015). Is the Pentagon Papers case relevant in the age of WikiLeaks? Political Science Quarterly,
130(3), 401–423. doi:10.1002/polq.12359
Ball, C. (2007). What is transparency? Public Integrity, 11(2), 293–307. doi:10.2753/PIN1099-9922110400
Barrett, D., Nakashima, E., & O’keefe, E. (2017, June 8). Comey: White House lied about me, FBI. Washington
Post. Retrieved from https://www.washingtonpost.com/world/national-security/comey-testimony-trump-senate-
hearing/2017/06/07/afadf87c-4bd0-11e7-bc1b-fddbd8359dee_story.html
Benkler, Y. (2014). A public accountability defense for national security leakers and whistleblowers. Harvard Law
and Policy Review, 8, 281–326. Retrieved from http://harvardlpr.com/wp-content/uploads/2014/08/HLP203.pdf
Birchall, C. (2014). Radical transparency? Cultural Studies Critical Methodologies, 14(1), 77–88. doi:10.1177/15327
08613517442
Blake, A. (2017a, July 12). The Trumps’ claims about transparency are actually quite deceptive. Washington Post.
Retrieved from https://www.washingtonpost.com/news/the-fix/wp/2017/07/12/the-trumps-claims-about-transpar-
ency-are-actually-quite-deceptive
Blake, A. (2017b, February 16). President Trump’s war on leaks, explained. Washington Post. Retrieved from
https://www.washingtonpost.com/news/the-fix/wp/2017/02/16/president-trump-is-going-to-war-on-leaks-how-scared-
should-the-leakers-be
Bradley, C. A., & Posner, E. A. (2006). Presidential signing statements and executive power. Constitutional
Commentary, 23(3), 307–364. Retrieved from https://conservancy.umn.edu/bitstream/handle/11299/170157/23_
03_Bradley_Posner.pdf
Bok, S. (1983). Secrets: On the ethics of concealment and revelation. New York, NY: Vintage Books.
Can President Donald Trump share top secret information? (2017, May 16). BBC News. Retrieved from http://www.
bbc.com/news/world-us-canada-39933966
Coats, D. R. (2017, December 22). Unauthorized disclosures of classified national security information. Intelligence
Community Directive 701. Retrieved from https://www.dni.gov/files/documents/ICD/10-3-17_Atch1_ICD-701-
Unauthorized-Disclosures_17-00047_U_SIGNED.pdf
Cole, M., Esposito, R., Biddle, S., & Grim, R. (2017, June 5). Top-secret NSA report details Russian hacking effort
days before 2016 election. The Intercept. Retrieved from https://theintercept.com/2017/06/05/top-secret-nsa-
report-details-russian-hacking-effort-days-before-2016-election
Commission on Protecting & Reducing Government Secrecy. (1997). Report of the Commission on Protecting and
Reducing Government Secrecy. Washington, DC: Government Printing Office. Retrieved from https://www.gpo.
gov/fdsys/pkg/GPO-CDOC-105sdoc2/content-detail.html
COVFEFE Act of 2017. (2017). H.R. 2884, 115th Cong. Retrieved from https://www.congress.gov/bill/115th-
congress/house-bill/2884
Dennis, B. (2016, December 13). Scientists are frantically copying U.S. climate data, fearing it might vanish under
Trump. Washington Post. Retrieved from https://www.washingtonpost.com/news/energy-environment/wp/2016/
12/13/scientists-are-frantically-copying-u-s-climate-data-fearing-it-might-vanish-under-trump
Donohue, L. (2010). The shadow of state secrets. University of Pennsylvania Law Review, 159, 77–216. Retrieved
from https://www.pennlawreview.com/print/old/Donohue.pdf
12 ELLINGTON

Ellington, T. C. (2013). The most transparent administration in history? An assessment of official secrecy in the
Obama administration’s first term. Public Integrity, 15(2), 133–148. doi:10.2753/PIN1099-9922150202
Everett, B., & Dawsey, J. (2017, June 2). White House orders agencies to ignore Democrats’ oversight requests.
Politico. Retrieved from http://www.politico.com/story/2017/06/02/federal-agencies-oversight-requests-
democrats-white-house-239034
Fenster, M. (2017). The transparency fix: Secrets, leaks and uncontrollable government information. Stanford, CA:
Stanford University Press.
Feuer, K. (2015). Protecting government secrets: A comparison of the Espionage Act and the Official Secrets Act.
Boston College International and Comparative Law Review, 38, 91–127. Retrieved from http://lawdigitalcommons.
bc.edu/cgi/viewcontent.cgi?article¼1737&context¼iclr
Fisher, L. (2006). In the name of national security: Unchecked presidential power and the Reynolds case. Lawrence,
KS: University Press of Kansas.
Fung, A., Graham, M., & Weil, D. (2007). Full disclosure: The perils and promise of transparency. New York, NY:
Cambridge University Press. doi:10.1017/CBO9780511510533
Gerstein, J. (2017, January 17). Will Obama pardon Snowden? Politico. Retrieved from https://www.politico.com/
story/2017/01/will-obama-pardon-edward-snowden-233658
Gerstein, J., & Bender, B. (2017, February 17). Trump anti-leak drive could prompt prosecutions. Politico. Retrieved
from https://www.politico.com/story/2017/02/trump-leaks-prosecution-235125
Grynbaum, M. M., Ember, S., & Savage, C. (2017, May 17). Trump’s urging that Comey jail reporters denounced as
an “act of intimidation.” New York Times. Retrieved from https://www.nytimes.com/2017/05/17/business/media/
trumps-urging-that-comey-jail-reporters-denounced-as-an-act-of-intimidation.html
Hazell, R., & Worthy, B. (2010). Assessing the performance of freedom of information. Government Information
Quarterly, 27, 352–359. doi:doi:10.1016/J.GIQ.2010.03.005
Hodson, S. (2018, February 2). Appeals court affirms judge’s decision to deny accused leaker Reality Winner bond.
Augusta Chronicle. Retrieved from http://www.augustachronicle.com/news/2018-02-02/appeals-court-affirms-
judge-s-decision-deny-accused-leaker-reality-winner-bond
Holpuch, A. (2017, June 6). NSA contractor faces 10-year sentence in first Espionage Act charge under Trump. The
Guardian. Retrieved from https://www.theguardian.com/us-news/2017/jun/06/reality-winner-espionage-act-leak-
russian-hacking
Information Security Oversight Office. (2017). Annual report to the president, 2016. Retrieved from https://www.
archives.gov/files/isoo/reports/2016-annual-report.pdf
Janis, I. (1983). Groupthink: Psychological studies of policy decisions and fiascos (2nd ed.). Boston, MA: Houghton
Mifflin.
Johnson, L. (2018). Spy watching: Intelligence accountability in the United States. New York, NY: Oxford University Press.
Karni, A. (2016, October 11). Clinton, Trump settle into parallel paths. Politico. Retrieved from http://www.politico.
com/story/2016/10/hillary-clinton-donald-trump-campaign-trail-229637
Kohn, S. M. (1994). American political prisoners: Prosecutions under the Espionage and Sedition Acts. Westport,
CT: Praeger.
Landler, M., & Perez-Pe~na, R. (2017, February 15). Flynn was brought down by illegal leaks to news media, Trump
says. New York Times. Retrieved from https://www.nytimes.com/2017/02/15/us/politics/trump-condemns-leaks-
to-news-media-in-a-twitter-flurry.html
Loeb, V. (2001, February 17). Clinton ignored CIA in pardoning intelligence analyst. Washington Post. Retrieved
from https://www.washingtonpost.com/archive/politics/2001/02/17/clinton-ignored-cia-in-pardoning-intelligence-
analyst/2bbb4556-7bcd-4747-8a74-0c2b21b5c0ee
Lynch, D. J. (2017, February 17). Trump turns against leakers as disclosures undermine White House. Financial
Times. Retrieved from https://www.ft.com/content/b32025be-f52e-11e6-8758-6876151821a6
McCraw, D., & Gikow, S. (2013). The end to an unspoken bargain? National security and leaks in a post–Pentagon
Papers world. Harvard Civil Rights-Civil Liberties Law Review, 48(2), 473–509. Retrieved from http://harvardcrcl.
org/wp-content/uploads/2011/09/CRCL_McCraw-Gikow_print-version.pdf
McDermott, P. (2010). Building open government. Government Information Quarterly, 27(4), 401–413. doi:10.1016/
J.GIQ.2010.07.002
Miller, G., & Jaffe, G. (2017, May 15). Trump revealed highly classified information to Russian foreign minister and
ambassador. Washington Post. Retrieved from https://www.washingtonpost.com/world/national-security/trump-
 TRANSPARENCY UNDER TRUMP 13

revealed-highly-classified-information-to-russian-foreign-minister-and-ambassador/2017/05/15/530c172a-3960-
11e7-9e48-c4f199710b69_story.html
Moynihan, D. P. (1997). Secrecy as government regulation. P.S.: Political Science and Politics, 30, 160–165.
Moynihan, D. P. (1998). Secrecy: The American experience. New Haven, CT: Yale University Press.
National Archives to review removal of declassified documents. (2006, March 8). Library Journal. Retrieved
from https://lj.libraryjournal.com/2006/03/academic-libraries/national-archives-to-review-removal-of-declassified-
documents
Obama, B. (2009a, January 21). Inaugural address. Retrieved from https://obamawhitehouse.archives.gov/blog/2009/
01/21/president-barack-obamas-inaugural-address
Obama, B. (2009b, January 21). Memorandum for the heads of executive departments and agencies: Subject:
Freedom of Information Act. Retrieved from https://obamawhitehouse.archives.gov/the-press-office/freedom-
information-act
Obama, B. (2007, August 15). Press release: Obama pledges most transparent and accountable administration in
history. The American Presidency Project. Retrieved from http://www.presidency.ucsb.edu/ws/?pid¼93244
Office of the Special Inspector General for Afghanistan Reconstruction. (2017, October 17). Afghan National
Defense and Security Forces data classified or restricted for SIGAR’s October 2017 quarterly report to the
United States Congress. Retrieved from https://fas.org/sgp/othergov/dod/sigar-restricted.pdf
Open Government Partnership. (n.d). About OGP. Retrieved from https://www.opengovpartnership.org/about/about-ogp
Presidential authority to permit access to National Security information. (2017, May 17). Congressional Research
Service Reports and Analysis. Retrieved from https://fas.org/sgp/crs/secrecy/access.pdf
Public Web and Social Communication. (2017, March 15). Air Force Instruction 35-107. Retrieved from http://
static.e-publishing.af.mil/production/1/saf_pa/publication/afi35-107/afi35-107.pdf
Risen, J., Fink, S., & Savage, C. (2017, March 8). State secrets privilege invoked to block testimony in CIA torture
case. New York Times. Retrieved from https://www.nytimes.com/2017/03/08/us/justice-department-cia-psycholo-
gists-interrogation-program.html
Sanger, D. E., & Schmitt, E. (2017, June 12). U.S. cyberweapons, used against Iran and North Korea, are a disap-
pointment against ISIS. New York Times. Retrieved from https://www.nytimes.com/2017/06/12/world/middleeast/
isis-cyber.html
Schoenfeld, G. (2010). Necessary secrets: National security, the media and the rule of law. New York, NY:
W. W. Norton & Co.
Sen. Moran applauds passage of National Defense Authorization Act, inclusion of Moran provisions. (2017,
September 18). News release from the office of U.S. Senator Jerry Moran. Retrieved from https://www.moran.
senate.gov/public/index.cfm/news-releases?ID¼A99517E2-F4B1-41EC-877F-5B10C8D772E9
Shear, M. D. (2017, February 15). After election, Trump’s professed love for leaks quickly faded. New York Times.
Retrieved from https://www.nytimes.com/2017/02/15/us/politics/leaks-donald-trump.html
Sturges, P. (2007). What is this absence called transparency? International Review of Information Ethics, 7, 1–8.
Retrieved from http://www.i-r-i-e.net/inhalt/007/24-sturges.pdf
Takefman, P. (2013). Curbing overzealous prosecution of the Espionage Act: Thomas Andrews Drake and the case
for judicial intervention at sentencing. Cardozo Law Review, 35, 897–929. Retrieved from http://www.cardozola-
wreview.com/content/35-2/TAKEFMAN.35.2.pdf
Tankard, J. W. Jr.(1998). Samuel L. Morison and the government crackdown on the leaking of classified informa-
tion. Journalism History, 24(1), 17–25. Retrieved from https://www.questia.com/library/journal/1P3-30419074/
samuel-l-morison-and-the-government-crackdown-on
Trump, D. J. (2017, May 5). Statement by President Donald J. Trump on signing H.R. 244 into law. Retrieved from
https://www.gpo.gov/fdsys/pkg/DCPD-201700312/pdf/DCPD-201700312.pdf
Vinik, D. (2017, July 25). What happened to Trump’s war on data? Politico. Retrieved from https://www.politico.
com/agenda/story/2017/07/25/what-happened-trump-war-data-000481
Vladeck, S. (2017, May 16). Trump’s disclosures to the Russians might actually have been illegal. Washington Post.
Retrieved from https://www.washingtonpost.com/opinions/trumps-disclosures-to-the-russians-might-actually-
have-been-illegal/2017/05/16/b34ad57c-3a5a-11e7-8854-21f359183e8c_story.html
Wamsley, L. (2017, June 12). The Covfefe Act has a silly name—but it addresses a real quandary. National Public
Radio. Retrieved from https://www.npr.org/sections/thetwo-way/2017/06/12/532651827/the-covfefe-act-has-a-
silly-name-but-it-addresses-a-real-quandary
14 ELLINGTON

Ware, T. (2016, December 16). NSA asked its IG to resign after revelations of whistleblower retaliation. Federal
Times. Retrieved from https://www.federaltimes.com/federal-oversight/2016/12/16/nsa-asked-its-ig-to-resign-
after-revelations-of-whistleblower-retaliation
Weber, M. (1997). Economic and social consequences of bureaucracy. In I. McIntosh (Ed.), Classical sociological
theory: A reader (pp. 149–153). Edinburgh, UK: Edinburgh University Press.
Weisman, J. (2017, February 16). Trump denounces “low-life leakers,” pledging to hunt them down. New York
Times. Retrieved from https://www.nytimes.com/2017/02/16/us/politics/trump-russia-leaks-twitter.html
Wells, C. E. (2010). State secrets and executive accountability. Constitutional Commentary, 26, 625–650. Retrieved
from https://conservancy.umn.edu/bitstream/handle/11299/188238/Pages625-650vol26no03Constitutional
Commentary2010.pdf
World Justice Project. (2018). World Justice Project rule of law index, 2017–2018. Retrieved from https://worldjusti-
ceproject.org/sites/default/files/documents/WJP_ROLI_2017-18_Online-Edition_0.pdf
World Justice Project. (2016). World Justice Project open government index, 2015 report. Retrieved from http://
worldjusticeproject.org/sites/default/files/ogi_2015.pdf
Worthy, B., & Hazell, R. (2017). Disruptive, dynamic and democratic? Ten years of FOI in the UK. Parliamentary
Affairs, 70, 22–42.
Zapotsky, M. (2017, June 9). James Comey is a “leaker”—but that doesn’t make him a criminal. Washington Post.
Retrieved from https://www.washingtonpost.com/world/national-security/james-comey-is-a-leaker–but-that-
doesnt-make-him-a-criminal/2017/06/09/cfc6e3c0-4d1b-11e7-a186-60c031eab644_story.html
Zegart, A. B. (2011). Eyes on spies: Congress and the United States intelligence community. Stanford, CA: Hoover
Institution Press.