This week, there have already been reminders of how much the upholding of government ethics relies on access to open information—and of how little Donald Trump’s Administration cares about either. Some of those reminders have come in the case of Michael Flynn, the President’s first national-security adviser. Others have come in the Administration’s clumsy attempt to tell Walter Shaub, the head of the Office of Government Ethics, not to do his job. The Administration had said loudly that it would not allow lobbyists to take positions relating to their “particular” lobbying-market niche. It also said, more quietly, that it could issue waivers. And it had, in total silence, issued an unknown number of waivers, as evidenced by lobbyists popping up, without other explanation, at various agencies. (When the Obama Administration issued such waivers, it not only said so but indicated why, in writing.) Shaub had asked various agencies to send him, by June 1st, a list of those waivers, a “data call” of the sort that he is explicitly authorized to make. The White House doesn’t seem to have liked that.
The President’s designated messenger was Mick Mulvaney, the head of the Office of Management and Budget. Mulvaney, in a letter to Shaub that the Times obtained through the Freedom of Information Act (a reminder that openness takes work), said that agencies had asked the White House about the data call, and that he was giving them some “guidance.” His instructions amounted to letting the agencies know that White House lawyers might have a problem with them giving out information, and a “request” to Shaub that he “stay the data call”—that is, that he just stop asking. The Office of Legal Counsel at the Justice Department needed to figure out the “potential legal questions” that the request raised, Mulvaney wrote. But there are no legal questions—other than, perhaps, those that might arise from whatever the waivers revealed.
Shaub said no to Mulvaney’s request. In a ten-page reply, he said that he did not do so lightly but because he did not know how to comply in a way that would not be a renunciation of his office’s history and its mandate. He included footnotes and citations regarding his legal authority, for Mulvaney’s “edification.” Mulvaney had complained about the “uniqueness” of Shaub’s data call, but Shaub made it clear that it was Mulvaney’s action that was highly unusual.
And if ever there were a case illustrating why a history of lobbying and other conflicts—factors that the waivers are meant to at least acknowledge—might matter, it is the case of Michael Flynn. He has been implicated in the investigation into Russia’s role in the 2016 election and its possible connections to the Trump campaign, but there are also questions regarding money that his firm took from Turkish interests as an unacknowledged lobbyist for Recep Tayyip Erdoğan’s regime. (Flynn registered as a foreign lobbyist only after the fact.) According to another report this week, Flynn withheld information about his Russian contacts from the Obama Administration, in which he had served as the head of the Defense Intelligence Agency, before being pushed out when his security clearances were being renewed. Flynn is reportedly planning to invoke the Fifth Amendment when he is called to testify, which is his right, and one of the few legitimate and reasonable uses of silence in this story. But his former colleagues in the Administration should not suppose that it his potential invocation of the Fifth magically extends to their offices, in terms of a refusal to, for example, produce documents that Congress or investigators might require. And some of those documents may be significant. Among the most disturbing Flynn stories have been those indicating that the Trump transition team knew about Flynn’s conflicts—and even that he was under federal investigation—but signed him up anyway. That is not just stonewalling; it is incompetence. It is of a piece with the entire Trump operation—one can’t talk about the lack of disclosure without noting that the public still hasn’t seen the President’s tax returns. For that matter, the congressional Republicans tried to start their spree of legislating, with the support of a President of the same party, by sidelining its ethical overseer.
But there is something distinctly dangerous about a government that thinks that what it can hide and lie about does not, for practical purposes, exist—that if no one knows about it, it’s not a problem, even internally. People in government, even under the best Administrations, tend to care less about things that are bad if they think that no one will ever find out about them. There is an impulse to hide, rather than to fix. But the Trump Administration seems to have stopped caring at all. The alarming possibility is that the White House doesn’t just think that when something is out of sight it is out of the public’s mind but that it then vanishes from the minds of the President and his aides, as well.
The White House’s evident indifference raises the question of whether, prior to Shaub’s inquiry, anyone there was even keeping track of how many waivers were being granted, and where, and at what cost, or if they were just left out for the taking, like office-party doughnuts. It is, at any rate, a good guess that the Shaub-Mulvaney conflict prefigures any number of fights to come. Some will end up in court, and may have to be resolved by a reëxamination, by the Supreme Court, of the meaning of executive privilege.
Non-disclosure can also involve a false assertion that there is no information to disclose. The Washington Post reported that President Trump asked the heads of intelligence agencies to publicly deny that there was anything to the Russian investigation. (They apparently demurred.) By his own admission, Trump fired James Comey because that inquiry annoyed him. And then there are the Administration’s arguments, in support of its travel ban, that the courts should allow the White House to pretend that the ban has nothing to do with Muslims. But this kind of thing never works for long, or at least it shouldn’t, in a democracy.
Trump and his circle may prefer a different model. On Monday, Wilbur Ross, the Secretary of Commerce, appeared on CNBC, discussing the President’s visit to Saudi Arabia. He found it “fascinating” that there was not “a single hint of a protester anywhere there during the whole time we were there.” So much more pleasant than here! And, really, blind nonsense: Saudi Arabia is a repressive regime that silences dissent, with a reputation for corruption that has fuelled discontent and provided fodder for extremists. (Secrets come out, in one form or the other.) Becky Quick, the interviewer, suggested as much to Ross. He agreed that “in theory” fear may have been a factor, “but, boy, there was certainly no sign of it,” he said. “The mood was genuinely good.” Perhaps the mood was helped by the giant portraits of Trump projected on buildings around Riyadh, among the golden hotels and palaces.