DOJ says presidents should be able to sell secrets on eBay

Dear Friend of Press Freedom,

I’m Lauren Harper, the first Daniel Ellsberg chair on government secrecy at Freedom of the Press Foundation (FPF), and welcome to The Classifieds. Read on to learn about the week’s top secrecy news.

The DOJ’s new legal position: Presidents can sell state secrets on eBay

The D.C. Circuit Court of Appeals heard oral arguments last week in our fight to stop the Trump administration from privatizing presidential papers. The battle stems from a Justice Department memo declaring that the Presidential Records Act is unconstitutional and that White House files are now the president’s personal property — not the public’s.

FPF and Citizens for Responsibility and Ethics in Washington sued over this attempt to hide the most consequential records in government — and in May, we won an emergency preliminary injunction requiring the White House to follow the law.

Politico notes that the appeals panel hearing our case had deep reservations about the government’s arguments, with Judge Patricia Millett asking: “Can the president then offer on eBay to sell them, all of our national security secrets, to the highest bidder?”

The government’s response was, in short, “yes.”

Selective, duplicative, and partisan declassification efforts continue

Earlier this month, the White House staged another declassification stunt focusing on records related to President Trump’s unlawful hoarding of classified records at the end of his first term.

The records were “released” through the White House’s purported “transparency” task force, led by journalist and conservative commentator John Solomon. In fact, the documents were made public years ago.

Notably, Solomon also serves as one of Trump’s official representatives to the National Archives, along with FBI Director Kash Patel. This position grants him VIP access to the president’s records — even as Freedom of Information Act requesters will likely wait years, if not decades, to see Trump’s files.

It’s the latest example of this administration’s disingenuous approach to declassification projects. Previous examples from this term include:

• Virtually all the document releases orchestrated by former Director of National Intelligence Tulsi Gabbard’s Director’s Initiatives Group on topics from the “2019 impeachment scam” to the “Russia hoax”
• Selective memos detailing the FBI inquiry into former Director James Comey’s firing, which was framed by the White House as part of a political influence plot, alongside handpicked records examining the financial ties between Trump’s 2016 campaign and Russia
• The “declassification” of the John F. Kennedy and Martin Luther King Jr. assassination files, which largely consisted of previously released records (Cold War scholars did find some interesting new information in the latest JFK tranche — albeit nothing that justified 60 years of classification)

At the same time the White House coordinates releases intended to flatter the president, it is systematically undermining FOIA offices and sidelining career professionals at the National Archives — the twin engines of government transparency.

The risks of politicizing declassification are extraordinary. The George W. Bush administration famously promoted bad intelligence to bolster its long-standing desire to invade Iraq — a precedent that should loom large while we are at war with Iran.

In addition to selectively declassifying records it finds convenient, the Trump administration is revoking the security clearances of intelligence officials who disagree with its policies and curtailing official access to classified information for defense officials who need it to do their job. The goal is clear: prevent unfavorable or contradictory intelligence from ever being created in the first place.

None of this is to say the Trump administration shouldn’t declassify information. Of course it should. But declassification must be systematic, robust, and sincere — not used as a taxpayer-funded spin operation.

Recent deaths intensify need to make private prisons subject to FOIA

The recent deaths of Emiliano Andrade-Covarrubias, at a Geo Group facility in Texas, and Julian Curo-Churata, at a LaSalle Corrections facility in Louisiana, bring the number of people who have died in ICE custody this year to 29 — an alarming count that is on track to surpass last year’s record high. (This figure does not include those who died immediately upon release from ICE custody, a reporting loophole that may obscure more fatalities the agency is responsible for.)

The unanswered questions from mourning families about how these deaths occurred underscore the urgent need to extend FOIA to the private facilities that contract with ICE.

The federal government knows private facilities are more dangerous than government-run ones, and that they’re far more secretive because they aren’t subject to FOIA. If we can’t shut down these private prisons, we can at least make them transparent. Use our action center to demand that Congress extend FOIA to private prisons.