Thomas C Ellington. Public Integrity. Volume 21, Issue 2. March/April 2019.
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 campaign and since taking office. Barack Obama did take significant steps to increase transparency 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 (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 separating 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 decision-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; promote trust in government; support corporate social responsibility; and foster state accountability” (Birchall, 2014, p. 77).
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 actually 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 newspaper The Intercept with a classified document detailing alleged actions by Russia to penetrate 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 person 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 reputation 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 agencies to recommit to the Freedom of Information Act and to adopt a presumption favoring disclosure 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 compliance 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 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 individuals 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, meaning that the federal government created fewer secrets under Obama than his recent predecessors, 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 classification 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 tendency 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 declassified 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 associated 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 billion 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. 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 initiated 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 prosecution 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 prosecutorial 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 provision 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 emergency 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 paradigm 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 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 status 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 prosecution 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.
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 customary 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 transparency, 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 requirements 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 disclosure. 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 election. 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 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 interesting 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, something that has never been done before in the United States. Trump has not been fully consistent 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 thatimportant. 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 trying 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-netanyahu-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 & Pérez-Peña, 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 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 contain 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 information—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 defenders 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 documents 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.
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 problematic 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 publishing classified information. Where the new Espionage Act prosecution and use of state secrets privilege were both examples of the administration following precedent—albeit bad precedent—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 transparency 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 unprecedented 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 administration 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 classification 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 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 principles 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.