In 2006, the Democratic National Committee took the Bush administration to court.
“The Abramoff scandal was going on,” remembers Joseph Sandler, the DNC’s general counsel from 1993 to 2008. “Abramoff and his associates had meetings and access to the Bush White House. The case was to find out from these records how many times he and his associates were there.”
It was a simple question, one that could easily have been answered by consulting Secret Service logs that record the arrival of all White House guests.
But the question was one that the Bush White House was none too interested in answering, which it demonstrated by rejecting at least three separate Freedom of Information Act requests for the records—one from the DNC, and two others from Judicial Watch and Citizens for Responsibility and Ethics in Washington (CREW), both watchdog groups.
All three organizations sued, and the government’s lawyers made two claims in court. Even though the logs only listed basic information like names, dates, and the gate used by each visitor, the government argued that the records constituted privileged or deliberative communication with the president, normally exempt from the Freedom of Information Act. The government also argued that even if the records were mostly created and maintained by the Secret Service, that they instead were White House records, meaning that they were not covered by FOIA.
“We clearly regarded those as Secret Service records as subject to the Freedom of Information Act. To the extent they were planning to claim deliberative process, we thought that was ridiculous,” Sandler says with a chuckle. “The idea that someone entering into the White House should be covered by that privilege is not consistent with that case law or precedent at all.”
And today, less than three years after the DNC settled its case, CREW is suing the Obama White House. Why? Because the group’s June FOIA request seeking information describing the visits of eighteen health care executives was denied. And the Obama administration, as it did with an earlier CREW request for information on coal executives’ visits to the White House, is citing the same arguments as their predecessors to keep the records under wraps.
Three different district court rulings have ruled against those arguments. In one such finding, from September 2007, Judge Royce Lamberth stated that he was “not convinced” by the governments “nuanced” arguments that the logs were White House records, and flatly stated that there was “no justification for removing these records from the reach of the FOIA based on confidentiality concerns.”
In its Abramoff suit, the DNC eventually settled with the government, netting a box of documents—which it shared with reporters—that revealed regular visits to the White House by anti-tax activist Grover Norquist, among others.
But along the way, the DNC issued many press statements excoriating the government’s arguments. Here’s what DNC spokesperson Karen Finney said in September 2006, referring to the government’s deliberative-process claim:
By trying to extend a special privilege typically reserved for U.S. government employees, to protect their Abramoff cronies like Grover Norquist, and Ralph Reed, the Bush administration showed just how willing they are to manipulate the law to hide the truth and protect their political interests.
Despite the court rulings, and the party’s track record on the matter, the DNC declined a request to comment on whether its position on the records has changed over the last three years, now that a Democratic president has decided to refuse nearly identical requests for visitor logs. But it’s safe to say that the DNC won’t be joining CREW this time around in a lawsuit, despite a paper trail that makes it clear that the Democrats, just three years ago, viewed the government’s legal arguments as highly suspect and dangerous to democracy.
Howard Dean, then chairman of the Democratic National Committee, began one statement that complained of “stonewalling” by simply saying, “We should not have to go to court to get this information.”
But court, again, is where CREW and the issue ended up today, even though the White House has indicated that it is reviewing its policy.
CREW’s senior counsel, Anne Weissman, has spoken with Obama Justice Department attorneys about the coal-industry log case, which is still pending. But she says she’s received no indication that the White House’s promised review might lead to a recognition that the records are fully accessible via FOIA requests, only that the White House might decide to grant some log requests on a case by case basis.
“Our position is that a discretionary release isn’t enough, and that we’re entitled to these records as a matter of law,” says Weissman.
Regardless, neither the coal nor the health-care-executive request is likely to net much unexpected information—the White House has made little secret about who it’s meeting with.
“The thing about Abramoff was that the president was saying he’s never met the guy,” says Weissman.
So what’s the issue?
“Are they doing it because they want the ability to deny it when it really matters?” says Weismann.
One wonders what the DNC, circa 2006, would have to say about that.
UPDATE 7/23: Late last night, shortly before the President’s prime time press conference on health care reform, White House Counsel Gregory Craig released a letter (available as a pdf) purporting to list the dates of visits by CREW’s targeted executives. CREW, while pleased with the disclosure, writes at its website that the letter “in no way satisfies” their FOIA request, in part because the law requires the release of the actual records. Craig tellingly closes his letter with a promise to continue to review “the White House’s general policy governing the discretionary release of visitor records.” (Emphasis added.)
As long as the White House claims that access to these records is only on a “discretionary” basis, they are denying that the records are FOIAable as a matter of law, and are reserving the right to deny any or all requests for visitor logs, for any (or no) reason at all.
Clint Hendler is the managing editor of Mother Jones, and a former deputy editor of CJR.