The Obama administration has a standard response to all scandals: it stonewalls. Getting information from the administration is like pulling teeth, only slower. Document requests and subpoenas go unanswered, or inadequately answered, for years.
So far Obama’s stonewall strategy has worked quite well. After a year or two, a scandal is treated as old news, even though the administration has never produced the information that would allow Congressional committees, reporters or the public to evaluate it. If the administration stalls long enough, it wins.
In perfecting the art of the stall, Obama has done something that has been tried by no previous president: he has put the White House into the loop when federal agencies respond to subpoenas and Freedom of Information Act requests. A group called Cause of Action has uncovered an April 15, 2009 memo by White House Counsel Greg Craig that lays out the administration’s unprecedented stonewall strategy. Craig’s memo went to every executive department and federal agency. You can read it here. The memo says, in part:
This is a reminder that executive agencies should consult with the White House Counsel’s Office on all document requests that may involve documents with White House equities. …
This need to consult with the White House arises with respect to all types of document requests, including Congressional committee requests, GAO requests, judicial subpoenas, and FOIA requests. And it applies to all documents and records, whether in oral, paper, or electronic form, that relate to communications to and from the White House, including preparations for such communications.
The phrase “White House equities” is undefined. It is not a legal term; it cannot be found in the Freedom of Information Act. Apparently a document has “White House equities” if it potentially could embarrass the Obama administration.
Mark Tapscott reported on Cause of Action’s discovery last week in the Washington Examiner:
The FOIA requires federal agencies to respond within 20 days of receiving a request, but the White House equities exception can make it impossible for an agency to meet that deadline.
In one case cited by Cause of Action, the response to a request from a Los Angeles Times reporter to the Department of the Interior for “communications between the White House and high-ranking Interior officials on various politically sensitive topics” was delayed at least two years by the equities review.
“Cause of Action is still waiting for documents from 16 federal agencies, with the Department of Treasury having the longest pending request of 202 business days.
“The Department of Energy is a close second at 169 business days. The requests to the Department of Defense and Department of Health and Human Services have been pending for 138 business days,” the report said.
There are two problems with the unprecedented White House review that the Obama administration has instituted. The first is that it takes forever. White House lawyers can simply sit on a subpoena until a year or two have gone by, and the potentially embarrassing issue has been forgotten. But the second problem is still more diabolical. The White House is not subject to the Freedom of Information Act. This means that if White House lawyers decide to cover up an Obama scandal by shredding documents that make the administration look bad, no one–no reporter, no Congressional committee, no private citizen–can serve a request that requires the White House to disclose what documents it destroyed. So adding a layer of White House lawyer review to the production of any sensitive documents–those with “White House equities”–means that inconvenient information may sink without a trace. We have no way of knowing how often this has happened over the last five years.
Which is, of course, exactly the way the least transparent administration in history wants it.