Update The House Rules Committee is allowing the Griffith amendment to move to the floor for debate and a vote.

On July 24, Congressman Morgan Griffith (R-VA), along with Congressmen Jim Jordan (R-OH), Mark Meadows (R-NC), and Scott Perry (R-PA), submitted to the Rules Committee an amendment to abolish the Budget Analysis Division of the Congressional Budget Office (CBO) and transfer its duties to the Office of the Director.  The amendment was made to the Make America Secure Appropriations Act of 2018, through the use of the Holman Rule.  A separate amendment filed by Rep. Mark Meadows (R-N.C.) would also eliminate the same division and specify that the CBO instead evaluate legislation “by facilitating and assimilating scoring data” compiled by four private think tanks — the Heritage Foundation, the American Enterprise Institute, the Brookings Institution, and the Urban Institute.

During a Monday appearance at the National Press Club, Rep. Mark Meadows (R-NC), chairman of the Freedom Caucus, said “There’s plenty of think tanks that are out there. And so we ought to take a score from Heritage, from AEI, from Brookings, from the Urban Institute and bring them together for a composite score that would represent a very wide swath of think tanks and their abilities. We think that’s a pragmatic way to use the private sector and yet let Congress depend on a score that is accurate.”

During the first week in January, House Republicans reinstated the Holman Rule, an arcane procedural rule that empowers any member of Congress to propose amending an appropriations bill to single out a government employee or cut a specific program. It was first enacted in 1876 and rescinded in 1983, and was reinstated in January on a temporary basis.

According to a report by Josh Gerstein of Politico,  U.S. District Court Judge Colleen Kollar-Kotelly denied a temporary restraining order and preliminary injunction the Electronic Privacy Information Center sought against the panel formally known as the Presidential Advisory Commission on Election Integrity. EPIC sought to force President Donald Trump’s controversial voter fraud commission (formally known as the Presidential Advisory Commission on Election Integrity) to conduct a privacy assessment before gathering data on millions of American voters.

The panel initially asked states to upload that data to a site hosted by the Defense Department, potentially implicating federal laws covering executive branch agencies. The panel is now having the information collected by the White House itself (see Trump voter commission to store data on White House computers under Pence staff direction), effectively avoiding the impact of those federal statutes.

In a 35-page opinion Monday, Kollar-Kotelly said the commission and a White House information technology office did not appear to qualify as federal agencies and therefore did not trigger the requirement for a privacy impact assessment: “Given the factual circumstances presently before the Court—which have changed substantially since this case was filed three weeks ago—Defendants’ collection of voter roll information does not currently involve agency action.”

The opinion states: “Defendants have represented that they are only collecting voter information that is already publicly available under the laws of the states where the information resides; and Defendants have clarified that such information, to the extent it is made public, will be de-identified. All of these representations were made to the
Court in sworn declarations, and needless to say, the Court expects that Defendants shall strictly abide by them.”

Kollar-Kotelly also noted that “to the extent that factual circumstances change – for example, of the de jure or de facto powers of the Commission expand beyond those of a purely advisory body – this determination may need to be revisited.”

On June 5, 2017, a criminal complaint was filed in the Southern District of Georgia charging Reality Leigh Winner, 25, a federal contractor from Augusta, Georgia, with removing classified material from a government facility and mailing it to a news outlet, in violation of 18 U.S.C. Section 793(e),  more generally known as the Espionage Act.

The critical questions that we should be asking the DOJ prosecutors in regard to the alleged disclosures by Reality Winner are:

Is the information “national defense” information; what does that mean?  Is there real harm to national security — and how is that defined? Was there criminal intent in the disclosure? Who decides?

According to Deputy Attorney General Rod J. Rosenstein, “Releasing classified material without authorization threatens our nation’s security and undermines public faith in government. People who are trusted with classified information and pledge to protect it must be held accountable when they violate that obligation.”

The repeated use of the term ‘classified’ is of interest here.

The Espionage Act statutes that have been used to prosecute most leak cases (18 USC 793, 794) and under which Ms. Winner has been indicted do not mention “classified information” at all.  Rather, they apply to “national defense” information, an imprecise term that is not coextensive with “classified” information. Courts have interpreted the convoluted language of the Espionage Act to mean that only those with the requisite criminal intent will have violated the law.

Our modern classification regime postdates the Act by over 30 years. And yet the indictments and prosecutions under the Act in recent times all have to do with ‘classified information.’  Not, one should note, properly-classified information – which is what the Executive Order says.

The Espionage Act was at the center of the Pentagon Papers case, decided in 1971. Daniel Ellsberg, who leaked the papers, and an associate were tried under the statute, but the judge declared a mistrial, so the case never got to the jury.  The Supreme Court never squarely confronted the frontier question – When is a willful leak “prejudicial to the safety or interest of the United States”?

Judge T.S. Ellis, III, the presiding judge in the AIPAC case, ruled in 2006 that, in order to convict someone of unauthorized disclosure of national defense information (not involving disclosure of documents), it would be necessary for prosecutors “to demonstrate the likelihood of [the] defendant’s bad faith purpose to either harm the United States or to aid a foreign government.”

According to legal experts on classified information and on the Espionage Act, the Supreme Court seems satisfied that national security is a vital interest sufficient to justify some intrusion—at least with respect to federal employees — into activities that would otherwise be protected by the First Amendment.  Although the Court has not held that government classification of material is sufficient to show that its release is damaging to the national security, it has seemed to accept without much discussion the government’s assertion that the material in question is damaging.  (Criminal Prohibitions…, p. 19)

Thus, it is unlikely that a defendant’s bare assertion that information poses no danger to U.S. national security will be persuasive without some convincing evidence to that effect – proving a negative, or proof that the information is not closely guarded by the government. Rather, the fact of government classification will likely “serve as strong evidence to support that contention, even if the information seems relatively innocuous or does not contain much that is not already publicly known.” (Criminal Prohibitions…, p. 16)

How does the current Executive Order on National Security Classification, E.O. 13526, talk about information that needs protection? It notes in the introductory material, “… throughout our history, the national defense has required that certain information be maintained in confidence in order to protect our citizens, our democratic institutions, our homeland security, and our interactions with foreign nations.  Protecting information critical to our Nation’s security and demonstrating our commitment to open Government through accurate and accountable application of classification standards and routine, secure, and effective declassification are equally important priorities.”

As CRS has noted, barring such a showing, the Espionage Act become a means to punish whistle-blowers who reveal information that poses more of a danger of embarrassing public officials than of endangering national security. (Criminal Prohibitions…, p. 19)  To which many would say, “Exactly…”

Patrice McDermott

What could possibly go wrong with this?  According to the Washington Post, on 7 July the Trump administration told a federal judge that it plans to keep voter roll data it has requested from all 50 states and the District on White House computers under the direction of a member of Vice President Pence’s staff.

The disclosure of the White House role came in a government filing required in a lawsuit by the Electronic Privacy Information Center, a watchdog organization that has asked a federal judge in Washington to block the requests for voter data until the impact on Americans’ privacy can be fully assessed.

A decision on the request for a temporary restraining order by U.S. District Judge Colleen Kollar-Kotelly is expected as early as Friday afternoon.

Spencer Hsu reports that the May executive order creating the Presidential Advisory Commission on Election Integrity stated that the panel would be funded and staffed through the General Services Administration — a federal agency subject to privacy requirements. That arrangement has shifted: “At this time, there are no plans for the General Services Administration to collect or store any voter registration or other elections-related data for the Commission,” Kobach said in response to questions from the court.

Continue reading →

“You can’t change what you can’t see.” A new nonprofit, Measures for Justice is gathering data from around the country to allow citizens to compare and contrast their local justice systems with those of other jurisdictions. This sort of national data has been largely missing from policy debates over justice reform. See Beth Schwartzapfel’s (The Marshall Project) report about what she calls a “video game for criminal justice nerds.”

®©2017 Measures for Justice. All rights reserved.