Open Letter on Open Government

Dear U.S. Sen. John Cornyn:

You and I spoke once on a flight between D.C. and Dallas about a rare bipartisan issue — the importance of freedom of information in promoting government transparency and accountability. Your leadership on this topic has been critical to ensuring citizens know what their government is doing and can serve as a check on waste, fraud and abuse.

I write now because my work representing federal employees around the country has brought to my attention a threat by the U.S. Department of Homeland Security (DHS) to such efforts. As you know, many times it is federal employees who are in the best position to observe and report wrongdoing and inappropriate expenditures of our tax dollars. Last week I encountered two incidents involving employees of different DHS components in different parts of the country:

• An employee’s being given a written counseling for forwarding to a home email account a work email that addressed only routine administrative work and not any Privacy Act information about other staff, nor any classified or law enforcement matters. While a written counseling is not considered formal discipline, I have seen them used to justify a more serious penalty later and giving a failing performance appraisal.

• A supervisor’s inclusion of this warning in even the most routine emails:

WARNING: This document may contain information exempt from public release under the Freedom of Information Act (5 USC 552). This document is to be controlled, handled, transmitted, distributed and disposed of in accordance with Department of Homeland Security policy relating to FOR OFFICIAL USE ONLY (FOUO) information and is not to be released to the public or personnel who do not have a valid “need to know” without prior approval from the originating agency.

The President’s Nov. 4, 2010, Executive Order 13556 on “Controlled Unclassified Information” (CUI) was a valuable start toward standardizing practices for control of sensitive information while avoiding a level of safeguarding that stymies public scrutiny. But now, more than five years later, a look at these directives confirms that the effort is stalled. For example, the link for regulations on CUI is noted with “PLACEHOLDER,” as is the CUI “Marking Handbook.” Proposed rules were issued May 8, 2015 but have no effect until finally adopted.

As shown by the written employee counseling and FOUO signature block, agencies like Homeland Security allow managers to act based on impulse, not uniform policy. I must wonder if a federal employee who receives a sexually harassing email is prohibited from forwarding that email home so that she has a record of it. Similarly, if a DHS employee receives an email from a supervisor that describes plans to spend $10 million on a lavish conference in Las Vegas, is it misconduct for him to forward the message to a Washington Post reporter if his supervisor included a signature block designating the email as “For Official Use Only”?

Existing laws against whistleblower and EEO retaliation help little if potential whistleblowers do not report in the first place after hearing that a colleague has been disciplined for disclosing an email that covered something as routine as scheduling an administrative meeting.

I request you ask DHS Secretary Jeh Johnson whether he considers the matters I describe above to appropriately reflect DHS policy. Please also ask that the National Archives and White House identify the expected date for adoption of final CUI regulations. Your involvement in these matters can prevent your good work on FOIA issues from being subverted.

Trump’s HUGE Inauguration Speech

The Honorable Donald J. Trump’s inauguration speech was recently obtained for me on the sly by a good friend who is a professional futurist. And what a humdinger it is. It will surely put to rest all that idle speculation about what may or may not happen on the bloody mornings after the election:

“My fellow Americans. First of all, a HUGE thank-you to those who made today possible. Not so much those who voted, but the many, many more of you who didn’t vote. Republican, Democrat, Libertarian or whatever, if you stayed home on Election Day, thanks a billion. Maybe you were sick of all the negative ads, or you’re lazy, or just pissed your favorite candidate didn’t get the nomination. Either way, you are my favorite bunch of losers. Ever. When your grandkids ask what you did to try to stop me, look them in the eye and say, ‘Not a damn thing.’

“They said I’m a divider. Biggest lie ever. Just since the election, Japan and South Korea have strengthened ties with China. Europe is trying to make peace with Putin. Jordan entered into a treaty with Iran. All because of me. You are welcome very much. Likewise for the stock markets in China and Russia going up, way up — they know the world’s better off with me president. They said it would never happen, but Mexico already has started building a wall. Canada too. Cowards.

“As a gesture of good will to the Mexicans and others who commit crimes, today I’m going to issue a pardon for a lot of illegals. If you’re a female model and in America illegally, come out of the shadows. You go forgiven. Now if you are a Muslim in America, I’d like to assure you there is nothing to fear. We are going to ask all of you who worship Islam to register. Give us your addresses, that’s all. I’m gonna have a real big White House Christmas card list this year and I want all my Muslim friends to be on it. That’s all. Get over it.

“If you are watching on TV, and I know everyone in the world is, you see the Capitol dome behind me. Almost done with the renovations. That’s where Congress meets. I know they are going to pass some great laws for me. Really great laws. We’re done with the media making fun of people. Aren’t you sick of that? So rude. We’re going to pass a law to make it so you can sue Megyn Kelly or whomever if they ridicule us. I want Congress to do it in my first 100 days because with all that construction going on behind me, you never know when there might be a fire or something. I’m against the building catching on fire, but people ask me about that a lot. It’s a question. People talk about it. I don’t know.

“The Supreme Court is pretty close too. You could hit it with a baseball maybe if you threw it from over there. Now I know the Democrats control the Senate and the House and they’re still mad Obama didn’t get to put a No. 9 on there. Well, I don’t want a fight. I’m not going to nominate anyone. No fight. Why waste my time? Eight justices now. Maybe a year or two, we have seven or six. Still won’t waste my time. No new Supreme Court justices while I’m president. Maybe once there are only three, then they will listen to everyday people. With eight or nine, they think they’re big shots.

“It’s good to see so many of you carrying guns today. The Constitution says something about militias — we need to get back to that. If you voted for me and own a gun, we’ll be in touch about setting up a volunteer militia in your town. Doing things like keeping people safe, making sure all our Muslim friends have signed up for their Christmas card and keeping an eye out for reporters that like to lie. If you know a reporter like that, do me a favor and drive them up here to Washington to meet with me. I’ll pay your legal fees. That’s how we did it in the good old days.

“A lot of you made fun of me when I was running. I don’t see any of you laughing now. Chris Christie is going to be my attorney general and he’s tired of your jokes too. About him being fat and stuff. He’s going to be in charge of investigating all the crooks and incompetents in Washington and making sure they don’t get off easy. Probably why Obama didn’t show up today — he and Hillary are out trying to hide the bodies before they get prosecuted.

“America is the great experiment in democracy. We’ve tried a lot of things over the years and now it’s time to do some things real different. So different you will become tired of winning. Other countries are going to stop making fun of us. Congress is going to stop making working people look like fools. We need to let some ordinary people out of jail because we are going to need some more room. For doctors and women who do abortion things. For CEOs who sold your jobs to the Chinese and move factories to Mexico. That’s all gonna end right now. Even the Koch Brothers need to be stopped.

“Starting today, America is great again. Think back to our glory days. Whether it was the 1950s or the 1850s, like the good book says, we are flying with eagle wings and won’t ever get tired. God bless you all, God bless Donald J. Trump, and he sure as hell better bless America. I’ll make sure he does. Thank you, friends. The next eight years are going to be ones you’ll never forget.”

by David R. Schleicher, as originally appeared at A11 in April 10, 2016 Waco Tribune-Herald .