You’ve sprung a leak

Dear Donald –

It sucks when you can’t control the news cycle. A political operation running like a finely tuned machine can usually use selected leaks of information to the right news outlets at the right time to their advantage – floating an idea for a policy proposal or a nomination to test the waters without actually making a commitment, for example. However, when you can’t control the cycle, you’re constantly playing defense, with information getting out before you’re ready for it to, or even when you don’t want it out at all. You and Sean have both seemed particularly on edge lately about the leaks out of the White House, leading to crackdowns on staff. 

Just the other day, Sean brought his entire staff into his office and demanded access to their work and personal cell phones to check for signs of subversive behavior, or something. Supposedly, even having Confide or Signal on their phones was sufficient justification for firing. Now, I won’t fault Sean for that.  A communications office firing a staffer for unauthorized communications with the press doesn’t seem too far fetched.  However, I think it’s probably crossing a line to demand access to personal cell phones, particularly without any other evidence of wrongdoing. Either way, the fishing expedition he was clearly on went too far, and not just because even having an app on your personal cell phone (an app Sean himself is said to have used) was apparently grounds for dismissal. 

You see, Sean brought in White House Counsel to up the ante, even having them frame outside communications with the press as a violation of the Federal Records Act, which it clearly isn’t. First off, the Federal Records Act pertains to, shockingly enough, records. Under the law, “records” are:

…all recorded information, regardless of form or characteristics, made or received by a Federal agency under Federal law or in connection with the transaction of public business and preserved or appropriate for preservation by that agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the United States Government or the cause of the informational value of data in them

In short, most anything you write down while doing your job as a government employee can be considered a record. A conversation you have with a member of the press about your job is not a record for FRA purposes. 

And any halfway decent lawyer knows that. Which means that the White House Counsel knew Sean was wrong in his threats and went along with it anyway. In our system of government, lawyers serve a vital function as checks on executive power. By clearly delineating right from wrong, they provide guardrails that protect the American people from the excesses of unchecked power. Lawyers that fail to serve that role in pursuit of giving the executive the answer that he wants only undermines good governance. Look at the CIA “enhanced interrogation” program. The executive was given cover to engage in illegal and horrifying torture of prisoners by a lawyer who drafted a memo. 

Here, lawyers gave Sean free reign to intimidate and bully his staff and potentially illegally Stacy their personal cell phones. And this is just because of a few small news leaks. What happens when someone higher up the food chain comes asking for even bigger favors?  Will they say no then when they couldn’t even say no to Sean now?

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