Trump's reelection puts us in uncharted territory over secrecy. Now what?

The election of President Donald Trump to a second term, particularly now that the Supreme Court has granted the president broad immunity for “official acts,” puts us in uncharted territory.

In terms of corrosive government secrecy, however, there are a few things that President Joe Biden, journalists and the public, and members of Congress can act on right away.

What Biden must do

Biden should work quickly to amend the executive order on classified national security information, which currently dates to the Obama administration.

The order states that “in no case shall information be classified … in order to conceal violations of law.”

The wording is misleading.

The order does not actually preclude agencies from classifying — and therefore hiding — information that documents violation of law. As government secrecy expert Steve Aftergood pointed out four years ago, it only bars agencies from classifying records with the specific intent of concealing the violation.

Agencies can still classify records showing they broke the law, and their ability to do so is backed by the courts, thanks to a 2008 ruling against the ACLU by District Judge Royce C. Lamberth in the U.S. Court of Appeals for the D.C. Circuit.

The most effective and expedient way for Biden to meaningfully strengthen the executive order would be to specifically state that violations of law may not be classified at all. This change may prove to be a particularly important change in the wake of the SCOTUS immunity ruling.

Of course, it is possible that Trump could immediately rescind the order, but given its importance and convoluted subject matter, it would be unlikely his national security team would do so without having a replacement ready.

Trump also demonstrated no interest in replacing the Obama-era order during his first term. This doesn't mean he won't show more of an interest during his second term, but neither is it a given that he will, or that if he does, he would do it quickly.

In the interim, we must strengthen the tools that we have and Biden should close this loophole immediately.

What journalists and the public can do

Datasets disappeared from federal agency websites at an alarming speed at the beginning of Trump's first term. Within the first few months of his presidency alone, a staggering 39,245 datasets were removed from data.gov, which is intended to provide public access to important datasets created by the government.

The disappearance of TOXMAP is a distressing example of what may come. It was the National Library of Medicine’s mapping tool that served “as an integrated system of toxicology and environmental health information,” and that was dismantled during the first Trump administration as part of a “larger pattern of decreasing transparency of environmental data during the Trump era.”

Another warning comes from Mick Mulvaney, who, while serving as the acting director of the Consumer Financial Protection Bureau, tried to take down the bureau’s consumer complaint database. Luckily, he was ultimately unsuccessful and the database is still online — for now.

Public records were also taken down, including the White House visitor logs and press briefings from regulatory agency websites, like the Occupational Safety and Health Administration.

Journalists and the public must assume Trump will do the same in his second term, and should immediately download and save records on websites of agencies that will likely be targets for the administration. These agencies include the Environmental Protection Agency, the Food and Drug Administration, the National Oceanic and Atmospheric Administration, the Census Bureau, and the Centers for Disease Control and Prevention.

In addition to existing datasets, documents that should be proactively preserved include policy guidance, press briefings, final opinions, datasets, organizational charts, and any available information on the agency’s major information systems. For example, NOAA’s Institutional Repository is a major information system containing important NOAA records dating back to 1970.

Assume information systems like this will go offline and proactively preserve them.

What members of Congress can do

The first Trump administration banned agencies from responding to congressional requests for information when those requests did not come from full committees or subcommittees. This stalled legitimate oversight being conducted by the minority.

There’s no reason to think agencies will behave differently during a second Trump administration.

Members of Congress should use some of the remainder of the term to educate themselves and their staff on:

• the rights of individual members to request information directly from agencies, even if that request does not come from the committee chair
• how to counter agencies’ objections to providing information

Congress must also immediately pass, and Biden must sign, the PRESS Act. As Trevor Timm, executive director of Freedom of the Press Foundation (FPF), clearly states: “Trump has spent the last year on the campaign trail calling for more leak investigations, imprisoning journalists, and censoring news outlets he doesn’t like. Lawmakers and President Biden must act before it’s too late.”