It’s a rationale that in other, less dramatic circumstances, could diminish governmental transparency, accountability and the public’s right to know about federal government actions.
After approving appropriations legislation on Dec. 20, Trump issued a largely overlooked signing statement explaining his objections to certain provisions: “I reiterate the longstanding understanding of the executive branch that requirements of advance notice [to Congress] regarding military or diplomatic actions encompass only military actions for which providing advance notice is feasible and consistent with the President’s constitutional authority and duty as Commander in Chief to ensure national security.”
There is mounting evidence that advance notice to Congress of the Soleimani hit was feasible, but that’s a debate happening elsewhere. Beyond almost taking America to war, what the Soleimani controversy points to, along with the signing statement and another issued the same day, is Trump’s particularly aggressive view of presidential power.
It is rooted in his damaged interpretation of the Constitution, outlined in his July speech to a teen summit. “I have an Article II,” he told the student activists, “where I have the right to do whatever I want as President.” It is an interpretation reflected by Trump’s impeachment on charges of obstructing Congress and abusing his power.
Fortunately, most assertions of presidential power, including questionable claims by previous presidents, don’t lead to such drastic consequences. Yet, some of Trump’s objections to congressional authority could diminish transparency and the public’s right to know about government actions.
“I’m concerned that the recent signing statements will have a chilling effect for efforts to strengthen government transparency and information sharing with Congress,” said Sean Moulton, a senior policy analyst at the Project on Government Oversight, by email.
“Congress is a co-equal branch of government and has the authority to place restrictions and requirements on the executive branch including the office of President. To sign a law but refuse to implement certain provisions through a signing statement would amount to a line-item veto, which is an authority that has been expressly kept from the president at this point. Disagreements about constitutionality of provisions should be resolved by the courts.”
Regarding transparency, Trump balked at a provision in the appropriations legislation prohibiting actions that deny inspectors general access to records and another mandating reports to Congress and the public, including through declassification of information.
Inspectors general at more than 70 agencies, perhaps more than other federal officials, are guardians of government accountability and transparency.
“There is universal consensus that overclassification is an ongoing and acute problem for public transparency and accountability,” said Gabe Rottman, director of the Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press. “Congressional intervention is one of the best hopes in addressing that crisis.”
Trump said in the signing statement that he will treat provisions related to executive branch information sought by inspectors general “consistent with the President’s constitutional authority . . . to supervise communications by Federal officers and employees related to their official duties.”
Federal employees must be free to talk to inspectors general. That’s fundamental to governmental accountability and essential for whistleblowers. As far as Trump’s assertion that he could supervise employees’ communication, the diplomats who appeared before the House impeachment inquiry chose to defy Trump and testify.
While Trump’s signing statements were mostly ignored, Steven Aftergood, director of the Federation of American Scientists Project on Government Secrecy, was paying attention. In an interview, he said many requirements in the legislation “refer to reports to Congress that in the normal course of affairs would become public. And if those reports are not prepared or submitted, there is a net loss to public awareness and accountability.”
The president also complained about provisions concerning his authority to conduct international negotiations and language putting conditions on certain spending or reallocation of funds on congressional approval.
His other signing statement complained about numerous sections of the National Defense Authorization Act, including those that would “mandate or regulate the dissemination of information that may be protected by executive privilege” and “dictate the position of the United States in external military and foreign affairs.”
In an article posted on his organization’s website, Aftergood said “the obvious defect” in Trump’s posture on presidential authority “is that Congress has constitutional duties of its own. Many of these duties require congressional access to information that is in the possession of the executive branch. Congress must fund (or decline to fund) the national security operations of the government. It alone possesses the authority to declare war. It has a duty to perform oversight. Importantly, it also has tools at its disposal to compel disclosure of the information it needs.”
There is a case for signing statements.
“The general practice of using signing statements is a pro-transparency measure that empowers Congress and others,” said Scott Anderson, a fellow in governance studies at the Brookings Institution. “Signing statements basically just publicly disclose some of these interpretations as soon as a law is signed, enabling those who don’t like that interpretation to object, seek corrective legislation, or prepare for litigation.”