More protections are needed to ensure agencies do not misuse exemptions they claim to be valid. A judicial check and balance would enable an appeal to the courts for a ruling on the application of exemptions.
Address Classification Abuse
The ability to classify documents is a critical tool to protect national security. It is also a perfect way to hide information that is embarrassing or that documents wrongdoing. Although I can’t reveal classified information, I can confirm I’ve personally seen classified documents that do not meet any rational criteria for defending national security but do expose incompetent or nefarious behavior. The only reason they were classified was to protect people from embarrassment or to thwart the ability of Congress to oversee the bureaucracy.
When FBI director James Comey famously notified me that the Hillary Clinton investigation had been reopened before the presidential election, the letter he sent was not classified.
Ironically, it was Clinton’s predecessor in the United States Senate who literally wrote the book on overclassification. The late senator Daniel Patrick Moynihan’s solutions are as relevant today as they were twenty-five years ago. He established the 1994 Commission on Protecting and Reducing Government Secrecy to address the classification challenges. The time has come to revisit this concept. Bipartisan support exists for reforming the classification process.
Moynihan argued that when everything is classified, nothing is classified. I believe we are handing out too many security clearances, classifying too many documents inappropriately, and being insufficiently selective in our vetting. Most important, we need to come to a bipartisan agreement on objective standards for classification.
Since the Moynihan Commission, the Deep State has actually invented new criteria that are not enshrined in law—terms like “law enforcement sensitive.” The fact that something is considered law enforcement sensitive should not preclude Congress from performing its critical oversight role.
Another way we saw the Justice Department abuse this authority happened during the Clinton email investigation. Accused of mishandling information, Clinton had a certain number of emails that were classified—most after the fact, but some at the time she sent them. So guess what they do? They treat the whole investigation like it’s a classified matter.
What do they get out of that? Secrecy. By classifying the whole investigation as top secret, it’s really hard for Congress to shine a light on these things. It’s all presumptively classified, even though there were a lot of documents that would never have been able to meet any objective classification criteria on their own. All of these concerns could be addressed by a new bipartisan classification commission.
Reconsider the Grand Jury Secrecy Rule
Another hiding place the Department of Justice uses to keep documents from ever seeing the light of day is a federal grand jury. This secretive court system has been the target of reforms for decades, but little has changed to the eight-hundred-year-old concept of the secret jury.
According to Rule 6(e) of the Federal Rules of Criminal Procedure, evidence used in a grand jury proceeding cannot be made public. Conveniently for the Deep State, evidence once included as part of grand jury cannot be turned over to Congress.
Technically what the secrecy rule protects is the fact that a specific document was presented. It doesn’t actually protect a document in and of itself from being disclosed. What we experienced with every Fast and Furious case was a DOJ that used this rule to its own advantage. If a case was going before a grand jury, the DOJ would code every document as 6(e)-protected because, in their view, any document they considered to be part of the case file may be shown to the grand jury. By designating the documents on the front end, they could avoid disclosing them if Congress came calling. In other words, instead of determining what documents were actually shown to a grand jury, they made all related documents off-limits to Congress.
In any package of reforms that addresses the grand jury process, we should consider whether the secrecy rule serves the best interests of the American people.
Information Accessibility
In response to well-deserved criticism about the FOIA request backlog, Obama administration officials often cited the increasing number of requests and the lack of budget to pay people to respond to those requests.
Any solution to the government’s transparency issues must involve time-saving digital record keeping and cloud-based storage that could make routine reports easily accessible to reporters and the public. While this seems like a no-brainer, a surprising number of agencies have resisted making information so easily available.
Instead some agencies continue to use labor intensive paper-based systems while simultaneously complaining of a lack of manpower. One of the worst offenders was the Clinton State Department. Hillary Clinton demonstrated the technique when she left the department in 2013, turning in fifty-five thousand pages of printed emails on paper. Never mind the fact that State should never have had to go looking for her emails in the first place—the whole point of submitting paper copies was to slow the document production.
Uniform Classification
One of the great challenges for budget hawks who monitor government spending is the lack of uniformity in the way expenditures are tracked and recorded. This inconsistency serves the Deep State well by making apples-to-apples comparisons across agencies difficult.
The government, via the Office of Management and Budget, needs to implement a standardized, universal coding process that can be understood by the public and outside groups.
Without getting too wonky, each of the more than 320 federal departments and agencies operates with codes to match its budget line items with how the money is spent, awarded, or granted. But there is no universal standard for coding.
Imagine if there were no standard for transmitting electricity. If every time you went to plug an appliance into the wall and there was a different range of volts or wattage, sometimes your appliance would work and sometimes you would start a fire. Obviously that would be problematic.
The same is true with how the federal government operates.
In the medical insurance industry, one of the costs is how patient ailments are coded. Part of the reason you have so much administration of your doctor office visit is the need for the medical community to code everything. There is a code for just about everything. There is a specific code for an alligator bite and a dozen different codes for different types of insect bites.
It is good to track and understand trends, but the medical coding has become cumbersome and unwieldy.
Yet in today’s electronic age there is no reason for the federal government not to adopt universal coding of expenditures, awards, and grants. In the name of transparency, the government should be making these expenditures available online so if you are interested you can review it.
The Sunlight Foundation pitched the project to the Trump administration this way:
The Trump administration should keep, strengthen, and seek to codify the open data policies that the Obama administration implemented, including the Open Government Directive, order on machine-readable data and the Digital Government Strategy. Public information should be posted online, data should be available in bulk and in structured formats, and systems that power open data should be supported and expanded. As we told the White House in 2017, anxiety about open data in the Trump administration has created doubt and uncertainty in many parts of American society, particularly in the scientific and academic communities. Businesses and entrepreneurs need to be able to trust that data disclosures will remain in place if they’re going to be able to rely upon them. Those same stakeholders are negatively affected if the quality or periodicity of government data is diminished, as occurred in Canada. If the goal is to stimulate the use of open government data, it’s important for a chief executive and cabinet secretaries to be cheerleaders for the quality of official statistics, not to cast doubt upon them. Increased risk discourages investment.
I truly hope our president and our Congress will take action before it is too late. We need to be more awake than ever. Because the Deep State does not sleep.
Epilogue
The task ahead of us is not an insurmountable one. The notion of a Congress checking the power of the executive branch is not new, nor is it revolutionary. In fact, believe it or not, the effort to check Congress goes all the way back to Francis Scott Key and Samuel Houston. The high-profile case in 1832 involved big names, an act of violence, and bureaucratic attempts to take on governing authority.
Francis Scott Key, author of “The Star-Spangled Banner” lyrics, and Samuel Houston, first president of the Republic of Texas, were the primary figures in one of the earliest efforts to check the power of the state.
The story starts with a federal contract. Houston lived with Cherokee soldiers as a boy, then became a soldier for Andrew Jackson and, subsequently, the governor of Tennessee. He suddenly quit that job when his wife, Eliza Allen, left him. That happened barely three months after their wedding. Exactly why, we don’t know. It was rumored that he was an alcoholic, that she was in love with another man, among several other salacious details. It was that big a story at the time. What we do know for sure is that after a weeklong drinking bender, Houston went to live with a Cherokee tribe in Arkansas.
In 1830 he went to Washington, D.C., to bid on a contract that would supply food to Indians being forcibly moved west of the Mississippi River. He wasn’t the lowest bidder, though. For a short time it looked like he would get the contract anyway even though that would have been illegal; his old army boss and mentor, Andrew Jackson, was now president of the United States and wanted him to have it. Press outcry over the near-scandal forced Jackson to abandon the idea and Houston returned to the Cherokees.
When Houston came back to D.C. two years later, he found a different political climate. Jackson’s Democrat administration was under fire from the opposition Whig party. John Eaton had resigned as secretary of war; Eaton was the cabinet secretary who had nearly awarded Houston the contract.
In an anti-Jackson speech before the House on March 31, 1832, Ohio representative William Stanbery railed, “Was not the late Secretary of War removed because of his attempt fraudulently to give Governor Houston the contract for Indian rations?”
Houston heard what Stanbery said about him but couldn’t do anything because representatives face no repercussions for remarks they made on the floor of the House or Senate. They could say whatever they wanted about a citizen and were immune from being sued. But when Houston read the remarks reprinted in a newspaper, he sprang into action.
First he sent Stanbery a letter essentially asking if what he read was true. The formality was required as part of the etiquette for fighting a duel, which historians say was Houston’s intention. But when Stanbery wouldn’t answer him, Houston had to fight back another way.
According to an account of the incident in Tennessee Historical Quarterly, on April 13, 1832, Houston was passing the evening with several congressmen in a hotel room. Upon leaving, he saw Stanbery across the street, approached him, and asked, “Are you Mr. Stanbery?”
“Yes sir,” Stanbery replied, not recognizing Houston.
“Then you are a damned rascal,” exclaimed Houston, cracking the Ohioan over the head with his hickory cane.
The assault continued. At one point Stanbery pulled out a pistol and tried to fire it into Houston’s chest, but the gun didn’t go off. “Houston tore the weapon from Stanbery’s hand and went on with his caning until the agonized man broke down and whimpered.”
The following day Stanbery sent a note to Andrew Stevenson, the Speaker of the House, detailing the beating. Houston was arrested, arraigned, and made to appear before the House clad in his “fur-collared buckskin coat and carrying the now famous cane of Hermitage hickory,” says the article. With him was his lawyer, Francis Scott Key.
The trial began on April 19, 1832, and lasted several days. Highlights included Stanbery admitting that he didn’t mean to say Houston committed fraud, witnesses being called liars, President Jackson throwing a bag of coins at Houston and telling him to “dress like a gentleman,” someone dropping a bouquet of flowers at Houston’s feet after his opening remarks, and the defendant’s final passionate speech in his own defense wherein he declared, “Sir, when you shall have destroyed the pride of American character, you will have destroyed the brightest jewel that heaven ever made.”
The Tennessee Historical Quarterly piece dryly noted, “Whether Francis Scott Key, who sat in the front row, felt like disowning certain lines of his own, inspired by the bombardment of Fort McHenry, is a detail upon which history is remiss.”
In the end, Houston was found guilty but received only a reprimand from the House. Stanbery filed a complaint in civil court and Houston was fined five hundred dollars.
He never had to pay it because President Jackson set aside the sentence: “Though the principle of Congressional immunity and the right of Congress to find private citizens in contempt was upheld, doubt had been raised as to whether character assassination should be covered by that immunity,” the Quarterly tells us.
So if you ever wondered how former Democrat Senate majority leader Harry Reid got away with saying Governor Mitt Romney never paid taxes—a lie he later admitted he made up—or assaulted the patriotism of businessmen Charles and David Koch 130 times on the Senate floor . . . that’s how. Immunity.
Changing Course
As I watched all of this play out from my vantage point in the U.S. House of Representatives, I came to realize where the real power resides. It’s not in the halls of Congress. It’s not in the Oval Office. It’s not even in the darkened corridors of Deep State power.
The real power resides with the people of the United States of America. Nothing will change unless we demand it. But if we demand it, the Deep State is helpless to override us.
As powerful as the position of House Oversight Committee chairman is, it’s not powerful enough to change hearts and minds. I realized I could accomplish more on the airwaves than I ever could on the dais of the House Oversight Committee or on the floor of the U.S. House of Representatives.
I wrote this book because we can no longer stand by and let the bureaucrats, the politicians, and the big businesses collude against us. Our power must be asserted in all three branches of government. We’ve allowed the Congress, which represents us more directly than any other branch, to be usurped by unaccountable bureaucrats, self-interested partisans, and profit-hungry business interests.
My call to action is this: This election cycle, ask your candidates for Congress what they will do to restore the checks and balances we need. What will they do to assert the will of the people over the will of the bureaucrats? Where do they stand on impeaching executive branch officials? Would the candidates support civil service reforms? Do they know what inherent contempt power is and would they be willing to reclaim it?
These are not simple issues, but they are important ones. We need a government with three fully functional branches. The American people are the only ones who can give it to us.
Acknowledgments
“All my best ideas I got from someone else” wrote Sam Walton. So true! The people around me have shaped me, helped me, and encouraged me to do things I would never be able to do otherwise.
When I was growing up my parents always encouraged my brother, Alex, and me. They presented opportunities where certainly we would fail, but perhaps we would succeed. They projected an attitude of “If not you, who?” We weren’t the biggest, the fastest, the smartest, the tallest, the shortest, or different enough to stand out from the crowd in any one area. But what did differentiate us was attitude and perseverance.
I like to tell my kids, “Attitude is everything.” It is often the tipping point between failure and success. From the youngest of years, I distinctly remember knowing it is okay to fall, but keep getting up, dust yourself off, and keep moving forward. “Y
ou can’t win if you don’t play” was the prevailing attitude in the Chaffetz house.
As I reflect upon my life, I see there were always people willing to go out of their way to help me, to encourage me, to spend time with me, and to help me achieve important goals. From my teachers to my soccer coaches to my business colleagues, friends, and family, I have been fortunate to be molded and shaped by all these people.
My parents passed away a number of years ago, both from cancer. I miss them. I wish they were still here to see the publication of this book. I am sure they would be pleased. They were proud of everything I did—even the lamp I made in shop class that almost burned down our house.
By my side since age three has been my brother, Alex. He means the world to me. I love him and our bond is unique and precious to me. He has often been my political muse, my check on reality, and my source of humility if things got out of hand. I cherish our daily interaction.
Certainly this book would not have been possible without first getting to Congress. I am very grateful to Jon Huntsman Jr. and his entire family for an opportunity to join his gubernatorial bid to become Utah’s sixteenth governor. He won and took me along for the ride, which opened up so many other possibilities.
From the start of my own run, Jennifer Scott has always been by my side with her insight, savvy, talents, candor, and hard work. She was my first campaign manager, a loyal member of my staff, and was critical to the writing of this book. Jennifer is my secret weapon and a pivotal part of my success. I can’t thank her enough.
Through the years I had numerous people willing to step up and help a fledgling campaign succeed. In our Congressional office, we were able to assemble amazing talent to serve the people of Utah’s Third Congressional District. We had an amazing ride together. I am grateful to each person who served on our staff.
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