CNN’s Jake Tapper urges that non-disclosure agreements in cases of congressional misconduct — specifically, sexual-misconduct settlements — be nullified. I could not agree more.
Here’s his tweet:
I wonder if any member of Congress will introduce legislation to attempt to render null and void the NDAs from sexual misconduct settlements with members of Congress, so their survivors can talk if they wish.— Jake Tapper (@jaketapper) November 21, 2017
Our public officials are supposed to be accountable and transparent, especially when they are expending public money. It is thus outrageous that Congress has made this cozy arrangement to sweep under the rug malfeasance by members of the club. There is no legal or policy reason to refrain from legislation that would out the lawmakers involved in misconduct settlements — regardless of the type of misconduct (I wouldn’t limit it to sexual episodes).
To the contrary, the other parties — I prefer to describe them as “victims” rather than “survivors” — should be permitted to speak publicly if they wish to do so. If not, their privacy ought to be respected. We can argue about what procedures should apply in the future; but to the extent that these existing non-disclosure arrangements guarantee confidentiality, it ought to be up to the victim whether or not to remain anonymous.
Meanwhile, the growing assumption of secrecy in government operations is very disturbing.
It has long been clear to me, having worked in law enforcement and national security for close to 25 years, that classified intelligence and what’s known as “law-enforcement sensitive” information must be kept under wraps. Lives depend on it. I also thought complaints about the shroud under which the Trans-Pacific trade pact was being negotiated were bogus. If agreements could not be negotiated confidentially, many if not most of them would not happen. As long as the final agreement is available to be examined, there is no public “right to know” the negotiating positions of governments.
All that said, though, the law often holds that confidentiality may not be enforced against the government. People may be forced to testify before grand juries, trial courts, and congressional committees; they are compelled to report their income to the IRS and many other activities to government regulators. Private citizens do not get to withhold information from the government on the ground that it was provided under a non-disclosure agreement. (Any journalist who has been held in contempt of court for refusing to disclose a confidential source can tell you this.) So why should the government, in a matter not involving national security or public safety, be able to withhold information about the actions of public officials from the public those officials like to tell us they “serve”?
The need for secrecy is the smokescreen under which public officials often conceal government behavior that is embarrassing, incompetent, corrupt, reckless, dangerous, illegal, or even criminal.
A month ago, we learned new information about an FBI investigation relevant to the controversial 2010 acquisition of Uranium One by Rosatom, Russia’s regime-controlled energy conglomerate. Specifically, the FBI had evidence of crimes by Rosatom’s American subsidiary, the timely disclosure of which would have made it politically impossible for the Obama administration to approve Rosatom’s acquisition of Uranium One’s U.S. uranium-mining rights. Yet when Congress sought to look into this matter, it emerged that government’s informant witness had been induced by the FBI and Justice Department to sign a non-disclosure agreement. Reportedly, he was threatened with retaliation under this NDA if he shared what he knew with congressional committees.
That is absurd. The relevant crimes happened eight years ago, and the criminal case ended with guilty pleas three years ago. The only critical question now is what government officials knew and when they knew it. What conceivable reason could there be for keeping that secret?
Secrecy in government has its place — a very important place when it comes to intelligence that keeps the nation safe and promotes the rule of law. But the need for secrecy in some government operations is the smokescreen under which public officials often conceal government behavior that is embarrassing, incompetent, corrupt, reckless, dangerous, illegal, or even criminal. Particularly when a matter is outside the realm of national security or law enforcement, and when it involves the behavior of public officials, there should be a strong presumption against confidentiality.
— Andrew C. McCarthy is a senior fellow at the National Review Institute and a contributing editor of National Review.