Trump Pick To Head Secretive Agency Adept at Stifling Info, Regs

WatchDog Opinion: Trump Pick To Head Secretive Agency Adept at Stifling Info, Regs

By Joseph A. Davis

The best way to hide the influence of regulated industries on government is behind closed doors at OIRA. Don’t know what OIRA is? So much the better, those industries might say.

The initials stand for Office of Information and Regulatory Affairs — an obscure subagency within the Office of Management and Budget, which is itself an obscure office within the Executive Office of the President, which is the working end of vast White House power.

OMB does a lot of things to exert presidential control over executive agencies, especially their budgets. OIRA controls their regulations. And it controls information. Information journalists need to cover what government is doing.

Before any agency can publish and finalize any major regulation, OIRA must approve it. OIRA can hold it for as long as OIRA wants (technically, OIRA has 90 days, but this deadline has been ignored with impunity). OIRA can send it back to the agency and ask for changes.

And if OIRA doesn’t approve it, it’s dead. In fact, some might say OIRA is where regulations go to die.

 

Who is Jeffrey Clark?

Now President Donald Trump has picked Jeffrey Clark, an indicted co-conspirator in the plot to overthrow the 2020 election, to head OIRA. Talk about sinister.

Two things we know about Clark: He is so loyal to Trump that he risked going to jail. And he is ambitious. Actually, there’s a third: Clark is an important figure on the environmental beat.

Jeffrey Clark. Photo: Department of Justice via Wikimedia Commons (Public Domain).

During Trump’s first administration, from 2018 to 2021, he was the top Department of Justice lawyer at the Environment and Natural Resources Division, which ends up prosecuting many of the cases brought by the U.S. Environmental Protection Agency and other federal environmental agencies. There he largely managed to stay out of the headlines.

But not entirely. One of Clark’s claims to fame is that he was indicted, along with Trump, in the Georgia case alleging conspiracy to overthrow the 2020 election.

He was also an unindicted co-conspirator in Special Prosecutor Jack Smith’s federal case against Trump for election interference.

The Smith indictment portrays Clark (AKA “co-conspirator #4”) as “a linchpin of plans to bypass the acting attorney general and use the imprimatur of the Justice Department to spread ‘knowingly false claims of election fraud’ and deceitfully substitute legitimate electors with sham alternates supporting Trump.” That according to a Washington Post summary.

At one point, Trump was reportedly about to appoint Clark as acting attorney general — but backed down when ranks of top Justice Department officials said they would resign if Trump did so.

After Clarke’s role in Trump’s attempted coup, a disciplinary panel of the D.C. Bar recommended suspending his law license for two years.

 

On the record? Not at OMB

Let’s turn back for a moment to the control of information.

In 1946, Congress passed a law called the Administrative Procedure Act, which was meant to impose fair procedures for developing the welter of regulations that followed the New Deal and World War II.

The whole idea of the act was to bring things out in the open so the voting public could see what regulatory agencies were doing. And why.

That meant doing things on the record: public notice and comment, putting everything (including the pleas of industry lobbyists) into the Federal Register and an open docket. And it brought a remedy for abuse: the right to sue in open court over abuse of regulatory power.

The act worked fairly well for years — which is why some tried to subvert it.

 

As OIRA is deciding a regulation’s fate,

it can meet privately with lobbyists for

the regulated industry. What is said

during those meetings is off the record.

 

For instance, as OIRA is deciding a regulation’s fate, it can meet privately with lobbyists for the regulated industry. What is said during those meetings is off the record. They give industry a chance to bypass and sabotage the openness of the Administrative Procedure Act.

Former President Bill Clinton in 1993 issued Executive Order 12866, which laid out the ground rules for OMB review of regulations. It “split the baby” on openness. The fact of OIRA meetings with lobbyists would be made public — but the actual content of the discussion would not be disclosed.

Public info on OIRA private meetings can be accessed here. It’s not that easy. You have to know what you are looking for.

 

Information? Secrecy is OIRA’s secret weapon

OIRA’s role as an Orwellian “memory hole” for information is overlooked and underappreciated. Secret meetings with lobbyists are just the start of it.

If you filed a Freedom of Information Act request to OIRA, you would likely be frustrated, because OIRA is widely exempt from FOIA. It has a number of FOIA exemptions handily available — most notably the “deliberative process” exemption for interagency review.

Not surprisingly, OIRA does not get very many FOIA requests. And OMB itself has a persistent backlog in responding to them. You can find the OMB’s annual FOIA reports here.

Technically, supervision of federal FOIA rules and procedures is supposed to be done by the Office of Information Policy at Justice. But no. There have been times in past administrations when OIRA impinged on this role.

Whenever an agency updates or revises its FOIA regulations, OIRA may get a shot at changing them.

 

Suppressing ‘paperwork’

Information requests by government agencies are another thing OIRA can suppress.

Everybody hates “paperwork,” right? Congress passed the Paperwork Reduction Act in modern form in 1980, under former President Jimmy Carter.

The Paperwork Reduction Act requires agencies to get OIRA approval before they can impose information requests (like a survey) on companies or the public. In fact, it was this law that originally established OIRA. Few government regulations can be issued without some kind of information request.

Have you ever heard of the Information Quality Act? It’s a blast from the past. The guerrilla war over federal regulations (especially environmental regs) has been going on for decades. After considering the proposal in various forms (it was once called the Data Quality Act), Congress eventually passed it as an obscure two-sentence rider to a huge 2001 omnibus appropriations bill.

 

OIRA’s authority to set guidelines for

agency data quality rules and findings

was used by conservatives as a way

to hinder environmental regulations.

 

The Information Quality Act gives OIRA authority to set guidelines for agency data quality rules and findings.

Conservatives originally used it as a way to hinder environmental regulations — by challenging the data they were based on. Environmental groups eventually learned to use it to support their own litigation.

It’s one more thing Clark would be in charge of at OIRA.

 

At least the hearing will be open

The job of OIRA head is actually subject to Senate confirmation. That means elected senators of both parties will get a chance to question Clark on whether he is qualified or fit to head OIRA.

There are many questions they might ask of Jeffrey Clark — a man of unshrinking loyalty to Trump and a willingness to play loose with the law for power’s sake.

The WatchDog hopes they ask:

• Whether he seeks any changes to Executive Order 12866 (or any other EOs)
• Whether he will increase or decrease openness about OIRA meetings with regulated industries
• Whether he will use his power to strangle environmental regulations
• Whether (as EO 12866 requires) he will publicly reveal any changes OIRA makes or asks for in agency regulations
• Whether he will try to extend OIRA’s review power to agencies mandated by federal law to be “independent”
• Whether there will be any staff cuts or changes at OIRA
• Whether OIRA will try to enforce Trump’s “cut 10 regs for every one you approve” decree
• Whether OIRA will conduct a transparent press operation

 

Some information sources for reporting on OIRA

Despite the dark outlook, there are still some information sources for reporters trying to watch OIRA and its impact on government regs.

• The Federal Register: The still-open record of the regulatory process.
• The official docket: A collection of documents and comments for each regulation of interest.
• The regulatory agenda: Better known as the Unified Agenda of Regulatory and Deregulatory Actions, it comes out twice a year. More info here. There is a related resource for each agency called the Regulatory Plan.
• List of OIRA private meetings: Also called “E.O. 12866 Meetings,” it is searchable online. It gives the names of all the people who took part in the meeting, which helps since each is a potential source. The subject regulation is listed, but not the content of the meeting.
• Calendars of OIRA administrator: Not online, but these have been successfully retrieved by a FOIA request. Example here.
• Visitor logs for OMB and OIRA: Some previous administrations have published these on their FOIA pages. In any case, they can be requested via FOIA.
• FOIA logs for OMB and OIRA: Logs of FOIA requests and their disposition are required (under FOIA) to be made public. You may have to file a FOIA request. Here’s an example.
• OMB Press Office: Email OIRA_submission@omb.eop.gov or inquire by fax at (202) 395-5806.

Joseph A. Davis is a freelance writer/editor in Washington, D.C. who has been writing about the environment since 1976. He writes SEJournal Online's TipSheet, Reporter's Toolbox and Issue Backgrounder, and curates SEJ's weekday news headlines service EJToday and @EJTodayNews. Davis also directs SEJ's Freedom of Information Project and writes the WatchDog opinion column.

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* From the weekly news magazine SEJournal Online, Vol. 10, No. 11. Content from each new issue of SEJournal Online is available to the public via the SEJournal Online main page. Subscribe to the e-newsletter here. And see past issues of the SEJournal archived here.