The working group has a cold

How I didn’t get a story

The Department of Justice’s flag flies in fronts of its headquarters building in downtown Washington, D.C., on Oct. 31, 2010. (Michael M. S. via Flickr)

In 1966, Gay Talese wrote a celebrity profile that heralded a new type of journalism. “Frank Sinatra has a cold” captured the singer at a turning point in his career and the broader culture. It also used narrative and dialog in ways that were new to nonfiction.

Only one thing was missing: Frank Sinatra. Sick with a cold and dissatisfied with his career, he refused Talese’s interview request. Talese had to content himself with shadowing Sinatra and interviewing his associates.

“I may not get the piece we’d hoped for — the real Frank Sinatra, but perhaps, by not getting it — and by getting rejected constantly and by seeing his flunkies protecting his flanks — we will be getting close to the truth about the man,” Talese wrote his editor at Esquire, Harold Hayes, at the time.

Getting rejected constantly and seeing flunkies protect someone is familiar to working journalists.

I’m no Gay Talese. But when I hit a brick wall, I often joke about writing a “has a cold” story. I’ve done them on a mindfulness guru’s mysterious “inappropriate behavior,” the Mueller report’s time in Justice Department limbo, a blank world map used to embarrass a reporter and Tesla’s plan to keep its workers from getting coronavirus.

These stories do run the risk of centering the reporter instead of the news. There’s a strong ethic, especially in print journalism, that reporters should never become personalities. All process stories also risk turning life-and-death issues into soap operas for politics junkies. 

Those criticisms are entirely fair, and they’re two of my biggest anxieties about writing a first-person newsletter like this. I don’t want to hold myself up as some sort of example of how to do this stuff. Spoiler: I’m not.

At their best, though, these stories show readers something important, and usually unflattering, about how political and corporate power protects itself. They also help readers appreciate the lengths that reporters sometimes have to go to for information. That is especially important as journalism moves away from an ad revenue model and towards a subscription model that relies on building loyalty and trust with readers.

Finally, these stories can illustrate the “unstoppable persistence,” as editor David Fritze put it in the last issue, that good investigations require.

What follows is a story about how I spent well over a year chasing down a scrap of information about a Pentagon failure that cost dozens of lives. I don’t know if it was unstoppable persistence so much as sheer bullheadedness. But here goes.

Forget to remember

I first learned about the NICS Consultation and Coordination Working Group in about December 2017.

The previous month, former airman Devin P. Kelley shot and killed 26 people at the First Baptist Church in Sutherland Springs, Texas. It quickly emerged that Kelley had pleaded guilty to domestic violence while in the Air Force, which should have prevented him from legally buying a gun. But Air Force officials never submitted Kelley’s records to NICS, the FBI system used for gun background checks. It turned out that the armed services had a long history of not submitting criminal records to the system, despite federal law and Pentagon regulations.

I had reported on gun background checks before, so this all piqued my interest. I started reading as much as I could. A few weeks after the shooting, NPR reported that the Pentagon had made previous efforts to address the problem: “Records submitted to Congress show that the Department of Defense, along with other federal agencies, has already written an ‘implementation plan’ to improve its criminal reporting,” the story said.

Curious, I reached out to the NPR reporter, Camila Domonoske, to ask about those records, which I wasn’t able to track down on my own. She told me that the attorney general had to submit an annual report to Congress under the 2007 NICS Improvement Amendments Act, and she had gotten a copy of the most recent report from the House Judiciary Committee.

Following her advice, I got the most recent report from House Judiciary Committee staff that week. But I wanted past reports, too. At some point, a congressional staffer suggested that I reach out to the Justice Department, which told me to file a Freedom of Information Act request.

“I’m happy to file a FOIA request,” I told the Justice Department spokesperson over email, “but I hoped DOJ might voluntarily release these reports without the additional time and paperwork a FOIA entails.”

“Sorry, but we’ve never released them in the past,” they responded.

I did submit a FOIA request on Nov. 29, 2017, but thankfully it ended up a moot point. After some back and forth, House Judiciary staff gave me the reports for 2011 to 2016 in early December.

The 2016 report, published here for the first time, pointed to a memorandum that President Barack Obama signed in January 2013 — shortly after a shooting at Sandy Hook Elementary School, in Newtown, Conn., that left 28 people dead, many of them children. 

The presidential memorandum required federal agencies to send the Justice Department implementation plans laying out how they planned to get more records into the gun background check system. The first thing I did was FOIA the Defense Department’s plan. (It wasn’t straightforward — more on that next week.)

Almost a year later, I was able to report that the plan said the Pentagon was “providing all relevant information” to the gun background check system. That clearly wasn’t true, as the Sutherland Springs shooting had shown. Not only had the Pentagon misled the Obama administration, it had also missed an opportunity to fix a problem that cost dozens of lives.

Got you under my skin

After the story came out, I turned back to the 2013 memorandum in search of a follow up. That’s when something caught my eye. One section created an interagency working group, chaired by the attorney general, to help get more federal law enforcement records into the gun background check system. 

The memo included a list of agencies that were required to send representatives to the working group. First on the list? The Department of Defense. 

If I could get more information about that working group, I might be able to find out where the Pentagon had failed. 

The curious thing was that I couldn’t find any evidence the working group ever met. It didn’t come up in the Federal Register or on any agency websites, and gun policy experts I talked to had never heard of it.

On Nov. 15, 2018, I sent an email to the Justice Department’s press office asking whether the working group had met and, if so, whether it was still in place. The only response was an automated message that the department no longer accepted questions from reporters over email and would only accept them via a form on its website.

I sent my questions about the working group through the web form countless times — it doesn’t email you a receipt, so there’s no way to know how many. It was the first entry when I started a spreadsheet in April 2019 of things that I wanted to keep pestering different press offices about. (I still use it; it’s called “Pesters.”) And I often followed those queries up with a phone call to make sure they got through. Each time, the Justice Department’s press office assured me that it had gotten the questions and would forward them to the appropriate person.

Finally, on March 3, 2020, after nearly 16 months and probably 15 – 20 queries, I finally got an answer.

The working group met once to discuss the kinds of records that needed to get into the system and the obstacles to getting those records, a department spokesperson said over email. Then, in March 2013, the Justice Department issued new guidance on submitting records to the gun background check system.

“After the guidance was issued, it proved more productive to work with agencies individually to ensure compliance with the NICS reporting requirements, while retaining the option to raise recurring or significant issues to the full group if they arose,” the spokesperson said.

The best is yet to come

The email began with “On background.” I’d like to think that was a prophetic homage to this newsletter. But it was actually a unilateral demand that I not identify the spokesperson by name, which is common when government press officers respond to questions from reporters.

I followed up the next day to ask when that one working group meeting was, who was present and if minutes are available. I didn’t hear back, but it’s possible the spokesperson responded after I was laid off a month later along with 29 others and that email account was turned off.

I followed up again from my personal email last week to ask for information about the working group’s one meeting and request a copy of the Justice Department guidance, “Guidance to agencies regarding submission of relevant records to the NICS.” (The FBI is still processing my FOIA request for this guidance, which I filed in November 2018. Portions have also been published in the Federal Register.)

“That predates this administration by quite a bit of time and we don’t normally comment on internal meetings anyway,” the spokesperson said in an email.

Could I report that the Justice Department declined to share the 2013 guidance?

“You can say we declined to share the guidance bc [sic] we don’t comment on private meetings,” the spokesperson responded.

That phrase, “private meetings,” struck me as odd. This meeting was unclassified. The attendees were all government officials. It was chaired either by the attorney general or their designee. And it was mandated by a presidential memorandum that was published in the Federal Register.

NICS reporting is also very much a live issue. The Government Accountability Office released a report last month on how the Justice Department can improve its guidance on providing records to NICS.

By this point, it was about 5:30 p.m. ET on Friday, past business hours. I sent one last follow up.

“It's Department of Justice policy not to comment on unclassified meetings of agency officials that are mandated by presidential actions?” I asked.

The spokesperson did not immediately respond.

Maybe the meeting has a cold.

You can reach me at joshua.eaton2@gmail.com. Send tips to joshua.eaton@protonmail.com, preferably from another ProtonMail account. (Sign up here.) I’m also on Twitter at @joshua_eaton.