By Elena Eyber, J.D.
CFTC Commissioner Caroline Pham expressed her concern with federal agencies’ overbroad use of the deliberative process privilege against defendants in enforcement actions, preventing the relevant facts or final determinations from being used to support a defense against the alleged charges. Commissioner Pham is concerned that “such attempts to shield the truth from greater scrutiny deprives defendants of due process and a fair hearing.” Pham believes that the deliberative process privilege in enforcement actions is an executive privilege, and the CFTC cannot delegate the authority to invoke the deliberative process privilege to agency staff.
Further, Commissioner Pham cautioned the CFTC about the increased use of alleged charges of making false statements to the CFTC. Pham cautioned of the ease for the truth to become subjective as determined by the staff, instead of a fact-finding exercise. According to Pham, this trend presumes the accused guilty with no way to prove innocence and deprives the accused of their Constitutional rights to defend themselves and to a fair hearing.
Lastly, Pham cautioned the CFTC and the staff about the urge to make “secret agency law.” According to Pham, secrecy about the operations of the government is against the public interest, and to strike the right balance regarding when disclosure is, or is not, in the public interest, Congress codified certain common-law privileges against disclosure. But, according to Pham, these privileges are not absolute, as detailed in the many cases examining the limitations of the deliberative process privilege.