“The FBI has completed its final review of records subject to the Freedom of Information/Privacy Acts (FOIPA) that are responsive to your request,” a Jan. 22 letter to this correspondent from Michael G. Seidel, Section Chief, Record/Information Dissemination Section, Information Management Division, begins. “Although your request is in litigation, we are required by law to provide you the following information.”
The litigation he’s referring to is Codrea v. Department of Justice on the subject of “Consent to Permanent Entry in the National Instant Criminal Background Check System.” It’s a case that arose out of a straightforward enough FOIA request filed in July 2023 concerning the Justice Department’s plea deal with Hunter Biden in which he would consent to permanent entry in the National Instant Background Check System (NICS) and being denied legally purchasing another firearm.
That the deal had been offered came as a surprise, since it was assumed from a Gun Owners of America letter to then-Attorney General Merrick Garland and then-FBI Director Christopher Wray that an FBI “NICS Indices Self-Submission Form” had been discontinued. The form, based on a “mental capacity” self-certification, would purportedly “allow” an individual admitting that to “voluntarily request permanent entry” in NICS and forever disqualify themselves from owning a gun.
That, by itself, is an exercise in “Catch-22” cognitive dissonance, and the form was being used to coerce Americans into relinquishing their rights, allowing DOJ an easy “win.”
Beyond that there is no statutory authority to do this. “Prohibited persons” are defined by the 1968 Gun Control Act (GCA) and codified at 18 U.S.C. § 922(g). Since Congress didn’t authorize it, signing a form and ceding rights is not a statutorily authorized way of adding to the list, and the DOJ and FBI have no authority to create a whole new category with force of law as a matter of bureaucratic expedience.
So, how could they legitimately claim that authority? A quick note about FOIA requests for those unfamiliar with the process: You just can’t ask them the question “What law lets you do this?” They don’t have to answer. You have to ask them for records and documents. That’s what the FOIA request attempted to find out by asking for:
- All records regarding the phrase “consent to a permanent entry in the National Instant Criminal Background Check System”
- Records regarding the authority of the Department of Justice to allow and/or require individuals to consent to “permanent entry” in the NICS system to deny firearms purchases; and
- Records regarding the ability/authority of those persons who have consented to “permanent entry” in NICS to remove themselves from NICS.
I filed a complaint against the Department of Justice in August 2023 because the statutorily mandated 20-business day Freedom of Information Act (FOIA) request response time had passed with no acknowledgment. In a joint status report filed in late March of 2024, the Department admitted, “Based on the additional information provided by Plaintiff, the FBI expects to produce approximately 350 pages by mid-April.” And not unexpectedly, the response provided ignored key requests.
Also not unexpectedly, this latest response, embedded below, contains all kinds of excuses about what’s exempt from disclosure, and includes internal correspondence about Gun Owners of America’s inquiry. There’s also a copy of a letter signed by Rep. Marjorie Taylor Greene and 14 other members of Congress asking about the illegal “self-submission” form, and FBI’s excuse to them that “In light of ongoing litigation [it] was not in a position to provide further information specific to those requests.”
What wasn’t included was where DOJ gets the authority to create a permanent entry to NICS without a conviction or other disqualifier as defined by law. They’re still not saying.
That the government has not provided responsive documents makes it fair to speculate that resistance is not because it won’t comply, but because it can’t provide any records authorizing the practice.
This is where Congress could step up and put some bureaucrats on the hot seat under oath. It’s also a chance for Trump’s picks for DOJ and FBI, Pam Bondi and Kash Patel, once confirmed, to show they intend to run their shops a different way, to compel compliance with the law and cessation of all “extralegal” practices designed to coerce citizens out of their rights, and to punish violators.
Will they?
About David Codrea:
David Codrea is the winner of multiple journalist awards for investigating/defending the RKBA and a long-time gun owner rights advocate who defiantly challenges the folly of citizen disarmament. He blogs at “The War on Guns: Notes from the Resistance,” is a regularly featured contributor to Firearms News, and posts on Twitter: @dcodrea and Facebook.
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