By R. Jeffrey Smith, Center for Public Integrity
The Trump administration has refused to disclose how key officials at the Department of Defense and the White House Office of Management and Budget reacted to President Trump’s decision to halt military aid to Ukraine.
On Nov. 25, federal District Court Judge Colleen Kollar-Kotelly ordered the administration to produce records reflecting what these officials said to one another about the legality and appropriateness of Trump’s order. The Center for Public Integrity sought the information in Freedom of Information Act requests filed in late September.
On Thursday afternoon, however, as the House Judiciary Committee was preparing to vote on two articles of impeachment against Trump, Public Integrity received 146 pages of documents that had been almost completely redacted by the government. Every substantive exchange between officials at the agencies was blacked out. Public Integrity is planning to file a motion Friday challenging the government’s response.
“We are deeply disappointed that the public won’t have access to this important information at the heart of the impeachment process. But we will continue to fight to ensure that the documents see the light of day,” said Public Integrity’s chief executive officer, Susan Smith Richardson.
Access to the documents was granted by the judge after a brief but fierce court battle.
Although the Defense Department initially proposed to put the Public Integrity request at the end of a year-long queue, the judge said the documents must be provided on an urgent timetable because they were meant “to inform the public on a matter of extreme national concern,” given the continuing investigation by Congress into Trump’s aid halt and its impact. To ensure “informed public participation” in the impeachment proceedings it provoked, “the public needs access to relevant information,” the judge said.
She noted further that since the administration had failed to answer congressional requests for the information at issue, the public was unlikely to get it without Public Integrity’s help. Any hardship placed on the government, she concluded, was “minimal.”
But the two institutions, in their initial production to Public Integrity, removed key passages delineating what the officials said about Trump’s decision, arguing that the information was related to the administration’s “deliberative process”—even though it appears that much of the information withheld may simply be factual rather than deliberative. They also claimed that providing some information would violate the officials’ privacy.
Messages that officials at the White House and Pentagon exchanged shortly after the aid halt became public in late August were, for example, completely blacked out. A detailed description by the Pentagon of how the aid program was meant to be carried out—provided to OMB shortly after a whistleblower filed a complaint alleging the program had been mishandled at the White House—was redacted.
A lengthy email exchange in August between Elaine McCusker, a career employee at the Defense Department who is the deputy comptroller there, Michael Duffey, a political appointee and the associate director at OMB, and OMB General Counsel Mark Paoletta—a former legal adviser to Vice President Mike Pence—was also blacked out.
McCusker on Aug. 19 did email Duffey to say “the funds go into the system today to initiate transactions and obligate,” which set off more emails from Duffey and Paoletta. The flurry of messages between them continued into the following day, when McCusker at one point emailed to say, “Seems like we continue to talk [email] past each other a bit. We should probably have a call.”
“Any potentially interesting bits are redacted,” said Margaret Taylor, a former State Department lawyer who was deputy staff director for the Senate Foreign Relations Committee from 2015 through July 2018.
The FOIA response is part of a pattern of behavior by the Trump administration, which has maintained a cloud of secrecy around key aspects of the aid halt.
Although the halt has been the focus of multiple congressional hearings, key details about its origins and legality have remained murky: When did it start? Who in the government knew about it? How did they react, and what did they say to one another?
Testimony by mid-level government officials during the hearings into Trump’s potential impeachment has provided only clues, while establishing without question that many inside the government were either confused or upset by Trump’s decision.
Several committees of the House of Representatives subpoenaed relevant documents from OMB and DOD on Oct. 7.
But the White House blocked the release to Congress of any documents from those institutions, and others. One of the two articles of impeachment drafted by House Democrats accusing Trump of abusing his powers specifically cites the administration’s failure to provide “a single document or record” from OMB and DOD in response to subpoenas.
Public Integrity’s efforts to obtain some of the documents began earlier, in late September, when it filed two FOIA requests for copies of emails and other communications between the OMB and DOD about the aid from April to the present, and also copies of messages passed between three top Pentagon officials about the aid, including Secretary of Defense Mark Esper.
After a short court battle, Public Integrity won a preliminary ruling in late November. The judge ordered that the documents be released on a timetable much more rapid than the government preferred. But it took a vigorous effort to obtain that order.
Public Integrity asked for expedited processing at the outset, for example, noting that the Trump administration’s handling of the aid was at the heart of Congress’s investigation and of high public interest. The chief of the Pentagon’s Freedom of Information Office, Stephanie Carr, didn’t see the urgency, however.
In a Sept. 27 letter the Pentagon said was sent by mail, but which Public Integrity has no record of receiving, Carr said it would be impossible to comply with the FOIA law’s 20-day disclosure requirement. Instead, the department planned to put the request at the end of a queue behind 2,987 other requests—likely meaning that nothing would be turned over for a year or more. OMB’s information officers did not even meaningfully reply at the outset, merely noting receipt of the request.
So, after a required 20-day wait, Public Integrity filed a lawsuit seeking a rare preliminary injunction against the government, an action it said was meant to force a handover of all the documents by the middle of December. It said the subject of the documents was central to the impeachment inquiry by the House of Representatives and that they would enable Public Integrity “to inform the public about matters of immense public importance.”
Stale information, Public Integrity noted in its pleading to the court, was of little value, and any further delay would irreparably harm the organization and the public. It noted as well that another federal court in October had approved a similar request for access to State Department documents about the Ukraine aid disruption.
The Defense Department’s associate deputy general counsel, Mark Herrington, conceded in a response filed with the court that all the documents requested by Public Integrity had already been collected, under an order by top officials at the beginning of October.
But he said the number of documents requested was so great that it could not possibly begin to turn them over until Dec. 20, shortly before the Christmas holiday week. Herrington also complained that any order by the judge granting Public Integrity’s request would likely “incentivize” others to file similar lawsuits against the government, creating an unwarranted burden for the DOD, which has an annual budget of nearly $700 billion and a staff of 1.3 million people.
OMB, for its part, merely said it would merely finish its internal review by Dec. 20 and could not declare before then when some of the documents might be disgorged. And Justice Department trial attorney Amber Richer, writing on behalf of Assistant Attorney General Joseph Hunt—a former chief of staff to Trump’s first attorney general, Jeff Sessions—separately argued that Public Integrity’s request was “infeasible and extraordinary.”
She complained that both DOD and OMB were already busy defending nearly 80 other FOIA lawsuits demanding access to federal records, and said that in this case, it is “speculative, how long the impeachment inquiry and any trial in the Senate will actually take”—so there was no provable harm from further delay.
Public Integrity responded on Nov. 14, however, that “if the timely production of substantially fewer 500 documents is not warranted in a matter as consequential as presidential impeachment, it is hard to imagine any circumstances in which expedited production would be appropriate.”
Eleven days later, Judge Kollar-Kotelly, embraced virtually all of Public Integrity’s arguments in a 16-page decision. In an accompanying order, Kollar-Kotelly ordered that half the documents deemed relevant to Public Integrity’s request, or 146 pages, be produced by Dec. 12, and that the remaining documents be produced on a rolling basis between then and Dec. 20.
Zachary Fryer-Biggs and Carrie Levine contributed to this article.
This story was published by The Center for Public Integrity, a nonprofit, nonpartisan investigative news organization. To follow more of the Center’s reporting, go here or follow them on Twitter.