As White House Stonewalls on Ukraine Docs, Wave of FOIA Suits Seek to Pry Them Loose
Two federal judges have even pointed to a White House counsel letter refusing to cooperate in the impeachment proceedings as a reason for granting some of the records requests.
November 27, 2019 at 12:10 PM
6 minute read
Federal trial judges in Washington, D.C., are ordering government agencies to quickly hand over documents tied to the House's impeachment inquiry, giving the public—and lawmakers—access to information they likely wouldn't have been able to get otherwise.
The impeachment inquiry has resulted in a flood of FOIA litigation in the U.S. District Court for the District of Columbia. An analysis of court records shows that at least 18 FOIA lawsuits have been filed in that court tied to the Ukraine probe after the impeachment inquiry was officially announced in late September.
The complaints are largely filed by watchdog groups, like American Oversight, Citizens for Ethics and Responsibility in Washington and Judicial Watch. The suits seek records from a range of federal agencies, including the State Department, the Department of Justice and the White House Office of Management and Budget.
American Oversight obtained emails late Friday showing President Donald Trump's personal attorney Rudy Giuliani's contacts with top State Department officials, including Secretary of State Mike Pompeo, about Ukraine. That information was released as a result of an order from U.S. District Judge Christopher Cooper of the District of Columbia last month, who partially granted a preliminary injunction for those documents.
And the nonprofit newsroom Center for Public Integrity scored a win Tuesday, when U.S. District Judge Colleen Kollar-Kotelly of the District of Columbia also granted them a preliminary injunction in their bid to get documents on the freezing of Ukraine aid, which is at the center of the House's current impeachment inquiry.
The judge ordered the federal agencies to process more than 100 pages of documents and provide records that aren't exempt under FOIA to the nonprofit by Dec. 12, and process and hand over the remaining documents by Dec. 20.
Both Cooper and Kollar-Kotelly noted in their opinions that preliminary injunctions are rare in FOIA cases. Cooper even said during oral arguments for the injunction that he didn't necessarily like granting such an order in FOIA litigation.
However, the judges pointed to the House's ongoing impeachment inquiry as reason to require the quick turnover of the documents.
"Time is clearly of the essence here. The impeachment inquiry is in full swing, and, as noted above, congressional leaders expect it to conclude it by Christmas," Cooper wrote last month. That timeline has remained largely in place, with the House Judiciary Committee preparing to hold its first public impeachment hearing next week.
And Kollar-Kotelly wrote this week that "in order to ensure informed public participation in the proceedings, the public needs access to relevant information."
"As such, irreparable harm is already occurring each day the impeachment proceedings move forward without an informed public able to access relevant information," the judge continued.
White House counsel Pat Cipollone, in a letter last month, vowed that the administration would not comply with the inquiry, calling the proceedings "illegal" for not offering the president due process protections typically not granted until trial.
However, current and former administration officials have testified both publicly and privately in the inquiry. And while the documents aren't being handed over as part of the probe, the FOIA lawsuits have proved successful in getting at least some of the information out to the public.
In fact, both judges cited Cipollone's letter as reason the documents should be released under FOIA.
"However, the White House has indicated that it has no intention of responding to these subpoenas due to White House concerns about the validity of the impeachment process. And, even if the DOD and the OMB were to provide the requested documents to the House of Representatives, there is no guarantee that such documents would be made public," Kollar-Kotelly wrote this week.
The wave of litigation is unlikely to end anytime soon, as more FOIA requests have likely been filed as more revelations come out of the Ukraine probe.
And at least one other judge on the court is taking notice of the swath of FOIA cases at the D.C. District, whether impeachment-related or not. During a hearing Monday on a non-Ukraine FOIA lawsuit, U.S. District Judge Reggie Walton of the District of Columbia described an "onslaught" of the litigation at the court.
Walton is overseeing a consolidated case from CNN and BuzzFeed News, which are both seeking documents related to former special counsel Robert Mueller's investigation.
Attorneys urged the judge to increase the number of documents the FBI and Justice Department must process each month as part of the case. But Walton seemed hesitant at the prospect, noting he didn't want to issue an order that would infringe on rulings made by other judges who had also ordered federal agencies to process and release documents they deemed crucial for the public to obtain.
The judge pointed to the government's claim of "limited resources" for FOIA requests, and said he would have to check in with other judges about what they had ordered in their cases.
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