In Advancing Ukraine FOIA Fights, Lawyers Echo Trump's Impeachment Defense Arguments
Lawyers are now arguing that the impeachment-related information should be released ahead of the November presidential election.
February 26, 2020 at 02:19 PM
10 minute read
The impeachment of President Donald Trump is over, and congressional investigators are staying quiet about what the future of Ukraine-based probes might look like. But in Washington, D.C., federal court, the Freedom of Information Act lawsuits seeking to reveal further details about the hold on Ukrainian military aid are preparing to enter a new phase.
The more than a dozen FOIA lawsuits tied to the Ukrainian-focused impeachment proceedings resulted in swift rulings in the U.S. District Court for the District of Columbia late last year, including rare preliminary injunctions compelling the government to quickly hand over the records.
But those productions often resulted in heavily redacted documents, meaning records given to groups and publications such as American Oversight, the Center for Public Integrity and The New York Times, offer few details about official conversations over the hold on Ukraine aid. For the Times, the administration is refusing to provide some emails entirely.
That means even more legal fights to challenge the redactions and get that hidden information out in the open. And the public records lawyers are turning to an unexpected source in urging the courts to still rule swiftly in the cases: The arguments made by Trump's impeachment lawyers.
Lawyers from The New York Times' legal department, David McCraw and Alexandra Perloff-Giles, quoted Trump's personal attorney Jay Sekulow in a filing Friday as they seek emails about the Ukrainian military aid exchanged by Office of Management and Budget officials.
OMB officials say they have now found 21 emails that fall under the Times' FOIA request for exchanges between agency officials Robert Blair and Michael Duffey, but argue they contain "presidential communications" and they don't have to provide them at all under the public records law.
The Times' lawyers disagree, alleging the emails are being withheld improperly, preventing them from challenging specific exemptions and inviting the possibility the public could never see even redacted versions of the documents.
"If the Senate's decision not to remove President Trump was rooted in the belief that—to quote President Trump's defense lawyer, Jay Sekulow—upcoming 'elections, not impeachment' should be the final arbiter of presidential wrongdoing, it is all the more important that the American public know how the decision to withhold aid to Ukraine was made and acted upon," attorneys for the newspaper wrote in a Friday filing.
Counsel for the watchdog group American Oversight, Daniel McGrath, echoed that sentiment in urging a federal judge Friday to set a swift production schedule in another public records case, also over OMB emails.
McGrath said the group has already raised issues with the federal government about "excessive privilege claims" made with some of the documents, and that it wants the initial batch of documents to be produced as quickly as possible. That way, he said, they can start litigating over the specific FOIA exemptions and have the information released "ahead of the presidential election."
U.S. District Judge James Boasberg noted that at least one other judge in the D.C. federal court, U.S. District Judge Christopher "Casey" Cooper, had ordered expedited production in public records cases over the Ukraine aid.
But he said he was also "sympathetic" to the wave of FOIA requests the federal government is currently processing, and sided with Justice Department lawyer Grace Zhou's requested production schedule, which will have all requested and eligible documents provided to American Oversight by May 10.
Boasberg tentatively set a status conference for the morning of May 15, but left the door open for it to be canceled if both parties worked together before then to create a proposed briefing schedule to challenge the exemptions.
Austin Evers, executive director and founder of American Oversight, said the group has compiled a list of unanswered questions it still has about the Ukrainian aid it will seek to answer through its FOIA cases, both the ones currently making their way through court and others they plan to file in the near future.
"The impeachment process did not uncover the truth about all of the ways the Trump administration abused its power and obstructed Congress," Evers said. He pointed to the FOIA as "the only viable way" to get information that was uncovered during the impeachment inquiry and trial out in the open.
The open records litigation played a key role in the impeachment proceedings, as the Trump administration refused to comply with congressional requests for documents tied to the hold on Ukrainian military aid as the president pushed for investigations into the Bidens.
American Oversight is expanding its FOIA work beyond its own cases: It joined another nonprofit, the Democracy Forward Foundation, in filing an amicus brief in a Center for Public Integrity lawsuit for Ukraine documents. They urged the court to not rule in favor of the privileges claimed by DOJ in withholding the redacted information, warning it could hurt current and future endeavors to uncover potential misconduct within the federal government.
"It undermines both FOIA and the values of transparency and accountability the statute embodies if agencies can conceal from citizens basic facts about what the government is up to," the brief, filed earlier this month, reads.
The Center for Public Integrity's counsel has also turned to impeachment as a source for its arguments in seeking Ukraine-linked emails from OMB and the Defense Department. After receiving heavily redacted documents under a preliminary injunction from U.S. District Judge Colleen Kollar Kotelly, the nonprofit and government lawyers both filed motions for summary judgment against the other.
"Although the Senate acquitted President Trump, the explanations senators have given for their votes suggest that one of the most persuasive arguments made on the president's behalf—perhaps the winning argument for acquittal—was that the voters, not the Senate, should judge whether the president committed an offense and that they should express their judgment in the November 2020 presidential election," Center for Public Integrity attorney Peter Smith wrote in a filing earlier this month.
"Therefore it is imperative that the citizenry have information that will shed light on the president's clear violation of law, including the execution of his illegal directive and efforts by government agencies to justify and explain it," he continued.
The lawyers advancing the cases are all arguing for the documents to fully come out as soon as possible. But November 2020 appears to be the new timeline echoing across the cases.
The Trump administration has also declined to reveal some of the information in the emails under a claim of presidential communications, which it has also invoked in the Times litigation. Smith argued earlier this month that the claim cannot apply to the communications, as several were from the period of time after Trump first ordered the hold on aid in mid-July, and "the president did not change his mind about the policy until a Congressional probe began on September 10, 2020."
Justice Department lawyers say otherwise, arguing the information is being properly withheld for the purposes of protecting national security.
"Disclosure of such assessments involving a foreign government could reasonably be expected to harm national security because they can be used by competitors or adversaries to shape activities going forward, to the detriment of national security, and undermine the confidence of allies, also to the detriment of national security," DOJ attorneys wrote in a Friday filing.
Further complicating the cases are allegations by some lawyers that the Trump administration may not be conducting a "good faith" effort to locate the emails: The Times' attorneys pointed out that an email referenced in congressional testimony by agency official Mark Sandy was not initially uncovered in the search for OMB emails, despite it falling under the scope of reporter Charlie Savage's FOIA request.
"That such a significant email did not turn up until The Times specifically identified it casts doubt on the agency's representations and calls for heightened judicial scrutiny," the newspaper's attorneys wrote in the Friday filing.
The Justice Department earlier described its search for the records as "reasonably calculated to capture all responsive records, and therefore more than adequate to meet OMB's obligations under the FOIA."
Smith, the Center for Public Integrity lawyer, also raised similar issues in briefs. He noted an email reported on by Just Security indicated that OMB general counsel Mark Paoletta to an official working in the Pentagon general counsel's office publicly contradicts a statement Paoletta had made about OMB's knowledge about the hold on Ukrainian aid.
"The apparent omission of this document is significant and suggests that Defendants may have failed to conduct their search with appropriate diligence and good faith," Smith wrote, arguing that Pentagon comptroller Elaine McCusker had been copied on the message, which meant the record fell under the nonprofit's document request.
The Justice Department has defended its FOIA searches. In the Center for Public Integrity case, it described the searches for emails as "reasonable," explaining officers did not initially search for emails where the individuals referenced in the request were only copied on, as it wasn't specifically a communication among the parties.
They said when FOIA officers did go back and search again, they only found one additional relevant email—the one the nonprofit had flagged.
"In any event, Defendants' search was reasonable even though it did not identify the document Plaintiff points to," the DOJ lawyers wrote on Friday.
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