With the Trump administration waging a total blockade on producing documents to Congress, the Freedom of Information Act (FOIA) has become the only vehicle available to force the release of records related to the Ukraine scandal. For those interested in transparency and accountability, this is an important safety valve. However, as documents exposed by Just Security last week demonstrate, the administration still has plenty of opportunities to obstruct.
Part of what makes FOIA so powerful compared with congressional subpoenas is that requesters can obtain court-ordered production schedules relatively easily and quickly. Thus, even as House Intelligence Committee Chairman Adam Schiff (D-Calif.) lamented that he had not received a “single document,” material started trickling out through FOIA litigation. It started in late November with releases to my organization, American Oversight, revealing a direct connection between Rudy Giuliani and Secretary of State Mike Pompeo via the Oval Office. The House Intelligence Committee cited these documents in support of both articles of impeachment.
The releases continued in late December with a significant release to the Center for Public Integrity showing, among other things, that aid to Ukraine was frozen 91 minutes after President Donald Trump’s July 25 call with the Ukrainian president. But those documents contained heavy redactions. And underneath those redactions, as we learned last week, were communications showing that the order to freeze the aid came directly from the president, and that the Pentagon had serious concerns about the hold’s legality. Were it not for Just Security obtaining the emails without the redactions, that information — and the Trump administration’s obstruction of it — would likely still be unknown.
Redactions, the bane of FOIA requesters everywhere, are usually legitimate. But often, they are stretched to protect sensitive information (and sensitive people) from scrutiny. The so-called deliberative process privilege allows agencies to redact internal policy debates, such as discussions between the Office of Management and Budget and Defense Department personnel over how to draft appropriations hold language. But it is often abused — advocates routinely deride the government for treating the deliberative process privilege as the power to “withhold it because you want to.”
For instance, is it truly “deliberative information” that OMB received “Clear direction from POTUS to hold” the Ukraine aid — a line redacted in CPI’s documents — after the hold had been decided and even publicly reported on by POLITICO? Perhaps a lawyer for the government came up with an argument that it was, but saying that a directive isn’t deliberative is close to black letter law.
Moreover, deliberative process redactions should not be available to hide evidence of governmental wrongdoing. While we protect internal deliberations from disclosure so as not to chill them in the future, there is no public interest in protecting discussions that violate the law; it’s not a conspirator’s privilege. Here, many of the redactions in the CPI release explicitly cover debates over the legality of the administration’s hold on Ukraine aid. Another set of redactions masked a draft letter from DOD to OMB raising concerns. The letter appears to show that OMB’s assurances to the Government Accountability Office in December that it hadn’t been warned by DOD were false.
Of course, the problem is how anyone is supposed to know whether redactions are masking misconduct if they don’t know what is under them. It cannot be overstressed how difficult it would be to prove that these redactions covered wrongdoings without knowing what was under them. Without Just Security, I suspect the administration would have gotten away with them.
Unfortunately, many of the redactions in the recent Ukraine releases reveal the pliability of FOIA standards to indulge governmental instincts toward secrecy and self-preservation in ways that make it very difficult to challenge. This isn’t an entirely new phenomenon. Despite President Barack Obama’s aspiration to have the “most transparent” administration in history, and Attorney General Eric Holder’s admonishment to agencies not to withhold information just because they could, many in the transparency community argued the Obama administration fell short of its stated goals.
The Trump administration has been at least as aggressive in using redactions to shield itself from scrutiny. It also has paired its aggressive FOIA posture with a total obstruction of Congress and a refusal to engage with non-sycophantic press. It really is a war on transparency and accountability.
The problem for the Trump administration is that information has come out despite its best efforts. Brave public servants defied the president and agreed to testify before Congress. Even at their most aggressive, agencies have not been able to obscure every damaging piece of information from FOIA releases. Journalists have pieced together a damning narrative of how the administration held up aid to Ukraine.
FOIA releases will continue regularly throughout 2020, and Washington should brace itself. (American Oversight alone has six lawsuits pending on Ukraine issues, and additional suits have been filed by Protect Democracy, the New York Times, Public Integrity, and others.)
With each piece of information that comes out despite the White House’s blockade, the public is reminded of two things: First, the president used the power of his office to gain a personal, partisan, and corrupt advantage in 2020; and second, he has obstructed all efforts to investigate him. He’s being impeached for both.