The Center for Public Integrity scored a huge Freedom of Information Act win recently: documents related to President Donald Trump’s decision to withhold military aid from Ukraine, an issue at the center of the impeachment inquiry. Public Integrity received documents from the Department of Defense by order of federal Judge Colleen Kollar-Kotelly as a result of a FOIA lawsuit. But the Trump administration heavily redacted the documents, prompting Public Integrity to return to court and fight. We also partnered with MuckRock, a nonprofit news site that helps make government documents more transparent, to petition for the release of the emails. Please join us by signing this petition.
We invited you to ask about what the documents say and what they mean. Here are your questions, answered.
Who provided the documents and who had responsibility for the redactions? What was the legal basis for why they were redacted?
The documents were provided by the Defense Department, and they in part contain emails between officials at the Pentagon and the White House Office of Management and Budget. The government can redact information for a number of reasons. An attorney for the Defense Department explained the redactions by citing three exemptions in the law designed to protect private personal information, “sensitive information of foreign governments” and “privileged” records generated during the “deliberative process.”
Deliberative material generally offers advice or makes an argument about a potential decision or action that a government agency is considering.
Can you appeal?
Yes. Public Integrity challenged the redactions, saying that at least some of the material appears to be factual — not deliberative — and should be released. You can read our letter to the Justice Department here.
When will it be public?
It’s hard to say. Kollar-Kotelly has approved a schedule for written arguments, which will begin Jan. 31. After the parties complete their filings, the judge will decide whether the redactions were appropriate under the law.
We know OMB played a major role in withholding aid to Ukraine. Is there any information about OMB that isn’t redacted?
Trump administration has blacked out substantive exchanges between officials at the Defense Department and OMB in both sets of documents we received. However, we know there was a lengthy email exchange between Elaine McCusker, deputy comptroller at the Defense Department, and Michael Duffey, a political appointee and the associate director at OMB, and OMB General Counsel Mark Paoletta. McCusker emailed Duffey saying,“the funds go into the system today to initiate transactions and obligate,” which set off more emails from Duffey and Paoletta. The emails carried on to the next day when McCusker suggested they continue the conversation on the phone. We don’t know the specifics of those conversations.
In the second set of documents, we found that Duffey sent an email to the Pentagon’s chief financial officer and others on July 25, 2019. In the email, Duffey tells them to withhold aid to Ukraine — just 91 minutes after Trump’s call with Ukraine President Volodymyr Zelensky. The email from Duffey said: “Based on guidance I have received and in light of the Administration’s plan to review assistance to Ukraine, including the Ukraine Security Assistance Initiative, please hold off on any additional DoD obligations of these funds, pending direction from that process.”
How much could this information help the impeachment case?
It’s hard to predict how our work might affect impeachment proceedings, which has moved to the U.S. Senate following the U.S. House’s vote to send two articles of impeachment to the Senate. On Dec. 12, Rep. Veronica Escobar, D-Texas, requested that her House Judiciary Committee colleagues add the documents we won and our related news article to the official record for the impeachment inquiry. (The Judiciary Committee heeded her request.)
Following our report, the New York Times in December also published new details about the hold on Ukraine. Senate Minority Leader Chuck Schumer renewed his call for Mulvaney and former National Security Adviser John Bolton to testify at Trump’s impeachment trial.
The website Just Security gained access to unredacted versions of some the emails Public Integrity is seeking in court, publishing excerpts earlier this month. These excerpts further detail the Pentagon’s concerns over holding the aid.
Didn’t Acting White House Chief of Staff Mick Mulvaney already admit to withholding military aid to Ukraine?
Yes — and then he took it back. During a televised White House press briefing in October, Mulvaney said the Trump administration withheld the aid until Ukraine investigated a theory that the country was responsible for hacking Democratic party emails in 2016. Mulvaney seemed to downplay that withholding the aid was part of an alleged quid pro quo and said “we do that all the time with foreign policy.”
Mulvaney also acknowledged that the OMB was “concerned about an impoundment,” referring to the Budget Control and Impoundment Act of 1974. Title X of the act established procedures to prevent the president and other government officials from “unilaterally substituting their own funding decisions for those of the Congress.” Mulvaney’s full statements are found on C-SPAN.
I thought former President Barack Obama also withheld Ukraine military aid?
The readers who asked this question are probably alluding to a statement made by Rep. Matt Gaetz, R.-Fla., in October. Gaetz says Obama put a permanent stop on military aid to Ukraine. But he misrepresented facts.
The Obama administration did not send lethal aid to Ukraine in 2014. At the time, Obama officials were debating whether to send lethal military equipment, particularly Javelin anti-tank missiles, during the beginning of Ukraine’s ongoing conflict with Russia. Obama refused former Ukranian President Petro Poroshenko’s request because U.S. officials were concerned that providing the Javelins would escalate the conflict between Ukraine and Russia.
Do you have any more questions? Reach out kvillanueva@publicintegrity.org.
Kristine Villanueva is the audience engagement editor at the Center for Public Integrity, a nonprofit newsroom that investigates betrayals of public trust. She regularly interacts with Public Integrity’s readers via social media and through the Watchdog newsletter.