#UkraineDocs

Published — February 14, 2020

Center for Public Integrity advances fight for facts behind Ukraine aid hold

New federal court filing cites ‘imperative’ public need for transparency

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Many details about President Donald Trump’s decision to withhold military aid from Ukraine still haven’t been made public even after his impeachment and Senate trial that led to his acquittal Feb.  5.

Looking to find out more, the Center for Public Integrity filed a motion Friday in its ongoing federal lawsuit seeking emails between Pentagon and White House officials — emails that detail how the Trump administration delayed about $250 million in military aid to Ukraine. Congress approved the aid, and the Pentagon announced it, on June 18, but Trump’s administration didn’t release the money until Sept. 11.

The Public Integrity filing argues that even if lawmakers didn’t get the full story of what happened to the aid, voters need to know before November’s presidential election.

“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,” the court filing says.

The lawsuit stems from a Freedom of Information Act request filed in September by Public Integrity. Government officials failed to deliver emails within the time limit for public record requests, and Public Integrity sued.

After some legal wrangling, the Department of Justice provided 292 pages of documents in two batches in December. The pages offered clues that Trump administration officials debated the hold on Ukraine funds. But they were largely indecipherable due to extensive redaction, the official term for withholding information by blocking text with black bars.

Public Integrity persisted, arguing that the government illegally redacted the documents. This led to a Jan. 31 court filing by Justice Department lawyers seeking to justify the blacked-out pages.

Susan Smith Richardson, Public Integrity’s chief executive, said the news organization “will continue to fight for the release of the unredacted Ukraine emails to prevent further clampdowns by the administration on the public’s right to know.

“Our legal battle with the Trump administration points to a larger problem in our democracy: We are in an era of limited information and unlimited disinformation,” she said.

In the Jan. 31 Justice Department filing, a lawyer from the White House Office of Management and Budget said the government redacted 24 of the documents because they were “presidential communications” — a privilege that can protect discussions of the president, vice president and their immediate advisers from public scrutiny if they are part of a decision-making process.

It’s unclear what role Trump himself may have played in the emails. But the OMB lawyer specifically mentioned presidential assistant Robert Blair, claiming his communications should be protected.

The idea behind the privilege is that officials might be reluctant to engage in frank debate about potential policies if they knew their words could one day be made public.

The Trump administration also claimed that many other redacted documents it provided Public Integrity were protected because they covered decision-making inside the Pentagon, a process it said started in mid-June and continued “over the course of the summer.”

That detail is crucial: Documents are only protected if they come from discussions ahead of a decision.

In Friday’s filing, a lawyer for Public Integrity wrote that nearly all of the emails that are part of the lawsuit were written after the decision was made to hold aid to Ukraine. White House officials started asking about the aid in mid-June, with an unofficial hold put in place shortly afterward. The legal block on spending the money came on July 25, hours after President Trump had his now-infamous call with Ukraine’s President Vlodymyr Zelensky, during which Trump asked for “a favor”: the opening of an investigation into Democratic presidential candidate and former Vice President Joe Biden and his family.

A reporter from Just Security, a website that covers national security law, reviewed roughly half of the original emails that are part of the Public Integrity case, without the redactions. The unmodified emails, according to Just Security, show Pentagon officials increasingly worried about withholding the aid and the potential that it could be illegal. These passages, where concerns were raised about the hold and White House officials acknowledged them, were redacted in the copies provided to Public Integrity.

The Government Accountability Office, an independent auditor, delivered a report in January supporting the Pentagon officials’ concerns saying that the holding of the aid had been illegal under a 1974 law requiring that agencies notify Congress if budgeted money is stalled.

The Public Integrity court filing pointed to that auditor’s report as evidence that the emails show wrongdoing by government officials, an exception that would require that the documents are disclosed even if they cover decision making.

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Despite Trump’s impeachment acquittal, and the partial disclosure of the details of some of the emails by Just Security, the government still needs to release the documents, according to Joyce Vance, a former U.S. attorney who now teaches law at the University of Alabama.

“It’s critical that Congress and the American people have access to information about what Trump’s administration is doing in their names and with taxpayer dollars,” Vance, who was appointed by President Barack Obama and spent eight years working for the Justice Department, said in an email. “The Center for Public Integrity’s use of the FOIA statute to force turnover of some of these documents continues to bring the light of day to actions Trump continues to try to hide.”

While Public Integrity has been fighting a legal battle for emails tied to the Ukraine aid, American Oversight, a nonpartisan watchdog group, sued for a different set of emails that were similarly redacted. American Oversight and Democracy Forward Foundation, another watchdog group, filed a brief supporting Public Integrity’s case on Friday as well.

“The public is still in the dark about many details of the president’s Ukraine scheme, a matter of immense consequence,” Austin Evers, the executive director of American Oversight, told Public Integrity. “This is an all-hands-on-deck moment for transparency.”

Justice Department lawyers may respond to Public Integrity’s filing by Feb. 21, and Public Integrity will have one more opportunity to reply.

Federal District Judge Colleen Kollar-Kotelly is expected to rule sometime after Feb. 28 on whether the government must disclose more information about the Ukraine aid halt.

Read more in National Security

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