Center for Public Integrity challenges Trump administration on Ukraine document redactions

Introduction

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The Center for Public Integrity on Friday asked a federal judge to order the Trump administration to divulge information it is concealing about military aid to Ukraine.

The action came hours after the House Judiciary Committee advanced two articles of impeachment against President Donald Trump, alleging that he abused his power by withholding information from Congress and that the aid was improperly disrupted last summer for political reasons.

On Thursday, the Department of Defense released 146 pages of documents Judge Colleen Kollar-Kotelly ordered it to produce as a result of a Freedom of Information Act lawsuit by Public Integrity. The department heavily redacted the documents, asserting that much of the material contained within was “deliberative,” and therefore, exempt from disclosure.

In a letter accompanying Thursday’s document release, an attorney for the Defense Department explained the redactions by citing three exemptions in the law that protect privacy, “sensitive information of foreign governments” and “privileged” records generated during the “deliberative process.”

Public Integrity is challenging the redactions, saying at least some of the material appears to be factual — not deliberative — and should be released.

“This is not a case of federal agencies asserting an aggressive, good-faith interpretation of the Freedom of Information Act,” Public Integrity said in a motion filed in U.S. District Court for the District of Columbia.

For example, a Defense Department official in an email referred to “attached info on the [Ukraine aid program] execution,” but the information is blacked out. In another email, a White House Office of Management and Budget official said that “OMB OGC [Office of General Counsel] determined [redacted].” 

Deliberative material generally offers advice or makes an argument about a potential decision or action that a government agency has under consideration. 

Update, Dec. 13, 2019: The judge in the Ukraine documents case responded in a decision late Friday that orders the government and Public Integrity to confer by Tuesday about setting a timetable for judicial review of the redacted passages.

Some Democratic members of Congress also protested the redactions.

Rep. Veronica Escobar, D-Texas, showed her House colleagues the blacked-out documents Thursday evening as they debated articles of impeachment against Trump.

“The Center for Public Integrity sued in federal court for documents related to the Ukraine scandal, and this is what they got,” Escobar said, waving around a stack of blacked-out papers. “They won in court, but what they got were heavily redacted documents. Why? Because the president doesn’t want these documents to see the light of day.” 

Rep. Steny Hoyer, the Democratic House majority leader from Maryland, said the redactions were part of “the president’s unprecedented pattern of obstruction.” 

“The courts continue to rule in favor of transparency, and I hope the judge will do so again,” Hoyer said in a statement to Public Integrity. “No one is above the law, not even this president, and Congress will continue to uphold the rule of law and its duty to conduct oversight.”

Public Integrity reached out to 33 lawmakers  about the Ukraine documents, including members of leadership and members of the Senate and House judiciary, intelligence and armed services committees. Sen. Mark Warner, D-Va., and Rep. Mac Thornberry, R-Texas, were among several members who said they wanted to read the contents of the files before commenting. Others did not respond to requests for comment.

But several think tanks and good-government groups called on the Trump administration to release unredacted version of the Ukraine documents. 

Among them:

• Norman Ornstein, resident scholar at the American Enterprise Institute, a conservative think tank based in Washington, D.C. “As the House Judiciary Committee met, the administration changed its story on the Ukraine aid delay, saying it was  a policy issue. These documents could show whether that was an accurate claim,” Ornstein said. “If indeed it were accurate, they would have every reason to show it. By hiding the communications, it seems clear to me that they were lying as they scrambled to find a reason for the delay in releasing the aid after the DOD had certified Ukraine’s eligibility.”

• Daniel Stevens, executive director of the Campaign for Accountability, a Washington-based government watchdog group. “The press and watchdog groups must double down on their efforts to obtain government documents through all legal means necessary,” Stevens said. “A core value of our American form of government is a reliance on checks and balances. For Congress to hold the executive branch responsible, it must have access to government documents.  It is unconscionable that federal agencies to continue to prevent federal records from being released.”

• Lisa Rosenberg, executive director of Open the Government, a Washington-based nonprofit that advocates for government transparency. She told Public Integrity that the redactions undermine the public’s right to timely information relevant to the impeachment proceedings. “It is yet another unacceptable attempt to stonewall efforts to hold the executive branch accountable and demonstrates disregard for the system of checks and balances that protects our democracy against abuse of power by a sitting president,” she said.

• Adam Marshall, attorney at the Reporters Committee for Freedom of the Press, who noted that Congress has recently made clear it’s concerned about the overuse of the  “deliberative process” exemption by federal agencies to deny public records requests. “The agencies often use the exemption to hide information that is embarrassing, inconvenient  or relating to something they otherwise prefer to not be public,” Marshall said. “It’s absolutely outrageous that the government is asserting the exemption in this case, which involves information relevant to matters of such public importance.”

• Liz Hempowicz, director of public policy at the Project on Government Oversight, who argued the redactions are undermining efforts to hold the government accountable. “Excessive government secrecy around the issues at the heart of the impeachment inquiry don’t serve the public nor do they serve the president, unless the defense offered by the House GOP isn’t supported by these documents.”

Peter Newbatt Smith contributed to this report.