The Trump administration successfully stonewalled a Freedom of Information Act lawsuit for the messages during his first impeachment.
July 29, 2021, 11:42 a.m. ET
WASHINGTON — After President Trump ordered a freeze in 2019 on security assistance to Ukraine, puzzled national security officials asked whether he was trying to “gain leverage” over its leaders in his dealings with the country, according to internal emails the Trump administration successfully fought to keep secret during his first impeachment.
The New York Times obtained the emails via a Freedom of Information Act lawsuit, fulfilling a request filed on Sept. 26, 2019 — two days after the House began the impeachment inquiry, and the day a whistle-blower complaint became public accusing Mr. Trump of abusing his power to coerce Ukraine into announcing investigations that could aid his bid for re-election.
The newly available documents dovetail with the basic narrative of the Ukraine affair that emerged from Mr. Trump’s first impeachment. They also provided additional details.
The belated timing of their disclosure — long after the impeachment ended with Mr. Trump’s acquittal by Senate Republicans, and after he lost re-election — also shows how executive branch stonewalling can run out the clock on public records requests while the disclosure of documents would be most relevant to public debate.
The documents consist of 14 emails, email chains and attachments between Michael Duffey, then the top Office of Management and Budget official in charge of security assistance programs, and Robert Blair, then an aide to Mr. Trump’s acting chief of staff.
Mr. Duffey, who was fielding questions about the freeze from officials at other agencies, was struggling to understand both the scope of and the rationale for Mr. Trump’s directive, the emails show. Mr. Duffey repeatedly discussed the matter with Mr. Blair.
In the spring of 2019, the impeachment investigation later showed, Mr. Trump’s personal lawyer Rudolph W. Giuliani had already been lobbying Ukraine’s president, Volodymyr Zelensky. Mr. Giuliani was pressing Mr. Zelensky to announce a corruption investigation into Joseph R. Biden Jr., who was seeking the Democratic nomination to challenge Mr. Trump in the general election, and into a baseless conspiracy theory that Ukraine, not Russia, had interfered in the 2016 election.
In late June 2019, after the Pentagon announced $250 million in assistance to Ukraine and Mr. Trump had asked for the details of the funding, Mr. Duffey wrote to Mr. Blair that a team had pulled together information in response — but expressed confusion about what was going on, the newly released documents show.
“We were not clear what direction to take this. Do you have any insight here?” Mr. Duffey wrote.
The files do not include any response from Mr. Blair. In addition, the federal judge who ordered the release of most of the emails sought by The Times, Amy Berman Jackson of Federal District Court in Washington, ruled that some were exempt from disclosure because they contained privileged communications involving Mr. Trump himself.
But by July 17, Mr. Duffey wrote again to Mr. Blair, saying that officials at the Pentagon, the State Department and the National Security Council wanted to know whether the freeze was limited to lethal support or applied to all security assistance — and questioning its rationale.
The officials were asking, he wrote, “whether there is insight on motive or duration, such as an intent to gain leverage for an upcoming engagement with Ukrainian leadership. I understand there may be sensitivity behind much of this, but committed to see if I could get some insight beyond just the directive for a freeze.”
Mr. Blair replied curtly: “On Ukraine assistance, the president wants all security assistance frozen. We need to let that take hold and understand the implications of the freeze, and then see if he wants to revisit that decision.”
It was a week later, on July 25, 2019, that Mr. Trump had a phone call with Mr. Zelensky that became central to the impeachment. According to a White House summary, after discussing military aid, Mr. Trump pivoted to pushing for the investigations he wanted, saying “I would like you to do us a favor, though.”
Mr. Blair and Mr. Duffey continued to correspond about the freeze, according to the documents. One anticipated topic for a July 26 meeting was the “potential legal issue” of whether Mr. Trump’s withholding of funds would violate the Impoundment Control Act given that the money had been appropriated by Congress.
Facing growing scrutiny, Mr. Trump eventually lifted the hold in September 2019, but events were already barreling toward impeachment. Amid the growing furor, The Times requested disclosure of emails between Mr. Blair and Mr. Duffey; while the White House is generally exempt from requests under the open records law, the Office of Management and Budget is covered by it.
After the office provided no response to the request, The Times sued for the files on Nov. 26, 2019, as the House was pursuing its impeachment inquiry. The Times also agreed to narrow the request to cover only emails related to Ukraine.
On Jan. 3, 2020, as the impeachment proceedings moved toward a Senate trial, the Trump administration said it had found 20 relevant documents. But it also claimed that every one was legally exempt from disclosure because they involved “deliberative and presidential communications.”
A legal fight slowly played out. This spring, Judge Jackson ordered the government to turn over several of the emails. The Times received a second tranche this month after further litigation.
Notably, Judge Jackson took the unusual step of demanding that the Justice Department privately show her the files rather than trusting a declaration from the Trump administration about their contents.
The description, by Mark Paoletta, then the general counsel for the Office of Management and Budget, was a key part of the Trump-era Justice Department’s legal argument that the materials were being properly kept secret under exemptions to FOIA.
But in her ruling, Judge Jackson wrote that she discovered “obvious differences” between Mr. Paoletta’s purported descriptions and the documents themselves. In a hearing, she said at one point regarding a document description, “This was apparently written without the expectation that I would look at the document.”
The Times has asked the Justice Department’s independent inspector general to scrutinize the department’s part in producing the declaration signed by Mr. Paoletta, along with similar findings by judges that it had submitted false or misleading declarations in two other cases related to the open records law.
“If the descriptions are falsely tailored to make documents appear to fall within a FOIA exemption, plaintiffs typically have no way of knowing that or ultimately challenging the declaration,” wrote David E. McCraw, a lawyer for The Times.
A government watchdog group, Citizens for Responsibility and Ethics in Washington, has also asked the inspector general to examine the department’s representations in other litigation.