A federal judge in Washington, D.C. has ordered the White House to turn over 20 emails directly relating to President Donald Trump’s decision to withhold congressionally appropriated military aid from Ukraine. The administration has refused to produce the communications thus far, claiming the documents are protected from public release by executive privilege.
The order, issued by U.S. District Judge Amy Berman Jackson, stems from a Freedom of Information Act (FOIA) lawsuit filed by the New York Times which sought communications between Michael Duffey, Principal Associate Director for National Security Programs at the Office of Management and Budget (OMB), and Robert Blair, a senior advisor to then-Acting White House Chief of Staff, Mick Mulvaney.
In response to a court order to produce the requested records, the administration withheld 20 documents contending that they were covered by the Presidential Communications Privilege and were therefore exempted from public disclosure laws.
“Specifically, the documents in this category are emails that reflect communications by either the President, the Vice President, or the President’s immediate advisors regarding Presidential decision-making about the scope, duration, and purpose of the hold on military assistance to Ukraine,” OMB Deputy General Counsel Heather Walsh, the official in charge of overseeing the department’s FOIA request responses, previously stated of the decision. She reasoned that disclosing the communications could “risk harming the quality of the information and advice” available to the President.
The Times challenged the exempt classification of the documents, claiming the government failed to provide any evidence that the information fell within the privilege which requires “an actual advisory relationship between the President and the staffer as to that specific document.”
“[T]he Government relies principally on the presidential communications privilege to keep documents secret but has failed to justify invocation of the privilege, submitting a thread-bare declaration from an agency FOIA lawyer who traffics largely—and improperly—in hearsay evidence and then testifies about the operations of the White House’s national security apparatus, a topic about which she has no apparent foundational knowledge and, in fact, claims none,” the Times argued in its motion for summary judgement in the case.
In a rare move, Judge Jackson, the Barack Obama-appointed judge who presided over the Roger Stone trial, decided that instead of relying on the government’s assertion of the privilege, she needed to review the documents herself in her chambers, ordering the government to deliver them within one week.
“[I]n order to assist the Court in making responsible de novo determinations in this case, including any determination for purposes of the presidential communications privilege, concerning the nature and extent of the relationship between any particular communication and presidential decision-making, and, for purposes of the deliberative process privilege, whether a particular communication is both predecisional and deliberative, defendant [OMB] is directed to deliver copies of the documents that have been withheld pursuant to Exemption 5 to chambers for in camera inspection on or before May 20, 2020,” Jackson ordered Wednesday.
Another federal judge recently ordered the Department of Justice to hand over a copy of the unredacted Mueller Report for in camera review. U.S. District Judge Reggie Walton was quite clear about why he felt the need to review Attorney General William Barr’s work.
[image via MANDEL NGAN/AFP via Getty Images]
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