The Department of Justice (DOJ) redacted a series of emails previously provided to a government transparency group. The subject matter of those emails touched upon the issue at the heart of the current national impeachment drama: President Donald Trump’s withholding of congressionally-appropriated military aid to Ukraine.
Redactions in government-provided documentation, of course, come with the territory. They are typical, expected and typically rife. And such knowledge, once blacked-out with the federal censor’s pen, almost always stays walled off. But at least some of those redactions have now been uncovered.
Centrist legal blog Just Security revealed that many of those redactions, inserted at the behest of Attorney General Bill Barr’s DOJ, contained evidence that at least two executive branch agencies–the Department of Defense (DOD) and the Office of Management and Budget (OMB)–and numerous officials were deeply aware of concerns that Trump’s aid withholding scheme violated the Impoundment Control Act.
News of those significant redactions broke early Thursday morning and Law&Crime has a lengthy write-up of the overall story here. The amount of information released, however, is somewhat dizzying and part of an increasingly complex story line. We turned to the experts for the upshot of this groundbreaking release.
Federal defense attorney and computer law expert Tor Ekeland was appalled.
In an email, Ekeland rubbished DOJ’s decision-making:
This is a mess. Did they provide a redaction log listing the basis for their redactions, e.g., privilege or word product or what not? You just don’t get to redact things willy nilly because you don’t want information that looks bad coming to public view. There might be cognizable privilege claims for redaction here, but when you try to ascertain what, you quickly get mired in the confusion and chaos of this administration. In order to claim privilege for redactions, you first need to be clear on who is claiming the privilege, and what privilege is being claimed. It’s not immediately clear from this romper room mess.
Just Security’s co-editor-in-chief and former Department of Defense special counsel Ryan Goodman explained several key aspects of the release in a thread on Twitter Thursday morning.
“The emails appear to contradict OMB General Counsel [Mark] Paoletta’s letter to Congress (which set forth new rationale for hold on Ukraine aid on eve of HJC vote on impeachment articles),” he said. Goodman cited the following sentence from that letter as an intentionally false statement:
In fact, at no point during the pause in obligations did DOD OGC indicate to OMB that, as a matter of law, the apportionments would prevent DOD from being able to obligate the funds before the end of the fiscal year.
“When Politico broke the news of Ukraine hold in August, what did OMB General Counsel Paoletta do?” Goodman continued. “He circulated false Talking Points. The Deputy Under Secretary of Defense in an email said that Paoletta’s talking point was ‘just not accurate’ and that OMB knew it to be false.”
Goodman’s thread continued:
5. Following day, the senior Pentagon official writes to Defense Secretary Esper’s chief of staff about the problems coming out of OMB:
“this situation is really unworkable made particularly difficult because OMB lawyers continue to consistently mischaracterize the process” pic.twitter.com/38LkUUhAgz
— Ryan Goodman (@rgoodlaw) January 2, 2020
6. Should also focus now on propriety of Justice Dept’s having redacted this text in a COURT-ORDERED FOIA release, especially in light of unredacted text that DOJ did release that painted a different picture.
cc: @publicintegrity @knightcolumbia
<end>
— Ryan Goodman (@rgoodlaw) January 2, 2020
Former federal prosecutor Jack Weiss threw his hands up at the news–in one sense an astounding development but perhaps also simply more of the same from the 45th presidency.
“Can’t believe how many are still willing to lie for this guy,” he tweeted in reference to Goodman’s thread. “OMB [General Counsel] Paoletta perhaps opened himself to pros. for misleading Congress. He can now review the [statute of limitations] for his acts (5 yrs) and how to squeeze onto Trump’s loooong list of bad guys who want pardons…”
National security attorney Bradley P. Moss said that the damaging information “wasn’t redacted for classification purposes,” during a Freedom of Information Act (FOIA)-focused discussion on Twitter–conceding that certain statutory FOIA exemptions might plausibly survive judicial scrutiny if DOJ were to argue them, even pretextually.
Moss elaborated on those FOIA issues via email:
That this information was redacted (and likely would have survived a legal challenge) is a reminder to Members of Congress in particular that, for all the FOIA reforms that have occurred to date, the wide scope of FOIA Exemption 5 continues to conceal from the public a lot of the inner workings of bureaucratic machinations. Things such as the deliberative process privilege in particular routinely are used in this manner to conceal potentially embarrassing and politically damaging information from release, and done so in a way that under current law is permissible.
CNN legal analyst, attorney, and host of the Real Impeachment podcast Ross Garber noted the importance of the news but said that Republicans would do their best to ignore it.
“More information is coming out and will continue to come out about the Ukraine situation,” Garber told Law&Crime via email. “I don’t think these particular disclosures from Just Security will change the dynamic in the Senate, where a trial without witnesses is still overwhelmingly likely. I expect that going forward we will learn more from the press than from Congress about what happened with Ukraine.”
Former federal prosecutor and Westchester County District Attorney candidate Mimi Rocah remarked upon the potential implications for the president’s impeachment trial as well–stressing that this new information should, in fact, figure heavily going forward.
In an email to Law&Crime, she said:
Reporting that concerns that the Ukraine aid hold violated the law were redacted by the Trump Administration are extremely concerning for two reasons 1) they show the depth of concern by professionals at DOD about withholding the aid for what everyone seemed to know were illegitimate reasons and 2) show the depth of the Administration’s coverup. When someone says this Administration is transparent and there’s no need for more witnesses, testimony, etc. in the impeachment proceedings–this shows how wrong those statements are. This alone justifies further witnesses.
There are also potential legal concerns over the redactions themselves.
“Obstruction of justice by the Department of Justice,” mused former Bush White House ethics lawyer and University of Minnesota Law Professor Richard Painter. “Somebody should go to the slammer for this.”
“This sounds a lot like obstruction of justice,” Painter added in an email. “They know there is an investigation and they redact emails?”
Former New Jersey prosecutor and current Law&Crime Network host Bob Bianchi took a bird’s-eye-view of the disclosures.
“I’m afraid for our Country, as regardless of how unseemly and obvious it all is, it will not move the needle one bit,” he said in an email. “We have many citizens and an entire political party in Congress unwilling to hold the President accountable for the obvious threat to our national security, our word wide reputation, and an appetite only for that which helps them perpetuate their self interest. Profoundly unsettling.”
Bianchi also called out congressional Republicans for their apparent hypocrisy–noting that “had the other party approximated far less egregious conduct, [Republicans] would be outraged because of party loyalty alone, not loyalty to our country.”
“I’m sorry I had faith reasonable people would have the integrity to call this out for what it is a long time ago, regardless of party loyalty, but I was wrong,” he continued. “It would be foolish to presume this is any different, despite its damning implications. The bottom line is they just don’t care about anything other than re-election— honor, integrity and truth be damned.”
And, Bianchi added, all roads in this quickly unfolding permutation of the Ukraine scandal lead right back to the crew 1600 Pennsylvania Avenue.
“These emails are no surprise,” he said. “This explains well why a blanket refusal to honor subpoenas for witnesses and documents were unprecedentedly denied by the White House, without as much as even asserting a legal privilege recognized by the law. It told me then, and further tells me now, that those witnesses and documents would be devastating for the president. We only need to remember Ambassador Bolton who describes this as a ‘drug deal’ and wanted no part in it. And, those officials that were instructed to CYA by reporting what was happening on this issue to ‘the lawyers.’ They saw it for what it was. The redactions in these new emails are clear evidence of consciousness of guilt. But then again, those that could bring accountability to this simply don’t care beyond their own self love.”
[image via Chip Somodevilla/Getty Images]
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