Behind the Scenes: How American Oversight Forced the Release of State Department Ukraine Records

Since the State Department’s release of nearly 100 pages of records last Friday — including emails showing contacts between Rudy Giuliani and Secretary of State Mike Pompeo in March 2019 — there have been a number of questions about how we made it happen.

Some have wondered, for instance, how American Oversight managed to obtain documents that the administration has refused to give to Congress. Others have asked when we anticipate more records being released. Answers to those questions, plus a timeline of the whole process, are below.

Why did American Oversight and the public get the documents before Congress did?

The first and simplest part of the answer is that the Trump administration is engaged in wholesale obstruction of congressional oversight. It has released none of the records requested by the Intelligence Committee in the House’s impeachment inquiry, and officials like former Energy Secretary Rick Perry and Mick Mulvaney, the acting chief of staff and director of the Office of Management and Budget (OMB), have refused to testify.

The second part is that we requested the documents under the Freedom of Information Act, which can move much more quickly than enforcing congressional subpoenas. The months-long, still-ongoing fight for President Donald Trump’s tax returns is one notable example, and another is the government’s appeal this week of the order that former White House Counsel Don McGahn testify in front of Congress.

The Trump administration has taken advantage of the fact that historically, courts have only rarely weighed in on ordering the executive branch to give documents to Congress, thanks to the assumption that the different branches of government will act in good faith through the “accommodations” process. The result of the courts’ reluctance is that it would be extremely time-consuming to sue to enforce Congress’s subpoenas. Trump administration lawyers would likely appeal every court order all the way to the Supreme Court — as, for instance, they did just this week — leading to months, even years, of delay. FOIA, on the other hand, creates a clear right for citizens to request the release of public documents and empowers courts to order the release of those documents.

Are more documents coming? When?

We expect that more records will be released and the paper trail will get longer. The set of documents released on Friday represents just a few categories of records that were requested in our first lawsuit against the State Department, and some records were missing (specifically, any formal directive recalling Ambassador Marie Yovanovitch from her post and any readouts from Trump’s July 25 call with President Volodymyr Zelensky). Still to come in that same lawsuit are internal communications — i.e., Pompeo’s communications with other State Department officials, like Kurt Volker or Gordon Sondland, about Giuliani’s efforts or Yovanovitch’s recall. We’re pushing for the government to release those records before the end of the year, but won’t know more until the court makes another ruling.

And of course, we have five other lawsuits against the administration for records, including two others against the State Department, one against the Department of Energy, one against the Justice Department, and one against both the Defense Department and OMB. Here are some of the documents we’re asking for:

• In our second lawsuit against the State Department, we’re asking that Volker’s calendars from March to September be produced before the end of the year, as well as his text messages and WhatsApp communications with or about Giuliani or about any effort to pressure Ukraine. We will file our joint status report to the court on Dec. 2.
• The Defense Department and OMB are due to answer our complaint on Fri., Nov. 29; we are looking for of the emails of Russell Vought, the acting head of OMB, and Michael Duffey, another OMB official who has been subpoenaed by the House, as well as for those of top Defense Department officials like acting Secretary Mark Esper and Deputy Secretary David Norquist. 

What was the process that ultimately led to American Oversight getting the State Department documents?

It all started with Freedom of Information Act requests. The first ones, filed with the State Department, eventually led to the documents that were released last week. But since those first FOIA requests in May, we’ve filed more than 60 additional requests and five additional lawsuits.

MAY 2019

Back in May, news reports indicated that Giuliani was planning a trip to Ukraine to, in his words, “meddl[e] in an investigation.” Yovanovitch had been recalled from her post as ambassador to Ukraine in late April after a smear campaign pushed by Giuliani. And though Giuliani did end up cancelling that particular trip to Ukraine, he continued to defend his actions on behalf of the president.

American Oversight filed two Freedom of Information Act requests with the State Department, one for records related to Yovanovitch’s recall and another for communications with Giuliani or about his efforts to get Ukraine to investigate Joe Biden and his son. We scoured news reports and drew upon our knowledge of people with influence at the State Department to identify the officials and private individuals who might be involved in the reported attempt to solicit foreign interference in our elections, from Giuliani associates Victoria Toensing and Joseph diGenova to officials like Pompeo ally T. Ulrich Brechbuhl. Those names were all included in our requests for communications.

AUGUST – SEPTEMBER 2019

More State Department FOIAs: A few months later, we filed additional FOIA requests. News reports in August indicated that Giuliani had renewed his efforts and that Kurt Volker, the U.S. special envoy for Ukraine negotiations, had helped arrange talks between Giuliani and a Ukrainian official.

More FOIA requests were filed in September after news broke about the intelligence community whistleblower complaint related to Trump’s communications with Ukraine. That news also prompted American Oversight to ask that the FOIA requests be processed on an expedited basis, and a number of additional requests were filed as more news continued to surface.

Also in August and September:

• Energy Department FOIAs: In August, we asked for records related to the May 2019 delegation to Ukraine that was led by Secretary Rick Perry, and for Perry’s communications with Ukrainian-born businessman and Republican donor Michael Bleyzer.

OCTOBER 2019

On Oct. 1, the State Department had still failed to produce records in response to our initial FOIA requests from May, so American Oversight sued. Three days later, we filed a motion seeking a preliminary injunction, citing an urgent need to inform the public given the rapidly moving impeachment inquiry. 

A federal judge called for a hearing on the emergency motion, and on Oct. 25 the court ordered the State Department to work with us to begin producing records by Nov. 22. A week later, the State Department agreed to release by that deadline senior officials’ external communications with Giuliani or about the Ukraine effort or Yovanovitch smear campaign, as well as directives recalling Yovanovitch.

Also in October:

• New DOJ and Energy FOIAs: We filed a number of FOIA requests throughout the month with the Departments of Justice and Energy.
• Second State Department lawsuit: We sued the State Department on Oct. 12 for Volker’s communications with Giuliani or about the Ukraine pressure campaign. 
• Energy Department lawsuit: We sued the Energy Department on Oct. 22 for records requested in our August FOIAs, and asked for expedited processing of the additional requests made earlier in the month.

NOVEMBER 2019

Late on Fri., Nov. 22, the State Department released the first set of documents in our initial lawsuit against the agency. The records showed contacts between Giuliani and Pompeo in the months before Yovanovitch’s recall, as well as an email indicating that Trump’s Oval Office gatekeeper helped put them in touch.

We filed a joint status report on Tues., Nov. 26, and asked the department to prioritize the release of communications between Pompeo and top officials like Sondland and Volker before the end of the year.

Also in November:

• OMB and Defense Department lawsuit: We sued both agencies for directives and communications related to the effort to pressure Ukraine or to the withholding of congressionally approved military aid for the country.
• Third State Department lawsuit: In this lawsuit, we’re suing for Sondland’s communications and his calendar entries.
  
• Justice Department lawsuit: Our lawsuit against the DOJ seeks Ukraine-related communications of top officials.
• New FOIAs: We also filed a number of new requests for records from various agencies, including the Departments of Commerce and the Treasury.

DECEMBER 2019

Stay tuned — as with the first set of documents last week, we’ll be posting records as soon as we get them. We’ll also be updating our website and our social media when we receive information about new deadlines. Like our executive director Austin Evers said last week, “Now that we have extracted these documents, they belong to the American public. They are public records, anyone can read them, and they belong to you.”