When the investigative probe developed, The New York Times searched for the Blair-Duffey emails under the Freedom of Information Act, filed last November after it did not receive the requested messages. In May, Jackson was ordered to hand over the disputed emails to her for camera review.
During a teleconference Monday in which she announced her decision, Jackson did not rule out the possibility that she could at some point maintain the government’s offer of confidentiality for the emails, but she did make a few statements to OMB’s deputy attorney general. Heather Walsh filed up, the claims for executive privilege were too vague.
The judge said Walsh’s claims about Blair’s role in presidential decision-making were “too general” and appeared to be based on second-hand information about his duties as assistant to the president and former adviser to Mick Mulvaney, the acting chief of staff. at the time.
“The statements are based on unreasonable hearsay and not on personal knowledge. … The statements do not come close here, “Jackson said.” In sum, the statement seems to be based in large part on the function of Mr. Blair, the location of his office and what assistants to the president do in general. … That just does not cut it. ‘
Walsh said in her submission that the emails reflected an ongoing exchange over the “scope, duration and purpose” of the hold on support for Ukraine, but the judge seemed to agree with the Times’ arguments that the messages reflect helpers trying to execute decisions had already been made.
“It’s strange that you can make decisions about the purpose of something you’ve already done after you did it,” said Jackson, a nominee for President Barack Obama.
The Times also claims that the privileges were waived by testimony given by an OMB official to the House Intelligence Committee and that the privileges could not be invoked to conceal crimes. Jackson on Monday refused to go into these issues.
It remains unclear whether the disputed messages will appear before the November elections. Jackson gave attorneys from the Justice Department until Thursday to suggest how much time they would need to provide a more detailed justification for the privilege rates or decide to simply release the emails. One government lawyer said she would likely propose a date for a further submission to the court in late September.
If the judge agrees with that timeline and the Trump administration decides to keep the legal battle going, the chances of the emails in the open before the election seem slim. Even if Jackson ordered the release of the messages, the Justice Department could appeal, which is almost certain to result in the records remaining under wraps for months or longer.
Some other collections of emails about the Ukraine supporter have been released in edited form in response to other legal actions or leaks to outsiders.
Current White House records may not be directly requested under FOIA, but the Transparency Act applies to federal agencies such as the Department of Defense, as well as to some components of the President’s Executive Office, including the Office of Management and Budget.
