May 6, 2020
While the Trump administration has publicly boasted about its response to the coronavirus and pressured governors to re-open their states, the White House recently claimed in litigation with CREW that the exceptional circumstances created by the pandemic will persist “without any sign of subsidence.”
In a declaration filed on April 20, 2020, explaining why the White House Office of Management and Budget (OMB) has not provided documents in response to CREW’s October 2019 Freedom of Information Act (FOIA) request related to Ukraine, OMB used the coronavirus as an excuse for its failure to adequately respond. OMB’s career Deputy General Counsel states: “The purpose of this supplemental declaration is to update the Court about continuing exceptional circumstances related to the Federal Government’s response to the novel Coronavirus disease (COVID-19) and how that has affected the resources OMB has available to meet the agency’s obligations in FOIA cases.”
OMB explained that it did not expect for the exceptional circumstances facing the government to change any time soon. The declaration continues (emphasis added below):
To meet the sustained demands for legal counsel within the agency, the [Executive Office of the President], and across the Federal Government, often under extremely short deadlines, OMB OGC has maintained its temporary restructuring of staff assignments to apply all available resources to the pressing needs of executing the Federal Government’s response to the COVID-19 pandemic. Because OMB continues to experience these exceptional circumstances without any sign of subsidence, OMB OGC respectfully requests an additional 30-day extension of its FOIA responsibilities so that it can continue to dedicate staff resources to a variety of tasks that are vitally important to implementing the Executive Branch’s response to the COVID-19 pandemic.
Despite OMB’s statement on April 20, publicly, the Trump White House was painting a different picture regarding its coronavirus response. On April 16, President Trump unveiled his plan for re-opening the country. In his “Guidelines for Opening Up America Again” Trump stated, “[w]hile we must remain vigilant, it is clear that our aggressive strategy is working.” The next day, Trump took to Twitter and urged his supporters to ‘LIBERATE’ three states led by Democratic governors, “in effect encouraging protests against the stay-at-home restrictions aimed at containing the coronavirus.” On April 18, Politico reported that several Trump aides and allies had advised the President that “an earlier restart amid the coronavirus pandemic could help the president in his reelection campaign.” On April 19, President Trump defended his response to the coronavirus pandemic and protestors of state stay-at-home orders amid criticism from governors who indicated “that there has been an insufficient amount of testing to justify reopening the economy any time soon.”
In the days following OMB’s declaration saying that the situation showed no signs of ending soon, presidential son-in-law and senior advisor Jared Kushner called the Trump administration’s coronavirus response a “great success story” even as cases hit the 1 million mark.
The United States now has more than twice as many cases or casualties from Covid-19 than any other country in the world, and the virus understandably must be our government’s first priority. But the White House Office of Management and Budget affects every agency in the federal government and plays a critical role in the next presidential transition. As the White House notes, “OMB’s mission is to assist the President in meeting his policy, budget, management and regulatory objectives and to fulfill the agency’s statutory responsibilities.”
OMB is too important to our nation’s functioning to simply go dark. More importantly, OMB’s private claims in FOIA litigation suggest that the Trump administration’s bravado about its coronavirus response may be inconsistent with reality.