The Pentagon’s Inspector General (IG) on Wednesday released a report concluding that the Department of Defense’s (DoD) decision to award the lucrative Joint Enterprise Defense Infrastructure (JEDI) contract to Microsoft over Amazon was “consistent with applicable law” and agency standards. However, the IG was unable to determine whether the White House improperly influenced the decision because the White House asserted its “presidential communications privilege” to prevent the matter from being fully investigated.
“We sought to review whether there was any White House influence on the JEDI cloud procurement,” the 313-page report stated. “We could not review this matter fully because of the assertion of a ‘presidential communications privilege,’ which resulted in several DoD witnesses being instructed by the DoD Office of General Counsel not to answer our questions about potential communications between White House and DoD officials about JEDI.”
“Therefore, we could not definitively determine the full extent or nature of interactions that administration officials had, or may have had, with senior DoD officials regarding the JEDI Cloud procurement,” the report continued.
Here’s a closer and more extensive look at White House stonewalling on the matter (page 96 of the report):
When we sought to interview Secretary Esper and Deputy Secretary Norquist, the DoD OGC advised us that they would not answer questions related to any communications with President Trump, members of the President’s staff, or other White House officials. According to DoD OGC officials, the White House did not authorize the Secretary or the Deputy Secretary to disclose information that would be covered by what was referred to as the “presidential communications privilege.” DoD OGC officials stated that the President, not the Secretary, controls access to presidential communications within the Executive Branch, and as a general matter the White House did not view the requirements of the Inspector General Act to overcome the President’s constitutional authority to control presidential communications.
As a result, the witnesses were instructed not to answer any questions about communications between DoD officials and the President or White House officials regarding the JEDI contract. According to DoD OGC officials, the DoD would need White House Counsel approval before any presidential communications could be disclosed to the DoD OIG.
We informed the DoD OGC that we understood the concept of executive privilege, but the release of any information potentially protected by the presidential communications privilege to the DoD OIG would not waive the privilege. The DoD OIG is part of the Executive Branch and therefore distinct from other entities outside the Executive Branch that may seek such privileged information. We also cited to the Inspector General Act of 1978, as well as DoD issuances, regarding the DoD OIG’s authority to investigate matters related to DoD operations, such as the award of the JEDI contract. Further, we informed the DoD OGC that we routinely receive and maintain information provided by DoD components, including information identified as proprietary, classified, or privileged, and that we safeguard and do not further disclose any information in OIG files and reports that is asserted to be privileged, including information potentially protected by the presidential communications privilege.
Despite our investigative authorities and our assurances to safeguard the information, DoD OGC officials restated that they did not control the privilege, and that the White House had not authorized the Secretary, Deputy Secretary, or other DoD officials to disclose to the DoD OIG communications between the White House and DoD officials related to the JEDI contract. While we disagreed with the DoD OGC’s opinion on the presidential communications privilege with respect to our investigation, we agreed to allow a DoD OGC representative (Agency Counsel) to be present during our interviews of Secretary Esper and Deputy Secretary Norquist for the sole purpose of objecting to the witness responding to any questions that would elicit information about meetings or communications with the President or his advisors and staff that they believed were exempt from disclosure to the OIG because of the need to protect “presidential communications.”
A Pentagon spokesman claimed that there was nothing to see here.
We can do this again: "DoD OGC stated that White House Counsel was willing to allow witnesses to provide written answers to our questions where the presidential communication privilege was invoked." They choose not to take the answers. Regardless the IG found no influence. https://t.co/WK3hmuZ0rX
— Jonathan Rath Hoffman (@ChiefPentSpox) April 15, 2020
But others said the spokesman ignored how Inspector General investigations work.
This, of course, is not how Inspector General investigations work—as this DoD spokesperson well knows. The IG decides how and when to collect evidence in a corruption investigation. Instead, we have White House interference in an investigation of . . . White House interference. https://t.co/qIe3frHgDe
— Walter Shaub (@waltshaub) April 15, 2020
The invocation of presidential privilege is particularly noteworthy as the issue is at the center of a federal lawsuit between Amazon and the Trump administration.
As previously reported by Law&Crime, Jeff Bezos, the Amazon founder and Washington Post owner, accused President Donald Trump of abandoning objectivity and carrying out a “personal vendetta” against him by ensuring Amazon was not awarded the contract.
A federal judge last month said Amazon was likely to win on the merits of its lawsuit against the administration, concluding that “based on the portions of the record cited by the parties and the arguments made thereon—plaintiff is likely to demonstrate that defendant erred in determining that intervenor-defendant’s Factor 5, Price Scenario 6 was ‘technically feasible’ according to the defined terms of the solicitation.”
Danielle Brian, the Executive Director of the Project on Government Oversight (POGO), said the White House’s evasive conduct ran contrary to the Inspector General Empowerment Act and was “not a good look” for the president.
“The IG Empowerment Act explicitly directs agencies to give IGs “all” information they request. Today’s DODIG report shows that White House Counsel directed the Pentagon to withhold info during the IG inquiry into the dumpster fire known as the JEDI contract,” Brian tweeted. “Not a good look when the loser in the competition was Trump’s enemy Bezos. IG concludes there was no evidence the White House successfully pressured the contracting officials. But the WH invocation of privilege sure makes it looked like they tried.”
An Amazon Web Services spokesperson said the IG report “doesn’t tell us much,” but said it does show the White House blatantly dodged a transparent review of the matter.
“It says nothing about the merits of the award, which we know are highly questionable based on the Judge’s recent statements and the government’s request to go back and take corrective action,” the spokesperson told Law&Crime. “And, it’s clear that this report couldn’t assess political interference because several DoD witnesses were instructed by the White House not to answer the IG’s questions about communications between the White House and DoD officials.”
“The White House’s refusal to cooperate with the IG’s investigation is yet another blatant attempt to avoid a meaningful and transparent review of the JEDI contract award,” the spokesperson added.
Earlier in April, President Trump removed the Pentagon’s Inspector General Glenn Fine. He was replaced by EPA Acting IG Sean W. O’Donnell.
Editor’s note: a statement was AWS was added post-publication.
[Image via Drew Angerer/Getty Images.]
Have a tip we should know? [email protected]