Claiming that a prospective deputy cabinet official would have no prepared talking points in advance of a Senate confirmation hearing sounds implausible enough on its face. But now the Defense Department is continuing to insist that it has no such records, despite video of then–deputy secretary nominee Patrick Shanahan consulting notes during his questioning.

In November 2018, American Oversight submitted a Freedom of Information Act request for Shanahan’s prepared talking points from his June 2017 confirmation hearing, in an investigation of his efforts to comply with ethics obligations as well as the extent of his communication with private industry. The Defense Department responded in January that “no records of the kind [American Oversight] described could be identified.”

American Oversight challenged that response with an administrative appeal on February 11. Talking points for confirmation hearings are common records used by nearly every nominee to guide them in answering senators’ questions. The department’s claim that it could locate no talking points is dubious, especially in light of images from Shanahan’s testimony.

In the administrative appeal, American Oversight pointed out that throughout his hearing, Shanahan kept a stack of documents in front of him, repeatedly looking down toward them and at certain points almost certainly reading from them. Moreover, the answers Shanahan gave about how he will engage with Defense ethics processes demonstrate that he must have worked with the department in formulating those answers.

The Defense Department’s appellate authority agreed with the appeal, sending the request back to the secretary’s office. But even in the face what appears to be common-sense refutation of their initial response, the office of the secretary has already claimed that it searched again, and again came up empty-handed.

Perhaps Shanahan threw those prepared notes away, potentially violating preservation obligations under the Federal Records Act, although it’s hard to believe there never existed a final electronic version. Or perhaps the talking points were drafted by private individuals assisting Shanahan through his confirmation process — a problematic practice highlighted by the Project on Government Oversight — and the Defense Department unreasonably believes those documents are not public records. It’s also possible, and perhaps more probable, that the Defense Department is refusing to conduct a proper search. American Oversight will appeal, yet again.

American Oversight has a number of other active FOIA requests related to Shanahan, including an investigation of his ties to Boeing, where he worked for more than three decades before joining the administration. In January, Politico reported that he had been promoting the defense contractor at the Pentagon, and last week we sued the Defense Department to force the release of his communications with Boeing, as well as records of his ethics determinations related to his former employment. And last week Senator Richard Blumenthal called for an investigation into Shanahan’s potential conflicts of interest due to his relationship with Boeing.

Shanahan, who spent his career almost exclusively in the private sector, is reportedly President Trump’s likely nominee to replace former Defense Secretary Jim Mattis, prompting concern that Shanahan may not offer counsel that could serve as necessary counterweight to that of White House officials like National Security Adviser John Bolton. This week, American Oversight filed FOIA requests for records of Shanahan’s communications with Bolton, Ivanka Trump, Jared Kushner and others. We’re also seeking his communications about issues that have been points of contention, such as Saudi Arabia’s killing of the journalist Jamal Khashoggi or the president’s demand for a border wall.

Shanahan appeared before the Senate Armed Services Committee last Thursday, less than a day after the president announced that it would be grounding all Boeing 737 Max airliners after deadly crashes in Ethiopia and Indonesia. The acting secretary told senators that he had not spoken to anyone about the airliner, and stated that he supported an inspector general investigation of his ties to Boeing. And yes, he was reading from notes on Thursday, too.