Ukrainian Funding Delay Created a Paper Trail That Congress Should Follow

Recent revelations show that President Donald Trump utilized the power of the presidency to pressure a foreign country to interfere in the 2020 election. This abuse of power has rightfully elicited swift and widespread condemnation.

The notes of the call that the White House released provide sufficient evidence on their own to impeach Trump and remove him from office. But further allegations that Trump sought to withhold military aid to Ukraine as part of his pressure campaign deserve close attention as well. Even more so now with new reporting  from the Washington Post that Trump “used Pence to tell [Ukrainian President Volodymyr] Zelensky that U.S. aid was still being withheld while demanding more aggressive action on corruption” when Ukraine would have understood that to refer to Trump’s earlier ask about former Vice President Joe Biden on his call with Zelensky.

While congressional investigators will almost certainly seek more evidence regarding Pence’s discussion with Zelensky, there is another potentially fruitful avenue for investigation as well. Given the nature of the legal authority used to delay the funding, there is likely evidence that congressional investigators could obtain that would shed light on the decision to halt the funding itself.

The White House stopped the Ukraine military assistance funding through use of the Office of Management and Budget’s budgetary apportionment authority, which allows OMB to place limits on how agencies spend funding. Apportionments involve a bureaucratic process that requires documentation, creating a paper trail that could be of use to congressional investigators. Moreover, the unusual manner in which the authority was utilized in this instance may have raised red flags for career staff involved, and these career professionals may have produced contemporaneous records to that effect.

A short timeline of Trump’s decision to delay funding

The timeline of events shows the connection between Trump’s intervention to halt Ukrainian military assistance funding and  his effort to pressure the Ukrainian government to assist him in the upcoming election.

  • September 28, 2018 – Congress enacts a Department of Defense spending bill that includes $250 million in Ukrainian military assistance funding. Later appropriations bills provided additional funding for Ukraine.
  • May, 2019 – Undersecretary of Defense for Policy John Rood informs lawmakers that he has “certified that the Government of Ukraine has taken substantial actions to make defense institutional reforms for the purposes of decreasing corruption (and) increasing accountability.”
  • June 18 – The Department of Defense announces “plans to provide $250 million to Ukraine in security cooperation funds for additional training, equipment, and advisory efforts to build the capacity of Ukraine’s armed forces.”
  • Mid-July – Trump tells acting Chief of Staff and OMB Director Mick Mulvaney, Secretary of State Mike Pompeo, and Vice President Mike Pence to hold up Ukrainian military assistance funding.
  • July 18 – OMB officials inform the Departments of Defense and State that the release of Ukrainian military assistance funding and other related funding would be delayed. Reportedly, “Administration officials were instructed to tell lawmakers that the delays were part of an ‘interagency process’ but to give them no additional information.”
  • July 25 – On a call with Ukrainian President Volodymyr Zelensky, Trump pressures him to investigate a political rival, former Vice President Joe Biden.
  • Late August – Pentagon officials “concluded the aid should continue.” A senior DOD official stated that DOD “supports” the aid package and noted that this support had been communicated to the White House.
  • September 1 – Trump reportedly “used Pence to tell Zelensky that U.S. aid was still being withheld while demanding more aggressive action on corruption.”
  • September 9 – the Intelligence Community Inspector General alerts lawmakers of the existence of a whistleblower complaint that includes allegations that the Ukrainian military assistance may have been withheld to pressure Zelensky into investigating Biden.
  • September 10 – Chairman of the House Intelligence Committee Representative Adam Schiff sends a letter demanding that the Acting Director of National Intelligence release the complaint.
  • September 11 – Trump tells Acting OMB Director Russ Vought to release the Ukraine military assistance funding.
  • September 23 – Trump claims that he withheld the funding because of concerns over corruption in Ukraine.
  • September 24 – The next day, Trump claims that he withheld funding “until such time as Europe and other nations contribute to Ukraine because they’re not doing it.”

As the timeline makes clear, the federal government was ready to spend the Ukraine military assistance funding until the moment Trump personally ordered it stopped. The Department of Defense had made the necessary certifications and announcements and was awaiting the last formal step in the process. Then Trump intervened, seemingly without any formal agency process prior to the decision being made. Such wild lurches are not the norm, particularly with respect to defense spending. Reporting stating he had Pence tell the Ukrainians that funding was contingent on them combatting “corruption” indicates that the decision to halt funding was tied to Trump’s interest in Ukraine investigating his political opponent.

This reporting would explain the White House’s extreme caginess in discussing its reasons for delaying the funding. Agencies were told to cite an unspecified “interagency process” and did not appear to have been aware of or understand the actual reason for the action. According to the whistleblower complaint, “Neither OMB nor the NSC staff knew why this instruction [to delay funding] had been issued.” Sen. Jack Reed (D-R.I.), the ranking member on the Senate Armed Services Committee, suggested the same, saying “There’s so far been no indication that [the Department of Defense was] even consulted.”

Congress too was left in the dark. Republican member Chris Stewart noted in early September that “I can’t quite figure out what it is [the White House] is objecting to,” and Democratic Senator Chris Coons said, “I don’t remember ever hearing a clear response about what the hold up was.”

When combined with the fact that Trump gave multiple public explanations for ordering the delay, it shows that the administration believed revealing the actual reason for its actions would have raised serious concerns inside and outside of government.

The legal authority used to delay Ukraine funding creates a paper trail

There is potentially more to discover about this decision to halt the funding. OMB prevented the release of this funding through its apportionment authority, a bureaucratic process that necessarily creates a paper trail.

The purpose of apportionments is “to prevent obligation or expenditure at a rate that would indicate a necessity for a deficiency or supplemental appropriation.” In other words, OMB uses this authority to ensure that agencies do not spend funding too quickly, such that they run out before the end of the fiscal year.

Most funding is apportioned automatically, but some funding is subject to account-specific apportionments. The apportionment is a formal written document and, as set forth in OMB Circular A-11, these apportionments “are approved by an OMB Deputy Associate Director (or designee) and typically include specific amounts.” It’s important to note that an OMB deputy associate director is a career employee, not a political appointee.

Amounts in apportionments can be identified by time (known as Category A) or by program, project, or activity (Category B). It is not unusual for the apportionment to require in writing that an agency take specific steps before funding is apportioned, such as providing a spend plan for a particular program. Generally, however, these determinations are made by career staff at OMB—it is highly unusual for such a request to come from a high-ranking political official.

Thus, congressional investigators can determine a significant amount of information by examining the apportionment, including when the funding was halted, what explanation was provided for the delay, and who at OMB approved of the action.

Abusing apportionment authority in this matter would likely raise serious concerns for career government staff

In addition to the formal paper trail created by an apportionment, this misuse of the apportionment authority may have created an informal paper trail as well.

OMB’s apportionment authority is not a way to implement policy. As the Government Accountability Office (GAO) notes, “The apportionment process cannot alter or otherwise affect the operation of statutory requirements concerning the availability or use of appropriated funds.”

The limits of apportionment authority are made even more clear by section 31 U.S.C. 1512(c), which sets forth the conditions under which an apportionment can be used to create a “reserve” such that the entirety of funding is not spent: such reserves can only be created “(A) to provide for contingencies; (B) to achieve savings made possible by or through changes in requirements or greater efficiency of operations; or (C) as specifically provided by law.”

Congress specifically narrowed this authority when it passed the Impoundment Control Act (ICA) of 1974, a response to President Richard Nixon’s refusal to spend billions of dollars as required by Congress. GAO explains that:

The Impoundment Control Act of 1974 amended section 1512(c) by eliminating the “other developments” clause and by prohibiting the establishment of appropriation reserves except as provided under the Antideficiency Act for contingencies or savings, or as provided in other specific statutory authority. The intent was to preclude reliance on section 1512(c) as authority for “policy impoundments.”

Thus, apportionments cannot be used to achieve policy goals in contravention of statutory requirements to expend funds. Agencies are well aware of these limitations, and any attempt to utilize apportionment authority to do so would raise red flags.

Similarly, there may have been concerns among career staff that holding up the funding could run afoul of the ICA itself. The Act limits the authority of the executive branch to defer spending, which it defines as

“(A)withholding or delaying the obligation or expenditure of budget authority (whether by establishing reserves or otherwise) provided for projects or activities; or (B) any other type of Executive action or inaction which effectively precludes the obligation or expenditure of budget authority.”

Just as with the standard for establishing reserves through apportionments, the ICA makes clear that

“deferrals shall be permissible only—(1) to provide for contingencies; (2) to achieve savings made possible by or through changes in requirements or greater efficiency of operations; or (3) as specifically provided by law. No office or employee of the United States may defer any budget authority for any other purpose.”

Even under the administration’s stated rationale, it is unclear how that would justify deferring funds so they were not spent before the end of the fiscal year, when they would lapse.

In fact, reporting suggests that such legal concerns were raised. The Washington Post reported that, “There was concern within the administration that if they did not spend the money, they would run afoul of the law.” The question is who had such concerns and whether they ever memorialized them.

There is added reason to think concerns may have been memorialized in writing given the risk for agency personnel involved in this matter. On the one hand, they may have been concerned about violating the ICA and failing to follow Congress’ direction regarding the use of this funding. On the other, government employees are prohibited from spending beyond what is authorized in an apportionment, and a violation of this provision can result in administrative or even criminal penalties. Caught between a rock and a hard place, government officials may have sought to document what occurred to lessen their own risk.

Next steps for congressional investigators

So, what should congressional investigators be looking for? First, they should be trying to determine exactly how the apportionment process played out at OMB. Was normal procedure followed, in which a career official signed off on the apportionment? Or was that process circumvented?

A recent congressional letter from the chairs of the House Committee on Budget and the House Committee on Appropriations suggests that the associate director for national security programs, the political appointee who oversees defense programs at OMB, was the one who made the final determination. If that is the case, to what extent was this political appointee involved and why? How involved was the acting director of OMB? And how involved was the general counsel’s office at OMB, which would normally be consulted on such an unusual and legally questionable use of apportionment authority? Were any of them aware of the connection between the decision and Trump’s ask of the Ukrainian president?

Second, congressional investigators should look to see whether there were further inconsistencies in the administration’s supposed justification for the delay. Did they ever conduct an interagency process? If so, who was involved and how many meetings occurred before the funding was suspended and then released? If Trump’s concerns about spending the money were truly related to corruption, did they ever discuss the Department of Defense’s prior certification that “the Government of Ukraine has taken substantial actions to make defense institutional reforms for the purposes of decreasing corruption (and) increasing accountability”?

Finally, careful attention should be paid to the Department of Defense’s views on this matter. The department has a robust budget shop with significant experience. Did they raise any concerns about the legality or propriety of OMB’s actions? If so, how did they raise such concerns and how were those concerns addressed, if at all?

None of the information discussed above would be a smoking gun equivalent to Trump’s call with Zelensky, the notes of which the White House released, or evidence that Trump directed Pence to communicate to Ukraine that the aid was dependent on them taking action on “corruption.” However, it would shine further light on the administration’s actions. The pursuit of answers could be quite fruitful given the potential for internal executive branch dissension over this matter.

Image: Secretary of State Mike Pompeo and acting White House Chief of Staff Mick Mulvaney in the Oval Office of the White House July 26, 2019. Photo by Alex Wong/Getty Images

 

About the Author(s)

Sam Berger

Senior Adviser at the Center for American Progress, Former Senior Policy Adviser at the White House Domestic Policy Council, Former Senior Counselor and Policy Adviser at the Office of Management and Budget. Follow him on Twitter (@SamBerger_DC)