Trump’s Hold on Ukrainian Military Aid was Illegal

As the House impeachment inquiry continues to uncover substantial evidence of Trump’s abuses of power, one thing has become clear: President Donald Trump illegally withheld military aid to Ukraine.

No one from the Trump administration has been able to point to any legal authority that allowed Trump to withhold the funding for the length of time and in the manner that he did. Even Trump’s defenders in the House, who have speciously claimed that the president had reasons for holding the aid other than pressuring Ukraine to investigate his political rivals, have not provided justifications that are legal. Instead, they’ve offered justifications that are more politically palatable. Moreover, Trump’s own White House Office of Management and Budget (OMB) was told that his actions were illegal, and appears to have tacitly acknowledged that fact, but continued to hold up the funding anyway.

The illegality of the funding hold is important to the impeachment inquiry, as it adds further weight to the case that Trump abused his authority as president to pressure Ukraine to interfere in the 2020 U.S. election.

It shows that the Trump White House created an irregular budgetary process to match its irregular foreign policy process with respect to Ukraine. The illegality of the hold also undermines the claim that Trump was concerned about Ukrainian corruption, since he was willing to break U.S. law to keep the money frozen. Finally, it shows that it was not policy or legal concerns that led to the money being released, but rather the fear of getting caught.

While this violation of budgetary laws is not the most significant attack on the rule of law related to Trump’s Ukrainian extortion campaign, it is an important part of the broader case for impeachment.

Relevant Budgetary Laws

There are two relevant budgetary statutes that are implicated by Trump withholding military aid for Ukraine: apportionment authority and the Impoundment Control Act (ICA). Both laws are intended to restrict the executive branch from undermining Congress’s “power of the purse” under the Constitution.

The Ukraine funding was held up through use of OMB’s apportionment authority. Apportionments are legally binding documents utilized by OMB to ensure agencies spend money effectively and efficiently during the fiscal year. Agencies are prohibited from spending in excess of an apportionment. Under longstanding guidance, apportionments are approved by OMB career officials.

Apportionments cannot change policy decisions reflected in statute; the Government Accountability Office has made clear that “the apportionment process cannot alter or otherwise affect the operation of statutory requirements concerning the availability or use of appropriated funds.”

In addition, any delay of funding potentially implicates the Impoundment Control Act (ICA). Passed in the wake of President Richard Nixon’s refusal to spend lawfully appropriated funding, the ICA restricts the circumstances in which a president can defer spending funds. The ICA’s definition of a “deferral” is broad:

“deferral of budget authority” includes—

(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, including authority to obligate by contract in advance of appropriations as specifically authorized by law;

Under the ICA, a deferral is only allowable in a few limited circumstances:

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 officer or employee of the United States may defer any budget authority for any other purpose.

Trump’s Funding Hold was Illegal

OMB’s hold on military aid was an abuse of its apportionment authority and constituted an illegal deferral. While the Trump administration was well aware of the legal issues with its actions, it ignored them and held up the funding anyway.

During the House Intelligence Committee hearings, a number of witnesses testified that their understanding was that the military aid was withheld in order to pressure Ukraine to open investigations into Trump’s political rivals, including former Vice President Joe Biden. The witnesses who testified to this include Ambassador Bill Taylor, National Security Council (NSC) official Tim Morrison, Ambassador to the European Union Gordon Sondland, State Department official David Holmes, Department of Defense (DoD) official Laura Cooper, and NSC official Lt. Col. Alex Vindman (see the Appendix below for specific statements made by each of these witnesses).

White House Chief of Staff Mick Mulvaney confirmed the reason for the hold when he publicly stated that the money was withheld in part to force an investigation into Trump’s political rivals:

Mulvaney: Did he also mention to me in pass [sic] the corruption related to the DNC server?  Absolutely.  No question about that.  But that’s it.  And that’s why we held up the money.

Now, there was a report —

Q : So the demand for an investigation into the Democrats was part of the reason that he ordered to withhold funding to Ukraine?

Mulvaney:  The look back to what happened in 2016 —

Q : The investigation into Democrats.

Mulvaney: — certainly was part of the thing that he was worried about in corruption with that nation.  And that is absolutely appropriate.

Q : And withholding the funding?

Mulvaney:  Yeah.  Which ultimately, then, flowed.

This is a clear abuse of power. The apportionment authority is supposed to be used to ensure the effective expenditure of congressionally appropriated funding, not to extort a foreign power to advance the personal interests of the president..

This withholding was also an illegal deferral, because it prevented the Defense Department from spending the funding before it expired. By the middle of September, when Trump finally released the aid, it was too late and the Pentagon was unable to spend all the funding by the end of the fiscal year.

DoD acknowledged this fact when it “alerted Congress that it would not be able to spend all of the money by September 30.” Congress was forced to reappropriate the remaining funding so it could be spent the next year. While this allowed the Pentagon to spend all of the money, it did not eliminate the legal violation that occurred when the Trump administration illegally deferred the spending in the first place.

Even defenders of Trump’s actions have not provided a legally viable reason for withholding the funding. They have argued that Trump withheld the funding because of broad concerns about corruption in Ukraine or that the EU was not providing sufficient support to Ukraine. Neither of these claims holds up under examination. But even if they were the actual reasons for the hold, Trump’s actions would still be illegal.

Deferrals are only allowed to (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. Neither generalized concerns about corruption in Ukraine nor concerns about E.U. support for Ukraine provide legal justification for a deferral of the funding.

OMB Was Told it was Breaking the Law

Not only did the White House illegally withhold the funding, but it was made aware of this fact and appears to have tacitly acknowledged it.

Cooper, who is responsible for Ukraine policy at the Pentagon, testified that when the relevant agencies were first made aware of the hold, “immediately deputies began to raise concerns about how this could be done in a legal fashion.” At a July 31 meeting that included staff from the White House, Cooper explained that the only legal means for withholding the funding was through a rescission notice or reprogramming action, both of which would require congressional notification. The White House never took either action.

Worse yet, Cooper had a specific conversation with a political appointee at OMB about this very issue. The aid was not held up through single apportionment, but rather a series of apportionments that effectuated short-term funding delays. The first such apportionment was signed by the Deputy Associate Director for National Security Programs, Mark Sandy, a career official who is responsible for approving apportionments related to Defense Department funding under long-standing OMB procedure. He gave a closed-door deposition earlier this month.

But after the first apportionment was signed by Sandy, OMB took an unprecedented step and abruptly changed its procedures so that a political appointee, Mike Duffey, would sign the apportionments going forward. It was Duffey who asked to speak with Cooper in early August and she shared with him the same legal issues that she had raised at the July 31 interagency meeting. Yet, rather than take any of the steps Cooper outlined to legally withhold the funding, Duffey kept signing apportionments to continue the hold.

As the hold persisted into mid and then late August, the Defense Department did not believe it would be able to spend all the funding before the fiscal year ended on Sept. 30, meaning that holding the funding at that point had become illegal.

OMB effectively acknowledged this fact. The first apportionment signed by Sandy in July noted: “Based on OMB’s communication with DOD on July 25, OMB understands from the Department that this brief pause in obligations will not preclude DOD’s timely execution of the final policy determination.” For budgetary purposes, that means the funding could still be expended in the fiscal year, and thus did not implicate the ICA.

However, in a subsequent apportionment in late August, this one signed by Duffey, the Trump political appointee, Cooper testified that the sentence was removed. Cooper explained that: “My understanding is it changed because at that point, OMB recognized that there was a risk in not being able to obligate the funding. Prior to that point, OMB never formally acknowledged that they thought there was a risk.”

Despite being aware that the hold on funding was not legal, OMB and the White House continued to freeze the military aid.

Implications for the Impeachment Inquiry

While illegally withholding funding is a serious offense that undermines the separation of powers, it pales next to Trump’s purpose for withholding the money: extorting a foreign country to interfere in a U.S. election. However, the nature of this illegal hold has important implications for the broader impeachment inquiry.

First, it shows that the White House’s strategy of sidelining career officials who might impede corruption was not limited to Ukrainian foreign policy, but also extended to the budgetary process too.

Testimony from the House’s impeachment inquiry showed that career national security and diplomatic officials were sidelined from Ukrainian foreign policy so that political appointees like Sondland and even outside actors like Rudy Giuliani could advance Trump’s true goal: extorting Ukraine to interfere in the 2020 election.

Now it’s clear the White House ran the same playbook with respect to the funding freeze. After the hold was first announced, the consensus among the Department of State, the Department of Defense, and the NSC was unanimous: The funding should be released. But the White House simply ignored those views and continued the hold. Not only that, they took unprecedented steps to cut career officials out of the process, most likely because they knew they would raise objections to what was going on.

The illegal nature of the hold also undermines a core Trump defense that he was only concerned about Ukrainian corruption. While there is plenty of information to show how ludicrous this claim is, the illegal nature of the hold makes it all the more stark. Not only was the hold illegal, the White House knew that fact at the time. This means the argument has to be that Trump was so concerned about corruption in Ukraine that he broke the law here in the United States. It makes no sense.

Finally, the illegal nature of the hold challenges the notion that the aid was released because Trump made a policy determination after examining the evidence. The time to make a policy call was when all of the funding could still be spent during the fiscal year – which DoD originally told the White House was in early to mid August.

The interagency process was completed prior to that timeframe and it determined the funding should be released. Yet Trump blew through that legal deadline without evidencing any concern about doing so. And, as Cooper testified, “there was no policy review [in August] that I participated in or knew of.”

Neither the conclusion of the interagency policy process nor the legal deadline was sufficient to cause Trump to act. However, the day after the House demanded the whistleblower complaint, suddenly the administration released the funding. As Cooper noted, the release of the funding “really came quite out of the blue.” The larger context makes clear why: The concern was not about spending the funding in a timely and legal manner, the concern was about getting caught.

Appendix

A number of witnesses in the impeachment inquiry made statements to the effect that they understood the delay in funding to be tied to Trump’s demand for investigations.

Ambassador Bill Taylor testified that, based on conversations with other Trump officials, “That was my clear understanding, security assistance money would not come until [President Zelensky] committed to pursue the investigation [of Biden].”

NSC official Tim Morrison said that he had a conversation with EU Ambassador Gordon Sondland in which Sondland acknowledged telling the Ukrainians that, “what could help them move the aid was if the prosecutor general would go to the mike and announce that he was opening the Burisma investigation.”

Sondland himself admitted making the statement in his own testimony. He also testified that, “I mentioned to Vice President Pence before the meetings with the Ukrainians [in Warsaw] that I had concerns that the delay in aid had become tied to the issue of investigations.” (Pence’s office has denied the claim). At that same meeting, Pence acknowledged to Zelensky that the aid was withheld and then mentioned the need for Ukraine to address “corruption,” which was understood by the Ukrainians to be code for the investigations.

State Department official David Holmes, who worked in the U.S. Embassy in Kyiv, Ukraine, noted that, “my clear impression was that the security assistance hold was likely intended by the President either to express dissatisfaction that the Ukrainians had not yet agreed to the Burisma/Biden investigations or as an effort to increase the pressure on them to do so.”

Department of Defense official Laura Cooper testified that she had a conversation with Kurt Volker, who was Trump’s envoy to Ukraine, in which he indicated that the hold on funding might be lifted if he could get Ukraine to publicly commit to prosecuting anyone involved in interfering in the 2016 elections.

And Alex Vindman, White House National Security Council staffer, noted his belief that “the message [to Ukraine] was clear” – if they wanted the aid, they would need to undertake the required investigations.

 

IMAGE: Acting White House Chief of Staff Mick Mulvaney answers questions during a briefing at the White House October 17, 2019 in Washington, DC. Mulvaney answered a range of questions relating to the issues surrounding the impeachment inquiry of U.S. President Donald Trump, and other issues during the briefing. (Photo by Win McNamee/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)