Mark Paoletta, the general counsel at the Office of Management and Budget (OMB), needs to recuse himself from ongoing inquiries into the Trump administration’s withholding of aid to Ukraine, as well as resign from his role as OMB’s designated agency ethics official, according to U.S. Senator Chris Van Hollen (D-Md.)
“Recent revelations show a lack of candor in your response to the Government Accountability Office (GAO) inquiry into the withholding of funds for the Department of Defense (DOD) Ukraine Security Assistance Initiative,” Van Hollen writes in a letter he sent to Paoletta Thursday.
As the GAO was conducting its own inquiry into whether the Trump administration’s withholding of Ukraine funding violated the Impoundment Control Act, Paoletta told the congressional investigative body in December, “In fact, at no point during the pause in obligations did DOD OGC [Office of General Counsel] indicate to OMB that, as a matter of law, the apportionments would prevent DOD from being able to obligate the funds before the end of the fiscal year.”
But reporting by Just Security revealed how misleading this statement was. Following an initial tranche of unredacted emails obtained by Just Security, a second batch showed that the Pentagon’s comptroller’s office, as well as DOD’s Office of General Counsel, raised concerns with OMB repeatedly. The emails were originally released to the public through FOIA litigation, but the Trump administration heavily redacted them, including the most embarrassing and incriminating passages. According to the Washington Post, Paoletta reviewed the redactions.
Rather than heed the Pentagon’s concerns about the legality of the funding hold, Paoletta and other officials at OMB continued to implement it at President Donald Trump’s direction.
Van Hollen cites Just Security’s reporting in his letter.
Recent reporting by Just Security reveals that this statement, at best, was highly misleading. The DOD Office of General Counsel emailed you personally to raise concerns about the hold jeopardizing the ability of DOD to obligate Ukraine Security Assistance Initiative funds before they expired. This message stated that its purpose was to “underscore” the discussions between OMB official Michael Duffey and DOD official Elaine McCusker, who repeatedly raised concerns about the hold preventing timely obligation of the Ukraine aid.
Furthermore, you appear to have willfully disregarded DOD warnings about this. In a different email revealed by Just Security, Elaine McCusker stated, “OMB lawyers continue to consistently mischaracterize the process — and the information we have provided. They keep repeating that this pause will not impact DOD’s ability to execute on time.”
In the end, the Pentagon was right: The Ukraine funding hold violated the Impoundment Control Act, a conclusion also reached by the GAO in its January report. However, following the Senate impeachment trial, the White House withdrew the nomination of McCusker to permanently fill the job of Pentagon comptroller. She served as acting comptroller during these exchanges with OMB.
“This administration needs people who are committed to implementing the president’s agenda, specifically on foreign policy, and not trying to thwart it,” a White House official told The New York Post, explaining the reason for pulling McCusker’s nomination.
There is no evidence that McCusker ever tried to thwart Trump’s foreign policy agenda. Instead, she raised legitimate concerns about the executive branch’s legal authority to withhold congressionally appropriated funding.
As Van Hollen says in his letter to Paoletta, the withdrawal of McCusker’s nomination, “raises further concerns about sidelining those who provide facts that Trump Administration officials such as yourself do not want to hear.”
Van Hollen notes that OMB and DOD continue to withhold documents from GAO, blocking it from conducting a complete investigation.
As the OMB official who responded to GAO’s inquiry, you are personally responsible for the failure to provide a fulsome and honest response. You are also personally responsible for providing the faulty legal justification for OMB to implement President Trump’s illegal hold on Ukraine aid – a justification that GAO stated “has no basis in law.” Therefore, you have a conflict of interest in overseeing OMB’s response to inquiries that may call your previous actions into further question.
For these reasons, Van Hollen is asking Paoletta not just to recuse himself from any ongoing inquiries into the Ukraine matter, but to step down as OMB’s designated ethics official. He notes that “87 percent of Designated Agency Ethics Officials are apolitical career civil servants – not political appointees such as yourself – due to the need to impartiality in this role.”
As professor Kathleen Clark wrote for Just Security, “Government lawyers, like corporate lawyers, owe a duty of loyalty to the organization — the city, state or federal government they serve — not to its mayor, governor or president.”
Image: Sen. Chris Van Hollen (D-Md.) listens during a Financial Services and General Government Subcommittee hearing at the U.S. Capitol on May 15, 2019 in Washington, DC. Photo by Anna Moneymaker/Getty Images