Unredacted versions of White House memos, obtained by the website Just Security, confirm that the decision to withhold U.S. military assistance from Ukraine came straight from Donald Trump. Those memos show rapidly escalating concern from officials at both the White House and the Pentagon who saw that Trump’s actions in delaying the release of the aide were both illegal and likely to generate a political firestorm. And they demonstrate that by the time Trump called the Ukrainian president, officials at the Office of Management and Budget were actively engaged in disguising the truth and conspiring to deceive both Congress and the public.
While Republicans continue to object that the impeachment of Donald Trump was only based on his misusing his office to extort political favors from an ally and doesn’t cover any “crimes,” emails that emerged over the holidays showed that not only was delaying the military assistance to Ukraine a criminal act, but also that almost everyone in the White House knew it. The emails, produced just before Christmas in response to Freedom of Information Act requests from the Center for Public Integrity, showed a mad scramble in the White House to defend something that was “flatly illegal.” That effort eventually generated a truly extraordinary collaboration among lawyers at the White House, the OMB, and the Department of Justice to develop a theory that Trump really was above the law, and that, as The New York Times wrote, Trump’s “role as commander in chief would simply allow him to override Congress on the issue.” New evidence shows that it also generated an effort inside the OMB to redefine the term “apportionment” to include shifting funds to an unknown date in the future … otherwise known as a delay.
The clear knowledge that Trump’s 84-day delay was strictly against the law explains why, back in mid-December, the White House issued a memo blaming the OMB for the delay. That memo claimed that the whole delay in sending assistance was a “programmatic” one generated not by Trump, but by OMB leaders who took it on themselves to conduct a review of the assistance. That was the claim. But the truth revealed by the emails is that the OMB officials weren’t the source of the delays. The order came straight from Trump, and the OMB was left frantically searching for an excuse for something that they knew was a violation of the Impoundment Control Act.
Testimony from Defense Department official Laura Cooper confirmed that the DOD completed the legislatively required review of the Ukraine assistance on May 23. That review confirmed that Ukraine had met its obligations in both fighting corruption and upholding democracy. The DOD’s go-ahead on the assistance was then sent to Congress and to the White House. On June 18, the Pentagon issued a public announcement that it would release $250 million of the funds. But just one day later, a senior adviser to White House chief of staff Mick Mulvaney notified the acting head of the OMB to hold the assistance. Right from the start, they made clear that they were acting at the direction of Trump.
The conflict between the information in the emails and the information still being released from the White House shows that Trump engaged in a cover-up of actions leading to his impeachment and that a number of OMB officials knowingly engaged in a conspiracy to hide, mislabel, and cover up an illegal action.
The legal memo released by the White House on Dec. 11 indicated that the OMB had placed a “footnote” on the funds approved by the DOD, and that “The action of adding the footnote to the apportionment made approximately $214 million in unobligated USAI funds legally unavailable for obligation.” That memo then also takes a superbly nonsensical swing at claiming that what the OMB was doing in delaying assistance to Ukraine wasn’t really a delay at all; instead, it was just changing the “apportionment” of the funds by holding them up so that they were received later, which is somehow not a delay, because “OMB's exercise of its statutory authority ... to apportion funds to ensure that they are spent in accordance with statutory directives and last for the period of availability is different than a ‘deferral’ under the Impoundment Control Act of 1974 (ICA),which requires that a President not ‘defer funds without prior notice to Congress.’”
That would be a terrific theory, except that it’s nonsense on every front. The apportionment authority of the OMB is restricted to how aid is paid out over the stipulated period. It does not have the authority to define the start of that period. More importantly, the theory required that the delay originate from the OMB. It didn’t. And required that someone at the OMB invoke concerns about apportionment when initiating the delay. They didn’t. And suggested that the action wasn’t seen by everyone involved as a delay. It was.
In fact, the people at the OMB immediately recognized that what was going on was a violation of the Impoundment Control Act. It wasn’t until after Donald Trump’s call to Ukrainian President Volodymyr Zelensky on July 25 that OMB official Michael Duffey planted the seeds for the apportionment excuse in a memo to senior defense officials. In that memo, Duffey instructed the DOD officials to “hold off on any additional DOD obligations of these funds” and informed the Pentagon that they would “formalize the pause with an apportionment footnote to be provided later today.”
Five weeks after the hold was actually ordered by Trump, and 90 minutes after the infamously “perfect” call, the OMB finally drafted this nonsensical excuse for delaying the assistance. An excuse that was so obviously laughable that Duffey's next sentence to those Pentagon officials was, “Given the sensitive nature of the request, I appreciate your keeping that information closely held to those who need to know to execute the direction.”
The new emails make clear that officials at the OMB were covering for Trump, and that they knew it. As late as Aug. 30, Duffey sent an email saying that he had “Clear direction from POTUS to continue to hold.” That they are defending that as an “apportionment” issue shows that Duffey and others at the OMB are not just not involved in a cover-up of Trump’s actions, but were aware of and participated in illegal acts. That is a conspiracy against the United States in its purest and least defensible form.
Duffey is one of the four witnesses Chuck Schumer has sought for the Senate impeachment trial. One thing that’s not a secret: Why Mitch McConnell doesn’t want Duffey to testify.
Partial Timeline of UKraine and the OMB
May 23—The Department of Defense notifies Congress that its review of the assistance is complete and that it is ready to move forward.
June 18—DOD makes a public announcement of its intention to release the first $250 million of the assistance.
June 19—Trump instructs that the assistance be withheld. OMB official contacts the DOD and tells it to hold up the assistance. Officials immediately concerned about no defining legal authority and no notification to Congress.
July 25—Trump calls Zelensky. Ninety minutes after the call, Duffey emails Defense officials to warn them not to go forward with assistance, tells them that he will be providing a “footnote” to claim apportionment, and warns them to stay silent. DOD officials note that Ukraine asks about delay on same day.
Aug. 30—Duffey informs Pentagon comptroller that there is “Clear direction from POTUS to continue to hold.”
Oct. 17—Acting White House chief of staff and OMB Director Mick Mulvaney appears at a press conference and, in response to questions about a “quid pro quo” in Ukraine, responds by saying, “We do that all the time. Did he also mention to me the corruption related to the DNC server? Absolutely. No question about it. But that’s it. That’s why we held up the money … I have news for everybody: Get over it. There’s going to be political influence in foreign policy.”
Dec. 11—OMB general counsel Mark Paoletta issues a letter to the General Accountability Office attorney indicating that the hold originated within the OMB and was because of apportionment.
