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When President Donald Trump ordered a halt to aid to Ukraine
last summer, defense officials and diplomats worried first that it would
undermine U.S. national security. Ukraine is, as some of them later testified
before Congress, on the front lines of Russian aggression, and only robust
American support would fend off aggressive Moscow meddling in the West. This
worry eventually helped galvanize congressional support for one of the two
impeachment articles approved by the House of Representatives on Dec. 18.

But there was also a separate, less-noticed facet of the
internal administration uproar set off by Trump’s July 12 order stopping the
flow of $391 million in weapons and security assistance to Ukraine. Some senior
administration officials worried that by defying a law ordering that the funds
be spent within a defined period, Trump was asking the officials involved to take
an action that was not merely unwise but flatly illegal.

The administration so far has declined to release copies of
its internal communications about this vital issue – the legality of what Trump
had ordered. On Friday, in 146 pages of new documents provided to the Center
for Public Integrity under a court order, the Justice Department blacked out –
for the second time – many of the substantive passages reflecting what key
officials at the Pentagon and the Office of Management and Budget said to one
another.

But considerable evidence is still available that those at
key institutions responsible for distributing the Ukraine aid worried the halt
potentially violated a 45-year-old law written to keep presidents from ignoring
the will of Congress, according to public statements and congressional
testimony

That law, known as the Impoundment Control Act, says that once Congress appropriates funds – like the Ukraine assistance – and the president signs the relevant spending bill, the executive branch must spend those funds. A president cannot simply ignore Congress’s direction, no matter how inconvenient or unappealing that instruction might be. If funds are withheld or shifted elsewhere, this cannot be done in secret, and Congress must approve.

But Trump’s decision to
stop the aid was not announced, and no formal notification was ever sent to
Congress. In an email on July 25, for example, as a senior OMB political appointee
named Michael Duffey told the Pentagon’s comptroller about the aid halt, he
said, “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.” Throughout this
period, the reason for the aid halt was rarely discussed, even within the
government. In an email on Sept. 11 – the day the funding halt finally ended –
OMB official Edna T. Falk Curtain told a senior defense official that “I still have no
insight on the rationale for the hold.”

Without a clear justification or any
broader effort to gain congressional support, the officials overseeing
the expenditure of the funds started hunting for legal guidance as soon as the
order to halt the aid was given. When Trump’s political appointees told career
officials not to worry, they still did.

“There was a report,” OMB director Mick Mulvaney told
reporters at a press conference on Oct. 17, “that if we didn’t pay out the
money it would be illegal, it would be unlawful.” He said it was “one of those
things that has a little shred of truth in it, that makes it look a lot worse
than it really is” because what he regarded as the deadline for spending the
money did not fall until the end of September – two and a half months after
Trump’s initial order.

To learn more, Public Integrity in late September petitioned the Office of Management and Budget and the Defense Department for copies of their communications about the aid halt. But the Justice Department so far – in two document releases on Dec. 12 and 20 — has chosen to conceal key passages in those documents. And the federal district court judge overseeing the case, Colleen Kollar-Kotelly, on Dec. 18 set a schedule for reviewing Public Integrity’s appeal that makes a final determination of the request unlikely to occur before March.

According to some of those involved in the funding halt, officials were deeply worried from the outset that a delay even for a few weeks could make it hard to ensure all the money was spent by that Sept. 30 deadline. DOD Comptroller Elaine McCusker, for example, noted what she called “increasing risk of execution” in an email on Sept. 5 to the Pentagon’s top lawyer and policy officials, among others, meaning she was worried the money could not all be spent by the end of the month.

After robust internal discussions, she and other officials
did their best to carry out the policy, temporarily, by ordering a series of
short-term holdups in the funding, while affirming in writing that they still
planned to disburse it soon.

They specifically undertook an unusual maneuver, stopping
the disbursements by adding a rare footnote to spending documents for Pentagon
operations and maintenance efforts, which declared the Ukraine funding in
particular was being held up for a week at a time. Then, over a period of about
seven weeks, they tacked the footnote again and again onto eight such documents,
each time as a temporary measure.

An unnamed lawyer at OMB, not wanting to participate in what
appeared to be an illegal funding policy, decided to quit, as did another OMB
official, according to congressional testimony by Mark Sandy, the office’s deputy
associate director for national security and a 12-year veteran at the agency.
OMB spokespeople have disputed the account, saying the resignations were not
over the policy.

Others at OMB and the Pentagon meanwhile tried to organize a campaign inside the government to lobby Trump to let the assistance program proceed. They wrote memoranda to their bosses, held meetings to plot strategy and tried to persuade some of Trump’s cabinet-level appointees to approach him directly about it. But a discussion with Trump in mid-August by then-National Security Adviser John Bolton failed to persuade Trump to let the aid resume, and there is no record of other high-level officials such as Secretary of Defense Mark Esper or Secretary of State Mike Pompeo confronting Trump about it.

OMB initially blocked
the State Department’s portion of the aid on July 3. That was exactly two weeks
after Trump – according to a June 19 email from Duffey to the Pentagon’s
comptroller – noticed a newspaper article about the Pentagon’s plan to proceed
with the aid. “The President has asked about this funding release, and I have been tasked to
follow-up with someone over there to get more detail,” the email said.

A separate note sent by
a senior aide to the Secretary of Defense to others there said on June 24 that
the White House wanted to know in particular if U.S. firms were providing the
aid, and how much assistance was being provided to Ukraine by U.S. allies. (The
answer was that “dozens of vendors are U.S. companies” and many other countries
were supporting Ukraine, according to a copy.)

Trump’s formal order blocking the Pentagon’s portion of the
aid was nonetheless communicated to OMB by one of his aides on July 12. The
first footnote depicting a temporary funding holdup was signed by Sandy on the
evening of June 25, the same day as Trump’s controversial phone call with
Ukraine’s president, Vlodymyr Zelensky.

During that call, Zelensky said he wanted to continue
military cooperation with America and that “we are almost ready to buy” more
anti-tank missiles. Trump responded that “I would like you to do us a favor
though,” and listed two investigations he wanted Zelensky to order: One was
about Ukraine’s alleged support for Hillary Clinton in the 2016 U.S. presidential
election and the other was about lucrative business ties that former Vice
President Joe Biden’s son, Hunter, established with a company in Ukraine.

There was, Trump’s ambassador to the European Union Gordon
Sondland has testified, what amounted to a “quid pro quo” being offered, in
which Zelensky could get a White House meeting with Trump and a release of the aid
in return for promising the investigations. This was, according to the
testimony of Fiona Hill, Trump’s top former White House adviser on Russia, the
real reason the aid was withheld.

The deferral order signed by Sandy – using language worked out
with the advice of legal counsel at the Pentagon and OMB — stated that the rationale
for the holdup was to “to allow for an interagency process to determine the
best use of such funds.” But no such reexamination of the Ukraine spending plan
was actually under way, according to key officials, other than frantic meetings
aimed at getting the flow of funds started.

 Restrained by a law passed to control Richard Nixon

Many presidents have chafed at having to share their
spending role with Congress, but the rule blocking a presidential withholding
of congressionally approved funds has been upheld by federal courts and is well
known to officials responsible for overseeing the annual flow of $4.4. trillion
out of the federal treasury.

To Laura Cooper, an 18-year veteran of the Defense
Department who is now the deputy assistant secretary for Russia, Ukraine and
Eurasia, the rationale for U.S. assistance was clear-cut: Ukraine, she told a
closed-door House hearing on Oct. 23, is one of two front-line states facing
Russian aggression (the other being the former Soviet republic of Georgia), and
“in order to deter further Russian aggression, we need to be able to shore up
these countries’ abilities to defend themselves. That’s, I think, pure and
simple, the rationale.”

The aid program included the provision of night vision
goggles, military vehicles, counter-battery radars, sniper rifles, and medical
equipment to the Ukrainian military, she said, plus the sale of anti-tank
weapons meant to be used defensively by Ukraine in the event of a new Russian
attempt to seize more of the country’s territory.

The law that states funds must be spent once they are
appropriated was approved in June 1974 and reluctantly signed by President
Richard Nixon four weeks before he resigned in response to allegations that he
had abused his power, obstructed justice and displayed contempt of Congress in
connection with the Watergate scandal – allegations similar to those levelled
against Trump.

Nixon had provoked congressional ire in part by frequently
holding back expenditures that lawmakers had ordered be spent on programs to
protect the environment and other matters – amounting to as much as a fifth of
some accounts, often without any announcement.  So Congress spent two years drafting the
Impoundment Control Act, which allows spending to be withheld for only three
reasons – to provide for “contingencies,” to achieve savings from increased
efficiencies, or as mandated by a particular law. The act  also bars a deliberate holdup of spending
until the end of a fiscal year, according to 2018 decision by auditors at
the U.S. Government Accountability Office. And it said no funding could be
delayed for more than 45 days without Congress’s approval.

The timing of the Ukraine aid holdup – coming just before
the end of the fiscal year on Sept. 30 – opened to door to the funds’ potential
expiration. This made everyone nervous, according to interviews, documents, and
congressional testimony.

In his testimony, Sandy said that after being asked by his superior,
Michael Duffey, a former head of the Wisconsin Republican Party who now heads OMB’s
national security division, on July 18 to issue an order formally delaying the
aid, he immediately raised the Impoundment Control Act and said  OMB would “have to assess [the delay] with
the advice of counsel before proceeding.” He also reached out to senior
officials at the Pentagon and asked them to seek advice from their top legal
counsel, he told House committees in a deposition on Nov. 16.

The first formal order blocking the aid was then held up for a
week while officials scrambled in part to assess its legality. Sandy said he finally
issued a temporary hold on the aid the evening of July 25, but at an
interagency meeting the following day, he and other officials raised the need
to notify Congress – as the Impoundment Act required — and make the decision
public. “We also raised legal questions,” Sandy said. “The comments in the room
at the deputies’ level reflected a sense that there was not an understanding of
how this could legally play out,” Cooper testified on Oct. 23.

Those attending the July 26 meeting from the Defense Department “raised the question of how the president’s
guidance could be implemented, and proffered that perhaps a reprogramming
action would be the way to do this,” Cooper said – meaning that the department,
to comply with the Impoundment Act, would have to tell Congress and get its
approval to spend the funds on something else.

By the time the aid halt came up for renewal on July 31, Duffey had
removed Sandy’s authority and placed himself in charge of signing a series of
additional, temporary orders with the same language – an unusual substitution
of a political appointee for a career employee as the approver of a routine
decision related to OMB’s disbursement of funds.

These orders provoked alarm, Sandy testified, because each
additional delay heightened the risk that the funds would not be spent before
end of the fiscal year, a circumstance that would violate the law. “We
expressed those concerns to Mike Duffey, and, on every occasion, we advised him
to speak to the general counsel,” Sandy said. Cooper likewise said at an
interagency meeting on July 31, that Congress had to be notified, under the
law. But she added, “there was no such notice to my knowledge, or preparation
of such a notice, to my knowledge.”

Some of the defense contractors
involved in providing the aid also became alarmed at the absence of any clear
policy guidance about the halt or its origins. In an email apparently sent on
August 26 to Eric Chewning, the chief of staff to the Secretary of Defense, for
example, L3Harris Technologies’ vice president for government relations
complained that “we’ve
engaged with OMB to understand the issue but have been told there are larger
policy issues involved here. The impact of holding this case and allowing the
funding to expire is extremely serious for us as the communications devices
have been built and are ready to ship.”

Chewning’s reaction to the email was
blacked out by the Justice Department in the documents provided to Public
Integrity. The documents also make clear that Secretary of Defense Mark Esper
was fully briefed by aides about the aid halt ten days earlier. But his
comments about it, as well as what they told him, were blacked out by the administration
in the documents.

A unique,
unannounced pause in funding

The two articles of impeachment approved
by House Democrats assail Trump for “conditioning official United States
Government acts of significant value to Ukraine on its public announcement of
the investigations” into Hunter Biden and the 2016 election “for corrupt
purposes in pursuit of personal political benefit.” In so doing, they said,
“President Trump used the powers of the Presidency in a manner that compromised
the national security of the United States and undermined the integrity of the
United States democratic process.”

They also accused him of improperly
obstructing their inquiry into the aid holdup, partly by holding up the release
of relevant documents from the Defense Department, OMB and other agencies. These
documents would presumably shed further light on how and why the holdup of aid
occurred.

Republicans in Congress, with White House support, have said the
Democrats’ criticisms are unjustified, citing multiple reasons: Ukraine, they
say, did not even know the aid was being withheld until it was reported
publicly by Politico about five weeks after the holdup began – making the delay
virtually irrelevant to any actions by Ukraine’s government. Trump was only
concerned, they say, about limiting corruption in Ukraine.

They also have said that the pause wasn’t extraordinary: “It is
not unusual for U.S. foreign assistance to become delayed,” said a House
Republican staff report released on Dec. 2. The provision of aid to Lebanon was
delayed in the fall of this year, for example, after the president there
resigned, their report noted. Aid to Afghanistan was delayed in September due
to corruption concerns. During the summer, aid to Central America was
reprogrammed to compel governments there to curtail the flow of their migrants
to the United States. And in 2017, aid to Egypt was frozen over human rights
concerns.

But all the aid interruptions cited by the Republicans were
publicly announced and reported to Congress, as the Impoundment Act requires.
The holdup in the Ukraine aid, in contrast, was kept quiet. When Sandy was
asked during his testimony if he had ever previously issued orders like those
used to stop the flow of aid to Ukraine, he replied, “I don’t recall an example
just like this.” It was, he emphasized, a unique event.

Trump, moreover, didn’t raise the issue of Ukraine corruption with
Zelensky in two phone calls, one on the day of Zelensky’s election, with the
second on July 25 – despite having been urged to do so in advance by his own
aides. And the Pentagon had no overarching concerns about the magnitude of
corruption or the path on which Zelensky had put the country, according to
Cooper’s testimony. A top Pentagon official, policy chief John Rood, had
previously certified in a May 23 letter to Congress that Ukraine “has
taken substantial actions … for the purposes of decreasing corruption [and]
increasing accountability.” He said, “There remain areas that require
significant attention,” but stated that Ukraine has met all conditions for the
remaining U.S. aid to be provided.

Cooper said that at the interagency meeting of so-called
“deputies” or high-ranking officials from around the government on July 26, “all
I had to go on was that the President is concerned about corruption in Ukraine
and somehow therefore we were holding security assistance. So the conversation
at the deputies, a lot of the members were saying, you know, corruption, yes,
it’s been an issue. Yes, it’s a concern. Yes, there’s a long way to go, but we’re
on the right path, you know, we can move forward. So it felt Iike a conversation
where people were trying to explain how corruption shouldn’t be a concern.”

After the Government Accountability Office announced it was
auditing the potential mishandling of the funds, OMB general counsel Mark
Paoletta, a former legal adviser to Vice President Mike Pence, asserted in a
Dec. 9 legal opinion that the holdup was not a policy “deferral,” which would
have been illegal, but merely a “programmatic delay” to examine if the funds
were going to be used effectively. “It was OMB’s understanding that a brief
period was needed, prior to the funds expiring, to engage in a policy process
regarding those funds,” Paoletta said without further explanation.

But Cooper, in her testimony, said that while the issue of
continuing corruption in Ukraine was mentioned at several interagency meetings
during the funding pause, the conversation didn’t amount to a new review of the
topic. And one of the largely-redacted Defense Department documents provided on
Dec. 12 to Public Integrity at the insistence of a federal judge hints at a
sharp disagreement about the propriety of the aid holdup between one of her
colleagues, Pentagon comptroller Elaine McCusker, and Duffey at OMB.  “Seems like we continue to talk [email]
past each other a bit,” McCusker said in an email on Aug. 20.

Sam Berger, a lawyer who was a senior counselor and policy adviser
at OMB from 2010 to 2015 before becoming a White House adviser to President
Obama, says that in
his view, Trump’s holdup of the funding “constituted an illegal impoundment”
and that none of the administration’s claims about it “pass legal muster.” A
former assistant attorney general and special counsel to the Defense
Department, Jack Goldsmith, said in an Oct. 16 article in a blog called Lawfare
that he, too, believes that despite some uncertainty, the 55-day long aid
holdup appeared to be in “contravention” of the Impoundment Act, which limits
any deferral to 45 days and otherwise requires congressional approval. No such
approval was ever granted.

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