An exclusive report from Kate Brannen for Just Security blows holes in the notion that the White House was unaware of the potential illegality in withholding $391 million in military assistance for Ukraine.
The Department of Justice redacted large parts of email exchanges between officials at the Pentagon and the Office of Management and Budget (OMB). The emails looked like the Mueller report, full of big chunks of black ink. Still, Just Security gained access to what was behind the black lines.
Last month, the Trump admin released emails between DOD & OMB about Trump's hold on Ukraine aid, but they were heavily redacted.
I viewed what was behind those redactions: warnings from the Pentagon that the hold violated the law.
— Kate Brannen (@K8brannen) January 2, 2020
The report reveals the whole email exchanges between Michael Duffey from the Office of Management and Budget (OMB) and Elaine McCusker from the Pentagon, among other officials. The exchanges show repeated concerns and anxiety that withholding the aid would cause serious legal issues, but President Trump continued to give “clear directions” to stop the money from flowing.
Nobody else seemed to support Trump’s position, but he was determined to do it anyway.
“The documents reveal growing concern from Pentagon officials that the hold would violate the Impoundment Control Act, which requires the executive branch to spend money as appropriated by Congress, and that the necessary steps to avoid this result weren’t being taken. Those steps would include notifying Congress that the funding was being held or shifted elsewhere, a step that was never taken. The emails also show that no rationale was ever given for why the hold was put in place or why it was eventually lifted,” wrote Brannen.
Despite the back-and-forth emails expressing concerns, the money wasn’t released until just after the whistleblower complaint was made public in POLITICO on August 28 in the report entitled, “Trump holds up Ukraine military aid meant to confront Russia.”
Robert Blair, a senior adviser to acting White House Chief of Staff Mick Mulvaney, reportedly emailed him to say:
“‘Expect Congress to become unhinged’ about holding up the money to Ukraine.”
In email after email, the Pentagon comptroller, McCusker, conveyed growing frustration that funds might be impounded if they were not released before the fiscal deadline. She also expressed concerns that withholding funds could go against the Impoundment Control Act. However, her concerns seemed to fall on deaf ears.
The Justice Department also redacted a simple question from the Pentagon comptroller to OMB: Had the hold on Ukraine funds gone through the Pentagon's general counsel? https://t.co/fP1S16tDCU pic.twitter.com/ziin8y8VT6
— Natasha Bertrand (@NatashaBertrand) January 2, 2020
McCusker’s comments were redacted in the emails by the Justice Department, including a full one-page letter citing the law in the Impoundment Control Act.
“Recognizing the importance of decision space, but this situation is really unworkable made particularly difficult because 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.” (emphasis added by Brannen.)
Despite a long list of (redacted) concerns from the comptroller, Michael Duffy from OMB eventually had the gall to blame any screwup on the Defense Department.
“As you know, the President wanted a policy process run to determine the best use of these funds, and he specifically mentioned this to the SecDef the previous week. OMB developed a footnote authorizing DoD to proceed with all processes necessary to obligate funds. If you have not taken these steps, that is contrary to OMB’s direction and was your decision not to proceed. If you are unable to obligate the funds, it will have been DoD’s decision that cause any impoundment of funds.”
Essentially: You guys screwed up. Not us.
“You can’t be serious. I am speechless.”
Finally, after the whistleblower report became known, Trump abruptly released the funding. Duffey emailed McCusker to say he wasn’t’ sure why.
“Not exactly clear but president made the decision to go. Will fill you in when I get details,” he wrote.
Natasha Bertrand from POLITICO shared Senator Schumer’s response.
“The newly-revealed unredacted emails are a devastating blow to Senator McConnell’s push to have a trial without the documents and witnesses we’ve requested. These emails further expose the serious concerns raised by Trump administration officials about the propriety and legality of the president’s decision to cut off aid to Ukraine to benefit himself,” wrote Schumer.
Schumer has released a statement about the new @just_security reporting showing acting Pentagon comptroller Elaine McCusker's warnings to OMB about potential illegality of Ukraine funding hold. But he does not call for McCusker's testimony in the Senate impeachment trial. pic.twitter.com/t7NrqvHt7C
— Natasha Bertrand (@NatashaBertrand) January 2, 2020
Actor and filmmaker Rob Reiner responded to the news:
The drip-drip-drip is starting to become a flood. We now know that DOD repeatedly told the WH that withholding aid to Ukraine was illegal. But when you’re desperate to get re-elected & illegality is your strong suit, no problem. Fair trial exposes the Criminal POTUS.
— Rob Reiner (@robreiner) January 2, 2020
Of course, we have to wonder why the DOJ would redact the repeated concerns expressed by the Pentagon. It doesn’t take a genius to arrive at this guess: Someone didn’t want the public to know how perfectly aware the White House was that what Trump was doing may have violated the law.
Featured image: Red flags via Flickr (public domain)with redaction marks