Is this the smoking gun Democrats have been missing in Ukraine-Gate? A newly published e-mail shows that a senior OMB official issued a directive two hours after Donald Trump spoke to Volodymyr Zelensky to put a hold on congressionally authorized lethal aid to Ukraine. The timing of this e-mail suggests that Trump saw his mention of the Bidens and Crowdstrike as quids pro quo, but that theory still has a couple of holes in it.
However, it’s not nothing either:
An official from the White House budget office directed the Defense Department to “hold off” on sending military aid to Ukraine less than two hours after President Trump’s controversial phone call with Ukrainian President Volodymyr Zelensky, according to internal emails.
Michael Duffey, a senior budget official, told Pentagon officials that Trump had become personally interested in the Ukraine aid and had ordered the hold, according to the heavily redacted emails, obtained by the Center for Public Integrity on Friday in response to a Freedom of Information Act request. He also asked the Pentagon not to discuss the hold widely.
“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,” Duffey wrote in a July 25 email to Pentagon Comptroller Elaine McCusker and others.
As the Center for Public Integrity notes in its initial report on Saturday about the e-mail, it’s more than just the timing at issue. Congress had appropriated the money in its budget, signed by the president. A refusal to transmit the funds could have been a violation of the Impoundment Control Act of 1974:
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.
This is a nuance which I have also noted in the past. Most foreign-policy decisions rest in the executive, which means Congress has no real oversight role into negotiations, invitations, and the like. However, when Congress earmarks money for specific aid in a budget signed into law, that’s a matter over which they have a substantial constitutional interest, even without the Impoundment Control Act. One could state that the ICA merely codifies the constitutional interest in Congress’ ability to protect its power of the purse, in an agreement that was in 1974 reached with the executive branch and which governs the issue to this day.
Under the ICA, Trump had to give that aid to Ukraine at some point, presumably within the same fiscal year. Unless he sought Congress’ approval to rescind that earmarked aid, a failure to hand over the aid would violate the ICA. Had Trump never given Ukraine that aid, and especially if Trump had repurposed the funds for something Congress never authorized, then further action by Congress would have been both necessary and proper.
However, nothing in the ICA states that the administration has to execute such payments with alacrity and without any oversight of its own. In this case, the Trump administration did hand over the aid, and it did so without getting anything else in return for it, which makes the ICA issue an academic — if certainly interesting — argument. The release of the aid in early September mooted the issue, legally if not politically. Also, the text of the ICA itself included the remedy for violations — not impeachment, but rather a civil action by the Comptroller General to execute the approved spending:
If, under this chapter, budget authority is required to be made available for obligation and such budget authority is not made available for obligation, the Comptroller General is hereby expressly empowered, through attorneys of his own selection, to bring a civil action in the United States District Court for the District of Columbia to require such budget authority to be made available for obligation, and such court is hereby expressly empowered to enter in such civil action, against any department, agency, officer, or employee of the United States, any decree, judgment, or order which may be necessary or appropriate to make such budget authority available for obligation. No civil action shall be brought by the Comptroller General under this section until the expiration of 25 calendar days of continuous session of the Congress following the date on which an explanatory statement by the Comptroller General of the circumstances giving rise to the action contemplated has been filed with the Speaker of the House of Representatives and the President of the Senate.
Certainly, the House could consider this an impeachable offense, under its plenary authority to decide what’s impeachable and what isn’t. It’s still worth noting that the Congress that passed this law in 1974 and the president that signed it saw ICA violations as a civil matter for the courts to settle, not as an impeachable and removable act.
What about the quid pro quo argument, however? The proximity to the call strongly suggests that Trump was looking for a transactional result from Zelensky, but that doesn’t make a lot of sense when looking at the larger context. First, Zelensky never refused to help Trump on those issues in the supposedly “perfecto” call; in fact, Zelensky sounded vaguely positive to Trump’s somewhat less vague requests. Trump didn’t even hint at holding back aid during the call, which makes this a QPQ conclusion less than compelling. Besides, as the Washington Post and CPI note from the record, the hold on aid had apparently preceded the call:
In one of the emails, Duffey indicated Trump began asking about the aid Congress had appropriated for Ukraine after seeing a June 19 article in the Washington Examiner with the headline “Pentagon to send $250M in weapons to Ukraine.”
The haphazard process continued throughout the summer, the emails show, including on the same day that Trump spoke with Zelensky and requested a “favor” after the Ukrainian president said he was ready to purchase anti-tank missiles from the United States. That phone call, which took place at about 9 a.m. on July 25, was followed by Duffey’s email directing the hold at 11:04 a.m. Some administration officials testified that they had learned of the hold, which blocked money from being appropriated by the State Department and the Defense Department, in early July.
That would tend to underscore Trump’s general suspicion about Ukraine being the issue rather than a quid pro quo. Had Trump really wanted a quid pro quo at that point, he wouldn’t have left the hold on the aid a mystery. No one, least of all the Ukrainians, appeared to know why the hold had been placed — and Ukraine didn’t even know the hold existed until at least a month later.
In the end, this leaves us right where we ended after the House hearings. The e-mail looks more sensational than substantial, and the quid pro quo is still a hypothesis in search of evidence.