3. The President froze military assistance to Ukraine against U.S. national security interests and over the objections of career experts.
Since 2014, the United States has maintained a bipartisan policy of delivering hundreds of millions of dollars in security assistance to Ukraine each year. These funds benefit the security of the United States and Europe by ensuring that Ukraine is equipped to defend itself against Russian aggression. In 2019, that bipartisan policy was undermined when President Trump ordered, without justification, a freeze on military assistance to Ukraine.
For fiscal year 2019, Congress and appropriated$ 391 million in security assistance:$ 250 million through the Department of Defense 's( DOD) Ukraine Security Assistance Initiative and$ 141 million through the State Department 's Foreign Military Financing program. In July 2019, however, President Trump ordered the Office of Management and Budget( OMB) to put a hold on all$ 391 million in security assistance to Ukraine.
The hold surprised experts from DOD and the State Department. DOD had already announced its intent to deliver security assistance to Ukraine after certifying that the country had implemented sufficient anti-corruption reforms, and the State Department was in the process of notifying Congress of its intent to deliver foreign military financing to Ukraine. In a series of interagency meetings, every represented agency other than OMB( which is headed by Mick Mulvaney, who is also the President 's Acting Chief of Staff) supported the provision of assistance to Ukraine and objected to President Trump 's hold. Ukraine experts at DOD, the State Department, and the National Security Council( NSC) argued that it was in the national security interest of the United States to continue to support Ukraine. Agency experts also expressed concerns about the legality of President Trump withholding assistance to Ukraine that Congress had already appropriated for this express purpose.
Despite these concerns, OMB devised a plan to implement President Trump 's hold on the assistance. On July 25, 2019, OMB began using a series of in funding documents to notify DOD that the assistance funds were temporarily on hold to allow for interagency review. Throughout August and September, OMB continued to use this method and rationale to maintain the hold, long after the final interagency meeting on Ukraine assistance occurred on July 31. The hold continued despite concerns from DOD that the hold would threaten its ability to fully spend the money before the end of the fiscal year, as legally required.
On July 25-- the same day as President Trump 's call with President Zelensky-- officials at Ukraine 's embassy emailed DOD to ask about the status of the hold. By mid-August, officials at DOD, the State Department, and the NSC received numerous questions from Ukrainian officials about the hold. President Trump 's hold on the Ukraine assistance was publicly reported on August 28, 2019.
Security Assistance to Ukraine is Important to U.S. National Security Interests
The United States has an interest in providing security assistance to Ukraine to support the country in its longstanding battle against Russian aggression and to shore it up as an independent and democratic country that can deter Kremlin influence in both Ukraine and other European countries. In early 2014, in what became known as the Revolution of Dignity, Ukrainian citizens demanded democratic reforms and an end to corruption, thereby forcing the ouster of pro-Kremlin Viktor Yanukovych as Ukraine 's President. Shortly thereafter, Russian military forces and their proxies began an incursion into Ukraine that led to Russia 's illegal annexation of the Crimean Peninsula of Ukraine, as well as the ongoing, Russian-led armed conflict in the Donbass region of eastern Ukraine. Approximately 13,000 people have been killed as a result of the conflict and over 1.4 million people have been displaced.
Former U.S. Ambassador to the United Nations, Nikki Haley, noted that" militants in eastern Ukraine report directly to the Russian military, which arms them, trains them, leads them, and fights alongside them.'' Similarly, then-Secretary of Defense James Mattis, during a visit to Ukraine in 2017, chided Russia, stating that" despite Russia 's denials, we know they are seeking to redraw international borders by force, undermining the sovereign and free nations of Europe.''
In response to Russia 's aggression, the international imposed financial and visa sanctions on Russian individuals and entities, and committed to providing billions of dollars in economic, humanitarian, and security assistance to Ukraine to continue to support its sovereignty and democratic development.
The European Union is the single largest contributor of total foreign assistance to Ukraine, having provided$ 15 billion in grants and loans since 2014. In addition to economic and humanitarian assistance, the United States has contributed a substantial amount of security assistance, mostly lethal and non-lethal military equipment and training, to Ukraine. In fact, the United States is the largest contributor of security assistance to Ukraine. Since 2014, the United States has delivered approximately$ 1.5 billion in security assistance to Ukraine.
Multiple witnesses-- including Ambassador William Taylor, Deputy Assistant Secretary of State George Kent, Lt. Col. Alexander Vindman, and Deputy Assistant Secretary of Defense Laura Cooper-- testified that this security assistance to Ukraine is vital to the national security of the United States and Europe. As Ambassador Taylor noted:
[ R] adar and weapons and sniper rifles, communication, that saves lives. It makes the Ukrainians more effective. It might even shorten the war. That 's what our hope is, to show that the Ukrainians can defend themselves and the Russians, in the end, will say" Okay, we 're going to stop.''
State Department Special Advisor for Ukraine, Catherine Croft, further emphasized that Ukrainians currently" face casualties nearly every day in defense of their own territory against Russian aggression.'' Ambassador Taylor testified that American aid is a concrete demonstration of the United States '" commitment to resist aggression and defend freedom.''
Witnesses also testified that it is in the interest of the United States for Russian aggression to be halted in Ukraine. In the 20th century, the United States fought two bloody wars to resist the aggression of a hostile power that tried to change the borders of Europe by force. As Ambassador Taylor put it, Russian aggression in Ukraine" dismissed all the principles that have kept the peace and contributed to prosperity in Europe since World War II.''
Timothy Morrison, former Senior Director for Europe and Russia at the NSC, put the importance of U.S. assistance in stark terms:
Russia is a failing power, but it is still a dangerous one. The United States aids Ukraine and her people so that they can fight Russia over there, and we do n't have to fight Russia here.
Bipartisan Support for Security Assistance to Ukraine
Congressional support for security assistance to Ukraine has been overwhelming and bipartisan. Congress provided$ 391 million in security assistance to Ukraine for fiscal year 2019:$ 250 million through the DOD-administered Ukraine Security Assistance Initiative( USAI) and$ 141 million through the State Department-administered Foreign Military Financing program.
On September 26, 2018, Congress appropriated$ 250 million for the Ukraine Security Assistance Initiative, which is funded through DOD. The funding law made clear that the funding was only" available until September 30, 2019.'' President Trump signed the bill into law on September 28, 2018.
The Ukraine Security Assistance Initiative-- a Congressionally-mandated program codifying portions of the European Reassurance Initiative, which was originally launched by the Obama Administration in 2015-- DOD to provide" security assistance and intelligence support, including training, equipment, and logistics support, supplies and services, to military and other security forces of the Government of Ukraine.'' Recognizing that strengthening Ukraine 's institutions, in addition to its military, is vital to helping it break free of Russia 's influence, Congress imposed conditions upon DOD before it could spend a portion of the security assistance funds. Half of the money was held in reserve until the Secretary of Defense, in coordination with the Secretary of State, certified to Congress that Ukraine had undertaken sufficient anti-corruption reforms, such as in civilian control of the military and increased transparency and accountability.
On February 28, 2019, John C. Rood, Under Secretary of Defense for Policy, notified Congress that DOD intended to deliver the first half($ 125 million) of assistance appropriated in September 2018 to Ukraine, including" more than$ 50 million of assistance to deliver counterartillery radars and defensive lethal assistance.'' Congress cleared the Congressional notification, which enabled DOD to begin obligating( spending) funds.
For Ukraine to qualify to receive the remaining$ 125 million of assistance, Congress required that the Secretary of Defense, in coordination with the Secretary of State, certify that the 70 Government of Ukraine had taken substantial anticorruption reform actions. Ms. Cooper and others at DOD conducted a review to evaluate whether Ukraine had met the required benchmarks. Ms. Cooper explained that the review involved" pulling in all the views of the key experts on Ukraine defense, and coming up with a consensus view,'' which was then run" up the chain in the Defense Department, to ensure we have approval.''
On May 23, 2019, Under Secretary Rood certified to Congress that Ukraine had completed the requisite defense institutional reforms to qualify for the remaining$ 125 million in funds. He wrote:
On behalf of the Secretary of Defense, and in coordination with the Secretary of State, I have certified that the Government of Ukraine has taken substantial actions to make defense institutional reforms for the purposes of decreasing corruption, increasing accountability, and sustaining improvements of combat capability enabled by U.S. assistance.
Congress then cleared the related Congressional notification, which enabled DOD to begin obligating the remaining$ 125 million in funds.
On June 18, 2019, DOD issued a press release announcing its intention to provide$ 250 million in security assistance funds to Ukraine" for additional training, equipment, and advisory efforts to build the capacity of Ukraine 's armed forces.'' DOD announced that the security assistance would provide Ukraine with sniper rifles, rocket-propelled grenade launchers, and counter-artillery radars, command and control, electronic warfare detection and secure communications, military mobility, night vision, and military medical treatment.
On February 15, 2019, Congress also appropriated$ 115 million for Ukraine through the State Department-administered Foreign Military Financing Program( FMF). The Foreign Military Financing Program is administered by the State Department and provides grants or loans to foreign countries to help them purchase military services or equipment manufactured by U.S. companies in the United States. In addition to the$ 115 million appropriated for fiscal year 2019, approximately$ 26 million carried over from fiscal year 2018. Thus, the total amount of foreign military financing available for Ukraine was approximately$ 141 million.
Before a country receives foreign military financing, the State Department must first seek Congressional approval through a notification to Congress. The State Department never sent the required Congressional notification to Congress in the spring or summer of 2019. As described below, OMB blocked the notification.
President Trump Had Questions About Ukraine Security Assistance
The day after DOD issued its June 18 press release announcing$ 250 million in security assistance funds for Ukraine, President Trump started asking OMB questions about the funding for Ukraine. On June 19, Mark Sandy, Deputy Associate Director for National Security Programs at OMB, was copied on an email from his boss, Michael Duffey, Associate Director for National Security Programs at OMB, to Elaine McCusker, Deputy Under Secretary of Defense( Comptroller) that said that" the President had questions about the press report and that he was seeking additional information.'' Notably, the same day, President Trump gave an interview on Fox News where he raised the so-called" Crowdstrike'' conspiracy theory that Ukraine, rather than Russia, had interfered in the 2016 election, a line he would repeat during his July 25 call with the Ukrainian president.
On June 20, in response to the President 's inquiry, Ms. McCusker responded to President Trump 's inquiry by providing Mr. Sandy information on the security assistance program. Mr. Sandy the document with Mr. Duffey, who had follow-up questions about the" financial resources associated with the program, in particular,'' the" history of the appropriations,[ and] any more details about the intent of the program.'' Mr. Sandy said that his staff provided the relevant information to Mr. Duffey, but he did not know whether Mr. Duffey the information with the White House.
Ms. Cooper also recalled receiving an email inquiring about DOD-administered Ukraine security assistance a" few days'' after DOD 's June 18, 2019, press release. The email was from the Secretary of Defense 's Chief of Staff," asking for follow-up on a meeting with the President.'' The email contained three questions:
And the one question was related to U.S. industry. Did U.S-- is U.S. industry providing any of this equipment? The second question that I recall was related to international contributions. It asked, what are other countries doing, something to that effect. And then the third question, I do n't recall-- I mean, with any of these I do n't recall the exact wording, but it was something to the effect of, you know, who gave this money, or who gave this funding?
Like Mr. Sandy, Ms. Cooper believed that the President 's inquiries were spurred by DOD 's June 18 press release. She testified," we did get that series of questions just within a few days after the press release and after that one article that had the headline.'' Ms. Cooper noted that it was" relatively unusual'' to receive questions from the President, and that she and her staff at the DOD responded" as quickly'' as they could. According to Ms. Cooper, DOD officials included in their answers that security assistance funding" has strong bipartisan support,'' but never received a response.
President Trump Froze Military Assistance
Despite the fact that DOD experts demonstrated that the security assistance was crucial for both Ukraine and U.S. national security and had strong bipartisan support in Congress, President Trump ordered OMB to freeze the funds in July. On July 3, the State Department notified DOD and NSC staff that OMB was blocking the State Department from transmitting a Congressional notification for the provision of State Department-administered security assistance to Ukraine( the$ 141 million in foreign military financing). Because the State Department is legally required to transmit such a notification to Congress before spending funds, blocking the Congressional notification effectively barred the State Department from spending the funding. Ms. Williams testified that she saw the news in a draft email that was being prepared as part of the nightly update for the National Security Advisor. She agreed that the hold came" out of the blue'' because it had not been discussed previously by OMB or the NSC. On or about July 12, 2019, President Trump directed that a hold be placed on security assistance funding for Ukraine. That day, Robert Blair, Assistant to the President and Senior Advisor to the Chief of Staff, sent an email to Mr. Duffey at OMB about Ukraine security assistance. Mr. Sandy, who was on personal leave at the time but later received a copy of the email from Mr. Duffey, testified that in the July 12 email, Mr. Blair communicated" that the President is directing a hold on military support funding for Ukraine.'' The email mentioned no concerns about any other country, security assistance package, or aid of any sort.
On or about July 15, Mr. Morrison learned from Deputy National Security Advisor Charles Kupperman" that it was the President 's direction to hold the assistance.'' On or about July 17 or 18, 2019, Mr. Duffey and Mr. Blair again exchanged emails about Ukraine security assistance. Mr. Sandy later received a copy of the emails, which showed that when Mr. Duffey asked Mr. Blair about the reason for the hold, Mr. Blair provided no explanation and instead said," we need to let the hold take place'' and then" revisit'' the issue with the President.
On July 18 or 19, when he returned from two weeks of personal leave, Mr. Sandy learned for the first time that the President had placed a hold on Ukraine security assistance from Mr. Duffey. According to Mr. Sandy, Mr. Duffey was not aware of the reason but" there was certainly a desire to learn more about the rationale'' for the hold.
Agency Experts Repeatedly Objected to the Hold on Security Assistance
Between July 18 and July 31, 2019, the NSC staff convened a series of interagency meetings, at which the hold on security assistance was discussed in varying degrees of detail. Over the course of these meetings, it became evident that:
• the President directed the hold through OMB;
• no justification was provided for the hold;
• with the exception of OMB, all represented agencies supported Ukraine security assistance because it was in the national security interests of the United States; and
• there were concerns about the legality of the hold.
The first interagency meeting was held on July 18 at the Deputy Assistant Secretary level( i.e., a" sub-Policy Coordination Committee''). It was supposed to be a" routine Ukraine policy meeting.'' Ambassador Taylor, Lt. Col. Vindman, Ms. Croft, and Mr. Kent were among the attendees. Witnesses testified that OMB announced at the meeting that President Trump had directed a hold on Ukraine security assistance. Mr. Kent testified that at the meeting, an OMB staff person announced that Acting White House Chief of Staff Mick Mulvaney" at the direction of the President had put a hold on all security assistance to the Ukraine.'' Ambassador Taylor testified that the" directive had come from the President to the Chief of Staff to OMB'' and that when he learned of the hold on military assistance, he" realized that one of the key pillars of our strong support for Ukraine was threatened.''
According to Ms. Croft, when Mr. Kent raised the issue of security assistance, it" blew up the meeting.'' Ambassador Taylor testified that he and others on the call" sat in astonishment'' when they learned about the hold. David Holmes, Political Counselor at the U.S. Embassy in Kyiv, was also on the call. He testified he was" shocked'' and thought the hold was" extremely significant.'' He thought the hold undermined what he had understood to be longstanding U.S. policy in Ukraine.
Ms. Croft testified that" the only reason given was that the order came at the direction of the President.'' Ms. Cooper, who did not participate but received a readout of the meeting, testified that the fact that the hold was announced without explanation was" unusual.'' Mr. Kent testified that"[ t] here was great confusion among the rest of us because we did n't understand why that had happened.'' He explained that"[ s] ince there was unanimity that this[ security assistance to Ukraine] was in our national interest, it just surprised all of us.''
With the exception of OMB, all agencies present at the July 18 meeting advocated for the lifting of the hold.
There was also a lack of clarity as to whether the hold applied only to the State Department-administered Foreign Military Financing to Ukraine or whether it also applied to the DOD-administered Ukraine Security Assistance Initiative funding. Ms. Cooper and her colleagues at the DOD were" concerned'' about the hold. After the meeting, DOD sought further clarification from the NSC and State Department about its impact on the DOD-administered funding. However, there was no" specific guidance for DOD at the time.''
The second interagency meeting to discuss the hold on Ukraine security assistance was held at the Assistant Secretary level( i.e., a" Policy Coordination Committee'') on July 23, 2019.342 The meeting was chaired by Mr. Morrison. Ms. Cooper, who participated via secure video teleconference, testified that" the White House chief of staff ha[ d] conveyed that the President has concerns about Ukraine and Ukraine security assistance.'' Jennifer Williams, Special Advisor to Vice President Pence for Europe and Eurasia, who also attended the meeting on behalf of the Vice President, testified that the" OMB representative conveyed that they had been directed by the Chief of Staff, the White House Chief of Staff, to continue holding it[ the Ukraine security assistance] until further notice.'' Similar to the July 18 meeting, the July 23 meeting did not provide clarity about whether the President 's hold applied to the DODadministered funding or only to the funds administered by the State Department.
Again, no reason was provided for the hold. Mr. Sandy did not attend the July 23 meeting as the representative for OMB, but he received a readout that other agencies expressed concerns about the hold. Specifically, the concerns related to the lack of rationale for the hold, the hold 's implications on U.S. assistance and" overall policy toward Ukraine,'' and" similar legal questions.''
Mr. Morrison also testified that there was a discussion at the July 23 meeting about the legality of the hold, and specifically whether it is" actually legally permissible for the President to not allow for the disbursement of the funding.'' Mr. Morrison recalled that DOD raised concerns about possible violations of the Impoundment Control Act. The Impoundment Control Act gives the President the to delay spending, or not spend, funds only if Congress is notified of those intentions and approves the proposed action( see below for further discussion of the act).
With the exception of OMB, all agencies present at the July 23rd meeting advocated for the lifting of the hold. Ambassador Taylor explained that the State Department" made a strong statement about the importance of this assistance'' and that Ms. Cooper, on behalf of DOD," made a very strong case and continued to make a very strong case for the effectiveness'' of the security assistance. Lt. Col. Vindman, who also attended the meeting, testified that there was agreement that the issue should be elevated to the Agency deputies" as quickly as possible to recommend a release of security assistance.''
The third interagency meeting, a Deputies Small Group meeting at the Cabinet Deputies level, was held on July 26, 2019. Mr. Duffey was the OMB representative, and Mr. Sandy prepared Mr. Duffey for the meeting. Mr. Sandy explained that he prepared Mr. Duffey to get policy guidance on six critical issues:( 1) the reason for the hold;( 2) the extent of the hold;( 3) the duration of the hold;( 4) the Congressional affairs approach;( 5) the public affairs approach; and( 6) and the diplomatic approach. Mr. Sandy testified that on July 26, OMB still did not have an understanding of the reason for the hold. According to Mr. Sandy, at that time, there was no discussion within OMB about the amount of money that was being contributed to Ukraine by other countries, or whether that topic was the reason for the President 's hold.
Mr. Morrison, Lt. Col. Vindman, Ms. Cooper, Under Secretary of State for Political Affairs David Hale, and Mr. Duffey attended the July 26 meeting. At the meeting, OMB stated that" they had guidance from the President and from Acting Chief of Staff Mulvaney to freeze the assistance.'' It also was" stated very clearly'' that the hold applied to both the State Department and Defense Department security assistance funds. Ambassador Hale, as the representative for the Department of State," advocated strongly for resuming the assistance,'' as did representatives from all agencies other than OMB. Mr. Morrison testified that, at the meeting," OMB represented that-- and the Chief of Staff 's Office was present-- that the President was concerned about corruption in Ukraine, and he wanted to make sure that Ukraine was doing enough to manage that corruption.'' Ms. Cooper had a similar recollection but received no further understanding of what OMB meant by" corruption.'' Ms. Cooper recalled that the deputies did not consider corruption to be a legitimate reason for the hold because they unanimously agreed that Ukraine was making sufficient progress on anti-corruption reforms, as had been certified by DOD on May 23.
President Trump Continued the Hold Despite Agency Concerns About Legality
Prior to the passage of the Impoundment Control Act, presidents had frequently impounded-- i.e., refused to spend-- Congressionally-appropriated funds to enforce their policy priorities when they diverged from Congress '. However, most of these impoundments were small( i.e., no more than a few percent of the total program budget) or temporary( i.e., funds were released in time for them to be spent before the end of the fiscal year) and rooted in policy, rather than political interests of the President. It was not until President Richard Nixon that presidential impoundment of funds would prompt Congress to take action citing constitutional concerns.
Unlike his predecessors, President Nixon undertook impoundments that were both substantial and, in some cases, permanent, which raised concerns for Congress over its Article I powers. In fact, between 1969 and 1972, President Nixon impounded between 15 % and 20 % of Congressionally-appropriated funds in various accounts.
To reassert Congressional over the budget, in 1973, Congress established the Joint Study Committee on Budget Control, which held a series of hearings and produced more than 4,600 pages of testimony and reports. The Joint Study Committee 's findings ultimately led to the overwhelmingly bipartisan passage-- over President Nixon 's veto-- of the Impoundment Control Act of 1974, one of a series of reform bills designed to reign in presidential power. Looking back at that moment in history, Rep. Bill Archer( R-TX), a fiscal conservative who served 30 years in the House of Representatives, including as the Chairman of the Ways and Means Committee, ," the culture then was that the president had too much power... the president is abusing his power.''
In addition to establishing the Congressional Budget Committees and the independent Congressional Budget Office, the Impoundment Control Act also limits the circumstances under which a president can legally impound Congressionally-appropriated funds. According to the Act, although the President may request from Congress to withhold or permanently cancel the availability of budget , such an action is not allowed without Congressional approval. Any amount of budget proposed to be deferred( i.e., temporarily withheld) or rescinded( i.e., permanently withheld) must be made available for obligation unless Congress, within 45 legislative days, completes action on a bill rescinding all or part of the amount proposed for rescission. The Impoundment Control Act does not permit the withholding of funds through their date of expiration, which would be a de facto rescission without Congressional approval.
At the July 26 interagency meeting, senior agency officials raised serious concerns about the legality of the hold under the Impoundment Control Act. Ms. Cooper testified:
A: Well, I 'm not an expert on the law, but in that meeting immediately deputies began to raise concerns about how this could be done in a legal fashion because there was broad understanding in the meeting that the funding-- the State Department funding related to an earmark for Ukraine and that the DOD funding was specific to Ukraine security assistance. So the in the room at the deputies ' level reflected a sense that there was not an understanding of how this could legally play out. And at that meeting the deputies agreed to look into the legalities and to look at what was possible.
Q: Okay. So is it fair to say the deputies thought the President was not to place a hold on these funds?
A: They did not use that term, but the expression in the room that I recall was a sense that there was not an available mechanism to simply not spend money that has been in the case of USAI[ DOD security assistance] already notified to Congress.
Lt. Col. Vindman testified that the issue needed to be" elevated to a PC[ Principals Committee] as quickly as possible to release the hold on security assistance'' so that the funds could be obligated before the end of the fiscal year.
A Principals Committee meeting was never convened. According to Mr. Morrison, National Security Advisor John Bolton" believed that it was unnecessary, that he already had a reasonable idea of where the principals were, and he wanted to get directly to the President as early as possible in the most effective way.'' Ambassador Bolton understood that the principals" were all supportive of the continued disbursement of the aid.'' As had been clear since the very first interagency meeting on July 18, the lifting of the hold was" the unanimous position of the entire interagency.'' At this point, it remained unclear to many officials why the President continued to hold the funds.
On July 31, 2019, a fourth and final interagency meeting was held at the Policy Coordination Committee level. Ms. Cooper attended the meeting on behalf of DOD. According to Ms. Cooper, the agenda" was largely focused on just routine Ukraine business, postelection follow up,'' and" security assistance was not actually an explicit agenda item.'' Ms. Cooper nevertheless raised security assistance and expressed her understanding, after consulting with DOD counsel, that there were only two legally available options to implement the hold: a Presidential rescission notice to Congress( i.e., requesting that Congress" take back'' funds it had already appropriated) or for the Defense Department to do a reprogramming action( i.e., use Congressionally-appropriated funds for a different purpose). In either case, the law requires that the Executive Branch notify, and seek approval from, Congress before taking any action.
At the July 31 meeting, Ms. Cooper emphasized to the participants that because" there are only two legally available options and we do not have direction to pursue either,'' DOD would have to start obligating the funds on or about August 6. She explained at her deposition that DOD would have had to begin obligating the funds by that date or risk violation of the Impoundment Control Act.
The Administration, however, never proposed a rescission or reprogramming of funds for Ukraine security assistance and never notified Congress of its intent to withhold funds.
OMB Used Unusual Process to Implement President 's Hold, Skirting Legal Concerns
OMB plays a critical role in the release of security assistance funding. The Antideficiency Act requires that, before any department or agency may spend Congressionallyappropriated funding, the Director of OMB or his delegates must" apportion''( i.e., make available to spend) the funds in writing. Through this mechanism, OMB has the ability to directly impact security assistance funding or funding of any kind that is appropriated by Congress.
In parallel with the interagency meetings that occurred during the latter half of July 2019, OMB devised a way to implement the President 's hold on security assistance to Ukraine, notwithstanding DOD 's Congressional notifications of February 28 and May 23. Over the course of his twelve-year career at OMB, Mr. Sandy could not recall any other time when a hold had been placed on security assistance after a Congressional notification had been sent.
When speaking with Mr. Duffey on or about July 18 or 19, Mr. Sandy immediately raised concerns about how to implement the hold without violating the Impoundment Control Act, which required that the funds be obligated( i.e., spent) before they expired at the end of the fiscal year, on September 30. In light of that legal requirement, the hold would have to be temporary. An additional hurdle was the fact that OMB had already DOD to spend the security assistance funds DOD administered for fiscal year 2019. Therefore, when President Trump directed the hold in July, OMB scrambled to reverse that prior .
From July 19 through July 24, Mr. Sandy consulted with the OMB Office of General Counsel as well as Ms. McCusker at DOD on how to legally implement a hold on the funds. Mr. Sandy 's staff at OMB also conferred with OMB 's Budget Review Division. Based on these consultations, OMB decided to implement the hold through a series of nine funding documents, known legally as" apportionments.'' Apportionments typically are used to convey to an agency to spend funds, not to withhold funds; thus, in order to bar DOD from spending money, these particular apportionments included that would impose the holds while using creative language to skirt legal concerns. Mr. Sandy testified that" the purpose of the was to preclude obligation for a limited period of time but enable planning and casework to continue.'' He also testified that this use of was unusual and that in his 12 years of OMB experience, he could" not recall another event like it.''
On July 25, OMB issued the first funding document implementing the hold. In this document, the relevant notified DOD that the Ukraine Security Assistance Initiative funds" are not available for obligation until August 5, 2019, to allow for an interagency process to determine the best use of such funds.'' The also stated that:
Based on OMB 's communication with DOD on July 25, 2019, OMB understands from the Department that this brief pause in obligations will not preclude DOD 's timely execution of the final policy direction. DOD may continue its planning and casework for the Initiative during this period.
Mr. Sandy explained that the" interagency process'' referenced in the referred to the NSC-led interagency meetings convened during the latter half of July, and that the August 5 date provided a" reasonable timeframe for an interagency process'' to produce" clear guidance'' on the hold. The August 5 date was determined in consultation with Mr. Duffey at OMB and Ms. McCusker at DOD.
Mr. Sandy further testified that the second sentence in the -- which states, in relevant part, that" OMB understands from the Department that this brief pause in obligations will not preclude DOD 's timely execution of the final policy direction''-- was critical to the implementation of the hold:
Well, that gets to the heart of that issue about ensuring that we do n't run afoul of the Impoundment Control Act, which means that you have to allow for the timely execution. And this reflects my conversation with-- conversations plural with Elaine McCusker that they can confirm that, during this brief period, they would not foresee any problem fully executing the program by the end of the fiscal year.
The sentence, in effect, affirmed that if the hold remained in place only until August 5, DOD would still have sufficient time to spend all security assistance funds by September 30, 2019. President Trump, however, would continue the hold long past August 5.
Trump Appointee Took Over Signing Authority from Career Budget Expert
Since becoming Deputy Associate Director for National Security in 2013, Mr. Sandy was responsible for approving release of the funding for programs within his portfolio, including the Ukraine Security Assistance Initiative. Mr. Sandy approved and signed the July 25 funding document. On July 29, however, Mr. Duffey-- a political appointee of President Trump whose prior position had been as Executive Director of the Republican Party of Wisconsin-- told Mr. Sandy-- a career civil servant with decades of experience in this area-- that he would no longer be responsible for approving the release of funding for Ukraine Security Assistance Initiative. Mr. Duffey also revoked the for approving the release of funding for Foreign Military Financing from Mr. Sandy 's colleague at OMB. Instead, Mr. Duffey would himself assume for the$ 250 million in DOD-administered Ukraine security assistance and for approving the release of funding for the$ 141 million in State Department administered Foreign Military Financing to Ukraine.
Mr. Duffey did not tell Mr. Sandy whether he requested this change in but did say that" it was in essence a joint decision reflecting both guidance from the Acting Director and also his support.'' Over the course of several days, Mr. Duffey explained to Mr. Sandy and others in the National Security Division that" there was interest among the leadership in tracking the uses of moneys[ sic] closely.'' Mr. Duffey expressed an" interest in being more involved in daily operations'' and" regarded this responsibility as a way for him to learn more about specific accounts within his area.'' Mr. Sandy testified that prior to July 29, he had never heard Mr. Duffey state any interest in approving the release of funding. Furthermore, when they learned that Mr. Duffey was taking on this new responsibility, Mr. Sandy and other staff relayed their concerns to Mr. Duffey that it was a substantial workload. Mr. Sandy also testified that" people were curious what he thought he would learn from apportionments about the accounts as opposed to the other, you know, sources of information.'' Mr. Sandy agreed that there are more efficient ways of learning about accounts and programs, and that" I can think of other ways-- other materials that I personally would find more informative.''
Mr. Sandy was not aware of any prior instance when a political appointee assumed this kind of funding approval .
After the July 31 interagency meeting at which Ms. Cooper announced that DOD would have to start obligating the funds on or about August 6, Mr. Duffey sought clarification. Ms. Cooper explained to Mr. Duffey that at a certain point DOD would not have sufficient time to fully obligate the funds before they expired at the end of the fiscal year. In response, Mr. Duffey" wanted more information on the precise nature of how long does it take to obligate, and how many cases, and that sort of thing.'' Ms. Cooper referred Mr. Duffey to the DOD comptroller and to the Defense Security Cooperation Agency. During the month of August, Mr. Duffey and Ms. McCusker communicated about the implementation of the hold on the Ukraine Security Assistance Initiative funds.
On August 6 and August 15, Mr. Duffey approved two more funding documents that contained with language nearly identical to the in the July 25 funding document that initiated the hold; the only difference was that the date funds would become available for spending was changed from August 5 to August 12.
The August 6 and 15 , and all subsequent through September 10, continued to state that the hold was in place" to allow for an interagency process to determine the best use of such funds,'' even though the final interagency meeting regarding Ukraine security assistance occurred on July 31. Not only was there no active interagency process after July, but Ms. Cooper also was not aware of any review of the funding conducted by DOD in July, August, or September. In fact, Ms. Cooper noted that months before, DOD had completed its review of whether Ukraine" had made sufficient progress in meeting defense reform and anticorruption goals consistent with the NDAA,'' and certified to Congress in May 2019 that Ukraine had met the requirements to receive funding. Similarly, Mr. Kent testified that the State Department did not conduct, and was never asked to conduct, a review of the security assistance funding administered by the State Department.
At the same time that OMB was implementing the President 's hold through the funding , officials inside OMB were advocating for release of the funds. On August 7, the National Security Division, International Affairs Division, and Office of Legal Counsel of OMB drafted and transmitted a memo on Ukraine security assistance to OMB Acting Director Vought" in anticipation of a principals-level discussion to address the topic.'' The National Security Division 's portion of the memorandum recommended to remove the hold because( 1) the assistance was consistent with the national security strategy in terms of supporting a stable, peaceful Europe;( 2) the aid countered Russian aggression; and( 3) there was bipartisan support for the program. Mr. Duffey approved the memorandum and agreed with the policy recommendation.
Sometime in mid-August, DOD raised concerns that it might not be able to fully obligate the Defense Department-administered funds before the end of the fiscal year. Ms. Cooper testified that the Defense Security Cooperation Agency estimated that$ 100 million of aid might not be obligated in time and was at risk.
Because of this, DOD concluded that it could no longer support OMB 's claim in the that" this brief pause in obligations will not preclude DOD 's timely execution of the final policy direction.'' As mentioned above, Mr. Sandy testified that this sentence was at" the heart of that issue about ensuring that we do n't run afoul of the Impoundment Control Act.''
As a result of DOD 's concerns, all of the subsequent issued by OMB during the pendency of the hold-- approved by Mr. Duffey on August 20, 27, and 31, and September 5, 6, and 10-- removed the sentence regarding DOD 's ability to fully obligate by the end of the fiscal year. Each extended the hold for a period of two to six days.
Mr. Sandy and his staff" continued to express concerns[ to Mr. Duffey] about the potential implications vis-à-vis the Impoundment Control Act,'' and advised Mr. Duffey to consult with OMB 's Office of General Counsel" on every single .'' Mr. Sandy was copied on emails with the Office of General Counsel on these topics. Although Mr. Sandy understood that the Office of General Counsel supported the , he noted that there were dissenting opinions within the Office of General Counsel. Concerns about whether the Administration was bending, if not breaking, the law by holding back this vital assistance contributed to at least two OMB officials resigning, including one attorney in the Office of General Counsel. Mr. Sandy testified that the resignation was motivated in part by concerns about the way OMB was handling the hold on Ukraine security assistance. According to Mr. Sandy, the colleague disagreed with the Office of General Counsel about the application of the Impoundment Control Act to the hold on Ukraine security assistance.
Nevertheless, at the direction of the President, OMB continued to implement the hold through September 11.
Senior Officials Failed to Convince President Trump to Release the Aid in August
Sometime prior to August 16, Ambassador Bolton had a one-on-one meeting with President Trump about the aid. According to Mr. Morrison, at that meeting the President" was not yet ready to approve the release of the assistance.'' Following the meeting, Ambassador Bolton instructed Mr. Morrison to look for opportunities to get the principals together" to have the direct, in-person conversation with the President about this topic.''
On or about August 13 or 14, Lt. Col. Vindman was directed to draft a Presidential Decision Memorandum for Ambassador Bolton and the other principals to present to President Trump for a decision on Ukraine security assistance. The memorandum, finalized on August 15, recommended that the hold should be lifted, explained why, and included the consensus views from the July 26 meeting that the funds should be released. Lt. Col. Vindman received conflicting accounts about whether the memorandum was presented to the President.
Mr. Morrison, who was Lt. Col. Vindman 's supervisor at the NSC and agreed with the recommendation to lift the hold, testified that the memorandum was never provided to the President. Mr. Morrison explained that Ambassador Bolton intended to present the memorandum to the President during an unrelated meeting in Bedminster, New Jersey, on August 15, but the" other subject matter of that meeting consumed all the time.'' However, while at Bedminster, the principals" all represented to Ambassador Bolton that they were prepared to tell the President they endorsed the swift release and disbursement of the funding.''
Mr. Morrison testified that he attempted to gather the" the right group of principals'' to meet with the President but was unable to do so because of scheduling issues. According to Mr. Morrison, the next possible opportunity was during a trip to Warsaw, Poland at the beginning of September, but President Trump did not end up making that trip.
Ms. Cooper recalled receiving an email at the end of August from Secretary of Defense Esper referencing a meeting or discussion with the President, and that there was" no decision on Ukraine.''
Ukrainian Officials Learned About the Hold in July 2019
Witnesses testified that officials in the Ukraine government knew of President Trump 's hold on security assistance before it was publicly reported in the press on August 28, 2019. Ms. Croft testified that after July 18-- when the hold was announced by OMB at the interagency meeting-- it was" inevitable that it was eventually going to come out.''
Two individuals from the Ukrainian Embassy in Washington, D.C., approached Ms. Croft approximately a week apart" quietly and in confidence to ask me about an OMB hold on Ukraine security assistance.'' Ms. Croft could not precisely recall the dates of these conversations, but testified that she was" very surprised at the effectiveness of my Ukrainian counterparts ' diplomatic tradecraft, as in to say they found out very early on or much earlier than I expected them to.''
Ms. Croft explained that the Ukrainian officials came to her quietly because they would not want the hold to become public:
I think that if this were public in Ukraine it would be seen as a reversal of our policy and would, just to say sort of candidly and colloquially, this would be a really big deal, it would be a really big deal in Ukraine, and an expression of declining U.S. support for Ukraine.
DOD also received questions from the Ukraine Embassy about the status of the military assistance. Ms. Cooper testified that those occurred on July 25, 2019-- the same day as President Trump 's call with President Zelensky:
On July 25th, a member of my staff got a question from a Ukraine Embassy contact asking what was going on with Ukraine security assistance, because at that time, we did not know what the guidance was on USAI[ DOD-administered funds]. The OMB notice of apportionment arrived that day, but this staff member did not find out about it until later. I was informed that the staff member told the Ukrainian official that we were moving forward on USAI, but recommended that the Ukraine Embassy check in with State regarding the FMF[ State Department-administered funds].
On July 25, Ms. Cooper 's staff received two emails from the State Department revealing that the Ukrainian Embassy was" asking about security assistance'' and that" the Hill knows about the FMF situation to an extent, and so does the Ukrainian Embassy.'' One of Ms. Cooper 's staff members reported that sometime during the week of August 6, a Ukrainian Embassy officer stated that" a Ukrainian official might raise concerns about security assistance in an upcoming meeting,'' but that the issue was" not, in fact, raised.'' Ms. Cooper 's staff further reported that Ukrainian officials were aware of the hold on security assistance in August.
Lt. Col. Vindman testified that, by mid-August, he too was getting questions from Ukrainians about the status of the hold on security assistance:
So to the best of my knowledge, the Ukrainians, first of all, are in general pretty sophisticated, they have their network of, you know, Ukrainian interest groups and so forth. They have bipartisan support in Congress. And certainly there are-- it was no secret, at least within government and official channels, that security assistance was on hold. And to the best of my recollection, I believe there were some of these light inquires in the mid-August timeframe.
While numerous individuals, including Ukrainians, were aware of the hold, it did not become publicly known until a Politico report on August 28, 2019.