It has been several weeks since President Trump was impeached,
but the evidence for abuse of power continues to roll in. Earlier this week,
the defense website, Just
Security, obtained unredacted emails that point directly to President Trump’s
involvement in delaying aid to Ukraine and show that Administration officials
questioned the legality of the move.
The emails were originally released in redacted form in December in response to a Freedom of Information Act request by the Center for Public Integrity. A federal court mandated that the government release 300 pages of emails, which were made public in two batches on Dec. 12 and Dec. 20. The emails obtained by Just Security can be compared with the redacted releases to confirm their accuracy as well as determine what the Trump Administration considered worthy of censorship.
Among the revelations from the redacted emails was the news
that the Ukrainian aid was delayed immediately after the president’s July 25
phone call with Ukrainian President Zelensky. CNN reported last month that the redacted emails showed that efforts to freeze the aid
began about 90 minutes after the phone call concluded.
Although the president’s interest in the aid predated the
phone call, Michael Duffey, associate director of national security programs at
the Office of Management and Budget (OMB), emailed Pentagon officials within
hours of the call, instructing them to “please hold off on any additional DOD
obligations of these funds….”
“Given the sensitive nature of the request,” Duffey added, “I
appreciate your keeping that information closely held to those who need to know
to execute the direction.”
Duffey was among the White House officials subpoenaed by
House Democrats during the impeachment hearings last year. He did not comply
with the subpoena and failed
to show up at the hearing.
The emails show that Pentagon officials were concerned that the
freeze violated the Impoundment Control Act. The law requires certain steps if
the executive branch does not spend money appropriated by Congress. These steps,
including congressional notification, were never taken by the Trump
Administration. The Administration also never provided a rationale that
explained either the initial freeze or its subsequent release.
Deputy Under Secretary of Defense Elaine McCusker followed
up with an email to Mark Sandy at the OMB asking if the pause had been approved
by legal counsel. The question was redacted in the original email release.
Sandy formalized the freeze on July 25 with a footnote in a
budget document that held the money until Aug. 5. Initially, the hold was not
deemed to affect the expenditure of the money by the end of the fiscal year.
The next day, July 26, Under Secretary of Defense for Policy
John Rood emailed Secretary of Defense Mark Esper expressed unanimous agreement
among the “Ukraine Deputies Small Group” that the aid should be released. The
same email notes that the freeze was at “the President’s direction via the
Chief of Staff [Mick Mulvaney].”
On Aug. 6, Duffey notified McCusker that the freeze was
being extended. On Aug. 9, McCusker notified Duffey and Sandy at OMB that time
was running out to spend the money before the end of the fiscal year. Subsequent
emails continued to extend the freeze through the end of August, raising red
flags at the Pentagon. Contractors became aware of the hold by Aug. 27 and Politico revealed the freeze publicly in an Aug. 28 story.
The emails point toward the Oval Office as the source of the
freeze. In one example cited in the article, Duffey wrote on Aug. 30, that
there was “clear direction from POTUS to continue to hold.”
Officials expressed hope that the money would be released
after Vice President Pence met with Zelensky on Sept. 1, but the freeze
continued after the meeting with the hold extended again on Sept. 5.
When McCusker emailed Duffey on Sept. 9 saying that the DOD would not be “able to ‘fully’ obligate by the end of FY,” Duffey responded by shifting the blame to the Pentagon, despite McCusker’s repeated warnings that time to spend the money was running out.
“OMB developed a footnote authorizing DoD to proceed with
all processes necessary to obligate funds,” Duffey wrote in a formal email that
copied in OMB and Pentagon lawyers. “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.”
McCusker’s incredulous response was, “You can’t be serious.
I am speechless.”
Two days later, on Sept. 11, Duffey emailed McCusker that the
freeze had been lifted. When she asked why, he responded, “Not exactly clear
but president made the decision to go. Will fill you in when I get details.”
Just Security notes that, in the end, $35.2 million of the
aid could not be spent before the fiscal year ended and it expired. The money
had to be reappropriated by Congress.
I discussed back in November, the aid was released two days after the inspector
general notified members of the House Intelligence Committee about the
whistleblower report. The whistleblower may have actually spurred the president
to release the aid in time to avoid a larger violation of the law.
The email chains undercut Republican claims that the aid was
held up due to a policy review. There is no evidence in the exchanges that any
policy review was being conducted. Instead, officials bided their time while
trying to convince the president and the OMB that the freeze was a bad idea. At
the same time, many sought legal advice because they were concerned that they
could become scapegoats if the money was not released in time for the money to be
spent, which would have been a definite violation of the law.
The emails point directly at the president as the source of
the freeze. The timing of the freeze points back toward President Trump’s
request for the “favor” of a Ukrainian investigation into Crowdstrike and the
Bidens as a motive for delaying the aid. The incriminating email exchanges
between White House and Pentagon officials also explains why the Trump
Administration refused to allow its staffers to testify and ignored
congressional subpoenas for documentation about the freeze.
Further, comparing the redactions with the full emails shows
that the Justice Department attempted to conceal Pentagon concerns about the
freeze. Many of the emails that were redacted contain questions about the
legality of the delay and warnings that the money might not be spent in time to
comply with the Impoundment Act.
The release also shows that the Democratic decision to rush
impeachment was an error. While this error has been somewhat mitigated by
Speaker Pelosi’s decision to delay referring the articles of impeachment to the
Senate and deny Donald Trump the ability to conduct a pro forma trial while
information is still coming out, the House could have done a much better job of
investigating the incident. If a third party organization could obtain this
information quickly through the Freedom of Information Act, there is no reason that
the House could not have asked courts to enforce its subpoenas and compelled
Duffey and others to testify.
With the new information, the House can still rectify its
mistake. House Democrats should reopen the impeachment investigation and keep
digging. The officials mentioned in the email chains have firsthand information
linking the freeze to the president. Congress – and the American public – needs
to hear from them.