The decision to withhold military aid to Ukraine came directly from Donald Trump, despite warnings that doing so could be illegal, according to unredacted documents quoting a senior White House official.
Redacted portions of internal Trump administration emails reportedly show how officials’ efforts to carry out presidential orders to withhold $391 million in assistance to Ukraine continued despite warnings from Defence Department staff that such a hold violated US law.
The decision to hold the funds came at the “clear direction” of Mr Trump, said associate director of national security programs Michael Duffey in a 30 August email, which was reported on by experts at New York University Law School’s Just Security forum.
Mr Trump was impeached by Congress last month for allegedly withholding the aid in return for Ukraine’s president announcing investigations into former Vice President Joe Biden and a debunked conspiracy theory alleging that Ukraine — not Russia — interfered in the 2016 presidential election.
Censored copies of nearly 300 emails between Office of Management and Budget officials and Pentagon executives were released to the Center for Public Integrity last month in response to the group’s lawsuit under the Freedom of Information Act, including one which showed Mr Duffey asking Pentagon comptroller Elaine McCusker to hold off on releasing congressionally appropriated military aid to Ukraine just 91 minutes after Mr Trump’s infamous 25 July phone call with Ukrainian president Volodymyr Zelensky.
But unredacted versions of the emails viewed by Just Security show a reply from Ms McCusker asking Mr Duffey if he’d cleared his instructions with the Pentagon’s general counsel’s office.
Ms McCusker reportedly continued to press Mr Duffey as to the legal justification for the hold, which raised concerns among Defence Department officials who believed withholding the funds without notifying Congress violated a 1974 law that prohibits the president from “impounding” appropriated funds for more than 45 days without permission from the legislative branch.
On August 9, she sent a warning to Mr Duffey that failure to release the funds before August 12 would imperil the Pentagon’s ability to legally spend them before the end of Fiscal Year 2019 on October 1.
“As we discussed, as of 12 AUG I don’t think we can agree that the pause ‘will not preclude timely execution’. We hope it won’t and will do all we can to execute once the policy decision is made, but can no longer make that declarative statement,” she wrote, referring to Trump administration talking points which falsely claimed that the hold would not impact whether Ukraine would receive the funds.
When Mr Duffey informed Ms McCusker that the hold would continue just under two weeks later on August 26, she again asked him about “the status of the impoundment paperwork” required under that 1974 law, to which Mr Duffey replied: “I am not tracking that. Is that something you are expecting from OMB?”
Ms McCusker responded: “Yes, it is now necessary — legal teams were discussing last week.”
In another email to Mr Duffey that day (which was heavily redacted by Trump administration officials) Ms McCusker complained that OMB General Counsel Mark Paoletta “appears to continue to consistently misunderstand the process and the timelines we have provided for funds execution,” and informed him that both the House and Senate Appropriations Committees were asking about the status of the funds, which had broad bipartisan support.
The complaints about the lack of legal justification for the hold continued up until just before 11 September, when the funds were released after the White House learned of the whistleblower complaint which later touched off the House’s impeachment inquiry into Mr Trump.
In a statement, Senate Democratic Leader Chuck Schumer said the newly-revealed unredacted emails further justify Democrats’ calls to have Mr Duffey, White House Acting Chief of Staff Mick Mulvaney, former National Security Adviser John Bolton and Mulvaney aide Robert Blair testify at Mr Trump’s forthcoming impeachment trial, and called them a “devastating blow” to Majority Leader Mitch McConnell’s push to hold a quick trial without witness testimony.
“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,” Mr Schumer said.
“This new evidence also raises questions that can only be answered by having the key Trump administration officials—Mick Mulvaney, John Bolton, Michael Duffey and Robert Blair—testify under oath in a Senate trial.
“Importantly, that Mr Duffey said there was ‘clear direction from POTUS to continue to hold’ only further implicates President Trump and underscores the need for the Senate to subpoena the witnesses and documents we’ve requested at the onset of a trial.
“The American people deserve a fair trial that gets to the truth, not a rigged process that enables a cover-up.”