These Magic Redaction Bars Make Trump Ukraine Crimes DISAPPEAR
There are no good fact witnesses for Donald Trump. There's no one he could send to Congress to vouch that his "perfect, perfect" shakedown call with Ukrainian President Volodymyr Zelenskyy and subsequent freeze on military aid to that country was totally kosher and only arose out of his deep-seated concern about corruption. It's very clear why the White House stonewalled Congress and flatly refused to allow anyone to testify in the House impeachment inquiry. But it's also clear that all their dirty, illegal shit is going to come out, and probably sooner rather than later.
To wit, Just Security's Kate Brannen got hold of the unredacted version of emails released last month thanks to the Center For Public Integrity's FOIA lawsuit. And SURPRISE!!!! it looks like Trump's little helpers have been highly strategic with their Sharpies. Can't let the public see an email saying, "Clear direction from POTUS to continue to hold," can we?
The White House has tried to present the freeze as a routine "pause" that was part of a regular and orderly process. Nothing to see here, folks! In fact, under all those black bars, the Defense Department accountants were flipping their shit at what they viewed as a dangerous and probably illegal seizure that had the potential to blow up in their faces if they didn't get the money out the door and it wound up coming back to the Treasury.
As the New York Times reported, this all started back in June, when Donald Trump "discovered" the $391 million defense allocation for Ukraine in a Washington Examiner article and freaked out. He'd already signed bills in February 2019 and September 2018 authorizing it, but apparently it was news to him because ... reading is hard. So (acting) Chief of Staff Mick Mulvaney -- who has refused to testify -- called over to (acting) Office of Management and Budget head Russ Vought -- who also refused to testify -- and told him, "We need to hold it up."
That same day, OMB's National Security Programs chief, Michael Duffey, a political appointee, reached out to the Pentagon's head accountant, Elaine McCusker, to determine the status of the DOD's $250 million share of the Ukraine allocation. This began a months-long negotiation over the mechanics of the freeze, during which Duffey admonished everyone to keep it "closely held to those who need to know to execute direction," theorized that Trump could simply withhold the money forever by shouting NATIONAL SECURITY, and threatened to blame McCusker if the whole thing went sideways and the money couldn't be spent in time.
So weird that Michael Duffey refused to testify, too, huh?
The Impoundment Control Act requires the president to promptly notify Congress and explain his reasoning if he decides not to spend money Congress has allocated. When career civil servant Mark Sandy objected to the hold over fears that it violated the law, Duffey seized control of the process. On July 25, 90 minutes after Donald Trump hung up the phone with Zelenskyy, Duffey announced the first of his "apportionment footnotes," the mechanism by which he would withhold the money.
Here's McCusker asking Sandy that same day if he'd checked with DOD's lawyers to see if this was even legal.
Oh, whoops! You can't see that because of b(5), deliberative process privilege. Wink, wink!
Here's McCusker telling Duffey on August 9 to quit saying in his stupid footnotes, which he published roughly every week for 48 days, that they could definitely get the money out the door by the end of the fiscal year on September 30, so there was no need to notify Congress. Because as she'd explained multiple times, the later it got, the less likely DOD would be able to execute the spending in time.
Gosh, it's a little hard to read under all that black ink. Wonder why DOJ decided that Public Integrity didn't need to see that?
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.
OMB's General Counsel Mark Poaletta later denied that this conversation ever took place, telling the Government Accounting Office in a December 11 letter, "at no point during the pause in obligations did DOD [Office of General Counsel] indicate to OMB that, as a matter of law, the apportionments would prevent DOD from being able to obligate the funds before the end of the fiscal year." Which seems ... less than entirely credible once you take out those redactions.
The Justice Department also decided to black out McCusker telling Duffey on August 26 that DOD "legal teams were discussing last week" the White House hold, and they wanted paperwork from OMB since they wanted to have every "i" dotted and "t" crossed if they were going to risk letting the allocation expire. The New York Times reports that OMB and the White House "saw her threat as a ploy to force release of the aid."
By then, the Senate Armed Services Committee, American defense contractors who were set to sell arms to the Ukrainians for the "aid" money, and the Ukrainians themselves were all well aware of the hold. And on August 28, Politico broke the news publicly. But still, Trump continued to refuse to release the money until he got his public announcement of an investigation into Joe Biden from Zelenskyy.
By September, the DOD was in total panic that the money wasn't going to get released, and they would get the blame. In another redacted exchange, McCusker emailed Defense Secretary Mark Esper's Chief of Staff Eric Chewning, saying:
Do you believe DOD is adequately protected from what may happen as a result of the Ukraine obligation pause? I realize we need to continue to give the WH has [sic] much decision space as possible, but am concerned we have not officially documented the fact that we can not promise full execution at this point in the [fiscal year].
And her fears proved to be well-founded. Here's Duffey in a September 9 email -- redacted, natch -- threatening that DOD is going to take the fall, not OMB, if Esper, Bolton, and Pompeo manage to get Trump to un-freeze the cash before September 30 and DOD can't get it spent in time.
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.
McCusker's response, also redacted: "You can't be serious. I am speechless."
There was no policy process, of course. Trump just dispatched the three amigos to lean on Zelenskyy and blew off a meeting to discuss Ukraine so he could golf with this guy.
In the end, the whistleblower complaint forced Trump's hand and the funds were released September 11. But not all of them, since McCusker wasn't bluffing and DOD couldn't get the last $35 million tranche out in time.
And this, right here, is exactly why Mitch McConnell isn't calling any witnesses. Because if Democrats get McCusker and Duffey on the stand, they're all up shit's creek.
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Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.