White House Uses One Weird Trick To Defeat Pesky Constitution
Well, no wonder none of Donald Trump's henchmen want to testify! They spent 84 days brainstorming creative constitutional interpretations where the president can say magic words and seize spending power from Congress. And now they find they'd rather not defend that position publicly, what with it being absolute bullshit. Pretty weird how this party of originalists, who are simply obsessed with adhering to the will of the Founding Fathers in each and every particular, keep forgetting that pesky Article I spending clause, huh?
The New York Times is out with a new tick-tock of the internal White House debate over funding for Ukraine, and SURPRISE it makes Trump and his cronies look guilty as hell.
"Typical of the Trump White House, the inquiry was not born of a rigorous policy process," the paper intones. Which is a fairly generous description of Donald Trump flipping his shit over a June 2018 Washington Examiner article on the Ukraine defense allocation, months after he'd signed two separate defense spending bills authorizing it in September 2018 and February 2019. In point of fact, there was no "policy process" at all, rigorous or otherwise. There was just Donald Trump settling imagined scores from the 2016 election, insisting Ukrainians were "all corrupt" and "they tried to take me down." And instead of explaining to the Mad King that he couldn't just grab the spending power from Congress, his lackeys leapt into action to dummy up a legal justification for his pisspants tantrum.
The $391 million congressional allocation for Ukraine was divided into two tranches: $250 million routed through the Pentagon, and $141 million through the State Department. Most of the money would be spent with US defense manufacturers, and it needed to go out September 30 (really September 15) to avoid the allocation expiring with the fiscal year. So while the White House stalled, the clock was ticking loudly.
Trump's legal eagles have taken two contradictory positions regarding the hold they kept renewing all summer. On the one hand, they insist it was just a "pause," and thus totally kosher because the money went out before September 30. On the other hand, they insist that Emperor Trump had the absolute right to cancel the aid permanently without consulting Congress, arrogating the spending power to himself. Which is not how Constitution goes, dammit!
Here's how White House appointee Michael Duffey ordered career budget official Mark Sandy to fudge it:
So on July 19, Mr. Duffey proposed an unusual solution: Mr. Sandy should attach a footnote to a routine budget document saying the money was being temporarily withheld.
Approving such requests is routine; Mr. Sandy processed hundreds each year. But attaching a footnote to block spending that the administration had already notified Congress was ready to go was not. Mr. Sandy said in testimony that he had never done it before in his 12 years at the agency.
Sandy objected that, without a justification or end date, the "pause" likely violated the Impoundment Control Act, which requires the executive to notify Congress if he fails to spend allocated monies. Duffey responded by seizing responsibility for the footnote "pause" for himself and admonishing everyone involved to "keep that information closely held to those who need to know to execute direction."
As the summer wore on and Trump showed no sign of relenting, Mick Mulvaney's quislings at the OMB had put their heads together with the White House Counsel's Office and the DOJ and worked out a new plan.
Their argument was that lifting the hold would undermine Mr. Trump's negotiating position in his efforts to fight corruption in Ukraine.
The president, the lawyers believed, could ignore the requirements of the Impoundment Control Act and continue to hold the aid by asserting constitutional commander in chief powers that give him authority over diplomacy. He could do so, they believed, if he determined that, based on existing circumstances, releasing the money would undermine military or diplomatic efforts.
In plain English, Donald Trump was going to assert a national security justification to arrogate Congress's congressional budget powers to himself. And if that sounds familiar, it's because he ran the exact same play with the Fuck You Mexico Wall money, asserting a national security justification to steal congressionally allocated Defense Department spending from military bases and using it for his stupid border wall. (He also asserted a facially bogus national security justification for steel tariffs, but that was just bankrupting American steel importers, not abrogating congressional authority.)
Elaine McCusker, the Pentagon's top budget official, was horrified, telling Duffey, "You can't be serious. I am speechless." And we can't help but notice that that memorable exchange, along with Duffey's inane legal reasoning, somehow failed to make it into the court-ordered FOIA disclosures last week to the Center for Public Integrity. Must have been an oversight!
The problem was that the Pentagon had already issued a report concluding that the defense allocation to Ukraine fell squarely within the US national security interest, belying Trump's post facto insistence that the "pause" was to give him time to do more digging before making a well-considered expenditure of tax dollars. And to a person, everyone in the White House agreed with the Pentagon's assessment. While congressional Republicans have spent months howling that Donald Trump needed to verify that the aid wasn't being misspent, literally no one in the executive branch made that argument at the time.
In fact, Mick Mulvaney tried desperately to schedule a conference call on August 12 for Bolton, White House Counsel Pat Cipollone, and budget official Russ Vought to discuss the allocation, but Trump couldn't spare the time since he was busy golfing at his Bedminster course with professional golfer John Daly. Priorities!
Later that month, top defense officials finally did manage to get the president's attention.
In late August, Defense Secretary Mark T. Esper joined Secretary of State Mike Pompeo and John R. Bolton, the national security adviser at the time, for a previously undisclosed Oval Office meeting with the president where they tried but failed to convince him that releasing the aid was in interests of the United States.
And as for the assertion that Trump could seize the spending power from Congress to improve his "negotiating position in his efforts to fight corruption in Ukraine," we've all READ THE T&DSSSSC@!))TTTTT, so we know exactly what he was trying to get out of the Ukrainians. He didn't give a shit about corruption; he just wanted them to announce an investigation of the Bidens.
The Times says that White House staff are adamant that they never no how knew anything about Rudy Giuliani's back channel and Gordon Sondland's attempt to trade a Biden investigation for a White House meeting and US defense funds. But Sondland and Fiona Hill say otherwise, and they were willing to do it under oath. So until those cowards in the White House stop hiding behind a bullshit invocation of executive privilege and put their hands on a bible at risk of perjury, we're going to assume they're all lying like their boss. Put up, or shut up, assholes.
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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.