White House was warned Ukraine aid freeze was illegal; Trump ordered freeze anyway

In a new report from Just Security, we now have evidence from inside the Trump White House that President Trump ordered the freezing of aid to Ukraine, knowing his actions were illegal. The critical new information is found in unredacted emails from the Office of Management and Budget, which explained to alarmed officials at the United States Department of Defense that the freeze was ordered by the President.

In an August 30 email, Michael Duffey, associate director of national security programs at the Office of Management and Budget (OMB), told Elaine McCusker, the acting Pentagon comptroller, that there was:

Clear direction from POTUS to continue to hold.

According to Just Security:

The documents reveal growing concern from Pentagon officials that the hold would violate the Impoundment Control Act, which requires the executive branch to spend money as appropriated by Congress, and that the necessary steps to avoid this result weren’t being taken. Those steps would include notifying Congress that the funding was being held or shifted elsewhere, a step that was never taken. The emails also show that no rationale was ever given for why the hold was put in place or why it was eventually lifted.

What is clear is that it all came down to the president and what he wanted; no one else appears to have supported his position. Although the pretext for the hold was that some sort of policy review was taking place, the emails make no mention of that actually happening. Instead, officials were anxiously waiting for the president to be convinced that the hold was a bad idea. And while the situation continued throughout the summer, senior defense officials were searching for legal guidance, worried they would be blamed should the hold be lifted too late to actually spend all of the money, which would violate the law.

The emails also reveal key decision points, moments when senior officials hoped the hold might be lifted. This includes Vice President Mike Pence’s September meeting with Ukrainian President Volodymyr Zelenskyy, which a senior defense official expected would resolve the funding issue, raising the question: Why? What was supposed to come out of that meeting that would pave the way for Trump to lift the hold? What was Pence expected to communicate?

This is critically important, for a number of reasons:

  1. The Pentagon had warned the White House that this freeze would be against the law, so this evidence appears to suggest President Trump knew he was breaking the law.
  2. The order was given minutes after Trump’s now notorious call with Ukraine’s President, in which he asked for “a favor, though,” clearly suggesting aid was conditioned on Ukraine investigating Trump’s political rivals.
  3. The President ordering the hold on aid is the action that shows he was attempting to extort that favor—a clearly defined element of bribery and racketeering statutes.
  4. The aid freeze was connected to a request for favors from a foreign head of state—an action explicitly banned by Article 1, Section 9, Clause 8 of the Constitution of the United States.
  5. It appears the White House went to great lengths to conceal a) these discussions, b) the emails, c) that the freeze had been ordered, and d) that Trump and others knew his actions were illegal.

This news is also important, because the emails were only made public now due to White House attempts to conceal them. They were ordered released by a federal judge, and this makes clear the White House did conceal relevant evidence of wrongdoing from Congress—effectively making the case for BOTH Articles of Impeachment: Abuse of Power and Obstruction of Congress.

Even if the White House argument that the President has discretion to withhold documents and testimony, under some circumstances, that the documents in question reveal evidence of wrongdoing—and that the actions in question were known to be illegal—would negate any such discretion. There is no lawful power to use public office for illegal purpose, including the covering up of illegal activity.

With this new evidence that officials on the President’s staff, at the OMB, and at the Pentagon, all knew his actions were unjustified and illegal, there is no remaining lawful way for any public official to use their position to prevent Trump facing trial for his crimes against the Constitution of the United States.

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