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Mick Mulvaney Confesses OMB and DOD Are Withholding Evidence of a Crime from Congress

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Amid the tsunami of alarming news Mick Mulvaney made at today’s press conference (Trump is holding the G-7 at Doral next year, he likely will invite Putin, Trump did engage in a quid pro quo with Volodymyr Zelensky on his July 25 call), one of the more important admissions got missed.

Mick Mulvaney admitted that the White House would have been breaking the law by withholding Ukrainian security funds because it did not have a “really really good reason not to do it.”

By the way, there was a report that we were worried that the money, that if we didn’t pay out the money it would be illegal. It would be unlawful. That is one of those things that has a little shred of truth in it, that makes it look a lot worse than it really is. We were concerned about — over at OMB, about an impoundment. And I know I’ve just put half you folks to bed, but there’s a, the Budget Control Act, Impound — the Budget Control Impoundment Act of 1974 says that if Congress appropriates money you have to spend it. At least, that’s how it’s interpreted by some folks. And we knew that that money either had to go out the door by the end of September, or we had to have a really really good reason not to do it. And that was the legality of the issue.

He’s referring, presumably, to a WSJ report that OMB — the agency Mulvaney is still officially in charge of — put a political appointee in charge of withholding duly appropriated security funds for Ukraine so that President Trump could extort concessions from Ukraine.

The White House gave a politically appointed official the authority to keep aid to Ukraine on hold after career budget staff members questioned the legality of delaying the funds, according to people familiar with the matter, a shift that House Democrats are probing in their impeachment inquiry.

President Trump’s order to freeze nearly $400 million in aid to Ukraine in mid-July is at the center of House Democratic efforts to investigate allegations that Mr. Trump used U.S. foreign policy powers to benefit himself politically.

[snip]

The president has the authority to delay the release of money in certain instances, according to the Congressional Research Service, a nonpartisan research agency, including if there has been an unexpected change in circumstances for the program. But without being provided explanation or justification about why the administration was delaying the aid, some career officials at the Office of Management and Budget became worried they didn’t have the legal authority to hold up the funds, according to the people familiar.

While career civil servants put an initial hold on the aid, Michael Duffey, associate director of national security programs in OMB, was given the authority for continuing to keep the aid on hold after the career staff began raising their concerns to political officials at OMB, according to the people familiar with the matter. Mr. Duffey also began overseeing the process for approving and releasing funds, called apportionment, for other foreign aid and defense accounts, according to a public document indicating the change.

As noted by Mulvaney today, a law passed in the wake of Richard Nixon playing games with appropriations requires that if you withhold duly appropriated funds, you explain to Congress why you’re doing so, a decision that Congress then gets to veto simply by refusing to approve of the decision. The law makes it clear that the President can’t simply ignore the will of Congress on appropriations.

And yet, that’s what Trump did for the entirety of the summer.

Worse, in his press conference today, Mulvaney admitted that Trump didn’t have a “really really good reason not to” release the funds. Rather, he had a really bad reason: he was trying to extort a quid pro quo.

And that’s why the decision — reported in ho hum fashion on Tuesday as if it were just another case of the Administration refusing Congressional subpoenas — that OMB and DOD would not respond to subpoenas is actually really important.

The subpoena to those agencies lays out some of the evidence that Trump withheld the funds after DOD cleared them. Then it lays out the evidence that Trump was defying bipartisan Congressional will in doing so.

As you are aware, the Impoundment Control Act of 1974 authorizes the President to withhold the obligation of funds only “(1) to provide for contingencies; (2) to achieve savings made possible by or through changes in requirements or greater efficiency of operations; or (3) as specifically provided by law.” The President is required to submit a special message to Congress with information about the proposed deferral of funds.

On August 30, 2019, Chairman Adam Smith and Ranking Member Mac Thornberry of the House Committee on Armed Services wrote a letter to Mr. Mulvaney requesting information why military assistance to Ukraine was being withheld and when it would be released. They wrote: “This funding is critical to the accomplishment of U.S. national security objectives in Europe.”

On September 3, 2019, a bipartisan group of Senators–including Rob Portman, Jeanne Shaheen, Dick Durbin, Richard Blumenthal, and Ron Johnson–wore a letter requesting that OMB release the military assistance to Ukraine that the Trump Administration was withholding:

The funds designated for the Ukraine Security Assistance Initiative are vital to the viability of the Ukrainian military. It has helped Ukraine develop the independent military capabilities and skills necessary to fend off the Kremlin’s continued onslaughts within its territory. In fact, Ukraine continues to fight daily on its eastern border against Russia-backed separatists in the provinces of Donetsk and Luhansk, and over 10,000 Ukrainian soldiers and civilians have lost their lives in this war. U.S.-funded security assistance has already helped turn the tide in this conflict, and it is necessary to ensure the protection of the sovereign territory of this young country, going forward.

On September 5, 2019, Chairman Eliot L. Engel and Ranking Member Michael McCaul of the House Committee on Foreign Affairs wrote a letter to OMB urging the Trump Administration to lift its hold on security funds to support Ukraine, writing: “These funds, which were appropriated by Congress as Foreign Military Financing and as part of the Ukraine Security Assistance Initiative and signed into law by the President, are essential to advancing U.S. national security interests.”

On September 9, 2019, the Committees on Intelligence, Foreign Affairs, and Oversight wrote to the White House requesting documents related to “the actual or potential suspension of security assistance to Ukraine.” The White House never responded to this request. However, two days later, on September 11, 2019, the White House released its hold on the military assistance to Ukraine.

On September 24, 2019, Senate Majority Leader Mitch McConnell stated that, although he was “very actively involved in advocating the aid,” he “was not given an explanation” about why it was being withheld, even though he talked to the Secretary of Defense and the Secretary of State. He stated: “I have no idea what precipitated the delay.”

The enclosed subpoena demands documents that are necessary for the Committees to examine the sequences of these events and the reasons behind the White House’s decision to withhold critical military assistance to Ukraine that was appropriated by Congress to counter Russian aggression.

That’s the subpoena that Mulvaney’s agency and DOD (the latter, after initially saying it would cooperate) are defying. It’s a subpoena that goes to the zenith of Congress’ authority, whether it is issued within or outside of an impeachment inquiry. But within an impeachment inquiry, it illustrates that on one issue of fact at the core of the investigation, there is bipartisan agreement that the White House was in the wrong.

And today, Mulvaney admitted that the White House did not have a very very good reason to withhold those funds, even while confirming that Trump was withholding the funds, in part, to extort a quid pro quo.

Even if the White House had a very very good reason, the law obliges the White House to explain to Congress why it blew off Congress’ power of the purse. The White House didn’t do it in real time — not even to Mitch McConnell. And the White House is refusing to do it now.

Update: Jack Goldsmith did a review of this issue in Lawfare today, but before the Mulvaney comments.

Update: Lisa Murkowski complained about this issue to Tim Mak today.

General Campbell Not a Fan of an Independent Investigation into MSF Strike [Updated]

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General John Campbell, who is in charge of military operations in Afghanistan testified before the Senate Armed Services Committee Tuesday. There was a telling exchange between him and Jeanne Shaheen.

After talking about how much everyone regrets the accident of targeting Médecins Sans Frontières, Shaheen asked Campbell if he would support an independent inquiry into what happened (that MSF continues to demand). Here’s the exchange:

Shaheen: I appreciate your talking about the effort to conduct an investigation on our part but do you have any reason to object to having an independent investigation done by the UN or another independent body of what happened?

Campbell: Ma’am, I have trust and confidence in the folks that will do the investigation for NATO, the folks that’ll do the investigation for DOD and the Afghan partners, and so all the very very tough questions that we’re asking they will get after that. My investigating officer again is a Brigadier General, Rich Kim, I have all the trust and confidence that he will, he will get answers to all of those questions, and he’ll continue to work that very hard and will continue to be transparent and provide all of that to this committee and to the American people as we move forward.

Shaheen: But as I understand your answer, then, you would not object to and would cooperate with an independent body, other than NATO or our Department of Defense in doing that kind of an investigation.

Campbell: I would let my higher headquarters or senior personnel make that decision. We are reaching out, again, to Doctors without Borders and the personnel that were on site, making sure that we get all side of the story, I did talk again to the investigating officer this morning, he has done that, he has talked to a few, he’s continuing to try to get out to locations where he can talk to doctors, nurses, survivors of that to make sure he gets all of that.

All of which is a roundabout way to say he’s been sent out here to try to squelch calls for an investigation by anyone besides a Brigadier General. Later in the hearing, Campbell dodged a question from Mike Rounds about how long this might take, though did say he would probably have a preliminary investigation done in a month.

Someone must have been panicked by Shaheen’s question because Dan Sullivan, in using his term to clean up some issues, addressed Shaheen’s question and helped the General shoot down the possibility of an investigation.

Sullivan: Senator Shaheen had asked about a UN investigation, possibly, into the hospital accident. Does the UN usually investigate major deliberative — deliberate attacks on civilians in Afghanistan when they’re conducted by the Taliban?

Campbell: Sir, I haven’t seen it in the past. Quite frankly I don’t know —

Sullivan: I don’t think they do, typically. Do you think it would seem fair or balanced if the UN conducted an investigation which was clearly on something that was accidental? — the hospital bombing — when they don’t investigate deliberate Taliban killing of civilians. Do you think that would be viewed as fair or balanced or as something the Command needs or would welcome?

Campbell: Sir I can’t comment on how the UN would do that. What I can comment on as I said up front earlier is I have complete trust and confidence in the team that we have to be thorough, transparent. And if there were mistakes made, we’ll make sure that those come out, if there’s people we have to hold accountable, we’ll make sure we’ll do that. I have every trust and confidence in the US and the NATO investigation ongoing, uh, —

Sullivan: I think so do, most of us here do as well. Not, I don’t, I certainly don’t think an additional investigation by the UN would be warranted or be welcome by this committee.

In other words, people really don’t want an independent investigation of this.

Update: Sullivan is wrong about whether the UN investigates Taliban killing of civilians. While the UN hasn’t done a lot of recent human rights reporting — aside from a report on the status of women — when it did do reporting It includes the Taliban’s targeting of civilians in its findings, as in this 2008 report.

27. Over the past four months, the Taliban and other anti-government elements have killed approximately 300 civilians. Roughly three quarters of these civilians were killed in suicide attacks. While the majority of suicide attacks appear to target legitimate military objectives, many of these attacks are nonetheless unlawful because it should be obvious that they will result in far more civilian than military deaths.

28. Most of the other civilians killed by the Taliban die as a result of targeted assassinations. While these killings are fewer in number, they are significant in terms of intimidating and repressing the population. Often, killing one teacher will close an entire area’s schools, killing one proponent of the Government will intimidate many others, and killing one worker will end humanitarian access to a district. These assassinations are completely unlawful, and their consequences are dramatic. The Taliban have also engaged in a high level of unlawful killing of non-civilians.

There’s far more discussion of the Taliban’s war crimes, including discussions of specific incidents, in this 2009 report.

Update: I understated how much work the UN is doing on human rights violations in Afghanistan, as Sarah Knuckey lays out at Just Security.

The UN’s mid-year and annual reports on civilian casualties in Afghanistan typically detail anti-government attacks. The photo on the front cover of the most recent UN report on Afghanistan, for example, shows the horrific scene directly after an anti-government element attack in April 2015, in which 32 were killed and 126 injured. The report’s executive summary begins with the testimony of a schoolteacher who witnessed the attack and describes “the blood, the human limbs, the corpses, and the other wounded people all over the street.” Pages 41-77 of the report detail Taliban violence, describing suicide attacks, the use of improvised explosive devices, indiscriminate and deliberate attacks on civilians, and the war crime of murder. It includes a section specifically on suicide and complex attacks, in which 1,022 civilian casualties occurred in just the first six months of 2015.

Many other UN reports also detail the findings of its investigations into Taliban/anti-government element attacks: July 2014 (the cover shows a child injured by a Taliban attack on the Serena hotel), February 2014 (the cover shows a child injured in an IED attack), July 2013 (the cover shows children running from a Taliban attack), February 2013 (the executive summary begins with a gruesome witness account of an IED attack, obtained through UNAMA interviews) , February 2012 (cover shows the aftermath of a suicide attack), July 2012 (cover shows the consequences of an IED attack that killed 13 and injured 57), and so on. A great many UN press statements also regularly condemn Taliban violence.

There are also examples of other parts of the UN system reporting on Taliban attacks. In 2009, for example, a separate part of the UN – the UN Special Rapporteur on extrajudicial executions – carried out investigations in Afghanistan, including into killings by the Taliban, and detailed reckless as well as deliberate Taliban attacks, including Taliban assassinations of civilians.

Update: This post has been significantly updated with the transcripts of the two exchanges and links to UN reporting on Taliban targeting of civilians.

Congress Thinks BP Commission Needs Subpoena Power, Too

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A bunch of hippie members of Congress noticed the same thing about Obama’s BP Commission that I noticed: it lacks subpoena power.

So Lois Capps and Ed Markey in the House and Jeanne Shaheen and several of her colleagues are pushing legislation to give the Commission subpoena power.

U.S. Senator Jeanne Shaheen (D-NH), along with nine Senate colleagues, today introduced legislation to grant subpoena power to the bipartisan National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling, which President Obama created by executive order on May 22.  Congress has previously granted subpoena power to presidential commissions investigating national crises, including the Warren Commission and the Three Mile Island Commission.  Joining Shaheen on this legislation are Senators John Kerry (D-MA), Byron Dorgan (D-ND), Patty Murray (D-WA), Mary Landrieu (D-LA), Bob Menendez (D-NJ), Bob Casey (D-PA),  Amy Klobuchar (D-MN), Mark Begich (D-AK), and Kirsten Gillibrand (D-NY). The Senators strongly believe that the BP Commission must have subpoena power to ensure access to all the evidence it needs to undertake a complete investigation on the causes of the spill and make meaningful recommendations on how to prevent similar disasters. Today, Representatives Lois Capps (D-CA) and Ed Markey (D-MA) plan to introduce similar legislation in the House.

Here’s the House version of the bill.

Now, I’ve actually been told that Obama, by himself, couldn’t give the commission subpoena power–I’m trying to clarify that.

I’m still not entirely convinced this won’t be a whitewash designed to enable future drilling in any case. But subpoena power sure would help.