[…]The short of it is that Congress enacted a law appropriating a sum of money must be sent to Ukraine, but the President after signing that law directed his officers to withhold the funds. That is a violation of another law that says you can’t defer apportionment of appropriated funds except on specific grounds which I don’t think were met. Therefore the president directed his officers to violate the law, […]
I invite you to dissuade me from this position, contrary to your own. I have put a more detailed argument in the spoiler, and I recommend you check your refutation against the full argument although I am more than happy to defend myself as your replies come.
~Max
[SPOILER]The law in question is Section 1250, the Ukraine Security Assistance Initiative section, of the National Defense Authorization Act for Fiscal Year 2016, Pub. L. No. 114-92, 129 Stat. 1068 (NDAA FY2016) as amended by the National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2494 (NDAA FY2017), the National Defense Authorization Act for Fiscal Year 2018, Pub. L. No. 115-91, 131 Stat. 1659 (NDAA FY2018), and the John S. McCain National Defense Authorization Act for Fiscal Year 2019, Pub. L. No. 115-232, 132 Stat. 2049 (NDAA FY2019).
I don’t believe this law is written into the United States Code as it is a budget law. That means we get to compile all four acts ourselves to see how the law actually stands since August 13, 2018. In the essence of saving space, I will post the resulting section of law, and if you want to check my work you can look at the underlying public laws and recreate it yourself. The Statute page numbers above go straight to the Ukraine Security Assistance section, and if you download the PDF files from the below links they are paginated accordingly.
NDAA FY2016: https://www.congress.gov/114/plaws/publ92/PLAW-114publ92.pdf (1.7 MB)
NDAA FY2017: https://www.congress.gov/114/plaws/publ328/PLAW-114publ328.pdf (2.6 MB)
NDAA FY2018: https://www.congress.gov/115/plaws/publ91/PLAW-115publ91.pdf (2.1 MB)
NDAA FY2019: https://www.congress.gov/115/plaws/publ232/PLAW-115publ232.pdf (2.1 MB)
And here is the law as amended by all three subsequent acts:
SEC. 1250. UKRAINE SECURITY ASSISTANCE INITIATIVE.
(a) Authority To Provide Assistance.–Amounts available for a fiscal year under subsection (f) shall be available to the Secretary of Defense, in coordination with the Secretary of State, to provide appropriate security assistance and intelligence support, including training, equipment, and logistics support, supplies and services, to military and other security forces of the Government of Ukraine for the purposes as follows:
INDENT To enhance the capabilities of the military and other security forces of the Government of Ukraine to defend against further aggression.
(2) To assist Ukraine in developing the combat capability to defend its sovereignty and territorial integrity.
(3) To support the Government of Ukraine in defending itself against actions by Russia and Russian-backed separatists that violate the ceasefire agreements of September 4, 2014, and February 11, 2015.
(b) Appropriate Security Assistance and Intelligence Support.–For purposes of subsection (a), appropriate security assistance and intelligence support includes the following:
(1) Real time or near real time actionable intelligence, including by lease of such capabilities from United States commercial entities.
(2) Lethal assistance such as anti-armor weapon systems, mortars, crew-served weapons and ammunition, grenade launchers and ammunition, and small arms and ammunition.
(3) Counter-artillery radars, including medium-range and long-range counter-artillery radars that can detect and locate long-range artillery.
(4) Unmanned aerial tactical surveillance systems.
(5) Cyber capabilities.
(6) Counter-electronic warfare capabilities such as secure communications equipment and other electronic protection systems.
(7) Other electronic warfare capabilities.
(8) Training for critical combat operations such as planning, command and control, small unit tactics, counter-artillery tactics, logistics, countering improvised explosive devices, battle-field first aid, post-combat treatment, and medical evacuation.
(9) Equipment and technical assistance to the State Border Guard Service of Ukraine for the purpose of developing a comprehensive border surveillance network for Ukraine.
(10) Training for staff officers and senior leadership of the military.
(11) Air defense and coastal defense radars.
(12) Naval mine and counter-mine capabilities.
(13) Littoral-zone and coastal defense vessels.
(14) Training required to maintain and employ systems and capabilities described in paragraphs (1) through (13).
(15) Treatment of wounded Ukrainian soldiers in the United States in medical treatment facilities through the Secretarial Designee Program, including transportation, lodging, meals, and other appropriate non-medical support in connection with such treatment, and education and training for Ukrainian healthcare specialists such that they can provide continuing care and rehabilitation services for wounded Ukrainian soldiers.
(c) Availability of Funds.–
(1) Assistance for Ukraine.–Not more than 50 percent of the funds available for fiscal year 2019 pursuant to subsection (f)(4) may be used for purposes of subsection (a) until the certification described in paragraph (2) is made.
(2) Certification.–
INDENT In general.–The certification described in this paragraph is a certification by the Secretary of Defense, in coordination with the Secretary of State, that the Government of Ukraine has taken substantial actions to make defense institutional reforms, in such areas as described in subparagraph (B), for purposes of decreasing corruption, increasing accountability, and sustaining improvements of combat capability enabled by assistance under subsection (a).
(B) Areas described.–The areas described in this subparagraph are–
INDENT strengthening civilian control of the military;
(ii) enhanced cooperation and coordination with Verkhovna Rada efforts to exercise oversight of the Ministry of Defense and military forces;
(iii) increased transparency and accountability in defense procurement;
(iv) improvement in transparency, accountability, sustainment, and inventory management in the defense industrial sector; and
(v) protection of proprietary or sensitive technologies as such technologies relate to foreign military sales or transfers.
(C) Assessment.–The certification shall include an assessment of the substantial actions taken to make such defense institutional reforms and the areas in which additional action is needed and a description of the methodology used to evaluate whether Ukraine has made progress in defense institutional reforms relative to previously established goals and objectives.[/INDENT]
(3) Other purposes.–If in fiscal year 2019 funds are not available for purposes of subsection (a) by reason of the lack of a certification described in paragraph (2), such funds may be used in that fiscal year for the purposes as follows:
(A) Assistance or support to national-level security forces of other Partnership for Peace nations that the Secretary of Defense determines to be appropriate to assist in preserving their sovereignty and territorial integrity against Russian aggression.
(B) Exercises and training support of national-level security forces of Partnership for Peace nations or the Government of Ukraine that the Secretary of Defense determines to be appropriate to assist in preserving their sovereignty and territorial integrity against Russian aggression.
(4) Notice to congress.–Not later than 15 days before providing assistance or support under paragraph (3), the Secretary of Defense shall submit to the congressional defense committees, the Committee on Foreign Relations of the Senate, and the Committee on Foreign Affairs of the House of Representatives a notification containing the following:
(A) The recipient foreign country.
(B) A detailed description of the assistance or support to be provided, including–
INDENT the objectives of such assistance or support;
(ii) the budget for such assistance or support; and
(iii) the expected or estimated timeline for delivery of such assistance or support.
(C) Such other matters as the Secretary considers appropriate.[/INDENT]
(5) Lethal assistance.–Of the funds available for fiscal year 2019 pursuant to subsection (f)(4), $50,000,000 shall be available only for lethal assistance described in paragraphs (2) and (3) of subsection (b).[/INDENT]
(d) United States Inventory and Other Sources.–
(1) In general.–In addition to any assistance provided pursuant to subsection (a), the Secretary of Defense is authorized, with the concurrence of the Secretary of State, to make available to the Government of Ukraine weapons and other defense articles, from the United States inventory and other sources, and defense services, in such quantity as the Secretary of Defense determines to be appropriate to achieve the purposes specified in subsection (a).
(2) Replacement.–Amounts for the replacement of any items provided to the Government of Ukraine pursuant to paragraph (1) shall be derived from the amount available pursuant to subsection (a) or amounts authorized to be appropriated for the Department of Defense for overseas contingency operations for weapons procurement.
(e) Construction of Authorization.–Nothing in this section shall be construed to constitute a specific statutory authorization for the introduction of United States Armed Forces into hostilities or into situations wherein hostilities are clearly indicated by the circumstances.
(f) Funding.–From amounts authorized to be appropriated for the fiscal year concerned for the Department of Defense for overseas contingency operations, up to the following shall be available for purposes of subsection (a):
(1) For fiscal year 2016, $300,000,000.
(2) For fiscal year 2017, $350,000,000.
(3) For fiscal year 2018, $350,000,000.
(4) For fiscal year 2019, $250,000,000.
(g) Construction With Other Authority.–The authority to provide assistance and support pursuant to subsection (a), and the authority to provide assistance and support under subsection (c), is in addition to authority to provide assistance and support under title 10, United States Code, the Foreign Assistance Act of 1961, the Arms Export Control Act, or any other provision of law.
(h) Termination of Authority.–Assistance may not be provided under the authority in this section after December 31, 2021.[/INDENT]
The act as amended provides the Secretary of Defense, in coordination with the Secretary of State, with authorization to spend up to $250 million from to-be-appropriated funds in fiscal year 2019. As a caveat, only $125 million can be spent unless the secretaries certify:
According to NPR, the Undersecretary of Defense submitted the requisite certification in May. They link to a copy of the letter, if you want to read it. This is also verified Ambassador Taylor’s recent testimony, I don’t have a transcript handy but I heard him say it was certified.
Congress provided the appropriations with section 9013 of the Department of Defense and Labor, Health and Human Services, and Education Appropriations Act, 2019 and Continuing Appropriations Act, 2019, Pub. L. No. 115-245, 132 Stat. 3044. This is available from https://www.congress.gov/115/plaws/publ245/PLAW-115publ245.pdf (645 KB), and I have reproduced it in the spoiler:
Sec. 9013. For the “Ukraine Security Assistance Initiative”, $250,000,000 is hereby appropriated, to remain available until September 30, 2019: Provided, That such funds shall be available to the Secretary of Defense, in coordination with the Secretary of State, to provide assistance, including training; equipment; lethal assistance; logistics support, supplies and services; sustainment; and intelligence support to the military and national security forces of Ukraine, and for replacement of any weapons or articles provided to the Government of Ukraine from the inventory of the United States: Provided further, That of the amounts made available in this section, $50,000,000 shall be available only for lethal assistance described in paragraphs (2) and (3) of section 1250(b) of the National Defense Authorization Act for Fiscal Year 2016 (Public Law 114-92; 129 Stat. 1068): Provided further, That the Secretary of Defense shall, not less than 15 days prior to obligating funds provided under this heading, notify the congressional defense committees in writing of the details of any such obligation: Provided further, That the United States may accept equipment procured using funds provided under this heading in this or prior Acts that was transferred to the security forces of Ukraine and returned by such forces to the United States: Provided further, That equipment procured using funds provided under this heading in this or prior Acts, and not yet transferred to the military or National Security Forces of Ukraine or returned by such forces to the United States, may be treated as stocks of the Department of Defense upon written notification to the congressional defense committees: Provided further, That amounts made available by this section are designated by the Congress for Overseas Contingency Operations/Global War on Terrorism pursuant to section 251(b)(2)(A)(ii) of the Balanced Budget and Emergency Deficit Control Act of 1985.
Basically it appropriates $250 million.
If you are wondering, “who says that the President has to spend all of the money appropriated?” there’s a complex and interesting history to that - basically, blame Nixon. But the current state of affairs is the Impoundment Control Act of 1974 as later amended, presently codified under Title 2 Chapter 17B of the United States Code.
2 U.S.C. § 682 (1) reads:
and 2 U.S.C. § 684 (b) reads:
I do not believe it is disputed that the expenditure of budget authority provided for the Ukraine Security Assistance Initiative was withheld or delayed. Ambassador Taylor testified watching an OMB staffer literally announce that the funds were being withheld. I believe Mr. Trump himself admitted that he was “withholding” aid at a press release from the UN.
Now, it is true that “contingencies” can mean almost any specific circumstance, but I am fairly confident the use of that word here means to set aside money in case it is needed for some emergency, a la the usage in the Budget Control Act. Deferring the apportionment of appropriated money because of unforeseen corruption concerns is exactly the sort of thing Congress explicitly removed from the Anti-Deficiency Act when they passed the Impoundment Control Act. There used to be a provision in there for that kind of exception, until Nixon abused it.
The savings exception is for things like reducing government waste, and I don’t see any way of that being applicable. Neither do I think the appropriation law itself had a relevant clause, except the halving of funds if the Secretary of Defense does not certify Ukraine. But Ukraine was certified, so that doesn’t apply, either.[/SPOILER]
~Max