Lt. Col. Vindman testified that the issue needed to be “elevated to a PC [Principals Committee] as quickly as possible to release the hold on security assistance” so that the funds could be obligated before the end of the fiscal year.371
A Principals Committee meeting was never convened.372 According to Mr. Morrison, National Security Advisor John Bolton “believed that it was unnecessary, that he already had a reasonable idea of where the principals were, and he wanted to get directly to the President as early as possible in the most effective way.”373 Ambassador Bolton understood that the principals “were all supportive of the continued disbursement of the aid.”374 As had been clear since the very first interagency meeting on July 18, the lifting of the hold was “the unanimous position of the entire interagency.”375 At this point, it remained unclear to many officials why the President continued to hold the funds.
On July 31, 2019, a fourth and final interagency meeting was held at the Policy Coordination Committee level. Ms. Cooper attended the meeting on behalf of DOD. According to Ms. Cooper, the agenda “was largely focused on just routine Ukraine business, postelection follow up,” and “security assistance was not actually an explicit agenda item.”376 Ms. Cooper nevertheless raised security assistance and expressed her understanding, after consulting with DOD counsel, that there were only two legally available options to implement the hold: a Presidential rescission notice to Congress (i.e., requesting that Congress “take back” funds it had already appropriated) or for the Defense Department to do a reprogramming action (i.e., use Congressionally-appropriated funds for a different purpose).377 In either case, the law requires that the Executive Branch notify, and seek approval from, Congress before taking any action.378
At the July 31 meeting, Ms. Cooper emphasized to the participants that because “there are only two legally available options and we do not have direction to pursue either,” DOD would have to start obligating the funds on or about August 6.379 She explained at her deposition that DOD would have had to begin obligating the funds by that date or risk violation of the Impoundment Control Act.380
The Administration, however, never proposed a rescission or reprogramming of funds for Ukraine security assistance and never notified Congress of its intent to withhold funds.381
OMB Used Unusual Process to Implement President’s Hold, Skirting Legal Concerns
OMB plays a critical role in the release of security assistance funding. The Antideficiency Act requires that, before any department or agency may spend Congressionally-appropriated funding, the Director of OMB or his delegates must “apportion” (i.e., make available to spend) the funds in writing.382 Through this mechanism, OMB has the ability to directly impact security assistance funding or funding of any kind that is appropriated by Congress.
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