OMB Releases Memo on Legal Reasons to Withhold Ukraine Aid

White House (Mandel Ngan / AFP / Getty)
Mandel Ngan / AFP / Getty

The White House Office of Management and Budget (OMB) sent a memorandum Wednesday to the Government Accountability Office (GAO) explaining the legal foundations and reasons for holding up U.S. security assistance to Ukraine over the summer.

The Washington Post reported the existence of the memorandum and published it on Thursday morning; it was largely overlooked in in favor of the day’s lengthy impeachment debate in the House Judiciary Committee. Yet the memo fills in some of the factual gaps in the account of what happened.

In the memo to GAO, which works for Congress, the OMB begins by explaining that it often holds up funding to federal agencies in the regular course of business under its apportionment authority, often for reasons as mundane as making sure funding is being spent efficiently.

However, there are different methods of holding up funds. One is “deferral,” which is still subject to the provisions of the Impoundment Control Act, which requires the president to inform Congress. The other way in which funds may be held is “programmatic delay,” in which the president withholds funds while developing policies around the funds. A “deferral” runs against the intent for which Congress appropriates money; a “programmatic delay” works in favor of congressional intent. OMB argues that both practices have a lengthy, legitimate history.

Without delving into details, the OMB explains that the hold on aid to Ukraine was a “programmatic delay”:

The pause in obligations of the Ukraine funds at issue here is an example of programmatic delay. … It was OMB’s understanding that a brief period was needed, prior to the funds expiring, to engage in a policy process regarding those funds. OMB took appropriate action, in light of a pending policy process, to ensure that funds were not obligated prematurely in a manner that could conflict with the President’s foreign policy.

The OMB memo notes wryly in a footnote that the executive has sometimes held up funding beyond the statutory deadline at the request of the legislature itself: ” OMB is aware of instances in which Members of Congress demanded that agencies withhold funds for months— and even years—beyond the period required by statute for reasons wholly unrelated to the purpose of the appropriation.”

Again and again, witnesses before the House Intelligence Committee were asked about disputes between the OMB, the Department of Defense, and the Department of State about whether the hold on funds was legal. The issue was never cleared up.

What the OMB memo argues, however, is that the hold on aid — regardless of what the Ukraine did, or knew — was not meant to defy Congress’s intent to help Ukraine, but to make sure the money actually did.

Joel B. Pollak is Senior Editor-at-Large at Breitbart News. He earned an A.B. in Social Studies and Environmental Science and Public Policy from Harvard College, and a J.D. from Harvard Law School. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. He is also the co-author of How Trump Won: The Inside Story of a Revolution, which is available from Regnery. Follow him on Twitter at @joelpollak.

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