What has been obscured in the back and forth is that presidents do, in fact, have broad authority to condition aid to a foreign nation, even to delay it if there are concerns that it will not be used for its intended purposes. That is Trump’s power as president. But he doesn’t appear to have exercised it lawfully in this case.
Under Section 503 of the Foreign Assistance Act, a president “is authorized to furnish military assistance, on such terms and conditions as he may determine, to any friendly country or international organization, the assisting of which the President finds will strengthen the security of the United States and promote world peace.” Section 116 of the act states that the president has authority to withhold military or economic assistance “to the government of any country which engages in a consistent pattern of gross violations of internationally recognized human rights.”
Two amendments to the Foreign Assistance Act are relevant here.
First, the Freedom Support Act was added to the Foreign Assistance Act when the Soviet Union broke apart. It authorized aid to “take into account” the progress toward a “democratic system based on principles of the rule of law, individual freedoms, and representative government.”
Second, the Ukraine Freedom Support Act of 2014 was enacted with broad bipartisan support and designed to set U.S. policy “to further assist the Government of Ukraine in restoring its sovereignty and territorial integrity to deter the Government of the Russian Federation from further destabilizing and invading Ukraine.”
This statutorily endorsed policy and the effort to help end corruption in Ukraine were objectives of both the Obama and Trump administrations. As Marie Yovanovitch, the former U.S. ambassador to Ukraine, emphasized in her congressional testimony, “It was and remains a top U.S. priority to help Ukraine fight corruption.”
Foreign assistance programs are often held back and conditioned to ensure that systems are in place to prevent corruption. If physical items are to be purchased, transparent procurement processes are put in place. Local sub-grantees are investigated to ensure they will carry out their responsibilities with integrity.
Occasionally, policy issues that had not been anticipated might arise, delaying the release of aid — or the means through which it is distributed. Similarly, a change of government could be a cause to reevaluate and reconsider the terrain.
Concerns about corruption aren’t the only reason aid might be held up: In 1996, I attended a principals meeting to consider the sale of F-15s to Chile’s military. During the meeting, I argued that the sale could precipitate an arms race among poor countries that could ill-afford additional defense spending. Despite the position of the Defense, State and Commerce departments, the sale was held back for about four months. It proceeded only after we were able to account for the concerns that had come up during that meeting.
There is, as that example shows, no question that aid might be delayed to consider new realities. A hold would be justified if, for example, evidence came to light that military equipment purchased by Ukraine with U.S. funds might be siphoned onto the black market or used for nefarious purposes.
But the issue here is whether the situation in Ukraine in the spring and summer of 2019 warranted a delay. Ukrainian President Volodymyr Zelensky was elected with a large mandate on an anti-corruption platform in April. His party won a strong majority in parliament on July 21. In the view of those responsible for carrying out U.S. policy, these events created a very positive inflection point. According to the congressional testimony presented last week, each time the White House asked for a review of the aid package, the national security agencies came back quickly to recertify it and urge that it move ahead expeditiously.
Under ordinary circumstances, deciding to withhold urgently needed assistance to an important ally would engage the national security establishment at the highest level. By way of example, I was deeply involved in the handling of the Kosovo crisis during the Clinton administration. President Bill Clinton and his national security team met often, and decisions related to diplomatic initiatives, military targeting and the provision of humanitarian assistance were informed by interagency discussion. One result of these discussions was a decision to have the U.S. Agency for International Development (USAID) use aircraft to drop food aid in forested areas where civilians were hiding from Serb insurgents and the U.S. bombing campaign.
Although the United States is not engaged in a shooting war in Ukraine, Ukraine itself is, so providing aid was an urgent matter.
According to her testimony, Pentagon official Laura Cooper suggested in a July 31 meeting that if the administration was going to hold up aid, it was obliged to either rescind the appropriation or ask the Defense Department to reprogram the resources. This would have been in accordance with the Impoundment Control Act of 1974, which prevents the president from unilaterally substituting his own funding decisions for those of Congress.
In open testimony, National Security Council aide Tim Morrison revealed yet another meeting to discuss the package, on Sept. 7. At this point, the concern over possibly losing the funds was acute. Given the need to give 15 days’ notice to Congress, only a week remained before some action was needed. If nothing was done, the money would be lost at the end of September, the close of the fiscal year.
As the timeline of events has emerged, it has become clear — as William B. Taylor Jr., the acting U.S. ambassador to Ukraine and Yovanovitch’s successor, indicated in his congressional testimony — that an “irregular” Ukraine policy was being pursued by Rudolph W. Giuliani, Trump’s personal lawyer, outside official channels. The apparent goal of that back channel was to indicate, as the White House’s partial transcript of the July 25 call between Trump and Zelensky reflected and as Gordon Sondland, the U.S. ambassador to the European Union, said in his testimony last week, that the aid would not be released until Zelensky made a public statement announcing investigations into the Ukrainian energy company Burisma Holdings and the widely debunked rumor that Ukraine and not Russia had intervened in the 2016 U.S. election. (Former vice president Joe Biden’s son Hunter served on the board of Burisma.)
If the president delayed aid to extract a favor from Ukraine’s government, that not only would have undermined our policy, but it also would have fallen outside of his legal authority as chief executive and violated federal election laws. He could have delayed the aid to further policy objectives. He could have, pursuant to the Impoundment Act, asked for the funds to be redirected. He could not, however, legally, direct congressionally appropriated funds to achieve personal political ends.