Assuming Mulvaney, et al., have lawyered up

Deep into a long flight to Japan aboard Air Force One with President Trump [on June 27, more than a week after Mr. Trump had first asked about putting a hold on security aid to Ukraine,], Mick Mulvaney, the acting White House chief of staff, dashed off an email to an aide back in Washington.

“I’m just trying to tie up some loose ends,” Mr. Mulvaney wrote. “Did we ever find out about the money for Ukraine and whether we can hold it back?”

[...]

“Expect Congress to become unhinged” if the White House tried to countermand spending passed by the House and Senate, [the aide, Robert B. Blair,] wrote in a previously undisclosed email. And, he wrote, it might further fuel the narrative that Mr. Trump was pro-Russia.

[...]

Trump’s order to hold $391 million worth of sniper rifles, rocket-propelled grenades, night vision goggles, medical aid and other equipment the Ukrainian military needed to fight a grinding war against Russian-backed separatists would help pave a path to the president’s impeachment.

[...]

American diplomats used the withheld aid as leverage in the effort to win a public commitment from the new Ukrainian president, Volodymyr Zelensky, to carry out the investigations Mr. Trump sought into Mr. Biden and unfounded or overblown theories about Ukraine interfering in the 2016 election.

[...]

What emerges is the story of how Mr. Trump’s demands sent shock waves through the White House and the Pentagon, created deep rifts within the senior ranks of his administration, left key aides like Mr. Mulvaney under intensifying scrutiny — and ended only after Mr. Trump learned of a damning whistle-blower report and came under pressure from influential Republican lawmakers.

[...]

Opposition to the order from his top national security advisers was more intense than previously known. In late August, Defense Secretary Mark T. Esper joined Secretary of State Mike Pompeo and John R. Bolton, the national security adviser at the time, for a previously undisclosed Oval Office meeting with the president where they tried but failed to convince him that releasing the aid was in interests of the United States.

  NYT

Their mistake was in thinking that he might give a shit about the interests of the United States.

By late summer, top lawyers at the Office of Management and Budget who had spoken to lawyers at the White House and the Justice Department in the weeks beforehand, were developing an argument — not previously divulged publicly — that Mr. Trump’s role as commander in chief would simply allow him to override Congress on the issue.

[...]

Mulvaney is shown to have been deeply involved as a key conduit for transmitting Mr. Trump’s demands for the freeze across the administration.

[...]

Those carrying out Mr. Trump’s orders on the aid were for the most part operating in different lanes from those seeking the investigations, including Mr. Giuliani and a number of senior diplomats, including Gordon D. Sondland, the ambassador to the European Union, and Kurt D. Volker, the State Department’s special envoy for Ukraine and Russia.

[...]

[S]ome key players are now offering a defense that they did not know the diplomatic push for the investigations was playing out at the same time they were implementing the aid freeze — or if they were aware of both channels, they did not connect the two.

Really? They're going to use the "we're too stupid to be criminals" defense?

Mr. Mulvaney is said by associates to have stepped out of the room whenever Mr. Trump would talk with Mr. Giuliani to preserve Mr. Trump’s attorney-client privilege, leaving him with limited knowledge about their efforts regarding Ukraine. Mr. Mulvaney has told associates he learned of the substance of Mr. Trump’s July 25 call weeks after the fact.

Yet testimony before the House suggests a different picture. Fiona Hill, a top deputy to Mr. Bolton at the time, told the impeachment inquiry about a July 10 White House meeting at which Mr. Sondland said Mr. Mulvaney had guaranteed that Mr. Zelensky would be invited to the White House if the Ukrainians agreed to the investigations — an arrangement that Mr. Bolton described as a “drug deal,” according to Ms. Hill.

[...]

At the center of the maelstrom was the Office of Management and Budget, a seldom-scrutinized arm of the White House that during the Trump administration has often had to find creative legal reasoning to justify the president’s unorthodox policy proposals, like his demand to divert Pentagon funding to his proposed wall along the border with Mexico.

In the Ukraine case, however, shock about the president’s decision spread across America’s national security apparatus — from the National Security Council to the State Department and the Pentagon.

[...]

On Sept. 10, the day before Mr. Trump changed his mind, a political appointee at the budget office, Michael P. Duffey, wrote a lengthy email to the Pentagon’s top budget official, with whom he had been at odds throughout the summer about how long the agency could withhold the aid.

He asserted that the Defense Department had the authority to do more to ensure that the aid could be released to Ukraine by the congressionally mandated deadline of the end of that month, suggesting that responsibility for any failure should not rest with the White House.

Forty-three minutes later, the Pentagon official, Elaine McCusker, hit send on a brief but stinging reply.

“You can’t be serious,” she wrote. “I am speechless.”

[...]

Typical of the Trump White House, the inquiry was not born of a rigorous policy process. Aides speculated that someone had shown Mr. Trump a news article about the Ukraine assistance and he demanded to know more.

[Russell T. Vought, the acting head of the Office of Management and Budget,] and his team took to Google, and came upon a piece in the conservative Washington Examiner saying that the Pentagon would pay for weapons and other military equipment for Ukraine, bringing American security aid to the country to $1.5 billion since 2014.

Seriously? Administration officials have to Google to find out what's going on? Jesus.

The budget office officials had little idea of why Mr. Trump was interested in the topic, but many of the president’s more senior aides were well aware of his feelings about Ukraine. Weeks earlier, in an Oval Office meeting on May 23, with Mr. Sondland, Mr. Mulvaney and Mr. Blair in attendance, Mr. Trump batted away assurances that Mr. Zelensky was committed to confronting corruption.

“They are all corrupt, they are all terrible people,” Mr. Trump said, according to testimony in the impeachment inquiry.

[...]

With the [aid] money having been appropriated by Congress, it would be hard for the administration to keep it from being spent by the end of the fiscal year on Sept. 30.

The task of dealing with the president’s demands fell primarily to a group of political appointees in the West Wing and the budget office, most with personal and professional ties to Mr. Mulvaney. There was no public announcement that Mr. Trump wanted the assistance withheld. Neither Congress nor the Ukrainian government was formally notified.

[...]

The four top political appointees helping Mr. Mulvaney execute the hold — Mr. Vought, Mr. Blair, Mr. Duffey and Mark Paoletta, the budget office’s top lawyer — all had extensive experience in either congressional budget politics or Republican and conservative causes.

Their efforts would cause tension and at times conflict between officials at the budget office and the Pentagon, some of whom watched with growing alarm.

The single largest chunk of the federal government’s annual discretionary budget, some $800 billion a year, goes to the Pentagon, spy agencies and the Department of Veterans Affairs. The career official in charge of managing the flow of all that money for the budget office is an Afghanistan war veteran named Mark Sandy.

After learning about the president’s June 19 request, Mr. Sandy contacted the Pentagon to learn more about the aid package. He also repeatedly pressed Mr. Duffey about why Mr. Trump had imposed the hold in the first place.

[...]

From the start, budget office officials took the position that the money did not have to go out the door until the end of September, giving them time to address the president’s questions.

It was easy enough for the White House to hold up the State Department portion of the funding. Since the State Department had not yet notified Congress of its plans to release the money, all it took was making sure that the notification did not happen.

Freezing the Pentagon’s $250 million portion was more difficult, since the Pentagon had already certified that Ukraine had met requirements set by Congress to show that it was addressing its endemic corruption and notified lawmakers of its intent to spend the money.

So on July 19, Mr. Duffey proposed an unusual solution: Mr. Sandy should attach a footnote to a routine budget document saying the money was being temporarily withheld.

[...]

Mr. Sandy said in testimony that he had never done [that] before in his 12 years at the agency.

And there was a problem with this maneuver: Mr. Sandy was concerned it might violate a law called the Impoundment Control Act that protects Congress’s spending power and prohibits the administration from blocking disbursement of the aid unless it notifies Congress.

“I asked about the duration of the hold and was told there was not clear guidance on that,” Mr. Sandy testified. “So that is what prompted my concern.”

[...]

[O]n July 18, [...] a group of top administration officials meeting on Ukraine policy — including some calling in from Kyiv — learned from a midlevel budget office official that the president had ordered the aid frozen.

[...]

That same day, aides on the House Foreign Affairs Committee received four calls from administration sources warning them about the hold and urging them to look into it.

A week later came Mr. Trump’s fateful July 25 call with Mr. Zelensky. Mr. Bolton, the national security adviser, had recommended the call take place in an effort to end the “incessant lobbying” from officials like Mr. Sondland that the two leaders connect.

Some of Mr. Trump’s aides had thought the call might lead Mr. Trump to lift the freeze. But Mr. Trump did not specifically mention the hold, and instead asked Mr. Zelensky to look into Mr. Biden and his son and into supposed Ukrainian involvement in the 2016 election. Among those listening on the call was Mr. Blair.

Mr. Blair has told associates he [...] saw the aid freeze not as a political tool, but as an extension of Mr. Trump’s general aversion to foreign aid and his belief that Ukraine is rife with corruption.

Just 90 minutes after the call ended, and following days of email traffic on the topic, Mr. Duffey, Mr. Sandy’s boss, sent out a new email to the Pentagon, where officials were impatient about getting the money out the door. His message was clear: Do not spend it.

“Given the sensitive nature of the request, I appreciate your keeping that information closely held to those who need to know to execute the direction,” Mr. Duffey wrote in his note.

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This caused immediate discomfort at the Pentagon, with a top official there noting that this hold on military assistance was coming on the same day Ukraine announced it had seized a Russian tanker — a potential escalation in the conflict between the two nations.

[...]

By that point, officials in Ukraine were getting word that something was up. At the same time, the effort to win a commitment from the Ukrainians for the investigations sought by Mr. Trump was intensifying.

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And inside the intelligence community, a C.I.A. officer was hearing talk about the two strands of pressure on Ukraine, including the aid freeze. Seeing how they fit together, he was alarmed enough that by Aug. 12 he would take the extraordinary step of laying them out in detail in a confidential whistle-blower complaint.

[...]

In a very unusual step, the White House removed Mr. Sandy’s authority to oversee the aid freeze. The job was handed in late July to Mr. Sandy’s boss, Mr. Duffey, the political appointee.

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Two budget office staff members left the agency after the summer. Mr. Sandy testified that their departures were related to the aid freeze, a statement disputed by budget office officials.

Pentagon officials, in the dark about the reason for the holdup, grew increasingly frustrated. Ms. McCusker, the powerful Pentagon budget official, notified the budget office that either $61 million of the money would have to be spent by Monday, Aug. 12 or it would be lost. The budget office saw her threat as a ploy to force release of the aid.

[...]

Complicating matters, another budget battle was escalating. Mr. Vought was attempting to impose cuts of as much as $4 billion on the nation’s overall foreign aid budget. It was an entirely separate initiative from the Ukraine freeze, and was quickly abandoned, but helped the White House establish that its concern about aid was not limited to Ukraine.

By the second week of August, Mr. Duffey had taken to issuing footnotes every few days to block the Pentagon spending. Office of Management and Budget lawyers approved each one.

[...]

In a previously unreported sequence of events, Mr. Mulvaney worked to schedule a call for [August 12] with Mr. Trump and top aides involved in the freeze, including Mr. Vought, Mr. Bolton and Pat Cipollone, the White House counsel. But they waited to set a final time because Mr. Trump had a golf game planned for Monday morning with John Daly, the flamboyant professional golfer, and they did not know how long it would take.

By all means, don't interrupt the president's golf game with pressing foreign aid business.

The planned-for conference call with the president never happened. Budget office lawyers decided that Ms. McCusker had inaccurately raised alarms about the Aug. 12 date to try to force their hand.

In Bedminster with Mr. Trump, Mr. Mulvaney finally reached the president and the answer was clear: Mr. Trump wanted the freeze kept in place. In Washington, the whistle-blower submitted his report that same day.

[...]

Backed by a memo saying the National Security Council, the Pentagon and the State Department all wanted the aid released, Mr. Bolton made a personal appeal to Mr. Trump on Aug. 16, but was rebuffed.

On Aug. 28, Politico published a story reporting that the assistance to Ukraine had been frozen.

[...]

Bolton’s relationship with the president had been deteriorating for months, and he would leave the White House weeks later, but on this front he had powerful internal allies.

On a sunny, late-August day, Mr. Bolton, Mr. Esper and Mr. Pompeo arrayed themselves around the Resolute desk in the Oval Office to present a united front, the leaders of the president’s national security team seeking to convince him face to face that freeing up the money for Ukraine was the right thing to do. One by one they made their case.

[...]

Trump responded that he did not believe Mr. Zelensky’s promises of reform. He emphasized his view that corruption remained endemic and repeated his position that European nations needed to do more for European defense.

“Ukraine is a corrupt country,” the president said. “We are pissing away our money.”

[...]

On Aug. 31, Senator Ron Johnson, Republican of Wisconsin, arranged a call with Mr. Trump. Mr. Johnson had been told days earlier by Mr. Sondland that the aid would be unblocked only if the Ukrainians gave Mr. Trump the investigations he wanted.

When Mr. Johnson asked Mr. Trump directly if the aid was contingent on getting a commitment to pursue the investigations, Mr. Johnson later said, Mr. Trump replied, amid a string of expletives, that there was no such demand and he would never do such a thing.

Around the same time, White House lawyers informed Mr. Trump about the whistle-blower’s complaint regarding his pressure campaign.

[...]

Behind the scenes in Warsaw, Mr. Sondland, the American envoy who was Mr. Trump’s point person on getting the Ukrainians to agree to the investigations, had a [blunt] message. Until the Ukrainians publicly announced the investigations, he told Mr. Yermak, the Zelensky adviser, they should not expect to get the military aid. (Mr. Yermak has questioned Mr. Sondland’s account.)

[...]

[T]op lawyers at the budget office were developing a proposed legal justification for the hold.

[...]

The president, the lawyers believed, could ignore the requirements of the Impoundment Control Act and continue to hold the aid by asserting constitutional commander in chief powers that give him authority over diplomacy. He could do so, they believed, if he determined that, based on existing circumstances, releasing the money would undermine military or diplomatic efforts.

[...]

Mr. Bolton was opposed to using [that] argument. [...] And pressure from Congress was intensifying. Mr. Johnson and another influential Republican, Senator Rob Portman of Ohio, were both pushing for the aid to be released.

[...]

Democrats in the House were gearing up to limit Mr. Trump’s power to hold up the money to Ukraine, and the chairmen of three House committees had also announced on Sept. 9 that they were opening an investigation.

Still, White House officials did not expect anything to change, especially since Mr. Trump had repeatedly rejected the advice of his national security team.

But then, just as suddenly as the hold was imposed, it was lifted.

And that call to Zelensky was "perfect".