by Robert Romano
“President Trump told his national security adviser in August that he wanted to continue freezing $391 million in security assistance to Ukraine until officials there helped with investigations into Democrats including the Bidens, according to an unpublished manuscript by the former adviser, John R. Bolton.”
That was the New York Times’ preview of potential testimony by former National Security Advisor John Bolton at the impeachment trial of President Donald Trump, where the President allegedly told Bolton “he preferred sending no assistance to Ukraine until officials had turned over all materials they had about the Russia investigation that related to Mr. Biden and supporters of Mrs. Clinton in Ukraine.”
That, we are led to believe, if and when he ever testifies, will be Bolton’s description of the President’s intent with regards to the aid, which was ultimately released on Sept. 11, the same day Bolton was fired.
“Wanted.”
“Preferred.”
And yet, neither the White House nor the State Department never directly conveyed any such conditions to Ukraine, despite the aid being frozen in July, until after Politico broke the story of the aid being frozen on Aug. 28, undercutting the key part of the House’s prosecution — that military assistance to Ukraine was threatened unless investigations were announced.
Even then, the only official who conveyed such conditions, U.S. Ambassador to the European Union Gordon Sondland, said in House testimony he was simply presuming the aid was being conditioned: “No one told me directly that the aid was tied to anything. I was presuming it was.”
According to both former ambassador to Ukraine William Taylor and former Senior Director for European Affairs at the White House and the National Security Council Tim Morrison’s testimony, Ukrainian officials were unaware of any pause in the funding until the Politico story was published a month after President Trump spoke to Ukrainian President Volodymyr Zelensky on July 25.
Zelensky later said in September there was “no pressure.”
Yet, the Articles of Impeachment say Trump “conditioned two official acts on the public announcements that he had requested—the release of $391 million of United States taxpayer funds that Congress had appropriated on a bipartisan basis for the purpose of providing vital military and security assistance to Ukraine to oppose Russian aggression and which President Trump had ordered suspended.”
Now we learn from Bolton that Trump “preferred” it that way.
This amounts to a kind of thought crime. Kind of like that time the President “wanted” to fire former Special Counsel Robert Mueller but never actually did. Here, the government never told Ukraine there were conditions attached to aid.
But even if it had been conditioned, those are all things the President has the power to do constitutionally under Article II and legally under laws passed by Congress. That is, reviewing military assistance to a non-treaty partner to see if it serves U.S. interests, or whether Ukraine is simply too corrupt to deal with.
In this case, the question is on military assistance to Ukraine, which is not in NATO but is embroiled in a civil war with pro-Russian forces, that could lead to a wider regional war in Europe or a global one involving the U.S. and Russia, risking a nuclear exchange, raising national security concerns. Of course the President should be reviewing such a hotspot to ensure it doesn’t lead to a wider war. That’s his job to keep us out of wars.
The funds were initially frozen in July by the Office of Management and Budget (OMB) under the agencies authority under 31 U.S.C. 1512 to conduct apportionments while the President considered whether or not to request a rescission of the funding under the Impoundment Control Act.
The Office of Management and Budget says it did nothing wrong, with OMB communications director Rachel Semmel issuing a statement saying, “As has been well documented, we fully complied with the law and decades of precedent with respect to these funds. Congress is notified if the administration intends to rescind, defer, reprogram or transfer funding, but in this case none of those things occurred and the funding was obligated as planned.”
Under 2 U.S.C. Section 684 or 2 U.S.C. Section 683, the Impoundment Control Act, the President has the power to propose deferring funds on a temporary basis or rescinding them altogether, subject to Congressional approval.
The hold on Ukrainian aid came amid a wider freeze and review of overall State Department and USAID foreign aid spending in August. The Articles of Impeachment do not allege this wider freeze constituted criminal conduct.
The President has discretion to ensure that all relationships with foreign governments — even treaties — continue to advance the administration’s foreign policy agenda.
If Bolton were to testify, Senators might want to ask him about his career of encouraging presidents to terminate treaties with foreign governments under the President’s inherent Article II executive powers. This is the same unitary executive legal doctrine under which presidential impoundment of monies has historically been exercised. The first presidential impoundment occurred in 1800 by then President Thomas Jefferson, available to subsequent presidents until the Impoundment Control Act was adopted in 1974.
During the administration of President George W. Bush, Bolton supported unilaterally withdrawing from the 1972 Anti-Ballistic Missile Treaty with Russia, which Bush ultimately did in 2002. Bolton wrote in his memoirs, “it was absolutely critical to get out of the ABM Treaty unambiguously. Then, whether we succeeded or failed in broader negotiations with Russia, we would be free to pursue a missile defense system to protect Americans from current threats,” calling it mockingly a “sacred scroll” to arms control advocates.
The decision was legally justified with a Nov. 2001 Justice Department Office of Legal Counsel opinion from then-Deputy Assistant Attorney General John Yoo and Robert Delahunty, who argued that the President could unilaterally withdraw from treaties without any Congressional action, including from the Senate, citing the 1793 Proclamation of Neutrality by George Washington, suspending a mutual defense treaty with France when it went to war with Great Britain, FDR’s decision to rescind a treaty with Japan in 1939 and Jimmy Carter’s withdrawal from a mutual defense treaty with Taiwan in 1979 as ample precedents.
Yoo and Delahunty wrote, “The President’s power to terminate treaties must reside in the President as a necessary corollary to the exercise of the President’s other plenary foreign affairs powers. As noted before, the President is the sole organ of the nation in regard to foreign nations. A President, therefore, may need to terminate a treaty in order to implement his decision to recognize a foreign government. Or, for example, the President may wish to terminate a treaty in order to reflect the fact that the treaty has become obsolete, to sanction a treaty partner for violations, to protect the United States from commitments that would threaten its national security, to condemn human rights violations, or to negotiate a better agreement.”
In 1793, Alexander Hamilton wrote of the President’s treaty withdrawal power in defense of the Proclamation of Neutrality: “though treaties can only be made by the President and Senate, their activity may be continued or suspended by the President alone.”
Bolton would later pen an oped with Yoo in the Wall Street Journal in 2014 arguing for unilateral presidential withdrawal from the 1987 Intermediate Nuclear Forces Treaty with Russia, which President Trump ultimately did in August 2019.
So, a good question would be why Bolton thinks presidents can unilaterally terminate treaties that require Senate ratification with military allies to keep us out of an unintentional war, but not pause appropriated military assistance to a non-treaty partner when it could drag us into one.
Either way, this boils down to a policy disagreement between Bolton and Trump, not a high crime or misdemeanor, and certainly not an act of bribery or treason. If this is all the House has, the President’s acquittal is all but certain.
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Robert Romano is the Vice President of Public Policy at Americans for Limited Government.
