[Congressional Record Volume 166, Number 18 (Tuesday, January 28, 2020)]
[House]
[Pages H623-H629]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  WHY IMPOUNDMENT CONTROL ACT MATTERS

  The SPEAKER pro tempore. Under the Speaker's announced policy of 
January 3, 2019, the Chair recognizes the gentleman from Kentucky (Mr. 
Yarmuth) for 30 minutes.


                             General Leave

  Mr. YARMUTH. Madam Speaker, I ask unanimous consent that all Members 
may have 5 legislative days in which to revise and extend their remarks 
and insert extraneous material on my Special Order.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Kentucky?
  There was no objection.
  Mr. YARMUTH. Madam Speaker, a week from today, we will hear about the 
state of our Union from an impeached President who has repeatedly shown 
a complete disregard for the principles on which that union was 
founded.
  President Trump has brazenly trampled the constitutional boundaries 
of executive power, damaging the foundation of our democracy. He 
shamelessly betrayed his oath of office by putting his own corrupt 
agenda before our national security.
  His withholding of aid to Ukraine has dominated the news, but the 
administration's willingness to pervert our laws for President Trump's 
ego, personal vendettas, and political gains goes much deeper.
  Earlier this month, the nonpartisan U.S. Government Accountability 
Office, or GAO, issued a legal opinion stating that Trump's Office of 
Management and Budget, OMB, violated Federal law, specifically the 
Impoundment Control Act of 1974, by withholding foreign aid.
  Madam Speaker, I will include that opinion in the Record.

                              {time}  1845

  As chairman of the Budget Committee, which has jurisdiction over this 
law, it is my responsibility to provide the full story to the American 
people and to Members of Congress so that we can all fully understand 
what is happening to our government.
  To start with, this violation of Federal law was not an innocent 
mistake. Withholding Ukrainian aid was an intentional and brazen abuse 
of power. This quid pro quo is the most egregious example that we know 
of, but the Budget Committee has been concerned by OMB's questionable 
behavior and apparent violations of the Impoundment Control Act for 
some time.
  A deeper look clearly reveals how methodically the President and his 
administration have been circumventing our laws to advance their 
authoritarian view of executive power. To understand their scheme, we 
must understand the law they tried to secretly dodge and ultimately 
broke, the Impoundment Control Act.
  The U.S. Constitution grants Congress the power to appropriate our 
tax dollars, while the President's administration carries out these 
spending decisions. It is a simple but incredibly important check on 
executive power.
  In 1974, Congress passed the Impoundment Control Act, the ICA, in 
response to another law-breaking President, President Nixon. By 
refusing to spend congressionally appropriated funds for programs he 
opposed, such as funding for clean drinking water, Nixon's 
administration was impounding funds.
  An impoundment means any action or inaction that prevents Federal 
funds

[[Page H624]]

from being obligated or spent, either temporarily or permanently.
  By passing the ICA, Congress reasserted its constitutional power of 
the purse by establishing procedures to block the President and other 
government officials from substituting their own funding decisions for 
those of Congress.
  It created two pathways the executive branch can use to reduce, 
delay, or eliminate congressionally appropriated funding: They can 
propose to cancel funding, which is known as a recision, or delay 
funding, which is a deferral, but both must meet strict requirements.
  For example, if the President wants to eliminate funding for a 
specific program, he must first secure congressional approval to cancel 
that funding. The ICA requires that the President send a special 
message to Congress identifying the amount of, the reasons for, and the 
effects of a proposed recision.
  After submitting this special message, the President can withhold 
those funds for up to 45 legislative session days while Congress 
considers the request. But if Congress does not pass a law to cancel 
those funds within that 45-day period, those funds must be released. So 
even with this process, the President cannot cancel funding without 
Congress' explicit approval.
  Also, the President cannot use the recisions process to run out the 
fiscal year clock, in other words, to withhold funds for so long that 
they can no longer be used. We will come back to recision, so keep this 
in mind.
  Now, the ICA defines a deferral as withholding, delaying, or 
effectively preventing congressionally approved funds from being 
obligated or spent, either through executive action or inaction. But 
here is the catch. There are only three narrow circumstances in which 
the President can propose a deferral: to provide for contingencies, to 
achieve budgetary savings through approved operational efficiency, and 
as specifically provided by law.
  Notice that policy reasons is not one of the three.
  As with recisions, the ICA requires that the President send a special 
message to Congress identifying how much they want to defer, why, and 
for how long. However, a proposed deferral may not extend beyond the 
end of the fiscal year. Only once Congress receives this special 
message can the President withhold those funds.
  Again, the President cannot withhold funds for so long that they can 
no longer be used.
  I hope that didn't make anyone's eyes glaze over, but the details of 
the Impoundment Control Act are at the heart of this administration's 
lack of respect for our Nation's separation of powers and rule of law.
  Today, nearly 46 years after the ICA became law, Congress confronts a 
President and an administration eager to blow past the boundaries of 
executive budgetary power and co-opt Congress' power of the purse for 
the President's personal gain.
  This brings us to 2018 and one the first red flags. My committee's 
concerns about ICA violations under the Trump administration actually 
started in 2018, when I was serving as the committee's ranking member.
  Multiple reports warned that the Trump administration was considering 
a late-in-the-year recisions package that would have effectively 
started that 45-day clock close to the end of the fiscal year. As you 
recall, the ICA requires congressional approval before funds can be 
canceled. By withholding funds through their expiration date, President 
Trump and OMB aimed to game the system and create a backdoor recission. 
The White House had to abandon this scheme in the face of bipartisan 
condemnation.
  To send a clear message to the White House and to put an end to any 
future attempts at backdoor recisions, then-Chairman Womack and I, in 
October of 2018, requested GAO's legal opinion on whether an ill-timed 
recision package from the White House would violate the ICA.
  Madam Speaker, I include in the Record the letter that then-Chairman 
Womack and I sent to the GAO.

                                         House of Representatives,


                                      Committee on the Budget,

                           Washington, DC 20515, October 31, 2018.
     Hon. Gene L. Dodaro,
     Comptroller General, U.S. Government Accountability Office, 
         Washington, DC.
       Dear Mr. Dodaro: We are requesting clarification in the 
     form of a legal opinion on the issue of proposed rescissions 
     of funds submitted close to their expiration date. It is 
     important that Congress remain at the center of the decision 
     of whether to withhold funds. To that end Congress should 
     have adequate time to receive, consider, and act on any 
     rescission message sent by the President.
       Under the Impoundment Control Act of 1974 (ICA), the 
     President may submit a special message proposing the 
     rescission of budget authority and may withhold funds from 
     obligation for a period of 45 calendar days of continuous 
     session following transmission of the special message. Public 
     Law No. 93-344, as amended, 1012; 2 U.S.C. Sec. 683. If 
     Congress does not pass a rescission bill within the 45-day 
     period, the ICA requires that the funds be released for 
     obligation. Specifically, section 1012(b) states: ``Any 
     amount of budget authority proposed to be rescinded or that 
     is to be reserved as set forth in such special message shall 
     be made available for obligation unless, within the 
     prescribed 45-day period, the Congress has completed action 
     on a rescission bill rescinding all or part of the amount 
     proposed to be rescinded or that is to be reserved.''
       As you know, the rescission process has been used this year 
     for the first time since the Clinton Administration. 
     Naturally, some questions have arisen. One question of 
     particular importance to Congress concerns whether the 
     executive can use the rescission process to withhold funds 
     from obligation for the duration of the 45-day period, even 
     if the funds expire before the end of that period.
       GAO has never issued an opinion on the legality of 
     withholding funds in this circumstance. We now request GAO's 
     legal opinion regarding whether the ICA allows funds to be 
     withheld from obligation in this situation.
       Thank you for your attention to this matter.
           Sincerely,
                                                     Steve Womack,
                                                         Chairman,
                                                     John Yarmuth,
                                                   Ranking Member.

  Mr. YARMUTH. In December 2018, GAO issued a decision, which I will 
include in the Record, concluding that, while the ICA does, under 
limited circumstances, allow the President to withhold money for up to 
45 congressional session days, the President cannot freeze the money 
for so long that it can no longer be used.
  GAO confirmed Congress' constitutional role, saying: ``A withholding 
of this nature would be an aversion both to the constitutional process 
for enacting Federal law and to Congress' constitutional power of the 
purse, for the President would preclude the obligation of budget 
authority Congress has already enacted and did not rescind.''
  Mr. Womack and I both welcomed this opinion from GAO, calling it an 
important confirmation of Congress' constitutional authority over 
funding decisions.
  While GAO was deliberating, OMB submitted their views, as is 
customary. A letter from OMB's general counsel seems to assert the 
belief that the President can do whatever he wants, that he doesn't 
have to respect our separation of powers or the will of Congress to 
cancel funds he doesn't want to spend, that he is above the law.
  As GAO stated in their opinion: ``The President has no unilateral 
authority to withhold funds from obligation.''
  ``The President cannot rely on the authority in the ICA to withhold 
amounts from obligation, while simultaneously disregarding the ICA's 
limitations.''
  This deliberate disregard for our laws undermines our democracy. The 
executive branch is not a monarchy, but this attitude is a pernicious 
problem with this administration.
  Less than a year later, in August of 2019, a document, a letter 
apportionment from OMB, was leaked. An apportionment is a legally 
binding budget document used by OMB to set the rate at which an agency 
spends its funds over the course of a fiscal year.
  For example, we wouldn't want an agency to come to Congress in March 
saying that it has already spent its entire annual operating budget and 
must cease operations unless Congress provides more money. To prevent 
this, OMB apportions agencies money. However, this leaked letter from 
August 3, 2019, raised multiple red flags.
  First, this letter apportionment, sent to officials at the State 
Department and the U.S. Agency for International Development, put an 
abrupt freeze on billions in foreign aid less than 60 days before the 
end of the fiscal year.
  OMB put a legally binding hold on 15 key accounts that covered a 
spectrum of assistance, international control,

[[Page H625]]

peacekeeping operations, global health programs, foreign military 
financing programs, and more.
  Similar to 2018, reports were circulating that President Trump 
planned a late-in-the-year recisions package, despite GAO's decision 
just 9 months earlier rebuking the tactic as an end run around 
Congress.
  On August 19, Senate Budget Committee Ranking Member Sanders and I 
wrote a letter to President Trump's Acting Chief of Staff and OMB 
Director Mick Mulvaney urging him to follow the law and to respect 
Congress' constitutional authority.
  Second red flag, this apportionment was signed by Michael Duffey, an 
administration political appointee. Since OMB's inception, career 
officials with knowledge and expertise of the apportionment process and 
impoundment law, not political appointees, have signed these highly 
technical budget documents. This means that OMB took the unprecedented 
step of stripping career officials of their normal role in the 
apportionment process and, instead, gave this responsibility to someone 
who had been appointed by the President. This was, to say the least, 
suspicious.
  Third red flag, under current law, apportionments are not public 
documents. OMB sent no special message to Congress to flag this hold on 
foreign aid, as the law requires; they kept Congress in the dark. If 
the document had not been leaked, Congress might not have ever 
discovered this suspicious funding freeze.
  What else were they hiding?
  While this leaked August 3 letter apportionment is what first alerted 
Congress to the President's willingness to break the law, at that time 
we could not have guessed how nefarious it really was. A few weeks 
later, the Budget Committee would uncover a pattern of abuse of the 
apportionment process, our separation of powers, and current law.
  As part of our investigation, my committee asked OMB for documents 
and answers detailing their involvement in the withholding of foreign 
aid. After review of the materials provided to us, it was clear that 
this was an intentional and willful abuse of power.
  To lay this out as plainly as I can, I will outline what happened 
chronologically.
  It all starts on May 23, 2019, when the Pentagon sent a letter to 
Congress certifying that the Government of Ukraine had met Congress' 
anticorruption requirements and was, therefore, eligible to receive the 
critical security assistance it needed. Most importantly, the Pentagon 
notified lawmakers of its plans to spend the money.
  Keep in mind that this is critical funding Ukraine needs to protect 
itself from Russia, our shared adversary.
  The first sign of trouble came almost a month later, on June 19, 
2019. In response to our request for answers, OMB asserts that this is 
when they first reach out to the Department of Defense to ask about the 
Ukraine Security Assistance Initiative, or USAI, funds.
  Mark Sandy, an Afghanistan veteran and top career OMB official who is 
responsible for managing the flow of Pentagon funds, testified that OMB 
officials were told the President wanted the Ukraine aid paused, but he 
didn't understand why.
  So, while reaching out to the Pentagon to learn more about the aid 
package, he also repeatedly pressed Mr. Duffey about why President 
Trump imposed the hold. But Mr. Sandy didn't get a clear answer. He 
testified that Mr. Duffey ``didn't provide an explicit response on the 
reason. He simply said, `We need to let the hold take place'--and I'm 
paraphrasing here--`and then revisit this issue with the President.' ''

  Just about a week later, on June 27, Mick Mulvaney was flying on Air 
Force One with President Trump when he fired off a quick email to an 
aide back in Washington. The email said: ``I'm just trying to tie up 
some loose ends. Did we ever find out about the money for Ukraine and 
whether we can hold it back?''
  The aide, Robert Blair, replied that, while they could carry out the 
President's request, the move to withhold aid passed in a bipartisan 
spending deal would not go over well with Congress. ``Expect Congress 
to become unhinged,'' he wrote back.
  I don't know about unhinged, but Congress was not going to let this 
abuse of executive overreach go unanswered.
  These early conversations are critical to our timeline because they 
show that this administration's abuse of our laws and plans to 
blackmail a foreign nation into helping President Trump cheat our 
elections was premeditated.
  President Trump, Mulvaney, and Duffey abused OMB's authority to 
withhold Ukraine security assistance at the same time President Trump 
directed his personal lawyer, Rudy Giuliani, and his associates to 
solicit foreign interference in our elections.
  In July, they set their plans in motion. During an interagency 
meeting on July 18, an OMB staffer relayed President Trump's order to 
freeze all Ukraine assistance to the State Department and the Pentagon. 
This stunned and infuriated our own top Ukrainian diplomats, who 
understood the necessity of strong American support for Ukraine in 
their fight against Russia. Later that day, the House Foreign Affairs 
Committee was warned about the hold by administration sources, urging 
them to investigate.
  But the bottom line was that there was no legal way for President 
Trump to withhold aid to Ukraine without Congress' approval. Since it 
was a politically motivated hold, it would not even qualify for a 
deferral under the ICA. If the President was going to hold this aid 
hostage, he had to find a way to go behind Congress' back and secretly 
impound hundreds of millions of taxpayer dollars.
  Mr. Sandy testified that, on July 19, Mr. Duffey proposed using the 
apportionment process to implement the hold, that is, to use a legally 
binding budget document to withhold security assistance to Ukraine.
  Mr. Sandy also testified that, while approving apportionment 
schedules for agencies is routine, attaching a footnote to block 
spending was so unusual he did not recall another event like it in his 
12 years of service at OMB.

                              {time}  1900

  There is a reason for that. It could be considered a violation of the 
Impoundment Control Act.
  As you will recall, the ICA prohibits the President and his 
administration from withholding aid unless it is done under the 
authorities of the Impoundment Control Act, which require notification 
to Congress, which OMB did not want to do.
  A week later, on July 25, President Trump had his now-infamous call 
with Ukrainian President Zelensky, where he asked a foreign government 
to dig up dirt on a political rival. Just 90 minutes after the 
President hung up the phone, Mr. Duffey emailed the Pentagon, putting a 
hold on the Ukraine aid.
  In his email, which was only obtained under the Freedom of 
Information Act, Mr. Duffey shared OMB's plan to ``formalize the pause 
with an apportionment footnote'' that would come later that day. In 
another red flag, Mr. Duffey asked Pentagon officials to keep this 
``hold'' decision as secret as possible.
  According to documents obtained by the House Budget Committee, at 
6:44 p.m. Eastern time, just hours after the ``perfect call,'' Mr. 
Sandy signed an apportionment that officially imposed what OMB claimed 
at the time to be a ``brief pause'' in USAI funds.
  OMB inserted a footnote into the apportionment that froze all 
remaining USAI funding until August 5. The footnote states that the 
funds are being held ``to allow for an interagency process to determine 
the best use of such funds,'' but also that ``DOD may continue its 
planning and casework for the initiative during this period.''
  Why would OMB allow the Pentagon to continue working on current plans 
and casework if they were claiming they needed to freeze the funds to 
review those same plans and casework? Because this hold was never about 
a policy review. This hold was this administration's attempt to get 
around Congress and secretly undermine the law, to freeze foreign aid 
so that they could use it to pressure Ukraine into helping President 
Trump cheat to win reelection in 2020.
  It is the same hold that Mulvaney referenced in his June email to Mr. 
Blair while flying on Air Force One with the President, and it is the 
same hold that would ultimately lead to grounds for impeachment.

[[Page H626]]

  The July 25 apportionment would be the last one Mr. Sandy would sign. 
The White House needed to make sure the aid remained frozen while they 
kept up their pressure campaign on President Zelensky. But OMB career 
officials were becoming uneasy about the freeze and the illegality of 
using apportionments to create secret impoundments.
  In an unprecedented move, Mr. Sandy was stripped of his authority to 
oversee the management of Ukraine aid, and the apportionment authority 
was transferred to President Trump's political appointee, Mr. Duffey.
  Remember that leaked letter apportionment that raised red flags? When 
that apportionment leaked in early August, Congress still didn't know 
about the plot to withhold the Pentagon's $250 million in Ukraine aid. 
So here we have 15 State and USAID foreign aid accounts on hold, one of 
which includes $26.5 million in Foreign Military Financing funds for--
you guessed it--Ukraine. On top of that, this apportionment is the 
first one with Mr. Duffey's signature.
  August was a busy time for Mr. Duffey. Someone who had never before 
signed apportionment documents started signing all the apportionment 
documents in both the National Security Division and the International 
Affairs Division instead of career officials. On August 6, Mr. Duffey 
signed the first extension of what was supposed to be the brief 
withholding of the Pentagon's USAI funds, using another footnote to 
freeze the funds until August 12.
  Separately, on August 9, our documents show Mr. Duffey signed another 
apportionment affecting the State Department and USAID foreign funds 
included in the leaked apportionment. This time, OMB said the agencies 
are only allowed to spend 2 percent of the funds each day, and it 
withholds the rest from the agencies. That is not a programmatic, funds 
management, or even a policy decision.
  The State Department doesn't send a couple thousand dollars to 
support international peacekeeping missions one day and then a couple 
thousand dollars to support international narcotics control the next. 
That is not how it works.
  Limiting agencies to such a minuscule amount effectively prevented 
these funds from being spent at all, while at the same time, the 
apportionment continued to withhold the majority of remaining funds. It 
was another backdoor attempt to freeze funding and possibly rescind it 
completely by running out the clock.
  On August 19, Senator Sanders and I sent our letter to OMB and the 
White House, calling on the administration to stop impounding funds, to 
respect GAO's legal opinion from the previous December, stating that a 
late-in-the-year rescission request that prevents congressional action 
and withholds funds until they can no longer be used would violate the 
ICA.
  Madam Speaker, I include in the Record the letter Senator Sanders and 
I sent to Director Mulvaney.

       Congress of the United States,
                                   Washington, DC, August 19 2019.
     Hon. Mick Mulvaney,
     Director, Office of Management and Budget,
     Washington, DC.
       Dear Director Mulvaney: We write to express our profound 
     concern regarding the Administration's reported plan to 
     submit a rescission request to the Congress just a few weeks 
     before the end of the fiscal year.
       Under the Impoundment Control Act of 1974 (ICA), the 
     President may submit a special message proposing the 
     rescission of budget authority and may withhold funds from 
     obligation for a period of 45 calendar days of continuous 
     session following transmission of the special message. In 
     keeping with Congress's constitutional power of the purse, 
     however, such funding must be released absent approval by 
     Congress within the 45-day period. Specifically, section 
     1012(b) of the ICA states:

       Any amount of budget authority proposed to be rescinded or 
     that is to be reserved as set forth in such special message 
     shall be made available for obligation unless, within the 
     prescribed 45-day period, the Congress has completed action 
     on a rescission bill rescinding all or part of the amount 
     proposed to be rescinded or that is to be reserved.

       Submitting a rescissions request and withholding funds from 
     obligation this late in the fiscal year could result in 
     funding being withheld through its expiration date. In 
     December 2018, at the request of the House Budget Committee, 
     the U.S. Government Accountability Office (GAO) issued a 
     legal opinion that addressed this circumstance. GAO found 
     that ``the ICA does not permit the withholding of funds 
     through their date of expiration.'' Further, GAO determined 
     that absent Congressional action to rescind the funds,

       amounts proposed for rescission must be made available for 
     prudent obligation before the amounts expire, even where the 
     45-day period for congressional consideration provided in the 
     ICA approaches or spans the date on which funds would expire: 
     the requirement to make amounts available for obligation in 
     this situation prevails over the privilege to temporarily 
     withhold the amounts.

       The authority provided by the ICA to the Executive Branch 
     to withhold funds temporarily is necessarily limited. The GAO 
     opinion states:

       It would be an abuse of this limited authority and an 
     interference with Congress's constitutional prerogatives if a 
     President were to time the withholding of expiring budget 
     authority to effectively alter the time period that the 
     budget authority is available for obligation from the time 
     period established by Congress in duly enacted appropriations 
     legislation.

       As the chairman and ranking member of the respective House 
     and Senate committees with jurisdiction over the Impoundment 
     Control Act, we affirm our strong agreement with the legal 
     analysis and conclusions reached by GAO. We strongly urge the 
     Administration to refrain from sending a rescission message 
     to the Congress; however, in the event the Administration 
     submits such a message, it must take measures to ensure that 
     the affected funds will be prudently obligated in the event 
     the Congress does not approve the rescission, as required by 
     law. To withhold these funds until they can no longer be 
     prudently obligated or until they expire, in the absence of 
     Congressional approval of the rescission, would violate the 
     ICA and flout an important constitutional check. We trust 
     that you will comply with the law and respect the 
     constitutional role of the Congress to remain at the center 
     of funding decisions.
       Thank you for your attention to these concerns.
           Sincerely,
     John Yarmuth,
       Chairman, House Committee on the Budget.
     Bernard Sanders,
       Ranking Member, Senate Committee on the Budget.

  Mr. YARMUTH. At this time, we did not understand that the President 
and OMB actually had learned from their 2018 attempts to circumvent 
Congress. But they learned the wrong lesson. Now, they were just trying 
to bypass Congress completely.
  By the second week of August, Mr. Duffey was issuing holds on USAI 
funds every couple of days to block the Pentagon from sending aid. OMB 
was doing what it could to keep the President's hold on Ukraine aid 
active, but on August 28, a senior administration official told 
Politico about the hold on USAI funds. The President's scheme was 
unraveling.
  On August 29, our documents show Mr. Duffey signed another letter 
apportionment releasing 25 percent of the remaining State Department 
and USAID funds each Sunday in September. With this latest trick, it 
was clear these agencies were not going to be able to spend all the 
funds Congress appropriated before they expired on September 30. And in 
fact, they didn't, which was apparently OMB's intention all along.
  Meanwhile, Mr. Duffey was still signing apportionments to freeze USAI 
funds until September 12. During this time, DOD warned that OMB's 
ongoing hold on Ukraine assistance would prevent them from using all 
the funds Congress appropriated before they expired on September 30. 
And, of course, DOD was right.
  On September 18, Chairwoman Lowey and I wrote to OMB, expressing deep 
concerns about OMB's escalating abuses of its apportionment authority 
and its blatant attempts to undermine Congress' power of the purse. 
Basically, we told them to stop their pretty obvious attempts to evade, 
invalidate, and violate congressional appropriations laws and the ICA.
  Madam Speaker, I include in the Record that letter of September 18.

                                         House of Representatives,


                                      Committee on the Budget,

                               Washington, DC, September 18, 2019.
     Hon. Mick Mulvaney,
     Acting Chief of Staff, The White House,
     Washington, DC.
     Hon. Russell Vought,
     Acting Director, Office of Management and Budget, Washington, 
         DC.
       Dear Mr. Mulvaney and Mr. Vought: We write to express our 
     deep concerns about the Office of Management and Budget's 
     (OMB's) increasingly dubious and politicized applications of 
     budget law, as well as the role they have played in impeding 
     other agencies' ability to use their enacted appropriations.

[[Page H627]]

     OMB's actions have already damaged important government 
     programs, diminished our country's security and standing 
     abroad, and if continued, threaten to permanently undermine 
     fundamental checks and balances in our constitutional 
     republic.
       Specifically, during the last year, OMB has demonstrated a 
     growing willingness to abuse its Presidentially-delegated 
     apportionment authorities and impermissibly disrupt the 
     balance of powers between the branches. The agency's 
     apportionment authorities may not be used as a form of 
     executive control or influence over agency functions. Rather, 
     they may only be exercised in the manner and for the purposes 
     prescribed in the Antideficiency Act (ADA) and in compliance 
     with other appropriations and budget laws, including title X 
     of the Congressional Budget and Impoundment Control Act of 
     1974 (Impoundment Control Act). None of those laws give the 
     Executive Branch the unilateral power to invalidate duly 
     enacted statutes through the apportionment process.
       Nevertheless, OMB continues to abuse those authorities, and 
     the apportionment process, to flout the Constitution's 
     assignment of the power of the purse to Congress. OMB's 
     inexplicable and unprecedented apportionment actions have 
     withheld critical funding provided for the Department of 
     State and United States Agency for International Development 
     (USAID) in a manner inconsistent with long-standing policies 
     and procedures. Those OMB actions are deleteriously impacting 
     the prudent obligation of foreign assistance intended to 
     support U.S. interests, and are hindering the efficient and 
     effective management of U.S. funds and programs. Indeed, 
     those actions seem to be specifically designed to obstruct 
     the agencies' ability to use their appropriations for their 
     Congressionally-approved purposes in the final weeks before 
     they expire. We have serious legal concerns that those 
     actions will result in de facto impoundments, and we are 
     deeply troubled that this may be OMB's unstated goal.
       The apportionment actions at issue also undermine important 
     programs and policies that Congress funded, to among other 
     things:
       Fulfill U.S. treaty obligations and support the nation's 
     international allies and partners;
       Counter Russian aggression and Chinese influence across the 
     globe;
       Respond to humanitarian crises all over the world, 
     including in Venezuela, Syria, and Burma;
       Counter violent extremism in the Sahel, Yemen, and 
     elsewhere; and
       Enable important initiatives such as the Indo-Pacific 
     Strategy and Power Africa.
       Withholding funds through the apportionment process until 
     they can no longer be prudently obligated is a back-door 
     rescission without Congressional approval. A year ago, OMB 
     retreated from its plan to illegally impound State Department 
     and USAID appropriations through a cynically-timed 
     rescissions proposal--a misguided scheme that OMB threatened 
     again this year, even after clear warning from the Government 
     Accountability Office (GAO) that such attempts were in 
     violation of the Impoundment Control Act. We are concerned 
     that OMB's intransigence on these issues has led it to try to 
     accomplish through the apportionment process what it had 
     hoped to accomplish with a rescissions proposal.
       OMB has continued to push this unlawful agenda and 
     perniciously broadened its sights to target funding provided 
     by the Congress to the Department of Defense to counter 
     Russian aggression. In particular, OMB withheld funding 
     provided for the Ukraine Security Assistance Initiative, a 
     vital form of Congressionally-directed assistance that helps 
     Ukraine defend its sovereign territory. As with the State and 
     USAID funding, this funding also expires at the end of this 
     month, and recent estimates indicate that at least tens of 
     millions--and potentially over one hundred million--in funds 
     will expire as a result of OMB's attempts to stifle the 
     Department of Defense's access to this lawfully provided 
     funding. This apparent impoundment has interrupted the 
     Defense Department's work on security programs that have been 
     in place with a partner nation for years.
       OMB also took the unusual and perhaps unprecedented step of 
     delegating the authority to execute these apportionments to a 
     political appointee, in lieu of career civil servants who 
     have historically been the designated officials responsible 
     for overseeing and executing these technical budget 
     documents. More than that, the apportionment actions taken by 
     this political appointee have no justifiable policy, program, 
     or funds management rationale.
       We are deeply troubled by this pattern of OMB interference 
     with agencies' use of appropriations for authorized purposes. 
     All the funding for the programs and policies mentioned above 
     was negotiated in good faith between, and subsequently 
     approved by, bipartisan majorities in the Congress, and was 
     signed into law by President Trump. Moreover, we are deeply 
     concerned that OMB has intended that these actions take place 
     without Congressional oversight or transparency to the 
     public, given that OMB has been unwilling to provide 
     apportionments even pursuant to written requests by our 
     committees.
       We assure you that our committees will remain focused on 
     OMB's use of apportionments and that we will respond 
     forcefully to Executive Branch actions that seek to override 
     the Congress' most fundamental constitutional power. We are 
     actively pursuing a range of options to ensure that OMB is 
     held accountable for any improper apportionment actions and 
     to ensure that the Congress remains at the center of funding 
     decisions. In the meantime, we urge you in the strongest 
     possible terms to return OMB to its function of administering 
     enacted laws, to immediately release for use all remaining 
     expiring funds, and to cease further attempts to evade and 
     invalidate the laws passed by the Congress. We sincerely hope 
     you can be successful in restoring the trust that OMB has 
     historically held as a valuable institution and good steward 
     of federal funding.
     John A. Yarmuth,
       Chairman, House Committee on the Budget.
     Nita M. Lowey,
       Chairwoman, House Committee on Appropriations.

  Mr. YARMUTH. But then, Madam Speaker, the whistleblower report was 
made public. The report outlined how President Trump instructed his 
administration and OMB officials to put a hold on almost $400 million 
in Ukraine security assistance ahead of his July 25 phone call with 
President Zelensky. The President abused his power and betrayed the 
oath he took before the American people to defend our national security 
and honor our Constitution.
  As the plan unraveled, the picture became clear. The administration 
was abusing the apportionment process to secretly and illegally impound 
funding provided by Congress to protect our national security, to use 
this leverage against a foreign nation to help the President cheat our 
elections, and they couldn't hide it any longer.
  On September 24, Speaker Pelosi announced a formal impeachment 
inquiry into the shady dealings of the Trump administration.
  Madam Speaker, I include in the Record a letter of September 27 that 
Chairwoman Lowey and I sent to OMB, seeking answers and documents 
related to the withholding of the Ukraine aid, State and USAID funds, 
and abuse of the apportionment process.

                                Congress of the United States,

                               Washington, DC, September 27, 2019.
     Hon. Mick Mulvaney,
     Acting Chief of Staff, The White House, Washington, DC.
     Hon. Russell Vought,
     Acting Director, Office of Management and Budget, Washington, 
         DC.
       Dear Mr. Mulvaney and Mr. Vought:
       The Committees on the Budget and Appropriations are the 
     primary committees charged with overseeing and writing 
     federal budget and appropriation laws. Consistent with our 
     authority, we are continuing our efforts in the 116th 
     Congress to pursue productive improvements and reforms to the 
     laws and authorities governing federal financial management 
     to ensure that the Congress remains at the center of funding 
     decisions. Specifically, our committees are considering 
     legislative proposals related to the apportionment process 
     and the withholding of funds, including in the context of the 
     lmpoundment Control Act of 1974 (ICA) and the annual 
     appropriations acts.
       As we stated in our September 18th letter, we have serious 
     concerns that recent apportionment actions by the Office of 
     Management and Budget (OMB) to withhold military aid for 
     Ukraine and other foreign assistance constitute unlawful 
     impoundments in violation of the ICA and are an abuse of the 
     authority provided to the President to apportion 
     appropriations. In the short time since we sent that letter, 
     additional reports have emerged detailing the circumstances 
     surrounding the withholding of funding for Ukraine and OMB's 
     involvement in that withholding.
       According to those reports, at least a week prior to a July 
     25th phone call between President Trump and Ukrainian 
     President Zelenskyy, President Trump told Mr. Mulvaney to 
     withhold almost $400 million in military aid and foreign 
     assistance for Ukraine, and ``[o]fficials at the Office of 
     Management and Budget relayed Trump's order to the State 
     Department and the Pentagon during an interagency meeting in 
     mid-July.'' The reporting also indicates that ``[t]here was 
     concern within the administration that if they did not spend 
     the money [appropriated for Ukraine], they would run afoul of 
     the law'' and that, eventually, Mr. Vought released the 
     money.
       On Tuesday, September 24, 2019, at the United Nations 
     General Assembly, the President confirmed the withholding and 
     added his reasoning, stating:
       As far as withholding funds, those funds were paid. They 
     were fully paid. But my complaint has always been--and I'd 
     withhold again, and I'll continue to withhold until such time 
     as Europe and other nations contribute to Ukraine. Because 
     they're not doing it.
       The recently declassified complaint submitted to the Office 
     of the Inspector General of the Intelligence Community (ICIG) 
     on Monday, August 12, 2019 provided similar confirmation of 
     OMB's withholding of appropriated funding for Ukraine. The 
     complaint, which appeared credible according to a letter from 
     the ICIG, stated among other things:

[[Page H628]]

       On 18 July, an Office of Management and Budget (OMB) 
     official informed Departments and Agencies that the President 
     ``earlier that month'' had issued instructions to suspend all 
     U.S. security assistance to Ukraine. Neither OMB nor the NSC 
     staff knew why this instruction had been issued. During 
     interagency meetings on 23 July and 26 July, OMB officials 
     again stated explicitly that the instruction to suspend this 
     assistance had come directly from the President, but they 
     still were unaware of a policy rationale. As of early August, 
     I heard from U.S. officials that some Ukrainian officials 
     were aware that U.S. aid might be in jeopardy, but I do not 
     know how or when they learned of it.
       As reports continue to emerge, we have deepening concerns 
     that OMB continues to demonstrate a pattern of impeding 
     agencies' ability to use their enacted appropriations; that 
     recent apportionment actions taken by OMB to withhold 
     military aid and foreign assistance funding administered by 
     the Department of Defense, Department of State, and U.S. 
     Agency for International Development constitute unlawful 
     impoundments; and that OMB took the unusual and seemingly 
     unprecedented step of delegating the authority to execute 
     these apportionments to a political appointee, in lieu of 
     career civil servants who have historically been the 
     designated officials responsible for overseeing and executing 
     these technical budget documents. These actions have 
     collectively undermined the longstanding application and 
     predictability of federal funds management processes and 
     require closer examination by our committees to inform 
     appropriate legislative responses and reforms.
       Therefore, to support our committees' efforts, we request 
     that OMB produce written responses to the committees, no 
     later than Tuesday, October 1, 2019, to the following 
     questions:
       (1) a. When did OMB first instruct agencies to withhold 
     assistance for Ukraine, including amounts appropriated in 
     section 9013 of the Department of Defense Appropriations Act, 
     2019 for the Ukraine Security Assistance Initiative and any 
     applicable amounts provided in other appropriation acts for 
     the Foreign Military Financing Program?
       b. In which Treasury Appropriation Fund Symbol(s) (TAFS or 
     account) were amounts withheld?
       c. When was the first apportionment action executed for 
     (each of) the relevant account(s) to withhold those funds?
       d. Were the withheld funds made available for immediate use 
     by the agencies during fiscal year 2019, and if so, when?
       (2) a. When did OMB first instruct agencies to withhold 
     funding in the accounts referenced in the letter 
     apportionment effective as of 11:59 p.m. Eastern Daylight 
     Time on Saturday, August 3, 2019 (``August 3, 2019 Letter 
     Apportionment'')?
       b. When were the first apportionment actions executed to 
     withhold those funds?
       c. Were the withheld funds made available for immediate use 
     by the agencies during fiscal year 2019, and if so, when?
       No later than Tuesday, October 1, 2019, we also request 
     that OMB produce the following documentation to the 
     committees:
       (3) All apportionments or reapportionments for fiscal year 
     2019 that were executed in the last quarter of fiscal year 
     2019, including documentation of the approval date of each 
     such apportionment action and any footnotes, for any 
     applicable TAFS used for assistance for Ukraine or the 
     Ukraine Security Assistance Initiative appropriation, 
     including the Department of Defense, Operation and 
     Maintenance, Defense-wide account, 97-0100/2019 and 
     account(s) for any applicable amounts provided in other 
     appropriation acts for the Foreign Military Financing 
     Program.
       (4) All apportionments and reapportionments for fiscal year 
     2019 that were executed in the last quarter of fiscal year 
     2019, including documentation of the approval date of each 
     such apportionment action and any footnotes, for each TAFS 
     referenced in the August 3, 2019 Letter Apportionment and any 
     applicable child accounts.
       Finally, we request that OMB produce documentation to the 
     committees, no later than Friday, October 11, 2019, on the 
     following:
       (5) Documentation sufficient to show the obligational 
     status of the relevant assistance funding to Ukraine by 
     account, including all amounts appropriated in section 9013 
     of the Department of Defense Appropriations Act, 2019 and any 
     applicable amounts provided in other appropriation acts for 
     the Foreign Military Financing Program, as of June 30, 2019 
     and as of September 30, 2019, including the specific amounts 
     that were (a) unobligated, (b) obligated but not expended, 
     and (c) obligated and expended.
       (6) Documentation sufficient to show:
       a. when OMB first instructed agencies to withhold 
     assistance for Ukraine, including amounts appropriated in 
     section 9013 of the Department of Defense Appropriations Act, 
     2019 and any applicable amounts provided in other 
     appropriation acts for the Foreign Military Financing 
     Program;
       b. the amount of funding that was withheld from obligation, 
     and in which account(s);
       c. when the first apportionment action was executed to 
     withhold those funds;
       d. the period over which the funds were withheld;
       e. whether the funds were, subsequent to those 
     withholdings, made available for immediate use by the 
     agencies during fiscal year 2019, and if so, when;
       f. the factual, legal, and policy bases upon which these 
     actions were taken; and
       g. whether requests were made by the affected agencies to 
     reapportion the funding at issue, or to alter the conditions 
     of the apportionments in effect, and if so, whether those 
     requests were granted.
       (7) Documentation sufficient to show:
       a. whether there was an ``interagency process'' related to 
     the withholding or use of amounts appropriated in section 
     9013 of the Department of Defense Appropriations Act, 2019, 
     and the basis for initiating such interagency process, 
     including its stated purposes and goals;
       b. what entities or agencies were involved in such 
     interagency process;
       c. when that process began; and
       d. the conclusions reached through that process and when 
     they were reached, including the outcomes of any interagency 
     meetings that occurred on July 23, 2019 and July 26, 2019 
     related to the disposition of the funding.
       (8) Documentation sufficient to show the obligational 
     status of all amounts apportioned as unavailable in the 
     August 3, 2019 Letter Apportionment. This documentation 
     should show the status of those funds as of June 30, 2019 and 
     as of September 30, 2019, and should show, at a minimum, the 
     specific amounts by account that were (a) unobligated, (b) 
     obligated but not expended, and (c) obligated and expended.
       (9) Documentation sufficient to show:
       a. when OMB first instructed agencies to withhold funding 
     in the accounts referenced in the August 3, 2019 Letter 
     Apportionment;
       b. how much funding was withheld from obligation in each 
     account, and over what period the amounts were withheld;
       c. when the first apportionment actions were executed to 
     withhold those funds;
       d. whether the funds were, subsequent to those 
     withholdings, made available for immediate use by the 
     agencies during fiscal year 2019, and if so, when;
       e. the factual, legal, and policy bases upon which these 
     actions were taken; and
       f. whether requests were made by the affected agencies to 
     reapportion the funding at issue, or to alter the conditions 
     of the apportionments in effect, if any, and whether those 
     requests were granted.
       (10) Documentation sufficient to show the timeline and 
     basis for the delegation of apportionment authority to the 
     Associate Director for National Security Programs, any 
     related delegation actions, and any other delegations of the 
     apportionment authority to a political appointee during 
     fiscal year 2019.
       (11) All apportionments and reapportionments for fiscal 
     year 2019 that were executed in the first three quarters of 
     fiscal year 2019, including documentation of the approval 
     date of each such apportionment action and any footnotes, for 
     any applicable TAFS used for assistance for Ukraine or the 
     Ukraine Security Assistance Initiative appropriation, 
     including the Department of Defense, Operation and 
     Maintenance, Defense-wide account, 97-0100/2019 and 
     account(s) for any applicable amounts provided in 
     appropriation acts for the Foreign Military Financing 
     Program.
       (12) All apportionments and reapportionments for fiscal 
     year 2019 that were executed in the first three quarters of 
     fiscal year 2019, including documentation of the approval 
     date of each such apportionment action and any footnotes, for 
     each TAFS referenced in the August 3, 2019 Letter 
     Apportionment and any applicable child accounts.
       Thank you for your prompt attention to this matter.
           Sincerely,
     John A. Yarmuth,
       Chairman, House Committee on the Budget.
     Nita M. Lowey,
       Chairwoman, House Committee on Appropriations.

  Mr. YARMUTH. Madam Speaker, while we received a partial production of 
documents from OMB, they left out large batches of requested materials.
  Meanwhile, the House committees involved in the impeachment inquiry 
were getting completely stonewalled by the administration. If they did 
nothing wrong, why wouldn't they turn over documents or allow officials 
to testify? If the President could clear his name, don't you think he 
would have done it by now?
  Instead, the President and his Chief of Staff, Mick Mulvaney, have 
gone on national television and confessed to the very thing Congress 
caught them doing. Mulvaney's response? ``Get over it,'' and, ``We do 
it all the time.''
  In December 2019, the House Budget Committee released a report, which 
I intend to put in the Record, outlining three main takeaways from the 
documents produced by OMB.
  Number one, the timeline of actions taken by OMB, as seen in the 
provided apportionments, shows suspicious activity and document a 
pattern of abuse of the apportionment process, OMB's authority, and 
current law.
  Number two, OMB took the seemingly unprecedented step of stripping 
career officials of their normal role in

[[Page H629]]

the apportionment process and instead vested a political appointee with 
that authority.
  And, three, OMB's actions hindered agencies' ability to prudently 
obligate funds by the end of the fiscal year, bypassing Congress and 
creating backdoor rescissions in violation of the ICA.
  Weeks after our report was published, the House of Representatives 
impeached Donald J. Trump for abuse of power and obstruction of 
justice.
  On January 16, 2020, GAO issued a legal opinion, stating that the 
actions taken by OMB to withhold foreign aid to Ukraine violated the 
ICA. The nonpartisan watchdog even went so far to say: ``OMB's 
assertions have no basis in law.''
  GAO found the White House's action to withhold security assistance 
funding constituted an illegal deferral of funding in violation of the 
ICA. The ICA permits deferrals only for very limited purposes and 
requires advanced congressional notification. But this was not just a 
notification violation. GAO determined that this deferral was 
prohibited under the ICA, period.
  As GAO emphasized: ``The ICA does not permit deferrals for policy 
reasons. . . . OMB's justification for the withholding falls squarely 
within the scope of an impermissible policy deferral.''
  So even if the President had notified Congress in advance of the 
deferral, it still would have been illegal.
  The White House has taken a disturbing sense of pride in its 
obstruction of Congress so it is no surprise that they failed to fully 
cooperate with GAO as well. In its decision, GAO called out the Trump 
administration, stating: ``We consider a reluctance to provide a 
fulsome response to have constitutional significance.''
  The House Budget Committee repeatedly warned the Trump administration 
about the ICA. The Department of Defense warned them. The State 
Department warned them. Even people in the Executive Office of the 
President called out this flagrant abuse of Federal law. But the 
President ignored the warnings.
  Instead, he used the powers of his office to subvert our laws, 
solicit foreign interference to help him cheat in his next election, 
and then try to cover it all up.
  While the House has taken action to show that no one, including the 
President, is above the law, OMB is still scheming. President Trump's 
administration continues to abuse its authority and infringe on 
Congress' power of the purse--for example, holding up disaster relief 
to Puerto Rico. I would wager it is because the President couldn't 
handle some criticism from one of their mayors. We shall see.
  Last March, my colleagues and I wrote a letter to OMB, which I intend 
to put in the Record, calling out this administration for declaring 
bogus national emergencies to steal funds Congress appropriated for 
crucial military construction and counternarcotic initiatives to use 
for the President's border wall, another decision motivated by the 
President's political campaign and not taxpayer interests. There is 
more, I am sure, that we just don't know about yet, but we will find 
out.
  In the face of this administration's clear and present threat to our 
democracy, we must defend Congress' constitutional authority, protect 
our separation of powers, and strengthen the ICA to prevent such 
unilateral actions.
  In March, I will introduce legislation that will protect Congress' 
power of the purse. It will promote transparency of the executive 
branch to limit abuse and ensure no President can hide lawbreaking from 
the American people again. It will add teeth to budget law by creating 
significant deterrents, including administrative discipline, to create 
more accountability for executive branch officials so they won't break 
the law, and it will ensure Congress remains front and center in 
determining whether emergency declarations made by the President and 
the related shifts in funding are justified.
  Look, this is a lot of information, and I am normally not one to give 
long statements, but in the face of such horrendous attacks on our 
democracy, I wanted it all on the Record.
  I am also submitting every letter I referenced into the Congressional 
Record, as well. As chairman of the House Budget Committee, I felt it 
was my responsibility.
  It is my hope that these facts help expose this administration's 
systemic lawbreaking because if they get away with this and Congress 
does not fight back, it will not stop. We all know that.
  He could attack specific communities by withholding funds that 
support their healthcare. He could retaliate against Senators for their 
votes by freezing Federal investments in their States. He could punish 
States that he views as unsupportive of his election by withholding the 
infrastructure funds.
  If we don't stop him, President Trump will use our taxpayer dollars 
to punish political adversaries. That creates a destructive precedent 
for other Presidents who follow.
  I implore our Republican colleagues to join us in this effort to 
uphold the oath we all swore and to make it unequivocally clear that, 
in the United States of America, no one is above the law.
  Madam Speaker, I yield back the balance of my time.
  The SPEAKER pro tempore. Members are reminded to refrain from 
engaging in personalities toward the President.

                          ____________________