11.25.2019 0

John Bolton believes presidents can rescind treaties without the Senate, but objected to President Donald Trump pausing military aid to Ukraine, a non-treaty partner

By Robert Romano

Former National Security Advisor John Bolton has a long history of encouraging presidents to terminate treaties without going to the Senate for approval under the President’s inherent powers to conduct foreign affairs under Article II of the Constitution vesting of executive power solely in the President. But he sided with State Department officials who took issue with President Donald Trump briefly pausing and reviewing military and other foreign assistance to Ukraine on the grounds the President lacked legal authority.

The funding included $250 million in military assistance to Ukraine via the Department of Defense and another $141 million in other foreign aid to Ukraine via the Department of State.

According to a Nov. 9 report from Bloomberg.com: “shortly before Sept. 9, Bolton had relayed a message to the State Department that the funding could go ahead. It’s not clear whether Bolton, who resigned from the job a week later, did so with Trump’s approval. Bolton’s handling of the funding struck officials in the White House as violating protocol and caught Mulvaney by surprise, according to another person familiar with the matter.” An Office of Management and Budget (OMB) spokesperson  at the time denied that Bolton had done any such thing.

The report continued, noting that the State Department had already concluded it could release the monies without OMB’s approval, “The State Department decision, which hasn’t been reported previously, stemmed from a legal finding made earlier in the year, and conveyed in a classified memorandum to Secretary of State Michael Pompeo. State Department lawyers found the White House Office of Management and Budget, and thus the president, had no legal standing to block spending of the Ukraine aid.”

Former U.S. acting ambassador to Ukraine William Taylor told the House Intelligence Committee on Oct. 22 that both the State and Defense Departments on July 18 had determined they would not follow any directives from the White House on Ukrainian assistance, saying, “the State Department and maybe the Defense Department decided they were going to move forward with this assistance anyway, OMB notwithstanding. This was a big decision that [legal] had come to over there, over some debate as to whether or not they could without OMB’s clearance, send a [Congressional notification] to the Hill without OMB’s clearance, and they decided to do that. I don’t know if they’ve ever done that before. This was a big decision for them.”

Read that again. It was unprecedented. The ambassador stated, “I don’t know if they’ve ever done that before.”

So, there clearly was a dispute between the State Department and the White House over freezing the monies, and the Department had even produced a self-serving legal opinion that it could spend the monies without OMB — a dubious statement since all monies and regulations flow through OMB — challenging the President’s legal authority, that Bolton reportedly sided with right before he lost his job.


 

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.

In a conversation with President Trump and Sen. Ron Johnson (R-Wis.) on Aug. 31, Johnson detailed in a Nov. 18 letter from Johnson to House Republicans, Trump reportedly told Johnson his rationale for the freeze on Aug. 31: “The President was not prepared to lift the hold, and he was consistent in the reasons he cited. He reminded me how thoroughly corrupt Ukraine was and again conveyed his frustration that Europe doesn’t do its fair share of providing military aid.” But Trump hinted that the aid would be coming, saying to Johnson, “We’re reviewing it now, and you’ll probably like my final decision.”

Note, this conversation was before the anonymous CIA so-called whistleblower complaint had been made public, and has the President on the record as supporting a hold as well as potentially considering a rescission of the funds on the grounds that Ukraine is corrupt and might not be a reliable foreign partner.

Ultimately, the military assistance was released on Sept. 11, the same day he was fired, days after Bolton reportedly ordered the State Department aid released. Was that he reason he was let go? That is certainly the implication of the Bloomberg report.

In the meantime, Bolton had long fashioned his career in government around proposals for presidents to terminate treaties with foreign governments under the President’s inherent Article II executive powers, ironically under the same legal doctrine that presidential impoundment of monies is found. The first presidential impoundment occurred in 1800 by then President Thomas Jefferson, and had remained available to subsequent presidents until the Impoundment Control Act was adopted in 1974.

In his book, during the administration of President George W. Bush, Bolton was a supporter of the President unilaterally withdrawing from the 1972 Anti-Ballistic Missile Treaty with Russia, which Bush completed 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 would complete in August.

Treaties require a Senate supermajority in order to ratify under Article II, but in this understanding of constitutional law, because of the President’s plenary powers over foreign affairs, he alone can terminate their execution.

So what of foreign aid? Or the powers to keep the United States out of a war? Or to end a war?

These actually untested areas of constitutional jurisprudence. Even the cases of treaty termination have had limited adjudication in courts. Jimmy Carter prevailed at the Supreme Court level in 1979, with instructions for the lower court to dismiss the case, but only on the grounds of non-justiciability, thus never proceeding to the merits. And yet, presidents have terminated or suspended treaties numerous times now.

Foreign military assistance surely treads onto the area of the President’s discretion in foreign policy, as it does the receiving country, requiring at least an executive agreement to receive the assistance, or an agreement of a faction within a country, if the U.S. was supporting one side in a civil war, as the U.S. has done in Ukraine since 2014, and then again in 2017 by sending military assistance.

But the U.S. and Ukraine do not have a mutual defense treaty. The 1994 Budapest Memorandum on Security Assurances was an executive agreement, that upon Ukraine’s entrance into the Nuclear Nonproliferation Treaty, the U.S., Russia and the United Kingdom would guarantee Ukraine’s territorial integrity. In 2014, when the U.S. supported the overthrow of the Viktor Yanukovych administration, Russia annexed Crimea but the Obama administration opted not to send military assistance — with all sides appearing to violate the agreement. Thus, the security assurances were abdicated, unilaterally, by President Barack Obama and by Russia. It was President Trump who signed the military assistance into law, but he must retain the power to oversee the execution of that law, consistent with international law, which the President alone interprets.

The agreement bars weapons being used “against” Ukraine, stating, “none of their weapons will ever be used  against Ukraine except in self-defense or otherwise in accordance with the Charter of the United Nations.” Given Russia’s annexation of Crimea, the military assistance would appear to be consistent with this provision, hanging on UN prohibitions on countries invading another country and other forms of aggression.

The security assurances also have provision for neither the U.S. nor Russia using economic coercion in Ukraine to advance their own national interests, reaffirming commitments “to refrain from economic coercion designed to subordinate to their own interest the exercise by Ukraine of the rights inherent in its sovereignty and thus to secure advantages of any kind.”

But that did not stop Congress from attaching terms and conditions to the assistance. In fact, Congress explicitly tied military assistance to Ukraine to Defense Department certifications that Ukraine is showing “improvement in transparency, accountability… for purposes of decreasing corruption…” Therefore, even if President Trump had tied military assistance to action by Ukraine on corruption, and wanted to prior certifications made ended, it would have been more than consistent with the law for him to direct to Secretary of Defense to be rolled back, if not consistent with the security assurances we gave Ukraine.

There also appear other means of limiting the use of the monies, for example, in Section 1001 of the National Defense Authorization Act, where the military assistance for Ukraine was appropriated and the President had limited transfer authority, and could have simply directed the Secretary of Defense to transfer the monies to another account: “Upon determination that such action is necessary in the national interest, the Secretary may transfer amounts of authorization made available to the Department of Defense in this division… between any such authorizations for that fiscal year (or any subdivisions thereof). Amounts of authorizations so transferred shall be merged with and be available for the same purposes to which transferred,” provided the total amounts transferred did not exceed $4.5 billion and that the monies were used for something else of “higher priority”.

22 U.S.C.  Section 2360 authorizes the President similar limited transfer authority for the entire foreign aid budget every year, including Consolidated Appropriations Act, where the $141million of foreign Ukrainian aid was appropriated: “Whenever the President determines it to be necessary for the purposes of this chapter, not to exceed 10 per centum of the funds made available for any provision of this chapter (except funds made available pursuant to subpart IV of part II of subchapter I of this chapter or for section 2763 of this title) may be transferred to, and consolidated with, the funds made available for any provision of this chapter (except funds made available under part II of subchapter II of this chapter), and may be used for any of the purposes for which such funds may be used, except that the total in the provision for the benefit of which the transfer is made shall not be increased by more than 20 per centum of the amount of funds made available for such provision.”

So, if the President had wanted to, he had a menu of options for directing departments and agencies in freezing, rescinding or transferring the funds in question, all authorized by Congress. Here, Congress and members of those departments and agencies are faulting the President for even considering doing so, even though he is the President and can do so if he wishes.

What occurred here was a power grab, by the State Department and Defense Departments, if Taylor’s testimony that they planned to dispense with foreign aid whether the President liked it or not, and perhaps even the National Security Advisor at the time, Bolton, if Bloomberg’s reporting that he may have unilaterally released the State Department aid to Ukraine are true.

If treaties can be terminated by presidents alone, then concluding military commitments including via foreign assistance by the U.S. must rest with the President as well. In the past, there have been presidential determinations when hostilities have been concluded, for example with a ceasefire or armistice, or when U.S. assistance in commencing hostilities are concluded, or else Congress could keep the U.S. in a permanent state of war or seek to compel a President who was suing for peace or a ceasefire whether by proclamation, executive agreement or treaty, to continue a conflict he was seeking to conclude — an absurd Congressional commandeering of the Commander-in-Chief and foreign affairs powers of Article II.

The Supreme Court ruled in 1919 that “a technical state of war [is] terminable only with the ratification of a treaty of peace or a proclamation of peace,” appearing to overturn prior Supreme Court rulings that had stated a foreign war could only end via treaty. In this case, World War I had ended, the Senate had not ratified the Treaty of Versailles technically ending it legally, and thus the U.S. was still at a state of war. Enforcement of certain wartime provisions of law was at question. Woodrow Wilson at the time had refused to issue a proclamation of peace, and so war-time laws were still in effect. But what the court appeared to be saying was that in this event, where a peace treaty could not be ratified, to end the state of war, the President could alternatively do so via a proclamation.

Eventually, the U.S. had a formal treaty of peace with Germany on Nov. 14, 1921, but President Warren Harding had issued a proclamation that the formal state of war with Germany had legally ceased four months earlier, which was upheld by subsequent court decisions.

This appears to uphold executive power to end a state of war under the President’s inherent Article II powers just like the power to end a treaty, and so it is conceivable the President could impound military assistance overseas under those same powers that might cause the U.S. to become obligated in a war if the President was concerned about the national security implications.

In this case, we’re discussing non-treaty security assurance obligations that might drag the U.S. into a wider war involving Russia, Europe and the possible discharge of nuclear weapons.

Is the position of the National Security Council “resisters” that President Trump, or any other president, could terminate the Budapest Memorandum on Security Assurances executive agreement of 1994, promising to protect the territory of Ukraine, but that he would still be obligated to provide weapons being used to wage war there?

This is an area where power to conduct foreign affairs has to give one way or another.

Article II would appear facially to side with the executive, but these are all complex constitutional questions. Ones that might be ultimately decided by the Supreme Court, that is, if the President had chosen to permanently impound the foreign aid funds due for Ukraine as an exercise of his foreign affairs powers under Article II.

That he briefly considered submitting to Congress a rescission, pausing the funding temporarily, and ultimately releasing it on Sept. 11, however renders the question moot.

One need only consider the alternative: What if President Trump had followed through and submitted a request for rescinding the funds before the end of the fiscal year? Then, under the statute, it would have been up to Congress to approve the rescission or not. They would have had an up or down vote, and that would have probably settled the question.

Now, House Democrats wish to impeach the President for merely considering a rescission or some other means of ending U.S. involvement in the Ukrainian civil war.

Trump spent the money. There is no case for saying he violated the statute that appropriated the monies. But even if there had been a dispute, the proper venue would have been the courts to settle whether the statute obligated the President to assist in a foreign war over his objections.

Arguing about the constitutionality of a complex question, such as whether the Impoundment Control Act is constitution, is not a high crime or misdemeanor, it is a commonplace dispute between the elected branches that  the judicial branch was intended to resolve. But not in this case since the monies were ultimately spent. There is nothing left to resolve. Trump and members of Congress worked it out, and OMB released the funds.

A better question is what about those bureaucrats at the State and Defense Departments, and the National Security Council, and yes, perhaps former National Security Advisor Bolton, if he was siding with them, who briefly thought they alone could apportion the monies without the Office of Management and Budget’s approval to release the monies, while the President and Congress negotiated a resolution to the funding dispute? It is they, not the President, who were acting outside the law and should be subject to reprimand.

When it comes to the execution of foreign affairs powers, employees of the executive branch must act in accordance with the President’s policies, or else it is they, and not the President, who are the ones acting above the supreme law of the land, which includes the Constitution’s Article II vesting of executive power solely in the President.

Robert Romano is the Vice President of Public Policy at Americans for Limited Government.

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