“ONCE IT’S OBLIGATED, WE CAN’T TAKE IT BACK”
by Ren Jander, ©2019
Today, we will convict Laura Cooper of violating 18 US Code 1001 for deceptions pertaining to a fictitious hold placed on the $115 million grant of FMF funds for Ukraine in the 2019 State Department appropriations act.
In a pending follow up, we will convict Cooper of perjury concerning deception regarding the $250 million in USAI funds. I’m doing this in two parts, because you must focus on just one lie at a time. This will be a short post. You will not be in the weeds. You will be rewarded with clarity. I promise.
Adam Schiff’s impeachment report claims the $115 million FMF grant was part of a $391.5 million stack nefariously held from Ukraine by President Trump. That never happened. If you believe in the hold, you fell for the deception.
I will prove with legal certainty that the $115 million FMF grant was fully obligated no later than March 18, 2019. If it was obligated in March, then it was outside the reach of Donald Trump in July. If it was obligated in March, it could not be released on September 11. If it was obligated in March, it was also never in danger of expiring on September 30, 2019. And if it was obligated in March, Schiff’s report is fraudulent.
The Government Accounting Office (GAO) defines “obligation” as follows:
“A definite commitment that creates a legal liability of the government… An agency incurs an obligation, for example, when it places an order, signs a contract, awards a grant, purchases a service, or takes other actions that require the government to make payments to the public or from one government account to another.”
So how do I know $115 million of Ukraine FMF funds were legally obligated no later than March 18, 2019?
I know this because the obligation was created by statutory force.
Title IV (Division F) of the 2019 Consolidated Appropriations Act provided just less than $6 billion to the State Department for its FMF programs. (An additional FMF amount was also provided in Div. F, Title VIII reserved for Overseas Contingency Operations, which is governed by different regulations.) Title VII (of Division F) dishes out $445,700,000 for Ukraine assistance. The allocation table (Pg. H1946) from the Conference Report grants $115 million in FMF program cash for Ukraine.
Title IV defines the nature of FMF funds provided to global partners as grants:
“FOREIGN MILITARY FINANCING PROGRAM
For necessary expenses for grants to enable the President to carry out the provisions of section 23 of the Arms Export Control Act… Provided further, That funds made available under this heading shall be obligated upon apportionment in accordance with paragraph (5)(C) of section 1501(a) of title 31, United States Code.”
You see that? FMF funds are “obligated upon apportionment” pursuant to 31 US Code 1501(a)(5)(C), which states:
“§1501. Documentary evidence requirement for Government obligations
(a) An amount shall be recorded as an obligation of the United States Government only when supported by documentary evidence of… (5) a grant or subsidy payable…(C) under plans approved consistent with and authorized by law;”
And that’s the rest of the story, folks. You’re not supposed to know that. Now you do. FMF cash is appropriated as a grant, and grants are obligated upon apportionment.
You should now be asking when the FMF cash was apportioned?
Now you should be asking how long the $115 mil was available for? Was it a one-year appropriation that could expire if the obligations were not liquidated before September 30, 2019? I mean, that’s what we’ve been told. That’s what frustrated bureaucrats breathlessly testified to before Schiff’s inquisition. They were wrong.
I have to give you a long statutory quote now. But it’s a fun one. It has twists and turns, but when you get to the end, all is clear. Here we go. Section 7011 of Title VII:
“AVAILABILITY OF FUNDS
SEC. 7011. No part of any appropriation contained in this Act shall remain available for obligation after the expiration of the current fiscal year unless expressly so provided by this Act: Provided, That funds appropriated for…section 23 of the Arms Export Control Act …shall remain available for an additional 4 years from the date on which the availability of such funds would otherwise have expired, if such funds are initially obligated before the expiration of their respective periods of availability contained in this Act:”
So, at first glance, the funds would appear to expire on September 30, 2019 (last day of FY19), but since the FMF cash is appropriated for section 23 of the Arms Export Control Act, the $115 million grant does not expire for an additional four years, as the appropriation was obligated by operation of law upon apportionment no later than March, which is way before September 30th. Bingo.
But don’t take my word for it (even though I’m just quoting statutes). DoD Financial Management Regulation, Volume 15 testifies as follows:
“Account 11 (FY) 1082, “Foreign Military Financing Program, Funds Appropriated to the President,” is used to record the receipt and use of appropriated funds to finance U.S. defense sales to selected foreign friends and allies, primarily through the FMS program. Based on annual appropriations bill language, the funds are considered obligated upon apportionment, are available for expenditure for 5 years, and must remain available for an additional 4 years from the date on which the availability of such funds would otherwise have expired. These funds, transferred to the FMS Trust Fund, are expenditure transfers…”
That’s a lot of years before these funds expire. We grant this money to our global partners, and once it’s obligated, we can’t take it back, or hold it, or dangle it. It’s reserved in a special account obligated for the purpose stated in the appropriations statute.
So all this crap you’ve been hearing about POTUS freezing this money is a lie. Now, you don’t know yet how they pulled this mirage off. I do. And that reveal is coming in pending reports. But now you possess unassailable knowledge of the $115 million FMF.
CONVICTING LAURA COOPER AND/OR TIM MORRISON?
Dan Goldman: (01:25:32)
“Now you testified that hearing this information gave you a sinking feeling. Why was that?”
Tim Morrison: (01:25:37)
“Well, I believe if we’re all on September 7th, the end of the fiscal year, September 30th, these are one year dollars, the DOD and the Department Of State funds. So we only had so much time. And in fact, because Congress imposed a 15 day notification requirement on the state department funds September 7th, September 30th, that really means September 15th in order to secure a decision from the president to allow the funds to go forward.”
Morrison is wrong. The FMF funds are not “one year dollars”. They were not in danger of expiring. He’s also not up to speed on Congressional notice, but that is a big topic coming in a pending report. For now, let’s just focus on this one-year expiration false statement by Morrison. I’m not saying Morrison is guilty of violating the perjury or false statement statutes, but he really should lawyer up now, just to be safe, because his testimony is absolutely false. He needs to consult counsel and officially report to Congress his error. The FMF funds had many years to go before expiration.
Morrison does not have the experience in appropriations that Cooper does. Morrison appears to be regurgitating what he was told by “colleagues” and what he was reading in the media. But Cooper’s testimony reveals her to be booked up on all of the above. She’s a bureaucratic beast. She knows the regs. She was directly responsible for implementing both FMF and USAI funds to procure weapons for Ukraine. Ukraine is in her portfolio, and she is recognized as a pro. So let’s examine her comments concerning the FMF funds.
In her deposition testimony on pg. 17, she states:
“So, in my role, I’m receiving input from the field, from European Command, and from our team at the U.S. Embassy in Kyiv as to the requirements; and then, I am overseeing a team that’s putting together a package packages, really — to support their needs via FMF and via Ukraine Security Assistance Initiative.”
This establishes her expertise over the topic. And on pg. 46, she states:
Q: “And eventually did you get any information about the source of the hold?”
A: “So the issue started to clarify a little bit on the 23rd at that — at that PCC meeting. There in that meeting I recall I was advocating for the release of the FMF…”
Laura Cooper knew on July 23rd that the FMF funds were not being held and therefore need not be “released”. She may have “advocated” for the funds to be released, but that would have been a ruse on her part.
Before we examine more of her testimony, it’s time to review 18 US Code 1001, which makes false statements a felony:
“(a)… whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—
(1)falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2)makes any materially false, fictitious, or fraudulent statement or representation;
…shall be fined under this title, imprisoned not more than 5 years…”
Even though the words you say may be technically true, you can still be prosecuted if your answer willfully covers up or conceals a material fact. In this case, the entire purpose of the deposition was to find out whether POTUS held the FMF cash back. So if you know that it was impossible – according to law – for him to hold the obligated FMF funds back, and you do not tell Congress that, but instead you say, “I was advocating for the release of the FMF”, then you are guilty under section 1001, and you are now facing 5 years in prison, dear girl.
Before we proceed, you might be wondering why I gave Morrison some benefit of the doubt, while going full Weissmann on Cooper. Fair question. Wait for it. It’s coming.
On pg. 47 of her deposition, Cooper states:
“And then the very next day, the 26th was the meeting that I was the backbencher for with the deputies’ level. And then it was, to me anyway in my experience, it was the first time it was stated very clearly what — that yes, it is FMF and USAI are both affected by this hold and that it relates to the President’s concerns about corruption. And that is what in that meeting Mike Duffey from OMB said…
So here is another chance for her to tell us the legal truth that all $115 million had already been apportioned and obligated thereby making the funds available for years to come without danger of expiration, or of being held back. The funds were sitting in a separate account away from the clutches of OMB, and the President. But she just keeps that knowledge cloaked in confusion. And then she goes further with it, same page:
Q: “And the President is authorized to have these types of holds placed. Correct?”
A: “Well, I’m not an expert on the law…”
That’s another false statement felony right there. She knows the FMF funds were obligated. We need to look at one more passage before closing argument, pgs. 47-48:
Q: Okay. So is it fair to say the deputies thought the President was not authorized to place a hold on these funds?
A: They did not use that term, but the expression in the room that I recall was a sense that there was not an available mechanism to simply not spend money that has been in the case of USAI already notified to Congress. And in the case of the FMF that was earmarked for Ukraine. So the senior leaders were expressing that they didn’t see how this was legally available, but they didn’t use the terminology that you’ve described.
She’s parsing with a razor here. The terminology is explicitly chosen, “earmarked for Ukraine.” There’s a huge difference between funds that are earmarked for Ukraine and funds that are obligated to Ukraine. Funds that are not FMF, not grants, are earmarked in appropriation acts, but they are not considered obligated when apportioned. Obligations must usually be actuated by affirmative activity. But FMF grants are “obligated upon apportionment” by direct operation of law. Laura Cooper knows this, but she failed to inform Congress and the American people.
CLOSING ARGUMENT ON THE CONVICTION OF LAURA COOPER
Now you are ready for closing argument. In her open hearing testimony, she slipped up. All that careful parsing was betrayed by a subtle slip that proves she knew the FMF money was obligated. While responding to Congressman Hurd, Cooper says this:
“There’s also the Ukraine Security Assistance Initiative, that’s DOD authority. Unlike the State authority, the DOD authority is only a one year authority.”
Boom. The “State authority” refers to the FMF funds, and she let it slip that the FMF grant is not a one-year appropriation. And the only way she could know this is if she had read, and understood, the statute. This is because the statute – at first glance – appears to be a one-year statute.
According to Sec. 7011, which is worth quoting again here, “No part of any appropriation contained in this Act shall remain available for obligation after the expiration of the current fiscal year unless… such funds are initially obligated before the expiration of their respective periods of availability contained in this Act:”
In order to understand why the fiscal year expiration exception applies to Title IV/VII FMF funds, one must know that the funds were obligated upon apportionment. Laura Cooper’s testimony proves she knew the FMF funds were not one-year appropriations, and therefore she had to know the FMF funds were on the books as obligations of the government. She concealed this important clarity from Congress and the nation.
President Trump didn’t hold the $115 million FMF grant back from Ukraine. It did not happen, because it could not happen. You can’t hold something from being released that has already been released. Obligated funds are not available for rescission, deferral, reapportionment, or expiration. They are spent.
The big question now is who else is in on this charade coup with Cooper?
Morrison seemed to be clueless. If he did truly believe that the FMF funds were in danger of expiration, then he is not technically in violation of 18 US Code 1001. But since he did, in fact, make a false statement to Congress on a very important point, his only defense will be lack of malicious intent. I would lawyer up, get my butt over to Congress, and publicly correct the error.
Laura Cooper does not have the same luxury. She can correct the record, but she remains guilty as charged. If I were Laura, I’d flip.
Message to the rest of the cabal: President Trump knows who you are.
Written and Researched by Ren Jander
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