The Ukraine Connection
Summary of Laura Cooper’s Deposition Testimony
Editor’s note: This is one of many summaries of depositions released by House impeachment investigators. The others are available here.
Defense Department official Laura Cooper testified before Congress in the ongoing impeachment inquiry on Oct. 23. Below is a summary of her testimony, as compiled from the transcript of her deposition.
The deposition transcript of Laura Cooper, a Department of Defense deputy assistant secretary, offers a window into the hold on military aid to Ukraine during July and August 2019. Cooper oversees the Department of Defense security assistance program, and her testimony provides a detailed view of the chain of events that initiated and prolonged the aid hold. Her testimony reveals a link between the president and the aid hold, the connection between the hold and investigations into Ukraine’s role in the 2016 election, the mechanism by which the Office of Management and Budget (OMB) delayed the funding, and the extent to which OMB’s efforts cut against an interagency consensus about the importance of the aid and the success of Ukrainian efforts to root out corruption.
Cooper explained the difference between the two types of security assistance funds at issue. Regarding Foreign Military Financing (FMF), the State Department is in the lead and the Defense Department plays a coordination and implementation role. The Ukraine Security Assistance Initiative (USAI) is a Defense Department authority, and so Defense is in the lead for both policy and implementation of those funds, in coordination with the State Department. Both authorities allow the United States to support the Ukrainian Armed Forces in defending themselves against Russian aggression. USAI funds are used to pay for a wide range of capabilities for Ukraine, ranging from night vision goggles and vehicles to counter-battery radar and sniper rifles. The most notable item that was funded with FMF in the past—specifically in 2017—was the Javelin anti-armor system.
Cooper explained that the National Defense Authorization Act (NDAA) includes a provision “that requires that half of [USAI] funding be conditioned on Ukraine making sufficient progress in defense reforms.” This means that a significant amount of Ukrainian aid funding is contingent on a positive determination about the “progress” made by the Ukrainians. Cooper testified that Ukraine has always met the benchmarks set and has made “significant forward progress” during her two-year tenure. In May 2019, the Defense Department determined, after consulting with interagency experts, that Ukraine had “taken substantial actions to make defense institutional reforms for the purpose of decreasing corruption, increasing accountability, and sustaining improvements of combat capability.” Because of this positive determination, the department approved the designated portion of funding for this fiscal year.
Cooper’s initial indication of the president’s skepticism of aid to Ukraine came in mid-June. On June 18, the Defense Department announced that Congress had approved the department’s sign-off on the security assistance conditioned on Ukrainian reforms. After the press release, Cooper described noticing a news headline that said “something like ... U.S. gives $250 million to Ukraine,” which she saw as oversimplifying the message in the press release. A few days after the press release and the news story, Cooper’s team received a message “forwarded down from the [Defense Department] Chief of Staff” that was presented as “follow-up on a meeting with the President.” The message relayed three questions about Ukraine security assistance as follow-up from this meeting: (a) Is the U.S. providing the equipment that will go to Ukraine? (b) What are other countries doing? and (c) Who “gave” this funding? Cooper and her colleagues responded to the email within a week with a fact sheet. Cooper testified that, based on the phrasing in the message’s subject line, she believes that “the questions were probably questions from the President.” She “speculat[es]” that the questions had to do with the press release and news headline, and she indicated that it is “relatively unusual” for her to get a question from the president.
Cooper first learned of the hold after a July 18 “routine Ukraine policy meeting” with the sub-Policy Coordinating Committee, which is typically chaired by the National Security Council (NSC) director for Ukraine, Alexander Vindman. Cooper did not attend the meeting, but she received a readout from her deputy after its conclusion. At the meeting, someone she believes is an OMB representative indicated that OMB was “holding” the congressional notification for the State Department’s FMF funds. (Providing a congressional notification is legally required at least 15 days before these funds can be obligated and used.) The OMB representative offered no reason for the hold, which Cooper described as “unusual.” Cooper was concerned that the OMB hold might also affect the Defense-administered USAI funds. She reached out to officials at the NSC and State Department about the impact of the hold on USAI and received no conclusive answer.
Cooper became aware of the president’s involvement in the hold during a July 23 Policy Coordinating Committee meeting. Cooper reported that, at the meeting, she advocated for the release of the FMF funding and still did not know if USAI funds were also being held. An OMB representative explained that “the White House Chief of Staff has conveyed that the President has concerns about Ukraine and Ukraine security assistance.” Cooper left the meeting with the impression that the aid hold was “a larger issue” but still lacked “specific direction with respect to USAI.”
Two days later, through a “footnote” to the security assistance apportionment added by OMB, Cooper learned that the USAI funding would indeed be delayed. (The apportionment process—including any applicable footnotes—is legally binding and is outlined in section 120 of OMB’s Circular A-11 document.) Specifically, on July 25, the Defense Department comptroller received an apportionment notice from OMB, signed by Deputy Associate Director for National Security Programs Mark Sandy. A footnote in that notice indicated that the funding would not be available to the Defense Department until Aug. 5 in order “to allow for the interagency process to determine the best use of such funds.” The notice, which was entered as an exhibit into the deposition records, adds, “Based on OMB’s communication with DOD [the Defense Department] on July 25, 2019, OMB understands from the Department that this brief pause in obligations will not preclude DOD’s timely execution of the final policy determination.” Cooper never saw the document at the time, but “the language was provided” to her.
Cooper’s “secondhand understanding” of the notice was that “OMB wanted to communicate the President’s direction to hold the assistance, and in consultation with the DOD comptroller they realized that the way to do this would be via an apportionment.” She thought the Aug. 5 date “was fairly arbitrary.... [I]t was trying to put something on paper that would reflect that there would be some kind of a policy process, there will be some kind of a discussion with the President.”
Comments by Michael Duffey, associate director of national security programs at OMB, at a July 26 Deputies Committee meeting confirmed that the hold affected both FMF and USAI funding streams and that the hold “relate[d] to the President’s concerns about corruption.” The meeting was chaired by Charles Kupperman, who was then the deputy national security adviser. John Rood, under secretary of defense for policy, represented the Defense Department. Cooper was unsure but thought that Under Secretary for Policy David Hale represented the State Department. Cooper, who was a “backbencher” in the room, describes “a consensus” in this meeting among the high-ranking national security officials in attendance “that ... we needed to support this government with security assistance.” At the meeting, the deputies expressed concerns that the U.S. needed to obligate the aid because Congress had already appropriated and approved the funding. Cooper recounted that “the comments in the room at the deputies’ level reflected a sense that there was not an understanding of how this could legally play out.” At this point, Cooper still had little understanding of the reasons for the hold. She explained that “all [she] had to go on was that the President is concerned about corruption in Ukraine and somehow therefore we were withholding security assistance.”
At a Policy Coordinating Committee meeting on July 31, Cooper outlined the avenues legally available to the administration if it sought to continue to withhold the aid. She presented two choices: Either the president submits a “rescission” notice to Congress or the Defense Department undertakes “a reprogramming action,” a move that also requires congressional notification. Cooper implied that she presented these options in order to shed light on the difficulties entailed by withholding the aid and to ultimately convince the relevant authorities to abandon the hold. Cooper testified that she “was very much hoping that the explanations that the principals would provide the President[,] ... this new understanding perhaps of what legally available mechanisms were out there[,] would create a decision to resume the funding.”
In early August, Cooper expressed to Tim Morrison, the senior director for European and Russian affairs on the NSC, that neither of the two avenues she proposed to withhold aid would be available if the Aug. 5 deadline lapsed. After Aug. 5 passes, Cooper explained to Morrison, the apportionment notice would expire and the Defense Department would be required to obligate the funds. Morrison relayed Cooper’s concerns to Duffey of OMB, who requested further clarification. Cooper talked with Duffey on Aug. 5 and communicated to him what she had told to Morrison.
That same day, OMB added a new apportionment footnote that extended the hold until Aug. 12. Cooper did not say whether OMB added new footnotes between Aug. 5 and Aug. 20, although she indicated that OMB issued eight different apportionment notices between July and Sept. 12, the date that OMB lifted the hold.
Cooper indicated that it was her understanding that “throughout the month of August” OMB reached out “many” times to the Defense Department comptroller and the Defense Security Cooperation Agency (DSCA, a part of the Defense Department that coordinates the implementation of military assistance) to see if the funding could still be obligated even if OMB continued “pushing the obligations until later in the year.” Cooper also conveyed to Duffey the risk in extending the hold for too long: There exists, she explained, “a certain point [where] we won’t be able to obligate” the funding because the process requires lead time in order to accommodate logistical concerns.
Cooper met with Ambassador Kurt Volker to discuss the hold on Aug. 20. Cooper testified that she expected the meeting to be “a strategizing session on how do we get this security assistance released.” During their conversation, Volker began talking about “an effort that he was engaged in to see if there was a statement that the government of Ukraine would make that would somehow disavow any interference in U.S. elections and would commit to the prosecution of any individuals involved in election interference.” Counsel for the committee asked Cooper whether Volker “indicate[d] to [her] that if that channel he was working was successful it might lift this issue,” referring to the security assistance hold. “Yes,” Cooper replied. Cooper later added that “[t]he context for the discussion that I had with Ambassador Volker related specifically to the path that he was pursuing to lift the hold would be to get them to make this statement, but the only reason they would do that is because there was ... something valuable.” Cooper noted that Volker “was relating conversations he had had with Ukrainian officials” and Cooper had “a very strong inference that there was some knowledge on the part of the Ukrainians” of the hold.
Also on Aug. 20, Cooper explained, OMB “took out th[e] part” in the apportionment footnote “about timely execution.” Cooper appeared to be referring to the sentence in the July 25 footnote that reads: “Based on OMB’s communication with DOD on July 25, 2019, OMB understands from the Department that this brief pause in obligations will not preclude DOD’s timely execution of the final policy determination.” Cooper noted that this change created an “understanding” among Cooper and her colleagues “that they would not be able to obligate all the funding.” Cooper’s concerns were shared by others at the department. “[A]t one point, in August,” Cooper testified, DSCA “actually thought it would be ... well over $100 million that there would not be ... time to obligate.
In “the end of August,” Secretary of Defense Mark Esper wrote an email that was eventually forwarded to Cooper in which he indicated that “there was a meeting with the President or some discussion, and he said, no—no decision on Ukraine.” Esper’s email also “included a note ... about holding on any memo that the Department would send to OMB on this matter pending the Vice President meeting” withUkrainian President Volodymyr Zelensky in Warsaw on Aug. 31.
Cooper reported that Ukrainian officials began reaching out to her colleagues in early September. She testified that she is “confident” that “when you get into early September ... there were staff level questions coming in from lower level officials in the Ukrainian ministry of defense to our team in Kyiv and to my team.” (An Aug. 28 article published by Politico had reported on the hold.)
On Sept. 11, Cooper and her colleagues learned that OMB had lifted the hold. Cooper learned this information through an email that she received “out of the blue” from the Secretary of Defense’s Chief of Staff, Eric Chewning, saying that “OMB has lifted the hold and ... we could start obligating on the 12th.” Cooper added that she believes that Sept. 12 was the day when “the last apportionment expired.”
In the deposition, the chairman asked Cooper what would have happened to the remaining unobligated security assistance if Congress had not stepped in and passed a new law extending the availability of the funds beyond Sept. 30—the end of the fiscal year.
THE CHAIRMAN: And but for the effort of Congress to step in and pass a new Iaw, Ukraine would have lost out on that military support at least in that fiscal year?
MS. COOPER: Yes, that's correct.
Though it is not explicit in the deposition, the chairman was referring to the fact that Congress passed and the president signed, on Sept. 27, a continuing resolution that included a provision that, in effect, extended the availability of the Defense Department’s unspent Ukraine assistance funds.