The U.S. Government Accountability Office (GAO) has determined that President Donald Trump’s decision to withhold military aid to the Ukraine was expressly illegal.
In a nine-page report released Thursday morning, the federal government’s top auditing authority said that withholding congressionally authorized aid was in direct violation of the Impoundment Control Act (ICA) of 1974.
That law requires the executive branch to notify Congress if and when already-appropriated funds are being withheld via special and detailed messages and also contains timeline constraints on the various branches and agencies involved—GAO determined neither obligation was met in this instance.
Lawyers within the White House and Office of Management and Budget (OMB) had reportedly expressed misgivings about Trump’s hold on the aid due to the obligations outlined in the ICA—and previously worked to weave legal justifications around the law.
Those efforts were evidently unpersuasive.
The agency’s conclusion notes:
OMB violated the ICA when it withheld [the Department of Defense’s] [Ukraine aid] funds from obligation for policy reasons. This impoundment of budget authority was not a programmatic delay. OMB and [the State Department] have failed, as of yet, to provide the information we need to fulfill our duties under the ICA regarding potential impoundments of [foreign military financing] funds. We will continue to pursue this matter and will provide our decision to the Congress after we have received the necessary information.
The GAO is an outside arm of the federal government which technically operates under the aegis of the legislative branch—but which is widely considered a more or less neutral assessor of facts and law. Their decisions are typically treated with respect as the agency is thought to be largely removed from political battles and partisan pressure.
The full report offers a scathing indictment of the 45th president’s actions in regard to the Ukraine and his determination to withhold congressionally-authorized funds as leverage for a politicized investigation of Joe Biden.
“Faithful execution of the law does not permit the President to substitute his own policy priorities for those that Congress has enacted into law,” the report notes. “OMB withheld funds for a policy reason, which is not permitted.”
The analysis has harsh words for OMB itself:
OMB asserts that its actions are not subject to the ICA because they constitute a programmatic delay. … OMB further argues that because reviews for compliance with statutory conditions and congressional mandates are considered programmatic, so too should be reviews undertaken to ensure compliance with presidential policy prerogatives.
OMB’s assertions have no basis in law.
“We recognize that, even where the President does not transmit a special message pursuant to the procedures established by the ICA, it is possible that a delay in obligation may not constitute a reportable impoundment,” the decision continues. “However, programmatic delays occur when an agency is taking necessary steps to implement a program, but because of factors external to the program, funds temporarily go unobligated. This presumes, of course, that the agency is making reasonable efforts to obligate. Here, there was no external factor causing an unavoidable delay. Rather, OMB on its own volition explicitly barred DOD from obligating amounts.”
Reaction was swift and fierce.
“This bombshell legal opinion from the independent [GAO] demonstrates, without a doubt, that the Trump Administration illegally withheld assistance from Ukraine and the public evidence shows that the president himself ordered this illegal act,” noted Sen. Chris Van Hollen (D-Maryland).
Former acting U.S. Solicitor General and persistent Trump critic Neal Katyal said the report was a “significant development in Trump’s impeachment.”
National security attorney Bradley P. Moss was unsurprised by the GAO’s determination—and used the opportunity to call out the Republican Party for its continued allegiance to Trump amidst myriad allegations of deceit and illegality:
Yet again, actual objective analysis clearly finds the President was breaking the law in his scheme to withhold aid to Ukraine. How much of this are Republican Senators willing to put up with before they say ‘enough is enough’?”
Federal criminal defense attorney Tor Ekeland offered a succinct indictment. He said: “If the OMB acted unlawfully, so did the President.”
The OMB responded to all of this by saying it “disagrees.”
OMB response: “We disagree with GAO's opinion. OMB uses its apportionment authority to ensure taxpayer dollars are properly spent consistent with the President's priorities and with the law," OMB spokeswoman Rachel Semmel said. https://t.co/DgYaRjpjGD
— Ana Cabrera (@AnaCabrera) January 16, 2020
[Image via MANDEL NGAN/AFP/Getty Images]