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GAO rules Trump admin withholding Ukraine aid was illegal and against the law

Government Accountability Office Building (kafka4prez/Flickr)
January 16, 2020

The U.S. Government Accountability Office (GAO) issued a statement Thursday, ruling that the decision to withhold some $214 million in aid assigned to the Ukraine was a violation of the law and that President Donald Trump’s administration exceeded its authority where it may narrowly limit assigned foreign aid.

The GAO decision could have key ramifications for the ongoing impeachment effort against Trump. Allegations Trump ordered his administration to withhold nearly $400 million in aid to the Ukraine have been a central argument of Democratic claims Trump abused his presidential power to pressure the Ukraine to investigate Democratic presidential candidate Joe Biden.

“Today, GAO issued a legal decision concluding that the Office of Management and Budget violated the law when it withheld approximately $214 million appropriated to DOD for security assistance to Ukraine. The President has narrow, limited authority to withhold appropriations under the Impoundment Control Act of 1974,” the GAO decision said. “OMB told GAO that it withheld the funds to ensure that they were not spent ‘in a manner that could conflict with the President’s foreign policy.’  The law does not permit OMB to withhold funds for policy reasons.”

The specific $214 million in Ukrainian aid in question by the GAO were specifically for military assistance to the Ukraine.

The OMB had argued that the delay on aid to the Ukraine should have remained within their discretion, without being reported as an impoundment under the Impoundment Control Act (ICA) as it amounted to a programmatic delay. The ICA requires Congress be notified of delays in how federal funds are apportioned.

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The GAO decision did acknowledge 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.”

However, the GAO determined that the OMB’s stated reasons for withholding the aid should have been a reportable impoundment.

“The burden to justify a withholding of budget authority rests with the executive branch. Here, OMB has failed to meet this burden. We conclude that OMB violated the ICA when it withheld USAI funds for a policy reason,” the GAO assessment determined.

The Trump administration did ultimately release the aid withheld from the Ukraine, but the GAO decision said the OMB’s claims of even a programmatic delay in this context had “no basis in law.”

Thus far, the impeachment articles against Trump have assessed two charges, one for abuse of power and one for obstructing Congress in its investigation.

The latest GAO decision could add a new legal dimension to the impeachment case. Impeachment critics have argued that “abuse of power” is a more subjective charge and that the second charge for obstruction conflicts with Trump’s right to challenge subpoenas through executive privilege and appeal to the judiciary to reach a final decision. The GAO decision, however, appears to list a specific violation of law.

The GAO decision comes just one day after House Speaker Nancy Pelosi appointed impeachment managers to present the impeachment case before the Senate.

OMB spokeswoman Rachel Semmel offered her agency’s argument against the GAO decision to Politico, claiming the OMB was within its authority.

“We disagree with GAO’s opinion,” Semmel said. “OMB uses its apportionment authority to ensure taxpayer dollars are properly spent consistent with the president’s priorities and with the law.”

According to a December report by RollCall, the OMB has argued that it’s delays in releasing aid to the Ukraine were consistent with past practice and that it had sufficiently delivered the aid funds on time. OMB General Counsel Mark R. Paoletta said the agency had apportioned 84 percent of the Ukrainian aid funds by their 2019 fiscal year end deadline. By comparison, President Barack Obama had released only 79 percent of aid funds by the end of the 2016 fiscal year.