The General Accountability Office (GAO) has issued a report declaring that President Donald Trump violated the law when he withheld military aid from Ukraine. The GAO, which is a nonpartisan arm of Congress, declared in the eight-page report that “Faithful execution of the law does not permit the president to substitute his own policy priorities for those that Congress has enacted into law.” While the report’s release triggered the familiar bombshell headlines, there was considerable exaggeration of its findings. This is less relevant to impeachment than might initially appear. This was a finding of the violation of a federal law due to the delay. It would still be a violation even if the President was solely acting in the public interest to combat corruption or guarantee support from our allies. In other words, that violation is not on its face an impeachable act. Indeed, other presidents have been found to have committed such violations.
At issue is the Impoundment Control Act. Enacted in 1974, the law was passed after Richard Nixon withheld funds for programs that he opposed or wanted to block for political reasons.
As I previously testified at the impeachment hearing, it would be highly improper to withhold funds for political purposes and a violation of this Act. You just have to prove it, which is why I strongly encourage the House to simply wait a couple months to complete this record. If it had, it could have pursued this and other developments before surrendering control of the case to the opposing party.
Notably, the OMB suggests that, even if withheld for a policy reason, this was not a policy that is allowed under the Act as a bar on dedicating such funds: “OMB withheld funds for a policy reason, which is not permitted under the Impoundment Control Act.”
The GAO has no real authority other than declaring such violations. Other presidents, including Bill Clinton, have been found to be in such violations by the GAO. These other presidents were also found to have caused “nonprogrammatic delays.” The GAO also found President Barack Obama violated federal law on such funds.
The aid was released before the deadline at the end of September but there is no question that a series of holds were placed on the aid. The White House claims that it wanted to confirm facts about corruption in Ukraine as well as to put pressure on allies to give more funding. If one accepts that the White House did act for such non-political purposes, it is still possible to be in violation of the Act but it would not be a violation that constitutes an impeachable offense — any more than it was for prior presidents like Clinton. The fact that this was not a “programmatic” issues is why it was found to violate the Act — not because of a finding of a quid pro quo.
There have been prior disagreements over the payment of funds — holds that have run afoul of the statute. The relevant question remains the same. It is not whether the White House was faithful to the wording of the Act. As I have previously written, I do not believe these actions were consistent. The question is whether the violation in the temporary hold on the funds constitutes a high crime and misdemeanor. This report does not materially change that status quo on that question. Trump is not being impeached for a “nonprogrammatic delay” in funding.
Nevertheless, the GAO is a rightfully respected organization and the report highlights that tenuous basis for this hold in light of the clear import of the Impoundment Act. The Act was created precisely to avoid this type of ad hoc hold on funds by a president. Moreover, there was no conferral with Congress as required under the Act, so there could be an arguable violation (though there are good arguments that it is not a violation). I do not view this as a political move by the GAO and it is certainly a finding that the Senate consider as a type of “judicial notice” of a public fact. It does not however answer the question still looming before the Senate.