GAO Declares Trump’s Action On Ukraine Aid To Be Unlawful

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.

189 thoughts on “GAO Declares Trump’s Action On Ukraine Aid To Be Unlawful”

  1. Despite the GAO’s conclusions and the impeachment Trump’s approval ratings are doing good but we don’t hear from the usual suspects about how bad he is doing. At the end of the week Trump is 49% compared to Obamas 46% at the same time. With all the negative media and the Democrats doing everything they can to destroy our Republic Trump’s head remains high.

    Trump 2020

  2. If you have a 401k plan or an IRA, you like what’s going on. No one in their right mind would want Elizabeth Warren or Bernie Sanders screwing with the economy.

    1. The Constitution allocates to the president sole authority over foreign policy
      ______________________________________________

      Where does it say that?

  3. It’s all BS anything to disrupt this administration so Ex VP Biden gets a pass he went on national TV to say he was with holding funds from Ukraine until they fire the DA investigateing his son.Guess this POS that went on national television couple days ago to ad some more BS they say anything funny rite when that drunk broad walk the papers to the Senate this dude goes on tv perfect timing uh it’s a dam Circus with a bunch of clowns running the impeachment it’s a joke now first Russian collusion I believe he President Trump is exposing these crooked SOB and there kids corrupt politicians he walk in and change the game they don’t like that he disrupted the status quo. God Bless the UNITED STATES of AMERICA 🇺🇸👍✌️🦅🇺🇸🙏🏼🙏🏼🙏🏼

  4. Trump Had Right to Withhold Ukraine Funds: GAO is Wrong

    by Alan M. Dershowitz
    January 17, 2020 at 7:00 pm

    The Constitution allocates to the president sole authority over foreign policy… It does not permit Congress to substitute its foreign policy preferences for those of the president.

    U.S. Government Accountability Office (GAO) has gotten the constitutional law exactly backwards. It said that the “faithful execution of the law” — the Impoundment Control Act—”does not permit the president to substitute his own policy priorities for those congress has enacted into law .” Yes, it does — when it comes to foreign policy. The Constitution allocates to the president sole authority over foreign policy (short of declaring war or signing a treaty). It does not permit Congress to substitute its foreign policy preferences for those of the president.

    To the extent that the statute at issue constrains the power of the president to conduct foreign policy, it is unconstitutional.

    Consider the following hypothetical situation: Congress allocates funds to Cuba (or Iran or Venezuela). The president says that is inconsistent with his foreign policy and refuses to release the funds. Surely the president would be within his constitutional authority. Or consider the actual situation that former President Barack Obama created when he unilaterally made the Iran deal and sent that enemy of America billions of dollars without congressional approval. I do not recall the GAO complaining about that presidential decision, despite the reality that the Iran deal was, in effect, a treaty that should require senate approval that was never given.

    Whatever one may think about the substantive merits of what President Donald Trump did or did not do with regard to the Ukrainian money— which was eventually sent without strings —he certainly had the authority to delay sending the funds. The GAO was simply wrong in alleging that he violated the law, which includes the Constitution, by doing so.

    To be sure, the statute requires notification to Congress, but if such notification significantly delays the president from implementing his foreign policy at a time of his choice, that too would raise serious constitutional issues.

    Why then would a nonpartisan agency get it so wrong as a matter of constitutional law. There are two obvious answers: first, in the age of Trump there is no such thing as nonpartisan. The political word is largely divided into people who hate and people who love President Trump. This is as true of long term civil servants as it is of partisan politicians. We have seen this with regard to the FBI, the CIA, the Fed and other government agencies that are supposed to be nonpartisan. There are of course exceptions such as the inspector general of the Department of Justice who seems genuinely non-partisan. But most civil servants share the nationwide trend of picking sides. The GAO does not seem immune to this divisiveness.

    Second, even if the GAO were non-partisan in the sense of preferring one political party over the other, it is partial to Congress over the president. The GAO is a congressional body. It is part of the legislative, not executive, branch. As such, it favors congressional prerogatives over executive power. It is not surprising therefore that it would elevate the authority of Congress to enact legislation over that of the president to conduct foreign policy.

    In any event, even if the GAO were correct in its legal conclusion — which it is not— the alleged violation would be neither a crime nor an impeachable offense. It would be a civil violation subject to a civil remedy, as were the numerous violations alleged by the GAO with regard to other presidents. Those alleged violations were barely noted by the media. But in the hyper-partisan impeachment atmosphere, this report received breathless “breaking news” coverage and a demand for inclusion among the articles of impeachment.

    If Congress and its GAO truly believe that President Trump violated the law, let them go to court and seek the civil remedy provided by the law. But let us not continue to water down the constitutional criteria for impeachment by including highly questionable, and on my view wrongheaded, views about violations of an unconstitutional civil law.

    Alan M. Dershowitz is the Felix Frankfurter Professor of Law Emeritus at Harvard Law School and author of the book, Guilt by Accusation: The Challenge of Proving Innocence in the Age of #MeToo, Skyhorse Publishing, November 2019. He is a Distinguished Fellow at Gatestone Institute.

    1. Consider the following hypothetical situation: Congress allocates funds to Cuba (or Iran or Venezuela). The president says that is inconsistent with his foreign policy and refuses to release the funds. Surely the president would be within his constitutional authority.
      ______________________________________________
      There is no such constitutional authority that gives the president sole dominion over foreign policy. What authority the President does have beyond being commander of the military is given by Congressional law. For instance, the only reason the president can impose tariffs on China is because Congress passed law giving him that authority.

      But that really is not the issue. The GAO claims that the law was not faithfully executed. Other than the failure to notify Congress the GAO does not really know whether the President substituted “his own policy priorities for those congress has enacted into law”

      The FAO does not have the facts, because the facts have not been revealed in full. The GAO is just guessing.

      1. Anon, the President has and has had superior authority over foreign policy. If Congress wishes to dispute that power they use the courts or the power of the purse. Don’t be a hack.

        1. the President has and has had superior authority over foreign policy
          __________________________________________

          Mostly because Legislation grants the president that discretion
          but
          What happened to your hypothetical and the presidents constitutional authority? You dropped that pretty quick.
          ____________________________________________
          If Congress wishes to dispute that power they use the courts or the power of the purse
          _______________________________________
          And there is also impeachment if the president starts asserting authority that the Constitution and the statutes don’t authorize.

          1. “What happened to your hypothetical and the presidents constitutional authority? You dropped that pretty quick.”

            Firstly it is Alan Dershowitz’s statement, but since he is not here I will give my answer. If such a conflict exists it will end up in the courts and they will likely judge in favor of the President since I believe that is the direction of the case law on this subject.

            Impeachment is political. If you read the Federalist Papers there was long a discussion that they did not want impeachment to be used by the party in power in Congress to make the President’s power less than that of Congress. That is why more than a majority in the Senate was necessary to convict. The Congress like the President has options but the Democrats decided to politicize impeachment to the detriment of this Constitutional Republic and the people. AS a disclosure, unlike Trump Clinton comitted discernable crimes but I did not favor his impeachment.

            1. If such a conflict exists it will end up in the courts and they will likely judge in favor of the President since I believe that is the direction of the case law on this subject.
              _______________________________________
              There is nothing in the Constitution that gives the president sole authority over foreign policy. The president does have the authority to receive and send Ambassadors which does give the Executive the sole power to officially communicate US foreign policy, but Congress creates law and the president executes the law. Most laws provide for some wiggle room in how they may be executed and many laws cede the final decisions to the executive. Executive Orders are backed by law that has granted the authority to issue that order.

              Congress certainly has the power to impeach the president if the president stops faithfully executing the laws as the presidential oath requires.

              The two questions here are:
              Was the president executing the law properly?
              If not was it done for personal gain?

              We don’t have enough evidence to answer the first question and neither does the House or the GAO.

              But the answer is still obvious. Yes the President did execute the law faithfully. That is obvious because what the President is accused of attempting to do had he not been caught is just too ridiculous to be true. If the President had really been doing what he is accused of and had their been no whistle blower to derail the plot the President would be in a lot more trouble than he is now. If you really believe the president was trying to get Ukraine to investigate the Bidens you should be thankful the CIA intervened and quashed it, because a phony investigation by Ukraine after Trump withheld aid would have been a really bonehead mistake by Trump.

              1. “There is nothing in the Constitution that gives the president sole authority over foreign policy. ”

                Anon, keep repeating yourself ignoring over 200 years of history. Pretend you didn’t hear that I rejected any claim that the President had sole authority over foreign policy. If pretending and lying make you feel good that is fine with me. just keep repeating what you said before because in your mind repetition makes what you want come true.

                The President is not guilty of any impeachable offense and will not be removed from office. He has done a fantastic job as President and all the Democrats have done is to prevent needed legislation to be passed.

                1. The President is not guilty of any impeachable offense and will not be removed from office.
                  ______________________________________

                  So what? Anyone who is not a retard knew that much months ago when the transcript was released.

                  There is still nothing in the Constitution that gives the president sole authority over foreign policy

                  1. “So what? Anyone who is not a retard knew that much months ago when the transcript was released.”

                    Anon apparently didn’t know that awhile back and there doesn’t seem to be much difference from you and Anon. Do you consider yourself a retard?

                    1. Anon apparently didn’t know that awhile back and there doesn’t seem to be much difference from you and Anon
                      _______________________________

                      You guys seem to be mortally fixated on something called Anon

                      I take it that no one is interested in defending the assertion that the Constitution gives to the president sole authority over foreign policy

                    2. You are very predictable and repetitive. Your sytax and arguments remain very similar. Your attitude, the same.

                      “I take it that no one is interested in defending the assertion that the Constitution gives to the president sole authority over foreign policy”

                      Why would I defend something I and others have previously explained was not exactly correct but you will pretend never to hear that in order to leave you with something to say. Jan F. was quite a card and all his nom de plume’s (if one can use such a term with such a deficient writer) that followed including his anonymous ones are no better.

                    3. Why would I defend something I and others have previously explained was not exactly correct but you will pretend never to hear that
                      ________________________________
                      I will take “not exactly correct” to mean “incorrect”. As in the Constitution does not give sole authority over foreign policy to the president.

                      So that means it does come down to the question did the president attempt to substitute his own personal policy( for his own personal gain) for the policy enacted into law by Congress.

                      And the answer still remains we haven’t seen the evidence that answers that question.

                    4. Anon, you intentionally forget what has been said so you can repeat yourself over and over again. For clarity This was part of my last comment. “Why would I defend something I and others have previously explained was not exactly correct”

                      Now you can go back and see what others including Dershowitz has said on the subject. The President rightfully has a lot of power in dealing with foreign affairs. Trump rightfully used those powers. If you think it was a criminal act the ball is in your court to prove it. You don’t have any proof so you rely on the repetition of untrue accusations and bullying.

                    5. If you think it was a criminal act the ball is in your court to prove it.
                      ______________________________
                      There was no criminal act. A violation of the ICA is not criminal.

                      There is evidence the president did mot faithfully execute the law that requires notification of Congress when there is a delay.

                      We don’t know the reason for the delay but it should be obvious that it was not an attempt to get Ukraine to investigate the Bidens. That is just too stupid to be believable.

                    6. Discussion over. There was no criminal act. There is often friction between the presidency and Congress. That is buit into our system and is good. The President is innocent and has been doing a great job.

                      Trump Administration Accomplishments

                      Almost 4 million jobs created since election.
                      More Americans are now employed than ever recorded before in our history.
                      We have created more than 400,000 manufacturing jobs since my election.
                      Manufacturing jobs growing at the fastest rate in more than THREE DECADES.
                      Economic growth last quarter hit 4.2 percent.
                      New unemployment claims recently hit a 49-year low.
                      Median household income has hit highest level ever recorded.
                      African-American unemployment has recently achieved the lowest rate ever recorded.
                      Hispanic-American unemployment is at the lowest rate ever recorded.
                      Asian-American unemployment recently achieved the lowest rate ever recorded.
                      Women’s unemployment recently reached the lowest rate in 65 years.
                      Youth unemployment has recently hit the lowest rate in nearly half a century.
                      Lowest unemployment rate ever recorded for Americans without a high school diploma.
                      Under my Administration, veterans’ unemployment recently reached its lowest rate in nearly 20 years.
                      Almost 3.9 million Americans have been lifted off food stamps since the election.
                      The Pledge to America’s Workers has resulted in employers committing to train more than 4 million Americans. We are committed to VOCATIONAL education.
                      95 percent of U.S. manufacturers are optimistic about the future—the highest ever.
                      Retail sales surged last month, up another 6 percent over last year.
                      Signed the biggest package of tax cuts and reforms in history. After tax cuts, over $300 billion poured back in to the U.S. in the first quarter alone.
                      As a result of our tax bill, small businesses will have the lowest top marginal tax rate in more than 80 years.
                      Helped win U.S. bid for the 2028 Summer Olympics in Los Angeles.
                      Helped win U.S.-Mexico-Canada’s united bid for 2026 World Cup.
                      Opened ANWR and approved Keystone XL and Dakota Access Pipelines.
                      Record number of regulations eliminated.
                      Enacted regulatory relief for community banks and credit unions.
                      Obamacare individual mandate penalty GONE.
                      My Administration is providing more affordable healthcare options for Americans through association health plans and short-term duration plans.
                      Last month, the FDA approved more affordable generic drugs than ever before in history. And thanks to our efforts, many drug companies are freezing or reversing planned price increases.
                      We reformed the Medicare program to stop hospitals from overcharging low-income seniors on their drugs—saving seniors hundreds of millions of dollars this year alone.
                      Signed Right-To-Try legislation.
                      Secured $6 billion in NEW funding to fight the opioid epidemic.
                      We have reduced high-dose opioid prescriptions by 16 percent during my first year in office.
                      Signed VA Choice Act and VA Accountability Act, expanded VA telehealth services, walk-in-clinics, and same-day urgent primary and mental health care.
                      Increased our coal exports by 60 percent; U.S. oil production recently reached all-time high.
                      United States is a net natural gas exporter for the first time since 1957.
                      Withdrew the United States from the job-killing Paris Climate Accord.
                      Cancelled the illegal, anti-coal, so-called Clean Power Plan.
                      Secured record $700 billion in military funding; $716 billion next year.
                      NATO allies are spending $69 billion more on defense since 2016.
                      Process has begun to make the Space Force the 6th branch of the Armed Forces.
                      Confirmed more circuit court judges than any other new administration.
                      Confirmed Supreme Court Justice Neil Gorsuch and nominated Judge Brett Kavanaugh.
                      Withdrew from the horrible, one-sided Iran Deal.
                      Moved U.S. Embassy to Jerusalem.
                      Protecting Americans from terrorists with the Travel Ban, upheld by Supreme Court.
                      Issued Executive Order to keep open Guantanamo Bay.
                      Concluded a historic U.S.-Mexico Trade Deal to replace NAFTA. And negotiations with Canada are underway as we speak.
                      Reached a breakthrough agreement with the E.U. to increase U.S. exports.
                      Imposed tariffs on foreign steel and aluminum to protect our national security.
                      Imposed tariffs on China in response to China’s forced technology transfer, intellectual property theft, and their chronically abusive trade practices.
                      Net exports are on track to increase by $59 billion this year.
                      Improved vetting and screening for refugees, and switched focus to overseas resettlement.
                      We have begun BUILDING THE WALL. Republicans want STRONG BORDERS and NO CRIME. Democrats want OPEN BORDERS which equals MASSIVE CRIME.

    2. Congress controls the purse-strings, THEY assigned these funds … you object they confer with Congress.

      Complain all you want Yevgeny … go back and get more excuses from Putin.

      1. What some people seem to forget is that there are three branches of government. The legislature and the executive exert their respective powers and when those powers conflict it goes to the courts.

        You should read Dershowitz’s op-ed again.

    3. Hmmm … measured, analytical and balanced Prof. Turley versus unhinged Prof. Dershowitz desperate to keep his name in the media spotlight by reading Congress’ Article I powers out of the US Constitution? Easy call.

    1. Mr Bongino seems repeatedly says trump is being impeached for violating the ICA
      Is he lying or did an impeachment happen that I missed?

      1. Is there a quote anywhere in your future? Tell you what, you can email him your question, directly to his show, that way you won’t need to ask rhetorical questions here. Good luck.

        1. Tell you what, you can email him your question, directly to his show, that way you won’t need to ask rhetorical questions
          __________________________________________
          I will take that as an admission that Mr Bongino claims that trump is being impeached for violating the ICA are false.

    2. Bongino is a chronic liar. His showis just one lie after another

      Joe Biden did not delay any aid from the USA.

      Biden did lie a lot. Just about everything Biden said in that video is a lie. But nobody cares. Both the Trumpers and the anti-Trumpers want to believe that Biden was speaking the truth

      You got two packs of liars throwing their lies at each other
      Its unbelievable.

      1. Bongino is a chronic liar. His showis just one lie after another

        LOL! Feel free to refute what he produces on his show as a lie, especially since he provides the documentation to support it. If he doesn’t have the evidence, he will say so.

        1. LOL! Feel free to refute what he produces on his show as a lie
          ________________________________________
          I already did, but feel free to keep asking…

          1. I already did, but feel free to keep asking…

            There’s part of your problem, that wasn’t a question. That was a recommendation. Take it, don’t take it. As a jinn, you won’t. And true to your jinn form, you will still be the deceiver you are.

            1. There’s part of your problem, that wasn’t a question. That was a recommendation.
              _________________________________________
              I already gave two examples of Mr Bongino’s lies.
              You refuse to respond…
              If I enumerated every lie will you respond? Of course not

              You don’t have to listen long to hear Mr Bongino assert repeatedly that Trump is being impeached for violating the ICA while other presidents violated that and similar laws without being impeached.
              That is just a flat out lie.

              He also claimed that Joe Biden withheld aid in violation of the law but got away with it. Problem is that never happened. Its just a lie.

  5. If there was a date certain when the aid was to be provided, then how was it withheld when the aid was delivered by that date? A delay is not withholding. If I don’t make my loan payment until the due date did I withhold (or delay) the payment?

    1. If there was a date certain when the aid was to be provided, then how was it withheld when the aid was delivered by that date?
      _________________________________________________
      The money was not allocated by the due date. It was late and that is why the GAO said it violated the law.
      The money was eventually allocated before the end of the fiscal year. Had it not been allocated by the end of Sept., it would have to go back to Congress to pass a new law to spend the money in the next fiscal year.

      1. It complied with one law. It may have not complied with another law but if all one looks at is that law without anything else then one is drawn to the wrong conclusion. In any event this is not a high crime rather Trump is really being accused of maladministration by the left that couldn’t properly administer a kindergarten. The fnders were careful to try and rid themselves of a maladministration complaint leading to impeachment because that subjugates the Presidency to the whims of Congress and in this case the awful and anti Democratic whims of a Democratic Congress.

        You never look at all the circumstances Anon and that is why you were wrong on the Russia Hoax, the Steele Dossier and so many other things. Based on your track record whatever you support is likely to be wrong.

              1. It’s not name calling. It is a matter of truth. If I called you Anonymous the Genius there would be no complaint but that would be a lie. Anonymous the Stupid sounds just about right.

                1. It’s not about the person that Allan calls “Anonymous the Stupid.” This is all about Allan and the type of person he is. He thinks that he’s clever and truthful, but he’s neither.

                  1. “. He thinks that he’s clever and truthful, but he’s neither.”

                    Anonymous the stupid, if you had a brain you wouldn’t have to make these stupid comments. Instead you would have quoted anything I said that was a lie. I have written plenty but you don’t seem able to prove your point. Keep counting your toes. That might help to improve your math skills.

        1. You never look at all the circumstances Anon and that is why you were wrong on the Russia Hoax, the Steele Dossier and so many other things.
          _________________________________________
          You have me confused with someone else. I was not wrong.
          I have always said that the Russia Hoax, the Steele Hoax, the Mueller Hoax, the Ukraine Hoax, the obstruction hoax they are all phony baloney.

  6. I disagree with Jonathan Turley. If the action was illegal then it is a high crime if the House of Representatives so votes.

  7. D-I-S-M-I-S-S

    Impeach Pelosi, Schiff et. al for abuse of power and usurpation of power.
    _________________________________________________________

    The Obama Coup D’etat in America is the most egregious abuse of power and the most prodigious scandal in American political history.

    The co-conspirators are:

    Bill Taylor, Eric Ciaramella, Rosenstein, Mueller/Team, Andrew Weissmann, Comey,

    Christopher Wray, McCabe, Strozk, Page, Laycock, Kadzic, Yates, Baker, Bruce Ohr,

    Nellie Ohr, Priestap, Kortan, Campbell, Sir Richard Dearlove, Steele, Simpson,

    Joseph Mifsud, Alexander Downer, Stefan “The Walrus” Halper, Azra Turk, Kerry,

    Hillary, Huma, Mills, Brennan, Gina Haspel, Clapper, Lerner, Farkas, Power, Lynch,

    Rice, Jarrett, Holder, Brazile, Sessions (patsy), Nadler, Schiff, Pelosi, Obama et al.

  8. Two Observations:

    1. If Trump did violate the law (which he did not), rest assured Dems would have included it in the articles of impeachment. Somewhat complicated but the Impoundment Control Act of 1974 allows the President to put a hold on disbursement of funds for 45 days. There is some debate over the precise timing of the hold and disbursement (some argue he had until the end of the fiscal year which begins on October 1) but, at the end of the day, Trump released all the funds by September 11. It’s a non-issue.

    2. The so-called “non-partisan” GAO’s bureaucrats are represented by the AFL-CIO’s International Federation of Professional and Technical Engineers whose PAC in 2016 gave 100% of its donations to Democrats and 0% to Republicans. This creature of Congress is a perfect example of the swamp—95% of whom contributed financially for Hillary in 2016.

  9. In other news, the stock market rose over 1% today, and deals negotiated by President Trump were signed between the US, Canada, Mexico and China with overwhelming bipartisan support.

    Mr Trump and the Republican party had a very good day indeed. The rest is nonsensical noise from those who cannot accept that their anointed one lost in 2016.

  10. WSJ

    Trump Receives Another Postcard from the Swamp

    Now the bureaucrats at the Government Accountability Office are opining on Ukraine.

    Traditionally GAO does its best to serve its congressional bosses. This is not a swipe at these particular swamp dwellers. Yes, the current head of GAO was nominated by President Barack Obama after a congressional commission presented a list of candidates. But the Supreme Court has explicitly found that GAO is subservient to the legislative branch. The 1986 decision is called Bowsher v. Synar. GAO staff try their best to satisfy requests from legislators.

    At the urging of Sen. Chris Van Hollen (D., Maryland), GAO now says that Trump administration delays in sending aid to Ukraine were illegal. For people who aren’t students of the Washington bureaucracy, it should be noted that few people consider GAO the authoritative word on legal issues. The Justice Department and ultimately of course the federal courts make the big calls.

    In a new letter GAO’s general counsel argues that even though the Trump administration made aid for Ukraine available last September 12—before the Sept. 30 deadline for obligating funds—it still should have happened earlier. It’s not entirely clear which date would have made GAO happy but in the agency’s view the White House did not have an unavoidable “programmatic delay” which prevented funds from going to Ukraine.

    Just for the sake of argument, let’s assume that GAO is correct now. Wouldn’t the logic of this decision also apply to Vice President Joe Biden’s famous withholding of Ukraine aid until the local prosecutor investigating his son’s company was fired?

    Since this latest GAO missive is being used by those arguing for the removal of a President, it’s also worth reviewing a few recent episodes which did not result in the removal of a President.

    In 2014 the Associated Press reported:

    The Pentagon broke the law when it swapped Army Sgt. Bowe Bergdahl, a prisoner in Afghanistan for five years, for five Taliban leaders, congressional investigators said Thursday.

    The nonpartisan Government Accountability Office said the Defense Department failed to notify the relevant congressional committees at least 30 days in advance of the exchange – a clear violation of the law – and used $988,400 of a wartime account to make the transfer. The GAO also said the Pentagon’s use of funds that hadn’t been expressly appropriated violated the Antideficiency Act.

    “In our view, the meaning of the (law) is clear and unambiguous,” the GAO wrote to nine Republican senators, including Minority Leader Mitch McConnell, R-Ky., and various committees. “Section 8111 prohibits the use of ‘funds appropriated or otherwise made available’ in the Department of Defense Appropriations Act, 2014, to transfer any individual detained at Guantanamo Bay to the custody or control of a foreign entity’ except in accordance” with the law.

    It’s also difficult to remember any ceremonial pens or somber walking of impeachment articles after Eric Lipton and Michael D. Shear of the New York Times reported in 2015:

    The Environmental Protection Agency engaged in “covert propaganda” and violated federal law when it blitzed social media to urge the public to back an Obama administration rule intended to better protect the nation’s streams and surface waters, congressional auditors have concluded.

    The ruling by the Government Accountability Office, which opened its investigation after a report on the agency’s practices in The New York Times, drew a bright line for federal agencies experimenting with social media about the perils of going too far to push a cause. Federal laws prohibit agencies from engaging in lobbying and propaganda.

    “I can guarantee you that general counsels across the federal government are reading this report,” said Michael Eric Hertz, a professor at the Benjamin N. Cardozo School of Law in New York who has written on social media and the government.

    This column can’t guarantee that any U.S. citizens remember where they were the moment they learned about another Associated Press report in 2016. According to the A.P.’’s Ricardo Alonso-Zaldivar:

    The Obama administration failed to follow its own health reform law in a $5 billion dispute over compensating insurers for high costs from seriously ill patients, Congress’ investigative arm says.

    The opinion from the Government Accountability Office is a setback for the White House and bolsters Republican complaints that administration officials bent the law as problems arose carrying out its complex provisions.

    As for today’s opinion, the relevant facts were known to Members of the House when they drafted their impeachment articles. If duly elected officials in neither party were willing to allege the President broke the law, why should we take the opinion of the bureaucrats?

    1. it should be noted that few people consider GAO the authoritative word on legal issues. The Justice Department and ultimately of course the federal courts make the big calls.
      _______________________________________________
      There is no penalty for violating the ICA and given that it is in the past there is no relief available thru the legal system so all you are going to get is GAO opinion.

      The big problem with the GAO opinion is they don’t really know why the delay took place and so just like the House the assume facts not in evidence.
      The OMB isn’t much help either. The OMB appears to provide hypothetical reasons why the delay might have been legitimate

      So we are still at square one – waiting to hear from the witnesses that know the facts that will clear Trump.
      In other words, this is just more of the same old same old. The soap opera plot thickens the suspense builds.

      Anybody with half a brain should be able to see that when the witnesses finally testify they will clear trump because that is how the plot was written a long time ago.

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