Congress, Politics, Uncategorized

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. Wall Street Journal Coverage Of OMB Report

    Mark Sandy, a career budget staffer, told impeachment investigators that he immediately flagged legal questions about freezing aid to Ukraine when Mike Duffey, his boss and a political appointee, instructed him to do so in July.

    After consulting with lawyers at OMB and the Defense Department, Mr. Sandy signed the paperwork for the first pause on the security assistance.

    Mr. Duffey, a former Pentagon staffer and executive director of the Wisconsin Republican Party, subsequently began signing the paperwork for apportioning funds in his portfolio and kept the Ukraine aid on hold. Mr. Schumer is seeking Mr. Duffey’s testimony during the Senate trial.

    Mr. Sandy told investigators he had never seen a political appointee take responsibility for signing apportionments before.

    In the paperwork executing the funding freeze, OMB allowed the Defense Department to continue to prepare to spend the funds while not actually releasing them. Pentagon officials repeatedly warned that the hold could prevent them from spending the money before it expired at the end of the fiscal year on Sept. 30.

    Edited From: “Hold On Ukraine Aid Violated Law, Nonpartisan Watchdog Finds”

    Today’s Wall Street Journal

  2. 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.

    NYT

  3. 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.

    – NPR

  5. YES, TRUMP KNOWS LEV PARNAS

    But Trump does know Parnas, because of Parnas’s close relationship with Rudolph W. Giuliani and his work on their Biden-Ukraine project. At one point, Trump personally consented to have his former lawyer John Dowd represent Parnas and Fruman. Dowd then told Congress that Parnas “assisted Mr. Giuliani in connection with his representation of President Trump,” and therefore he could not answer questions because of attorney-client privilege.

    And Parnas seems to know everyone around Trump. Here’s a pic of Lev with Vice President Pence and House Minority Leader Kevin McCarthy. Here’s a pic of Lev with Kellyanne Conway. Here’s a pic of Lev with Jared Kushner and Ivanka Trump. Here’s a pic of Lev with Donald Trump Jr.

    And if you want one of Lev with President Trump, there are too many to choose from (among other things, Parnas and Fruman met with Trump at the White House).

    And no, Parnas is not particularly trustworthy. Which makes him fit right in with Trump’s employees and associates. That’s the point.

    Edited from: “Trump Has Drained Away Our Ability To Hold Him Accountable”

    This evening’s Washington Post

    2. “YES, TRUMP KNOWS LEV PARNAS”

      I know Guiiani and have been in close contact with him. I walked by him on the street one day and was at his home, Gracey Mansion. When I was with my dog I walked him there too. A friend of a friend told me a few things Guiliani said. They must be true despite the fact that both the friend and friend of a friend are terribly unreliable. I so happen to know a bunch of people around Guiliani. I even met his mechanic.

      I am waiting to be called to testify.

      1. Alan, explain why Parnas accompanied the president’s lawyer, Guiliani, all over Europe. And Guiliani, by the way, has never denied knowing Parnas. Rudy, in fact, has referred to Parnas as a “friend” in mainstream interviews.

        1. Gosh, Peter, I travelled 57th st with Giuliani and he and a relative did business together. I think they even used the same law firm. My dog even fertilized giuliani’s lawn. I don’t deniy this. When will I be called to testify?

          Wasn’t it Feinstein who travelled all over DC with a Chinese spy?

          1. still waiting to learn who Bill Clinton paid to Arkanside his Lolita Express friend

  6. This Senate won’t take anything presented seriously. Now or two months later doesn’t matter. There is enough to remove right now. Only thing that changes the dynamic is rapid crash of Trump sentiment on the Republican side.

  7. “The General Accountability Office (GAO) has issued a report declaring that President Donald Trump violated the law ”

    This means very little. The GAO responds to requests by Congress who then provides all the variables from which the calculation is made. That is why when the GAO claimed revenue neutrality with healthcare bills it’s study didn’t jive with what private economists saw. They were told to treat certain variables differently so the result ends up providing the answers those that requested the study wanted. Right now the Democrats control the House.

    1. Alan, the GAO report was prepared by an Inspector General. Its findings are clear: ‘Trump broke the law’. Trump was supposed to notify Congress to explain why the Ukrainian aid was being held.

        1. Gary, that’s it; the most simple of What Abouts..?? Like the entire impeachment drive should swept aside because “they all break the law”?

          1. No! Americans need to wake up and mass together and go arrest them all because they’re all guilty of unconstitutional acts. You play sides you stand for nothing. Your arguments have no bearing because you play games you’re not serious. Time has come for Americans to be serious and arrest theses ALL law breaker. Why just pick one? You know why because you don’t stand for anything so you too will fall.

      2. Peter, you don’t listen to what is being said. The GAO uses the criteria provided by Congress. If the GAO is told to exclude certain variables they come up with conclusions that aren’t true. We saw that again and again during the healthcare debate.

        Sorry that your knowledge of the subject is deficient.

          1. The law to a leftist is whatever the leftist wishes the law to be. Freedom of Association per the Supreme Court is part of the first amendment to the Constitution guaranteeing the right to assembly and freedom of speechis through a Supreme Court decision part of the right to assemble and freedom of speech.

            I realize the left no longer believes in such freedoms with people that disagree with them so I guess you will never be satisfied with the truth. That is why you can so easily twist the truth, change names,etc.

            When will I be called to testify?

              1. YNOT, is that your contribution for the day? I’m waiting for you to say something meaningful.

          2. The law is the law except when it comes to Trump. So when he violates the law, the algorithm goes something like this: ignore as long as possible, and when the story won’t go away, then deny, but when the media keep reporting the story, broadcasting interviews with witnesses and former prosecutors who explain why the law was violated as well as op eds expressing outrage over the false denial, lie about the facts or make up some fake innocuous rationale, and when that doesn’t affect public sentiment, then accuse and engage in name-calling against those who proved you lied, media other than Fox, Breitbart, Levin and Limbaugh, and then pivot to accuse Obama, Clinton or some Democrat of doing the same or worse.

            1. “The law is the law except when it comes to Trump. So when he violates the law”

              Funny how many times you repeat the same things but cannot list the criminal behavior of the President along with reasonable proof. That indicates an empty head.

              1. Allan,
                Do you remember impeachment hearings for Obama back in 2014, when the GAO issued a report that Obama had violated the law when he released the GITMO terrorists in exchange for the deserter, Bowe Bergdahl?

                No? Me either. Surely all these principled liberals were all over social media, calling their congress-critters and demanding the president be impeached, right?

                No? Let me guess, they’ve evolved, right?

      3. No, it was prepared by the general counsel of the GAO. Inspectors-general conduct internal investigations. Obama fired one for investigating one of his cronies.

    2. I think you’ve confused the GAO with the Congressional Budget Office.

      I don’t trust the General-Counsel who wrote the report, mainly because the federal legal establishment has been so tainted the last three years.

      2. DSS, I’m not sure but I think you are correct. Thanks for the correction. Too many bureacracies that do a lousy job. I’ll try to rething this in the morning.

  8. There is something that needs to be considered: Congress passed the law in 1974 to prevent presidents from withholding Federal funds for political purposes. However, foreign policy is SOLELY a responsibility of the Executive Branch. Congress only has power to legislate and appropriate funds, it does not have the power to direct anything having to do with the country’s relationships with other governments, In short, this declaration is meaningless and could lead to new legislation.

  9. Ever notice the same people who voted for Trump because he “says what he means” , Have spent the last 3 years explaining that he didn’t mean what he said?

    1. Fishwings, that’s an astute observation. According to his supporters, Trump says crazy things just to upset us liberals. It’s a vast, inside joke known only to regular viewers of Fox.

      1. its not an inside joke. the method is known as “trolling.” an earlier generation called it “provocation,”

        look it up

        it’s been well used by the Left for generations. now you guys are having a hard time when the foot is on the other shoe.

        1. Mr. Kurtz,
          If Trump knew that he inadvertently said things that upset liberals, I’m sure he’d apologize and stop saying those things.😄😂🤣

        2. its not an inside joke. the method is known as “trolling.”
          ______________________________________________

          Well of course it is trolling

          Anybody who read the transcript of the phone call between Trump and Zelensky and cannot immediately see that what is going on there is trolling, is an idiot.

          Did anybody think that Trump asking China on national TV to investigate Hunter Biden was not trolling?

      2. What could Trump have said that even would even possibly upset liberals?
        I’m sure that if he does upset liberals, it’s unintentional.🤓

    2. No, every Trump voter I know supports him because he actually delivers on his promises, a very rare thing among today’s public office holders, and virtually unheard of in the case of the presidents of last 40 years.

    3. Nope. But I have noticed there are people like Schiff that need to parody what he’s actually said and done to convince themselves and others the facts mean a completely different truth.

  11. The timing of the release of the GAO’s legal opinion and the purported Lev Parnas notes, simultaneously with the filing of the articles of impeachment, are suspect. Although most of the media’s hysterics revolve primarily around the mere legal opinion of Thomas H. Armstrong, General Counsel for the GAO, the media fails to acknowledge that the GAO’s legal opinions have been flawed and reversed many times before. Even Armstrong has acknowledged in an earlier opinion that “[u]nder limited circumstances, the ICA allows the President to withhold amounts from obligation for up to 45 calendar days of continuous congressional session.” See https://www.gao.gov/assets/700/695889.pdf. Furthermore, Armstrong’s opinion doesn’t even constitute an impeachable offense. Nobody thought to impeach Obama, for example, when “Obama broke the law in Bergdahl release deal,” according to another GAO report. The GAO then stated flatly that the Obama administration broke the law in the Bowe Bergdahl prisoner swap. See https://www.csmonitor.com/USA/Politics/Politics-Voices/2014/0825/Obama-broke-the-law-in-Bergdahl-release-deal-GAO-report-says.

  12. Lev Parnas Gives Interview To Rachel Maddow

    Several Bombshells Dropped

    Last night Lev Parnas, one of 2 Soviet-born money bundlers linked to Rudy Guiliani, gave an interview to Rachel Maddow on MSNBC which was highly incriminating to the administration.

    Parnas claims that Vice President Pence, Attorney General Barr and Congressman Devin Nunes were totally in the loop regarding the entire Ukraine affair. Parnas also referred to former Marine Robert Hyde as a common drunk. Hyde’s name has only recently surfaced as a bit player in the scandal.

    Parnas’ credibility is not necessarily pristine. Yet he traveled throughout Europe with Guiliani and there are many photos of them together. Guiliani has even referred to Parnas as a “friend” in mainstream interviews. Parnas has as lso been photographed with Trump at Republican events.

    Below is the link to a Washington Post story recapping the Parnas interview with Maddow.

    3. Parnas claims that Vice President Pence, Attorney General Barr and Congressman Devin Nunes were totally in the loop regarding the entire Ukraine affair.
      __________________________________________________

      So what? How is that evidence of any wrongdoing?

  14. Per the GAO this year, our own DoD has done little to address waste, fraud and abuse in our own contracting systems. So what are the odds that appropriations authorized by congress for foreign aid to a country notorious for corruption, will not be subject to waste, fraud or abuse? Is there a Ukrainian version of the GAO as a watchdog over the disbursement of our taxpayer dollars? If not, then it would be highly appropriate for the President to take care of our aid to them.

    Despite sweeping legislative and department changes over the past five years, progress on the Defense Department’s systems acquisition and contracting management remain basically stagnant on the Government Accountability Office’s 2019 High-Risk List of areas that are most vulnerable to waste, fraud and abuse.
    https://federalnewsnetwork.com/defense-main/2019/03/dods-acquisition-and-contracting-sees-little-improvement-on-gao-high-risk-list/

  16. “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.”
    ***************
    OMG!!! OMG!!!! OMG!!!!!;

    The GAO said the hold on aid was illegal. Maybe they should talk to the OMB who said the hold was perfectly legal:

    https://context-cdn.washingtonpost.com/notes/prod/default/documents/5dbd9f69-2537-4272-bd5d-60c94d3843b6/note/112b1caa-763c-4c4c-a5bb-0a04f7962d2c.pdf

    Translation: it’s a sandbox dispute between Congress’s watchdog and the POTUS’ watchdog. What else is new?

    Result: Stalemate

    Significance: Less than zero

    Politics: Given the timing, all over the place.

    1. With its bogus report and dubious timing, GAO has succeeded in extending the mistrust of the American people in formerly respected institutions.

      Clock moved one more notch towards midnight on the Civil war countdown with this one

      The Russians small interference in the elections has been magnified a thousand fold by the Democrats taking the bait. Their small destabilization operation has snowballed beyond Russian dreams with this impeachment debacle.

      that’s the irony that none of them seem to grasp.

    2. The GAO is a non-partisan group. The director of the OMB is Mick Mulvaney who also happens to hold the office of acting Chief of Staff at 1600 Pennsylvania Avenue. If you suspect bias here, as you imply, it would make sense to weight the GAO’s opinion much more heavily than that of the OMB, if you’re being at all honest.

      1. The GAO is a non-partisan group.

        Just like the Smithsonian and the IRS.

        1. Until now all of the Democrats thought CNN was non-partisan.

          For some reason the Bernie Sanders supporters feel differently.

  17. “The aid was released before the deadline at the end of September”

    Doesn’t this make the entire discussion moot?

    And the fact that the GAO decided to drop this report on the first day of the trial makes the statement “The GAO, which is a nonpartisan arm of Congress” beyond laughable.

    1. China is notorious for making deals and then simply not complying. It’s not a great trade deal unless it exceeds the level of trade before Trump’s stupid tariffs. That remains to be seen, but isn’t likely.

      More diversions from the growing impeachment scandal.

      1. stupid tariffs in your estimation which is obviously wrong because you can see a tangible and very real result

        or just go ahead and keep on ignoring all real, provable, meritorious actions since that is your partisan habit

            2. What did you ever do before the internet?

              Step over to Fox News, the Hill, Washington Post and other non-moderated “news” websites: it’s a total nuclear warfare. While the same +/- 10 people on here reflect the antithesis of Viktor Frankle’s “Man’s Search for Meaning”, sadly, they smell like roses, albeit dead roses, compared to the stank over on those other sites.

              1. I mentioned that a few times here before. it’s a very good read

                just the book itself, not the garbage most commentators write about it.

    2. And the grain markets respond with a down trend. Markets not drinking the kool aid..

  19. Just another fact that Trump supporters will ignore, proof and evidence are no longer are to be used or believed. You think that the guy who was forced to pay $25,000,000 for running a fake university and a $2,000,000 for running a fraudulent charity for American Veterans, really wanted to root corruption in Ukraine? Proof that you really don’t have to be the BEST con-man out there, not as long as their marks are that ignorant.

  20. On December 1, 1941 our President FDR had the option to with hold military aid to Japan which included bombs. He failed to do so. The bombs dropped on Pearl Harbour a few days later and we were at war.

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