GAO finds Trump administration broke law by withholding Ukraine aid

The Trump administration’s decision to freeze the release of security assistance to Ukraine violated the law, the Government Accountability Office (GAO) said in a new report.

The independent watchdog said in an opinion issued Thursday that the Office of Management and Budget (OMB) withheld the appropriated funds last summer not as a programmatic delay but in order to advance the president’s own agenda.

By doing so, the watchdog concluded, the White House violated what’s known as the Impoundment Control Act (ICA).

“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 said. “OMB withheld funds for a policy reason, which is not permitted under the Impoundment Control Act (ICA)…Therefore, we conclude that OMB violated the ICA.”

The GAO opinion touched on a matter at the center of impeachment proceedings against President Trump: The decision by the White House to withhold nearly $400 million in U.S. aid to Kyiv as it fights off pro-Russian separatists.

Democrats allege Trump dangled the promise of aid and a White House meeting as leverage to get Ukrainian President Volodymyr Zelensky to open investigations into a 2020 political rival. They argue the White House then sought to obstruct their impeachment inquiry by blocking the testimony of current and former White House officials, while asserting absolute immunity over their testimony.

The OMB, however, pushed back against the GAO opinion, arguing that the White House office used the “apportionment authority to ensure taxpayer dollars are properly spent consistent with the President’s priorities and with the law.”

Acting OMB Director Russ Vought tweeted that the GAO report “comes from the same people who said we couldn’t keep National Parks open during the shutdown.”

This GAO opinion comes from the same people who said we couldn’t keep National Parks open during the shutdown. Recently GAO flipped its position twice in the last few months. We wouldn’t be surprised if they reverse again. Regardless, the Admin complied with the law at every step

— Russ Vought (@RussVought45) January 16, 2020

Administration officials have argued they were seeking to ensure Ukraine was properly fighting widespread corruption, despite the Pentagon already certifying at the time of the delay that Ukraine had met the requirements set by Congress and after notifying Congress of its intent to release the funds. 

A senior administration official on Thursday characterized the GAO report as an “overreach” and blasted the independent watchdog for getting involved “in the media’s controversy of the day.”

“In their rush to insert themselves in the impeachment narrative, maybe they’ll have to reverse their opinion again,” the senior administration official said, pointing to changes to earlier GAO opinions.

Still, the timing of the report’s release could not be more inconvenient for Republicans.

The GOP-controlled Senate on Thursday is expected to set a time for the House impeachment managers — who will be arguing the case on the Senate floor to remove Trump from office — to exhibit the articles of impeachment charging Trump with high crimes and misdemeanors. 

The Senate procedure comes one day after the Democratic managers silently marched the two charges — abuse of power and obstruction of Congress — over to the upper chamber, setting the stage for the impeachment trial over Trump’s contacts with Ukraine.

Democrats, who have pushed Senate Republicans to allow new witnesses and testimony, are seizing on the GAO report as reinforcing their argument that the president abused his authority for politically motivated purposes.

“This bombshell legal opinion from the independent Government Accountability Office demonstrates, without a doubt, that the Trump Administration illegally withheld security assistance from Ukraine,” Sen. Chris Van Hollen (D-Md.), who requested the GAO to review the hold, said in a statement. “The GAO’s independent findings reinforce the need for the Senate to obtain all relevant documents and hear from key fact witnesses in order to have a fair trial.” 

House Intelligence Committee Chairman Adam Schiff (D-Calif.) in a statement said the GAO opinion “demonstrates once again that the President violated his constitutional duty to take care that the laws be faithfully executed as he put his personal and political interests above the interests of the nation and its security.”

Pointing to the GAO opinion that federal employees and officials take oaths to protect the law of the land, Schiff said: “Now, the Senate will have the opportunity to act on its oath.”

The GAO report said Trump overstepped his authority. Congress has the power of the purse, the watchdog said, while the president has the power to accept or veto legislation passed by both chambers. But the president does not have the authority to then bend or ignore a law once it is enacted, the report said.

“The President is not vested with the power to ignore or amend any such duly enacted law,” the GAO said. “The Constitution grants the President no unilateral authority to withhold funds from obligation… Instead, Congress has vested the President with strictly circumscribed authority to impound, or withhold, budget authority only in limited circumstances as expressly provided in the ICA.”

The GAO noted that the White House could have provided a detailed and specific reasoning to justify the withholding under the Impoundment Control Act at the time, but the OMB did not do so.

“Not only did OMB not submit a special message with such a proposal, the footnotes in the apportionment schedules, by their very terms, established dates for the release of amounts withheld,” the GAO wrote.

The only other authority to put a freeze on the aid, the GAO said, is to withhold the funds through a deferral, a decision that would be justified if the administration had recognized “savings or efficiencies that would result from a withholding, or any law specifically authorizing the withholding.”

“In its response to us, OMB described the withholding as necessary to ensure that the funds were not spent ‘in a manner that could conflict with the President’s foreign policy,’” the report said. “The ICA does not permit deferrals for policy reasons…OMB’s justification for the withholding falls squarely within the scope of an impermissible policy deferral.”

Mark Sandy, a senior OMB official, told House investigators during a closed-door deposition in late November that Trump’s delay rankled agency staffers, leading two employees to resign in part because of their frustration. 

“This person expressed to me concerns about actions vis-à-vis the Impoundment Control Act,” Sandy testified, referring to an OMB lawyer who had resigned.

The GAO report comes shortly after the House acquired new evidence from Lev Parnas, an associate of Trump’s personal lawyer Rudy Giuliani, who has claimed the president was aware of a scheme to seek the removal of U.S. Ambassador to Ukraine Marie Yovanovitch and to create conditions to push Zelensky to announce investigations into former Vice President Joe Biden and his son Hunter Biden in order to help Trump’s 2020 reelection chances.

The White House has denied the claims of wrongdoing, attacking the credibility of Parnas, who is under indictment.

Democrats also received ammunition from former national security adviser John Bolton after he said in a statement earlier this month that he would be willing to testify if the GOP-controlled Senate chose to subpoena him for testimony.

It is unclear whether witnesses will be allowed in the trial.

Senate Majority Leader Mitch McConnell (R-Ky.) has been cold to the idea of calling any witnesses, but Democrats won a near-term victory on Wednesday when the GOP leader agreed to a rules package that leaves open the potential for new witnesses to appear.

Anything less, Democrats have charged, would be a dereliction of the Senate’s duty.

Updated at 3:24 p.m.