GAO Finds White House Violated the Law by Freezing Ukraine Aid

By Andrew Desiderio, Kyle Cheney and Caitlin Emma, Politico

16 January 20

House Democrats have said the Ukraine aid pause is part of a broader “pattern of abuse” by the White House budget office.

he White House budget office violated the law when it froze U.S. military aid to Ukraine, the Government Accountability Office concluded in a new report.

President Donald Trump ordered the hold on the critical security assistance in July, a slew of senior White House officials testified to House impeachment investigators late last year. It was a move that coincided with an effort by the president and his allies to pressure Ukraine to investigate Trump’s Democratic rivals.

“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 GAO wrote in an eight-page report released on Thursday.

Trump’s decision to withhold nearly $400 million in military aid, which he reversed in September after House investigators began probing the move, is at the heart of the articles of impeachment the House passed last month, and it will be a central focus in the Senate’s impeachment trial that begins later Thursday.

The report undercuts an oft-stated defense of Trump’s decision to hold the aid back: that it was a lawful exercise of the president’s authority.

“I have never seen such a damning report in my life,” said Sen. Patrick Leahy (D-Vt.), the ranking Democrat on the Senate Appropriations Committee. “I mean, this is a nonpartisan thing. I read it twice. ... To have something saying this is such a total disrespect of the law. It’s unprecedented.” 

Leahy said the conclusion “screams” for the need to force impeachment testimony from White House chief of staff Mick Mulvaney. House Speaker Nancy Pelosi also said it “reinforces, again, the need for documents and eye witnesses in the Senate. You see this more and more and more in all of this — this tangled web to deceive that the administration is engaged in.” 

But Republicans were unmoved by the findings, either claiming that they haven’t read GAO’s analysis or that it doesn’t mean much for the Senate impeachment trial. 

“I wouldn’t think that a GAO opinion, per se, would change anything,” said Senate Appropriations Chairman Richard Shelby (R-Ala.). “But we’ll listen to it, we’ll look at it and we’ll evaluate it.“

“I don’t think they should be deciding who broke the law,” he added.

Sen. John Cornyn (R-Texas) said the report “identifies OMB, not the president. And it identifies policy reasons, not political reasons. I think we’re going to hear some more about it, but I don’t think that changes anything.“

Rep. Tom Cole (R-Ala.), the ranking Republican on the House Labor-HHS-Education spending panel, conceded that OMB’s action might deserve some scrutiny. But it doesn’t hurt the president, he said.

“Look, I have a lot of respect for GAO,” he said. “I look at it this way. The aid got there within the fiscal year … There are no investigations in the Ukraine. So if the process wasn’t handled as well as it should have been, then fair enough and we should look at that and make sure it is handled appropriately. Do I think this has any impact on impeachment? No I don’t.“

GAO, an independent nonpartisan government watchdog that responds to congressional requests, said the White House attempted to justify its decision not to notify Congress of the hold by claiming it was simply a “programmatic delay.” But GAO rejected that claim, saying Trump’s decision, carried out by the budget office, was a violation of the Impoundment Control Act, which requires notification to Congress of any such delay in an appropriation of funds.

“OMB’s assertions have no basis in law,” the GAO argues, referring to the White House Office of Management and Budget.

OMB spokeswoman Rachel Semmel pushed back on GAO’s conclusions.

“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.”

The GAO report also states that OMB and the State Department “failed” to provide all of the information that was necessary for its investigation. That decision will likely fuel Democrats’ arguments in the Senate trial that Trump has attempted to obstruct Congress’ ability to investigate the Ukraine matter, and that he has been engaged in a “cover-up.” The second impeachment article alleges that Trump obstructed Congress when he ordered senior officials to refuse requests and subpoenas seeking testimony and documents.

“The nonpartisan Government Accountability Office has confirmed what congressional Democrats have understood all along: President Trump abused his power and broke the law by withholding security assistance to Ukraine,” House Appropriations Committee Chairwoman Nita Lowey (D-N.Y.) said in a statement.

Sen. Chris Van Hollen (D-Md.) requested GAO’s opinion in a letter last month, noting that several administration officials have raised concerns about whether the president’s decision violated federal budget law. The move prompted two White House budget officials to resign in part out of frustration. Senior officials at the Pentagon and State Department sought an explanation for the hold, but were ultimately unsuccessful.

Van Hollen sent the letter one week after the House voted to impeach Trump on Dec. 18, charging him with abuse of power and obstruction of Congress for allegedly using his office and federal resources to pressure Ukraine to investigate his political rivals — and then resisting the House’s investigation.

At issue in GAO’s legal opinion is how the Ukraine aid pause gels with the Impoundment Control Act of 1974, a law that sharply curbs the executive branch’s authority to alter congressionally appropriated funds.

Mark Sandy, a senior OMB civil servant, told House impeachment investigators last year that acting White House chief of staff Mick Mulvaney’s office informed OMB on July 12 that Trump planned to halt Ukraine’s aid without providing an explanation.

The administration released its hold on Sept. 11, just hours after a whistleblower complaint about the matter was circulating around the government, and after House committees began investigating Trump’s personal lawyer Rudy Giuliani and his efforts in Ukraine to spur Trump’s desired investigations. 

The funds were set to expire at the end of the fiscal year on Sept. 30, and while the administration un-paused the money, millions of dollars never made it to Ukraine by the deadline. 

House Democrats have said the Ukraine aid pause was part of a broader “pattern of abuse” by OMB, which has disregarded federal budget law and congressional spending authority. 

House Budget Committee Chairman John Yarmuth (D-Ky.) is now drafting a bill aimed at keeping OMB in check, and Lowey is expected to sign on as a co-sponsor. Yarmuth said he expects to release the measure in mid-March.