And now, an independent agency has uncovered lawbreaking. Trump’s action in withholding aid has now been cited as a violation of the Watergate-era Impoundment Control Act (ICA). The Post reports: “The Government Accountability Office, a nonpartisan agency that reports to Congress, found the Trump administration violated a law that governs how the White House disburses money approved by Congress.”
The Post explains:
“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 decision says. “[The Office of Management and Budget] withheld funds for a policy reason, which is not permitted under the Impoundment Control Act.” ...No potential criminal penalties are associated with violating the Impoundment Control Act, meaning there will be no prosecution of officials for the violation. But Democrats immediately tried to use the report to demand more disclosures as part of their impeachment push.
This “abuse of power” is covered in the first article of impeachment, which specifically details Trump’s holding up “the release of $391 million of United States taxpayer funds that Congress had appropriated on a bipartisan basis for the purpose of providing vital military and security assistance to Ukraine to oppose Russian aggression and which President Trump had ordered suspended.”
Constitutional scholar Laurence Tribe tells me, “The GAO finding that President Trump’s decision to withhold from Ukraine the military aid appropriated by Congress was illegal under the Impoundment Control Act gives the lie to the claim that the Articles of Impeachment charge no illegal act.” As Tribe points out, “It was an irrelevant claim to boot, because a ‘high Crime and Misdemeanor’ needn’t be conduct that is illegal under any federal statute.”
The GAO decision is significant for several reasons.
First, it makes clear that holding up the aid violates the separation of powers. (“An appropriations act is a law like any other; therefore, unless Congress has enacted a law providing otherwise, the President must take care to ensure that appropriations are prudently obligated during their period of availability.”) Taking care that the law is executed is straight from the Constitution and the presidential oath. Failure to do so is no mere administrative misstep. “The Constitution grants the President no unilateral authority to withhold funds from obligation,” the decision says, a direct rebuff of the president’s imperial view of the presidency. (This would also apply to his unlawful snatching of funds from the Defense Department for his border wall.)
Second, the excuses given for the holdup in aid are irrelevant, GAO says. “Here, OMB did not identify — in either the apportionment schedules themselves or in its response to us — any contingencies as recognized by the ICA, savings or efficiencies that would result from a withholding, or any law specifically authorizing the withholding. Instead, the footnote in the apportionment schedules described the withholding as necessary ‘to determine the best use of such funds.’”
OMB seems to have misled GAO with the same vague gobbledygook it has given the public: “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 ICA does not permit deferrals for policy reasons.” While beyond the purview of the GAO, we now know the “policy reason” was false; this was about extracting a political benefit for Trump that conflicted with administration policy.
Third, GAO also rebuts another lie that this was a “programmatic delay”: “Here, there was no external factor causing an unavoidable delay. Rather, OMB on its own volition explicitly barred [the Defense Department] from obligating amounts.” It should be noted that in addition to lying to the American people and Congress about the reason for the holdup, the administration also lied to GAO.
Finally, GAO in essence accuses the White House of obstruction in refusing to provide all the necessary documents. "OMB and State have failed, as of yet, to provide the information we need to fulfill our duties under the ICA regarding potential impoundments of FMF funds. We will continue to pursue this matter and will provide our decision to the Congress after we have received the necessary information. " In ominous phrasing, GAO says: “We consider a reluctance to provide a fulsome response to have constitutional significance.” (Emphasis added.) The administration is nothing if not consistent in its stonewalling.
Tribe sums up: “So this nonpartisan body’s finding that the OMB withholding of the military funds appropriated for Ukraine’s defense against Russia violated the Impoundment Control Act undercuts a substantial part of what the president and his defenders have been using as talking points.”
With each new revelation and piece of evidence that pops up, Senate Republicans’ refusal to consider overwhelming evidence of impeachable conduct becomes less sustainable. The issue is no longer whether Republicans can make ridiculous excuses for violating their oaths as senators and jurors. We know many do so easily with no shame. (Appealing to conscience incorrectly assumes that most Republicans are guided by conscience.) Now the issue is whether the public will tolerate a pattern of corruption, lying, obstruction and betrayal of the president’s oath — and whether they will put up with a Senate coverup.