GAO’s Determination that Trump Broke the Law Raises the Stakes of Senate Exoneration

Since Mick Mulvaney confessed to being in violation of the Impoundment Control Act back on October 17, I’ve been waiting for that fact to take on the constitutional import that it should in the impeachment process. Finally, today, on the day the Senate starts Trump’s trial, it has done so.

That’s because the Government Accountability Office, a nonpartisan body that works for both the Democratic majority House and the Republican majority Senate, has deemed DOD’s withholding of defense support for Ukraine illegal under the Impoundment Control Act.

GAO’s findings are modest. It does not get into whether Trump’s actual purpose for withholding the funds — which evidence suggests involved extorting Ukraine to produce dirt on Joe Biden — is legal or not. It accepts that Trump had a policy purpose for delaying the funds, without getting into what that policy was. But even on those terms — even if it was done for Trump’s cover story purpose of combatting corruption — GAO finds that withholding the funds was illegal.

As it lays out, Trump cannot simply ignore Congress’ appropriations. If he wants to act contrary to appropriations, he either has to ask Congress to cancel the funds — a rescission — or delay it for one of a narrow set of reasons. Both actions require notice to Congress.

Not only did Trump’s Office of Management and Budget not provide full notice to Congress, but since the funds were ultimately spent, the delay could only be considered a deferral, and the purpose OMB stated in the explanation they did offer does not fall under the acceptable purposes of a deferral.

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.  See B‑329092, Dec. 12, 2017 (the ICA operates on the premise that the President is required to obligate funds appropriated by Congress, unless otherwise authorized to withhold).  In fact, Congress was concerned about the failure to prudently obligate according to its Congressional prerogatives when it enacted and later amended the ICA.  See generally, H.R. Rep. No. 100-313, at 66–67 (1987); see also  S. Rep. No. 93-688, at 75 (1974) (explaining that the objective was to assure that “the practice of reserving funds does not become a vehicle for furthering Administration policies and priorities at the expense of those decided by Congress”).

The Constitution grants the President no unilateral authority to withhold funds from obligation.  See B‑135564, July 26, 1973.  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.  See 2 U.S.C. §§ 681–688.  The ICA separates impoundments into two exclusive categories—deferrals and rescissions. The President may temporarily withhold funds from obligation—but not beyond the end of the fiscal year in which the President transmits the special message—by proposing a “deferral.”[4]  2 U.S.C. § 684.  The President may also seek the permanent cancellation of funds for fiscal policy or other reasons, including the termination of programs for which Congress has provided budget authority, by proposing a “rescission.”[5]  2 U.S.C. § 683.

In either case, the ICA requires that the President transmit a special message to Congress that includes the amount of budget authority proposed for deferral or rescission and the reason for the proposal.  2 U.S.C. §§ 683–684.  These special messages must provide detailed and specific reasoning to justify the withholding, as set out in the ICA.  See 2 U.S.C. §§ 683–684; B‑237297.4, Feb. 20, 1990 (vague or general assertions are insufficient to justify the withholding of budget authority).  The burden to justify a withholding of budget authority rests with the executive branch.

There is no assertion or other indication here that OMB intended to propose a rescission.  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 only other authority, then, for withholding amounts would have been a deferral.

The ICA authorizes the deferral of budget authority in a limited range of circumstances:  to provide for contingencies; to achieve savings made possible by or through changes in requirements or greater efficiency of operations; or as specifically provided by law.  2 U.S.C. § 684(b).  No officer or employee of the United States may defer budget authority for any other purpose.  Id. 

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.”  See OMB Response, at 2; Attachment.  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.”  OMB Response, at 9.

The ICA does not permit deferrals for policy reasons.  See B‑237297.3, Mar. 6, 1990; B-224882, Apr. 1, 1987.  OMB’s justification for the withholding falls squarely within the scope of an impermissible policy deferral.  Thus, the deferral of USAI funds was improper under the ICA.

Moreover, the footnotes that OMB used in lieu of notifying Congress that Trump was blowing off Congress weren’t proper, either, GAO found. That’s because DOD continued to do what it needed to do to appropriate the funds (something that the bureaucrats at DOD did in part to execute the will of the President, but partly to cover their own ass). The only reason the funds were withheld was OMB’s order, which amounts to a reportable impoundment.

OMB asserts that its actions are not subject to the ICA because they constitute a programmatic delay.  OMB Response, at 7, 9.  It argues that a “policy development process is a fundamental part of program implementation,” so its impoundment of funds for the sake of a policy process is programmatic.  Id., at 7.  OMB further argues that because reviews for compliance with statutory conditions and congressional mandates are considered programmatic, so too should be reviews undertaken to ensure compliance with presidential policy prerogatives.  Id., at 9.

OMB’s assertions have no basis in law.  We recognize that, even where the President does not transmit a special message pursuant to the procedures established by the ICA, it is possible that a delay in obligation may not constitute a reportable impoundment.  See B‑329092, Dec. 12, 2017; B‑222215, Mar. 28, 1986. However, programmatic delays occur when an agency is taking necessary steps to implement a program, but because of factors external to the program, funds temporarily go unobligated.  B‑329739, Dec. 19, 2018; B‑291241, Oct. 8, 2002; B‑241514.5, May 7, 1991.  This presumes, of course, that the agency is making reasonable efforts to obligate.  B‑241514.5, May 7, 1991.  Here, there was no external factor causing an unavoidable delay.  Rather, OMB on its own volition explicitly barred DOD from obligating amounts.

GAO notes that the communications it got from DOD and OMB were insufficient. It also notes that State gave it nothing, as it tried to figure out whether that delay, too, broke the law.

As I noted back in October, first Trump refused to tell Congress what was going on with the funds, even though members of both parties, together, and both houses, together, asked. But then Trump exacerbated the crime by refusing to explain all this after the fact. It’s not just that Trump is withholding documentation from the impeachment inquiry. It’s also withholding documentation Congress is entitled to under its appropriation function.

In spite of the fact that a core part of the Republican brand is a claim to care about whether the Executive Branch spends money in the way Congress tells it to, this will likely not make a difference in the Senate impeachment process. Trump has flouted the power of the purse that is normally fiercely guarded by both parties in Congress. But the Republicans will still — even with this nonpartisan proof that Trump has screwed them over — vote not to remove him from office.

Which will mean, in doing so, Republican Senators will sanction even more unconstitutional acts from this President.

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21 replies
  1. Anvil Leucippus says:

    I peeked at the Fox News comments on this story (I’m not going to link because they don’t deserve any free traffic). At first, I was sort of relieved they even had any news on it in the first place. And relatively-speaking, it was not-inaccurate news reporting.

    But the comments…

    It suggests we have entered the “the law was broke? so what?” phase of the cult’s views on impeachment. I still had this hope that there was some threshold that could be crossed that could convince someone “you know what? this Trump jackass is bad for all of us working folk; Republican or Democrat alike”. Nope!

    • 200Toros says:

      Totally agree. “That’s just how he is, he’s a law-breaker, OK? So what, get over it!”

      Or equally possible “The GAO report Completely Exonerates Trump of any wrongdoing! READ THE REPORT.”

    • rg says:

      “The law was broke? So what?”
      George Kastanza, when admonished for having sex with a cleaning lady on his desk after hours, asked, ” Was that wrong? Is there a policy about that?”

  2. KNP says:

    Also has serious implications for how Congress holds executive agencies accountable. Currently, agencies must respond to requests and recommendations based on GAO conclusions. Often, agency heads are called before Congress to testify as to why they haven’t followed GAO’s recommendations or corrected the alleged wrong. If the Senate doesn’t give credence to these findings, there will be a new precedent for executive agencies to do the same.

    • Rayne says:

      Except that Congress has already begun adding terms to legislation pointedly obligating the executive to spend funding allocated. Sen. Stabenow mentioned this change in comments this morning on MSNBC. It will be more difficult for the executive to act unilaterally contra legislation without accountability.

      • BobCon says:

        The larger issue of GAO’s authority and legitimacy is still significant beyond the issue of spending. GAO’s watchdog role is something that the GOP ought to protect. GAO has the staffing, expertise and budget to oversee the executive branch in terms of fiscal and performance issues in ways that regular congressional committees do not. Charles Grassley, for example, has regularly requested GAO to assist him in oversight efforts. GAO is in a position to help the House minority as well on some issues. The GOP should want a strong GAO if a democrat is elected in November.

        But the GOP’s horizon has shrunk to the point where they can only think about helping out imperial efforts now. Preserving the role of Congress even a year from now is so far beyond their brainpower that they will burn down their own house (GAO only reports to Congress) if they think it will help them for even one minute.

        • Rayne says:

          IMO, a key challenge for Democrats and other non-GOP is thinking like a member of a transnational organized crime syndicate. How does what you’ve said about the GAO under a current GOP administration and GOP senate majority jibe with [GOP = transnational organized crime syndicate]?

          I wouldn’t trust Grassley any further than I could throw him, for starters.

          • BobCon says:

            I agree the Democrats need to internalize how far gone the GOP is — like I said, the GOP will burn down their own house for the most fleeting advantage.

            Unfortunately, the Dems have a lot of heavy lifting when it comes to protecting worthwhile institutions, and GAO is one of them.

            In theory, the DC press should be an ally — GAO reports are bread and butter for them. Unfortunately, a lot of the big press outfits are being almost as reckless as the GOP, and will need a lot of prodding to skip the bothsider stuff.

            Fortunately there is a voluminous paper trail for every DC bureau showing them treating GAO as an authoritative source, but it’s tough to say if that withstands the solipsitic instincts of CNN, the NY Times and NPR.

      • OldTulsaDude says:

        What accountability do you mean? I think most of us have not quite grasped where we are with this president in office. Norms, which have throughout our history, been called upon to reign in excesses are now totally and completely ignored. After that, the only accountability comes from the Constitutional process of impeachment, which is also now been made into a joke and as relevant as norms.

        Seriously, who or what is going to stop this guy? It is the voting booths or nothing. If the answer is nothing, then we might as well start looking to relocate.

  3. sand says:

    ” a core part of the Republican brand is a claim to care about whether the Executive Branch spends money in the way Congress tells it to”

    [Maybe a bit OT, but] The GOP also used to claim to be fiscally responsible, and that claim needs to be put in its grave this election cycle, along with the one above. The 2019 federal deficit was USD 1.09T, against GDP of 21.44T. So, we’re running a deficit over 5% of GDP. Meanwhile, Trump likes to talk about economic growth in the range of 3-4% GDP per year. In fact, it seems we’re barely over 2%. The bigger point is that we’re running deficits that are more than twice the amount of economic growth. Balancing the federal budget would completely wipe out any growth, and yet Trump likes to crow that “the economy is doing great.”

    I would love to see the GOP get pounded on this point. I think it is simple enough for the electorate to capture broadly, and it could be used to counter the argument that the economy’s doing great. Tell the voters that we’ve been putting the mortgage on the family credit card and paying the minimum balance for four years under Trump. This will not end well. Please correct me if anyone thinks that it is too much of an over-simplification or just inappropriate to compare the federal deficit to claims of GDP growth.

    Finally, my greater fear is that we have entered a new era, and we can’t go back to any attempt to balance revenue and spending. Any attempt to do that will have seriously negative economic consequences, and the party not in power will call it maladministration. Both parties will continue to play hot potato with this economy, hoping that the final collapse occurs under someone else’s watch.

    For now, we might advise the voters that G-0-P means “Growth Zero Party,” once you take away the smoke and mirrors.

    Or perhaps “A democracy cannot exist as a permanent form of government. It can only exist until the majority discovers it can vote itself largess out of the public treasury.” (Alexander Fraser Tytler, apparently; a Scot, which seems appropriate)

    Or perhaps the new monetary theories have some validity. Or perhaps something else. Anyway, back to work.

    Quick sources that I used:

    https://www.thebalance.com/current-u-s-federal-budget-deficit-3305783
    https://www.investopedia.com/insights/worlds-top-economies
    https://tradingeconomics.com/united-states/gdp-growth-annual
    https://www.theatlantic.com/politics/archive/2012/11/sorry-conservatives-de-tocqueville-did-not-call-2012-election/321393

    • PieIsDamnGood says:

      It’s never been about fiscal responsibility, it’s always been about not spending money on black and brown people. The GOP base knows this and doesn’t care that the stated goals are not being achieved, they only care about the quiet part

  4. Yogarhythms says:

    Ew,
    “Trumps blowing off congress…” Impoundment Control Act violation criminal finding by legislative branch GAO. GAO not constrained by executive branch prohibitions of criminal findings of sitting executive. Senators today swore an oath of impartial juror DJT’s impeachment trial. Senate majority are the river and Senate minority are the rocks. As they say in Texas even a dead fish can go with the river flow. When a Republican is the executive there is no criminal act for this majority Senate.

      • P J Evans says:

        He was asking for conditions that would hurt PR, though: paying less than their legal minimum wage, and not using it to fix their electrical grid (which is covered under another appropriation). All because it’s “corrupt” – meaning, apparently, that they’re not paying off *his* people.

  5. harpie says:

    From the conclusion:
    https://www.gao.gov/products/B-331564

    [p8] 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.

    We consider a reluctance to provide a fulsome response to have constitutional significance. […]

    We trust that State and OMB will provide the information needed. […]

    GAO sounds a bit annoyed…

    • Eureka says:

      I felt their ~ ‘had-it-up-to-here-ness’ formatted in the parenthetical add-on here (quoted above):

      These special messages must provide detailed and specific reasoning to justify the withholding, as set out in the ICA. See 2 U.S.C. §§ 683–684; B‑237297.4, Feb. 20, 1990 (vague or general assertions are insufficient to justify the withholding of budget authority).

  6. Pablo in the Gazebo says:

    This popped up on CNN an hour or two ago. Here is a tweet from acting budget director Russ Vought which shouldn’t surprise anyone.
    “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)

    I especially like the “45” in his handle.

  7. Rugger9 says:

    I see that Senator (for now) Collins is “signaling” that she is open to calling witnesses but is as usual leaving the specifics for further “consideration” while furrowing her brow in concern. It’s an old schtick with her and our MSM keeps reporting this as actual news she might turn on Individual-1. She wouldn’t for Kavanaugh and her other statements about why the House didn’t include Parnas’ docs in the impeachment inquiry (the court hadn’t released them yet) makes it clear she will vote the party line using whatever excuse she can create. It’s an Elvis sighting, and those of us experienced in Kremlinology when our safety depended on it know this kind of statement is waffling of the highest order.

    The other GOP Senators in trouble (Gardner, McSally, etc.) Mittens, Murkowski, Enzi (who is retiring) are more likely to turn, but also remember that the fix is in and that it is probable that some of them are tainted by Soviet money via MMMcT. They need to acquit to save their own skins. The only real question is how MMMcT keeps the trial under wraps.

    I also think that Pelosi needs to tee up another round of impeachment inquiries in the target-rich environment that is the Palace.

  8. orionATL says:

    i am glad gao made a determination, though their release at the last moment merits congressional review. and equally happy that ew gave this the microscopic eye.

    i have thought previously that some of trump’s previous high-handed appropriated money maneuvers were questionable in terms of normal gov policy and practice, if not illegal, particularly the immigrant related stuff.

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