Theoretically? Maybe, although it’s still the weakest of the weak-sauce arguments for arguing the illegality of Donald Trump’s actions in Ukraine-Gate. Even the General Accounting Office’s conclusion that the hold on congressionally appropriated military aid violated the Impoundment Control Act somehow misses the fact that it got sent in the same budget year.
It’s also not a crime, either, but a tort. We’ll get to that in a moment:
In the summer of 2019, the Office of Management and Budget (OMB) withheld from obligation funds appropriated to the Department of Defense (DOD) for security assistance to Ukraine. In order to withhold the funds, OMB issued a series of nine apportionment schedules with footnotes that made all unobligated balances unavailable for obligation.
Faithful execution of the law does not permit the President to substitute his own policy priorities for those that Congress has enacted into law. OMB withheld funds for a policy reason, which is not permitted under the Impoundment Control Act (ICA). The withholding was not a programmatic delay. Therefore, we conclude that OMB violated the ICA.
Read the whole report, however, and one finds the glaring issue with this conclusion, which is that the administration didn’t have an obligation to release the funds on any specific date in the fiscal year. All they needed to do was to make sure the money got spent by the last day of the budget cycle:
For fiscal year 2019, Congress appropriated $250 million for the Ukraine Security Assistance Initiative (USAI). Pub. L. No. 115-245, § 9013, 132 Stat. at 3044–45. The funds were available “to provide assistance, including training; equipment; lethal assistance; logistics support, supplies and services; sustainment; and intelligence support to the military and national security forces of Ukraine.” Id. § 9013, 132 Stat. at 3044. The appropriation made the funds available for obligation through September 30, 2019.
GAO rebukes the Trump administration for issuing a series of orders making the funds temporarily unavailable without any explanations for why. Had the administration not spent the funds at all, it would have been required to send a “special message” to Congress within 15 days of that decision to allow for both chambers to take action on it. The GAO also argues that those decisions have to be based on “programmatic” issues rather than policy decisions, which they mean temporary issues with the programs and processes themselves rather than policy opposition to them. That, however, is not found in the text of the ICA; in fact, it doesn’t place any effective limitation on the reason for such rescissions, emphasis mine:
Whenever the President determines that all or part of any budget authority will not be required to carry out the full objectives or scope of programs for which it is provided or that such budget authority should be rescinded for fiscal policy or other reasons (including the termination of authorized projects or activities for which budget authority has been provided), or whenever all or part of budget authority provided for only one fiscal year is to be reserved from obligation for such fiscal year, the President shall transmit to both Houses of Congress a special message specifying—
(1) the amount of budget authority which he proposes to be rescinded or which is to be so reserved;
(2) any account, department, or establishment of the Government to which such budget authority is available for obligation, and the specific project or governmental functions involved;
(3) the reasons why the budget authority should be rescinded or is to be so reserved;
(4) to the maximum extent practicable, the estimated fiscal, economic, and budgetary effect of the proposed rescission or of the reservation; and
(5) all facts, circumstances, and considerations relating to or bearing upon the proposed rescission or the reservation and the decision to effect the proposed rescission or the reservation, and to the maximum extent practicable, the estimated effect of the proposed rescission or the reservation upon the objects, purposes, and programs for which the budget authority is provided.
The very text of the ICA envisions such rescissions taken for reasons of “fiscal policy or other reasons,” and has no explicit limitation on reasons being “programmatic.” It even explicitly recognizes the legitimacy of canceling “authorized projects,” which is the opposite of the GAO’s definition of “programmatic.” The ICA does require the president/administration to notify Congress of those decisions, but only when the money won’t be spent within the fiscal year. That makes sense, because to delay it past the September 30 date would force Congress to re-appropriate the money in the next cycle. Plus, since appropriations are enacted as laws, such a failure would violate the law – if in fact the money didn’t get spent.
In this case, the money did get spent within the budget year. The aid may not have gone out as quickly as Congress intended or as the administration first planned, but as long as it got spent, there’s no violation. And contra the GAO’s take, delays for non-programmatic reasons don’t violate the ICA as long as it doesn’t go past the same fiscal year as the appropriation.
Even if it did, though, Congress proposed the remedy for such failures within the ICA itself, as I noted last month when the issue first got raised. The remedy is to sue the administration to force it to spend the funds, not to criminally prosecute the president over it, emphases mine:
If, under this chapter, budget authority is required to be made available for obligation and such budget authority is not made available for obligation, the Comptroller General is hereby expressly empowered, through attorneys of his own selection, to bring a civil action in the United States District Court for the District of Columbia to require such budget authority to be made available for obligation, and such court is hereby expressly empowered to enter in such civil action, against any department, agency, officer, or employee of the United States, any decree, judgment, or order which may be necessary or appropriate to make such budget authority available for obligation. No civil action shall be brought by the Comptroller General under this section until the expiration of 25 calendar days of continuous session of the Congress following the date on which an explanatory statement by the Comptroller General of the circumstances giving rise to the action contemplated has been filed with the Speaker of the House of Representatives and the President of the Senate.
Under the agreement of both the executive and legislative branches in 1974, this is a civil matter, not a “high crime or misdemeanor.” It’s an absurdly picayune basis for removing an elected president, the head of a co-equal branch of government. And it’s worth pointing out that this act got signed in the same year that Congress was working to remove a duly-elected president over actual crimes, one who resigned ahead of impeachment and removal.
Buried deeply in the Washington Post report on the GAO’s conclusion, below where they quote Sen. Chris Murphy calling this a “bombshell,” readers discover just how mundane this finding actually is:
The administration has previously disagreed with the GAO’s findings, including last year when GAO said the Trump administration violated federal spending law during the government shutdown by allowing popular park sites to stay open.
In cases of a violation, the most the GAO can do is sue the administration to release money, which has happened only once– in the 1970s. The lawsuit was later dismissed when the funds were released.
Several administrations have been slapped by the GAO, including that of George Bush, Bill Clinton and George W. Bush. In general, the administrations were cited for freeing funds for spending, making lawsuits unnecessary. Most recently, in December 2018, the GAO said the Department of Homeland Security illegally withheld $95 million appropriated for the Coast Guard to support national security efforts. The funds were eventually released.
It’s an ongoing issue, barely even worth mentioning, especially when the funds ended up getting released anyway. It’s hardly surprising, given the thin case made by the House, that the media and Trump’s opponents are rushing to turn this civil molehill into a criminal mountain.