GAO report backs private Pentagon conclusions that Trump broke the law on Ukraine

Introduction

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President Donald Trump’s White House broke the law by withholding aid from Ukraine last summer, the nonpartisan U.S. Government Accountability Office announced Thursday morning.

The congressional auditing agency said the Office of Management and Budget’s actions carrying out Trump’s orders had clearly violated the Impoundment Control Act, a law forcing the president to spend money that Congress has appropriated.

Congress in 2018 approved a total of $391 million in security assistance and weapons transfers to Ukraine during the fiscal year that ended in September, but Trump withheld its disbursement in actions that provoked his December impeachment by the House of Representatives.

The impeachment articles presented this week to the Senate for a trial accuse Trump of abusing his powers and displaying contempt for Congress’s investigation of his actions, but do not specifically call his withholding of the aid a violation of the Impoundment Act.

OMB’s actions did not comply with any of the exceptions to the law’s demand that a president carry out congressional spending orders, the GAO said in its nine-page report. 

“OMB withheld funds for a policy reason, which is not permitted,” the report states. “Therefore we conclude that OMB violated” the act.

The auditors’ decision, which was requested by a Maryland senator, amounts to a firm rebuke of claims made by OMB General Counsel Mark Paoletta, a former aide to Vice President Mike Pence, throughout the summer and again in December that the aid halt complied with the law because it was merely a programmatic delay meant to ensure the aid complied with Trump’s foreign policy priorities.

“OMB’s assertions have no basis in law,” the GAO said. Legal programmatic delays occur when an agency is trying to spend the funds but is unavoidably blocked by external factors from proceeding, it explained. “Here there was no external factor causing an external delay. Rather, the OMB on its own volition explicitly barred DOD” from spending the funds.

The repudiation of a stance taken by one of Trump’s senior political appointees represents a vindication of the position taken at the time by career officials at OMB and the Pentagon that the aid holdup was in violation of the law, a stance outlined in internal emails that surfaced as the result of the Center for Public Integrity’s pursuit of them under the Freedom of Information Act.

Those emails were heavily redacted by the Department of Defense when they were turned over under court order; Public Integrity is challenging the redactions in court.

Throughout the aid holdup, the top Pentagon official responsible for disbursing the aid complained to colleagues and the White House Office of Management and Budget that OMB’s top lawyer had consistently misunderstood or mischaracterized how urgently the aid must be disbursed to comply with Congress’s orders, as the law required.

“We have repeatedly advised OMB officials that pauses” in the aid beyond mid-August would violate the law, said a draft letter prepared late that month for the deputy secretary of defense to send to OMB’s acting director, one of the emails said, according to an account of the redacted contents published on the website Just Security. “OMB continues to ignore our repeated explanation,” the Pentagon’s comptroller, career employee Elaine McCusker, told colleagues in late August.

The GAO report’s conclusion that the aid holdup failed to meet a series of other legal tests for a legitimate interruption also has the effect of focusing fresh attention on the claims by House Democrats that Trump’s real reason for stopping the aid was to support his reelection — specifically, that the president wanted to force Ukraine to investigate activities there by former Vice President Joe Biden and his son, Hunter.

There were no legitimate external contingencies, there were no potential savings, there was no legal permission — all legitimate exceptions to the impoundment act. The decision was not a close one, said the report, which was signed by GAO General Counsel Thomas H. Armstrong. “OMB’s justification for the withholding falls squarely within the scope of an impermissible policy deferral.”

Sen. Chris Van Hollen, D-Md., who requested the report, said that “this violation of the law reflects a contempt for the Constitution and was a key part of his corrupt scheme to abuse the power of the presidency for his personal political purposes.” It reinforces, he added, “the need for the Senate to obtain all relevant documents and hear from key witnesses in order to have a fair trial.”

A White House spokesman told the Washington Post on Thursday that it disagrees with the GAO’s opinion and that the aid holdup was an appropriate way to ensure the money was spent in accordance with Trump’s foreign policy priorities.