President Trump and his defenders have argued ad infinitum that the move to impeach him is a baseless, unconstitutional witch hunt because, they say, he broke no law in his handling of Ukraine. The articles of impeachment, Trump wrote to House Speaker Nancy Pelosi, “include no crimes, no misdemeanors, and no offenses whatsoever.”
That’s never been a terribly persuasive argument, given that the Founders’ understanding of “high crimes and misdemeanors” extended to corrupt and improper actions that did not technically violate the law. But in case that argument gave you pause, you may now relax; it turns out the law was broken after all. On Thursday, the General Accounting Office concluded in a nine-page report that the administration in fact violated federal law when it put a hold on congressionally approved aid to Ukraine for no legally valid reason.
Although the resolutely nonpartisan GAO did not put it in these terms, the message of the report was unmistakable: Trump abused the power of his office by usurping authority that the Constitution gives exclusively to lawmakers.
The GAO report landed shortly before the Senate swore in Supreme Court Chief Justice John G. Roberts Jr. to preside over the impeachment trial, which will begin in earnest next week. The office noted that when Congress approved $250 million in military aid to Ukraine in September 2018, it placed only one condition on its spending: that the Defense Department could not spend more than 50% of the money without certifying that Ukraine had taken “substantial actions” on “defense institutional reforms.” The department provided that certification on May 23, 2019.
Evidence gathered by the House shows conclusively that Trump ordered the aid to be put on hold not long after the certification was sent. The hold was not lifted until September, after the White House learned that a whistleblower had complained that Trump was trying to pressure Ukraine to conduct an investigation into one of his top Democratic rivals, former Vice President Joe Biden, and after the House announced it would investigate.
Trump, acting White House Chief of Staff Mick Mulvaney and congressional Republicans have offered a shifting range of rationalizations for delaying the aid, including Trump’s distaste for foreign aid, his belief that Ukraine was rife with corruption and his desire to see Europe contribute more to Ukraine’s defense.
We think all of those reasons are pretexts. But even if they were true, the report by the GAO, Congress’ all-purpose government watchdog, explains why none of them are valid. Under the Impoundment Control Act, the report says, Congress set out rules for when and how a president may delay spending an appropriated amount; he cannot slam the brakes on an appropriation simply because he thinks the policy is wrong. Instead, the statute allows funds to be held only “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.” And he must notify Congress.
“The ICA does not permit deferrals for policy reasons,” the GAO notes, and the White House Office of Management and Budget’s rationale for putting the Ukraine aid on hold “falls squarely within the scope of an impermissible policy deferral.” Put another way, Trump’s purported beliefs that Ukraine was corrupt and European nations weren’t paying their share were, under federal law, immaterial once Congress made the decision to provide the aid.
“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 report states, again underlining what should be obvious. “In fact, Congress was concerned about exactly these types of withholdings when it enacted and later amended the ICA.”
The delay in delivering the aid had real-world consequences. As of last month, the Los Angeles Times reported, Ukraine still hadn’t received more than $20 million of the military aid it desperately needs.
The report adds to the pressure on the Senate to subpoena Mulvaney and other top administration officials with firsthand knowledge of Trump’s decision to freeze the aid, including former national security advisor John Bolton, whose testimony has been blocked by Trump. So, too, do the new revelations from Lev Parnas, the Ukrainian American who was part of the efforts by Trump’s personal lawyer, Rudolph W. Giuliani, to dig up dirt on Biden. Parnas told MSNBC on Wednesday that, acting on behalf of Giuliani and Trump, he informed top Ukrainian officials that all U.S. aid would be cut off if they didn’t announce the investigations Trump sought.
The White House responded that Parnas, who is awaiting trial on federal campaign-finance charges, isn’t credible. But Parnas’ comments are just part of the mass of evidence that the House and others have gathered to buttress the case that Trump abused the power of his office. And as the GAO has now made clear, it’s an abuse that violated the law.