According to its website, the U.S. Government Accountability Office (GAO) is an “independent, nonpartisan agency that works for Congress.” It was formed by The Budget and Accounting Act of 1921, and its function is to serve as the federal government’s audit institution for all spending and appropriations. It’s supposed to help the government be more efficient but it also has the authority to sue the executive branch if it believes it isn’t following the law in disbursing money approved by Congress.
Since 1974, it has been bolstered by the Impoundment Control Act. Technically, the Act provides a mechanism for the executive branch to ask Congress to reconsider spending decisions, but there’s a process to that that was not followed in withholding aid from Ukraine in 2019. At least, that’s the formal conclusion that the GAO reached in a report they released on Thursday.
“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 states. “OMB withheld funds for a policy reason, which is not permitted under the Impoundment Control Act.”
This decision has a strange legal standing. Since no one can be criminally charged with violating the Impoundment Control Act, the normal procedure is to threaten to go to court. In all but one case, this has been sufficient:
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 Bill Clinton and George W. Bush. In general, those administrations released funds after being cited, 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.
GAO also found in 2014 that the Obama administration broke the law in exchanging five Taliban commanders for a captured U.S. soldier without giving Congress 30 days notice.
In other words, this is a law people can violate with impunity, although their decisions can and will be overturned by the judicial branch. That doesn’t offer much relief to anyone injured by a delay in spending. It doesn’t provide a remedy for a situation like that faced by Ukraine where the damage is already done and can’t be remediated.
Nonetheless, the GAO has deemed the withholding of this aid as a criminal act. It’s up to the Senate to determine if its a high crime or a low crime, but a crime has been established. It’s important to understand that the GAO is a nonpartisan institution and if it has any bias, its in defending the rights of the legislative branch against those of the executive. The Senate is part of the legislative branch, so a decision not to take this crime seriously would be an act of self-harm.
Predictably, the White House says it disagrees with GAO’s finding, but this won’t be adjudicated in court because the funds were eventually released and no other relief is provided under the law. Nonetheless, it was illegal to withhold the Ukrainian aid as part of an extortion scheme to pressure the government in Kyiv into doing political favors for Donald Trump.
