Sunday, January 19, 2020


[Published on Newsmax]

The anti-Trump chorus is breathlessly declaring the January 16, Government Accountability Office (GAO) report asserts “Trump broke the law” regarding Ukraine aid. 

That is not what the report states and that is not what happened.

The GAO serves a vital oversight function for the Federal Government.  Annually, GAO reports on waste, fraud, and mismanagement identify billions of dollars in potential savings. The Agency studiously avoids politics by outlining procedural and legal compliance issues.

GAO Report B-331564 is different, as it is incomplete on facts while overstating the Trump Administration’s noncompliance with a controversial law.

The report never admits that the Ukraine Aid in question was, in fact, released on September 11, prior to the deadline of September 30, 2019.

This omission is fundamental to the entire Ukraine matter and undermines GAO’s credibility.

The GAO report centers on the Impoundment Control Act (ICA). This was passed as part of Congress reining-in President Richard Nixon.  Nixon had impounded funds for many programs and agencies to counter Congressional spending sprees.  His actions continued a long-standing practice, going back to Thomas Jefferson, of Presidents exercising fiscal discipline to thwart Congressional overspending.

The Congress took advantage of Nixon’s ebbing power by pushing through the ICA and other legislation to open the spending flood gates.  Discretionary spending has ballooned out of control ever since.

Presidents, Republican and Democrat, have attempted to restore the balance in budgeting and spending policy.  The GAO’s Ukraine report cites numerous court cases where Clinton and other Presidents have sought court assistance to set limits and clarify processes.

All funds were released prior to the Congressional deadline.  The delay in releasing Ukraine funds never crossed these legal lines. 

In fact, the delays fully complied with the law authorizing the funds (PL 115-232), as it explicitly stated that, “In order to obligate more than fifty percent of the amount appropriated, DOD was also required to certify to Congress that Ukraine had taken ‘substantial actions’ on defense institutional reforms’”.

The Office of Management and Budget (OMB) issued numerous “apportionment schedules” with footnotes explaining the delay in releasing the funds was to “allow for an interagency process to determine best use of such funds”.  Each memo consistently stated that, “this brief pause in obligations will not preclude DOD’s timely execution of the final policy direction.”

One part of the foreign military financing (FMF) earmarked for Ukraine was delayed only six days.

The GAO Ukraine report, clearly states that:

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.”  2 U.S.C. § 684”

At no point in the Ukraine Report does the GAO find that OMB or the President triggered a deferral or impoundment.  Therefore, there was no violation of the Impoundment Control Act (ICA).

However, the GAO pours through countless memos from the OMB, as well as OMB responses to GAO questions.  Unfortunately, OMB’s responses dug avoidable holes into which the Trump Administration fell by raising needless challenges to the ICA.

OMB engaged in a battle it did not need to fight.  This triggered GAO having to recount the ICA battles from other Administrations and pointing out the flaws in OMB’s arguments.  OMB responded by not responding.  As the GAO-OMB dialogue dissipated, political rhetoric seeped-in.

The GAO stepped over their line by asserting there may be “potential impoundments” where none exist.  You either impound or you don’t.  There is no “potential”. The GAO ascribes “policy reasons” for the delay of funds without providing any evidence. 

Finally, to carve out its own place in the Impeachment, the GAO violated decades of its own professional code of conduct by declaring, “We consider a reluctance to provide a fulsome response to have constitutional significance”.

Senator Chris Van Hollen (D-MD), a dedicated Never-Trumper, requested the GAO Ukraine report on October 30, 2019.  He kept demanding GAO provide a report sooner versus later in a letter dated December 23, 2019.  The GAO admits that its report is a work in progress and states it is waiting on additional information from the State Department and OMB. 

Unfortunately, Thomas Armstrong, GAO General Counsel, was willing to risk the agency’s reputation as the gold standard of oversight, by prematurely releasing an incomplete and flawed report, immediately relegating it to just another politically charged smear.