On Jan. 16, the day that President Trump’s impeachment trial formally began in the Senate, the Government Accountability Office released a “decision,” signed by its general counsel, that the White House Office of Budget and Management violated the Impoundment Control Act by withholding Department of Defense U.S. Army Intelligence funds from Ukraine. The explanation is that “faithful execution of the law does not permit the President to substitute his own policy priorities for those that the Congress has enacted into law.”
The reaction from Democratic Senators was dramatic, as one might expect. Sen. Chris Van Hollen called it a “bombshell landing just as we start the Senate trial.” Sen. Patrick Leahy of Vermont said that “in 45 years here, I have never seen anything like this.” Both senators referred to the GAO as “nonpartisan.”
Nevertheless, the timing of the release of the GAO’s “decision” is not the only questionable aspect about it.
The GAO’s report attempts to inflate Trump’s failure to send a special message to Congress, a requirement under section 684 of the Impoundment Control Act, into a constitutional crisis, which it isn’t. But more interestingly, the report simultaneously attempts to exonerate the GAO’s director, Comptroller General Gene Dodaro (nominated by President Barack Obama and confirmed by a Democratically controlled Senate to a 15-year term in 2010) from his responsibility, according to section 686, to, in lieu of the president sending a special message, “make a report on such … deferral and any available information concerning it” available to “Congress … with the same effect as if such report of the Comptroller General were a special message transmitted by the President under section … 684.”
In short, GAO dropped the ball. The independent agency’s logic in exonerating its director from a legal requirement is that “OMB and State have failed, as of yet, to provide the information we need to fulfill our duties under the ICA.” This is not true. First of all, OMB did communicate a rationale to the GAO. And the Impoundment Control Act only refers to the comptroller general filing a report with “available information.” It makes absolutely no reference to any OMB or cabinet department requirement to provide the comptroller general or the GAO with any information before GAO can file its required report under the law.
Second, having failed to meet its own legal obligations, the GAO now claims that Trump violated his oath to “faithfully execute the laws” and that the OMB violated the ICA. In GAO’s opinion, the temporary deferral of aid within the fiscal year was for a “policy reason … not a programmatic delay.” But the relevant sections of the law never use such language.
Rather, section 684 of the ICA makes clear that Trump is empowered to temporarily defer funds within the fiscal year to “provide for contingencies … to achieve savings … or as specifically provided by law.” Whether or not the temporary deferral in the summer qualified under one of these three justifications is clearly a point of disagreement between the GAO and the OMB, whose director of communications has already issued a statement that it disagrees with the GAO’s finding.
Third, the GAO’s claim that the temporary deferral of funds within the fiscal year was illegal according to the Impoundment Control Act raises the question of why the comptroller general failed to enact section 687 at that time. That section outlines a procedure for what happens if a president fails to spend allocated funds. It states that “if … 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.”
So, in other words, there was no constitutional crisis, only a matter that should have been litigated, as the relevant law prescribes. GAO wants to claim that the funds were illegally delayed, while simultaneously ignoring its own director’s statutory responsibilities in such a circumstance.
Indeed, this sort of dispute is precisely why courts exist — to handle disputes over whether presidential orders or actions violate the law or even the Constitution. In the case of disputes over the temporary deferral of funds, section 687 of the Impoundment Control Act makes it clear that such disputes should ultimately be settled with a civil case in U.S. District Court, not with an impeachment trial in the Senate.
Instead of playing its proper role last summer to help resolve any dispute between Congress and the president and between itself and the OMB, the GAO released an accusatory and self-exonerating statement on the day that a partisan impeachment trial began. Its “nonpartisan” character, in this case, thus seems highly questionable.
Nathaniel Terence Cogley is an assistant professor of political science at Tarleton State University in Stephenville, Texas.
