Warm Southern Breeze

"… there is no such thing as nothing."

GAO: Trump Violated Law

Posted by Warm Southern Breeze on Monday, January 20, 2020

Ukraine, schmookraine.

Who gives a rats rip what Trump did, eh?

Seriously.

And yet, that is precisely the attitude that some have about the matter in which the President has found himself placed, which has also led to his impeachment.

Some say, “Ukraine got their money. What’s the big deal?”

Yet others say, it’s all water under the bridge, or worse.

So, let’s examine the matter more fully in order to understand exactly what’s going on, and what’s at stake.

And, for the most part, we’re going to ignore many remarks the Democrats have been making. Well, at least much of them. We’re concerned with the basis for the claim. As it turns out, the Government Accountability Office (GAO) is also concerned with that matter – that matter being the question, “Did the President of the United States violate any law in the Ukraine affair?”

But before we proceed further, let’s first answer a couple of important questions about the Government Accountability Office:

What is the GAO, what do they do, and what authority do they have?

The GAO states this about their agency:

“The U.S. Government Accountability Office (GAO) is an independent, nonpartisan agency that works for Congress. Often called the “congressional watchdog,” GAO examines how taxpayer dollars are spent and provides Congress and federal agencies with objective, reliable information to help the government save money and work more efficiently.

“GAO provides Congress, the heads of executive agencies, and the public with timely, fact-based, non-partisan information that can be used to improve government and save taxpayers billions of dollars. The Government Accountability Office is the U.S. government’s audit institution and is part of the legislative branch. Our work is done at the request of congressional committees or subcommittees or is statutorily required by public laws or committee reports, per our Congressional Protocols.”

The GAO was renamed in 2004 under the George W. Bush administration, and had been formerly known as the General Accounting Office when it was established by the Budget and Accounting Act of 1921.

The GAO stated this about their name change:

Effective July 7, 2004, the GAO’s legal name was changed from the General Accounting Office to the Government Accountability Office. The change, which better reflects the modern professional services organization GAO has become, is the most visible provision of the GAO Human Capital Reform Act of 2004, Pub. L. 108-271, 118 Stat. 811 (2004).”

So, we see that the GAO is an independent, nonpartisan “Congressional watchdog” which examines how tax dollars are spent, helps the Government save money, and work more efficiently.

In a decision dated January 16, 2020, the Government Accountability Office (GAO) in the Matter of: Office of Management and Budget—Withholding of Ukraine Security Assistance, File: B-331564, the GAO wrote in part that,

“Faithful execution of the law does not permit the President to substitute his own policy priorities for those that Congress has enacted into law.
OMB withheld funds for a policy reason, which is not permitted under the Impoundment Control Act (ICA).
The withholding was not a programmatic delay.
Therefore, we conclude that OMB violated the ICA.”

The GAO wrote further in the Decision that,

“As explained below, we conclude that OMB withheld the funds from obligation for an unauthorized reason in violation of the ICA.”

Their conclusion, in part, states that, “OMB violated the ICA when it withheld DOD’s USAI funds from obligation for policy reasons. This impoundment of budget authority was not a programmatic delay.”

So, just in the case you’re wondering, ‘What is the Impoundment Control Act, and how does it affect this matter?,’ let’s turn to another, similar source for additional information.

Continuing…

The GAO defined “impoundment” in B-330330.1, Dec 10, 2018, “Impoundment Control Act–Withholding of Funds through Their Date of Expiration,” as being:

An “impoundment” is any action or inaction by an officer or employee of the federal government that precludes obligation or expenditure of budget authority. The President has no unilateral authority to impound funds. The Impoundment Control Act of 1974 (ICA) allows the President to impound funds when he transmits a “special message” in accordance with the ICA. Upon sending the message, amounts proposed for rescission (that is, for permanent cancellation) may be impounded for a period of 45 days of continuous congressional session. At issue here is whether the ICA allows such an impoundment for fixed-period appropriations expiring during this 45-day period to continue through the date on which the funds would expire. We conclude that the ICA does not permit the impoundment of funds through their date of expiration. The plain language of the ICA permits only the temporary withholding of budget authority and provides that unless Congress rescinds the amounts at issue, they must be made available for obligation. Amounts proposed for rescission must be made available for prudent obligation before the amounts expire, even where the 45-day period provided in the ICA approaches or spans the date on which funds would expire.

The next question is one of authority. Specifically, when the GAO wrote “we conclude that OMB withheld the funds from obligation for an unauthorized reason in violation of the ICA,” it’s important to know and understand the organizational structure and hierarchy of the OMB (Office of Management and Budget).

On the OMB website – https://www.WhiteHouse.gov/OMB/ – it states “The Office of Management and Budget (OMB) serves the President of the United States in overseeing the implementation of his vision across the Executive Branch. Specifically, OMB’s mission is to assist the President in meeting his policy, budget, management and regulatory objectives and to fulfill the agency’s statutory responsibilities.”

The Director of the OMB is Mick Mulvaney.

The POTUS was impeached because he violated law, specifically, the Impoundment Act, which by so doing, was an abuse of power.

The reason why is a matter of conjecture between Democrats and Republicans, but it’s asserted that he did so – albeit very surreptitiously – to obtain an advantage over his perceived political rival, former Vice President Joe Biden, who is campaigning to be the Democratic Party’s Presidential nominee.

The POTUS is also charged with violating law by demonstrating Contempt of Congress, which is statutorily prohibited by 2 U.S.C. 192 – Refusal of witness to testify or produce papers, which states:

“Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months.”

While Congress has not exercised the law since 1935 history (with a minor exception in 1982), it has exercised its inherent power found in the Constitution.

In 1984, Congress charged EPA Administrator Ann M. Gorsuch Burford (mother of SCOTUS Justice Neil Gorsuch, who was also monikered as “Ice Queen” at EPA, and was known for being stubbornly inflexible about her political views, alienating people and being consistently late to work), a Reagan administration official, with Obstruction of Congress after she – at the direction of POTUS Reagan – refused to produce documents requested by two House committees subsequent to an investigation.

A Congressional Research Service document – Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure by Todd Garvey, Legislative Attorney, dated May 12, 2017, RL34097 – stated from the Burford case, that, “the OLC opinion determined that a review of the legislative history of the 1857 enactment of the criminal contempt statute and its subsequent implementation demonstrates that Congress did not intend the statute to apply to executive officials who carry out a presidential directive to assert executive privilege.”

Moreover, the CRS paper stated that,

“A subcommittee, and ultimately the full House Committee on Public Works and Transportation, approved a criminal contempt of Congress citation and forwarded it to the full House for its consideration. On December 16, 1982, the full House of Representatives voted, 259-105, to adopt the contempt citation. Before the Speaker of the House could transmit the citation to the United States Attorney for the District of Columbia for presentation to a grand jury, the DOJ filed a lawsuit seeking to enjoin the transmission of the citation and to have the House’s action declared unconstitutional as an intrusion into the President’s authority to withhold such information from the Congress. According to the DOJ, the House’s action imposed an “unwarranted burden on executive privilege” and “interferes with the executive’s ability to carry out the laws.”

Ultimately, “the District Court for the District of Columbia dismissed the DOJ’s suit on the grounds that judicial intervention in executive-legislative disputes “should be delayed until all possibilities for settlement have been exhausted.””

“While the President can immunize persons from criminal prosecution,
it does not appear that he has authority to immunize a witness
from
a congressional inherent
contempt proceeding.”

“…in the context of the debate [citing an 1846 investigation into on then-Secretary of State Daniel Webster’s disbursement of secret contingency funds used by the POTUS for clandestine foreign operations], the contempt statute was not intended to preclude the House’s ability to engage in oversight of the executive branch.”

“Congress’s contempt power is the means by which Congress responds to certain acts that in its view obstruct the legislative process. Contempt may be used either to coerce compliance, to punish the contemnor, and/or to remove the obstruction.”

-and-

“Congress has three formal methods by which it can combat non-compliance with a duly issued subpoena. Each of these methods invokes the authority of a separate branch of government. First, the long dormant inherent contempt power permits Congress to rely on its own constitutional authority to detain and imprison a contemnor until the individual complies with congressional demands. Second, the criminal contempt statute permits Congress to certify a contempt citation to the executive branch for the criminal prosecution of the contemnor. Finally, Congress may rely on the judicial branch to enforce a congressional subpoena. Under this procedure, Congress may seek a civil judgmentfrom a federal court declaring that the individual in question is legally obligated to comply with the congressional subpoena.”

-and-

“Although subject to practical limitations, Congress retains the ability to exercise its own constitutionally based authorities to enforce asubpoena through inherent contempt.”

Congress has used the Contempt Statute several times since 1980.

The House of Representatives has approved contempt citations for former, and sitting officials, including:

• Former EPA Assistant Administrator Rita M. Lavelle;
• Former White House Counsel Harriet Mier;

• EPA Administrator Anne Gorsuch Burford;
• White House Chief of Staff Joshua Bolten, and;
• Attorney General Eric Holder.

The House of Representatives’ committees and subcommittees have voted contempt citations against:
• Secretary of Energy Charles Duncan (1980);
• Secretary of Energy James B. Edwards (1981);
• Secretary of the Interior James Watt (1982);
• Attorney General William French Smith (1983);
• White House Counsel John M. Quinn (1996);
• Attorney General Janet Reno (1998); and
• Former White House Advisor Karl Rove (2008).

Senate committees and subcommittees have voted contempt citations against:
• William French Smith (1984);
• Joshua Bolten (2007), and;
• White House Advisor Karl Rove (2007).

Republicans have also used the power.

In 2013, following reports of unequal treatment under law, and response to the House Committee on Oversight and Government Reform, Lois G. Lerner, then the IRS’s Director of Exempt Organizations, publicly acknowledged that the agency had inappropriately targeted conservative groups.

On April 10, 2014, by a 21-12 vote, the House Committee on Oversight and Government Reform, approved a contempt resolution against Ms. Lerner for her refusal to comply with their subpoena.

“On May 7, 2014, the House voted 231-187 to adopt the Committee’s resolution, and directed the Speaker, pursuant to 2 U.S.C. §§ 192 and 194, to certify the contempt citation to the U.S. Attorney for the District of Columbia for prosecution,” however, “the House did not pursue the option to enforce the Committee’s subpoena through civil action in federal court.”

Tuesday, January 21, 2020 marks the first day of the Trial of Donald John Trump, President of the United States on impeachment charges: Abuse of Power, and Obstruction of Congress.

Those charges are predicated upon allegations that he withheld money for military aid and a White House meeting to pressure Ukraine to investigate his political rival, former Vice President Joe Biden, who is a 2020 candidate to be the Democratic Party’s presidential nominee.

The Trump administration refused to cooperate with the House impeachment investigation, denied witnesses and documents.

FOR ADDITIONAL READING, SEE:

Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure, RL34097, by Todd Garvey, Legislative Attorney, May 12, 2017
https://fas.org/sgp/crs/misc/RL34097.pdf

Obstruction of Congress: A Brief Overview of Federal Law Relating to Interference with Congressional Activities, RL34304, by Charles Doyle, Senior Specialist in American Public Law, November 5, 2010
https://fas.org/sgp/crs/misc/RL34304.pdf

Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: A Sketch, RL34114, by Todd Garvey, Legislative Attorney, and Alissa M. Dolan, Legislative Attorney, April 10, 2014
https://fas.org/sgp/crs/misc/RL34114.pdf

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