White House broke the law by withholding Ukraine aid, Government Accountability Office says

By Audrey McNamara

/ CBS News

Delaying Ukraine aid was illegal, GAO says

The White House Office of Management and Budget violated the law when it withheld military aid from Ukraine, according to the Government Accountability Office. In its decision released Thursday, the federal watchdog agency concluded that the funds were frozen to align with President Trump's "policy priorities."

"Faithful execution of the law does not permit the President to substitute his own policy priorities for those that Congress has enacted into law," reads the agency's decision. "[The Office of Management and Budget] 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 OMB argues that the Ukraine freeze was not subject to the ICA because it constituted a "programmatic delay," that hinged on a "policy development," according to the report. The GAO contends that that argument has "no basis in law."

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"Programmatic delays occur when an agency is taking necessary steps to implement a program, but because of factors external to the program, funds temporarily go unobligated," the GAO explains in its report. "Here, there was no external factor causing an unavoidable delay. Rather, OMB on its own volition explicitly barred DOD from obligating amounts."

According to GAO General Counsel Thomas H. Armstrong, the White House OMB told GAO that it withheld the funds to ensure that they were not spent "'in a manner that could conflict with the President's foreign policy.'"

"The President has narrow, limited authority to withhold appropriations under the Impoundment Control Act of 1974," Armstrong said in a statement regarding its decision. "… The law does not permit OMB to withhold funds for policy reasons."

Counselor to the president, Kellyanne Conway, confronted with the GAO's findings moments after they were released, said she hadn't had a chance to read the report but she was "very glad that Ukraine got the aid, and got it within the deadline."

Pressed further on the report's findings, Conway emphasized that Ukraine did receive the aid, and Mr. Trump wanted it to be "higher and better and bigger" than aid was under his predecessor.

"Well then it's a good thing that the aid that Congress approved got to Ukraine intact and it got there because this president released it," Conway said. "And he wanted it to be higher and better and bigger than it was under President Obama so that they can protect themselves against foreign aggression."

The GAO — an independent watchdog that provides information and legal analysis to Congress on "executive activity" — concluded that the White House OMB was "unauthorized" to withhold the approximately $214 million in military aid from Ukraine in Summer 2019. Congress had already appropriated $250 million to the Department of Defense for security assistance to Ukraine for fiscal year 2019.

The funds were intended to provide Ukraine with "training; equipment; lethal assistance; logistics support, supplies and services; sustainment; and intelligence support" as they defend themselves against their neighbor, and aggressor, Russia.

According to GAO's report, the OMB withheld the funds by making the money "unavailable for obligation," effectively pausing its availability to the DOD.

GAO also reported that that the OMB and the State Department did not provide them with all the documentation requested in their investigation. Specifically, GAO notes that the agencies provided them with "very little" information on foreign military financing over a "period of six days" in August 2019.

"We consider a reluctance to provide a fulsome response to have constitutional significance," reads the GAO's decision. "… All federal officials and employees take an oath to uphold and protect the Constitution and its core tenets, including the congressional power of the purse."

The GAO said it will renew its request for information from the State Department and OMB. "We will continue to pursue this matter."

— Kathryn Watson contributed to this report

First published on January 16, 2020 / 11:24 AM

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