Klein: Why the GAO’s Ruling on Trump Ukraine Aid Doesn’t Help the Impeachment Case

WASHINGTON, DC - DECEMBER 10: Speaker of the House Nancy Pelosi (D-CA) (C) listens as House investigative committee chairs Rep. Adam Schiff (R) (D-CA) and Rep. Jerry Nadler (L) (D-NY) announce the next steps in the House impeachment inquiry at the U.S. Capitol December 10, 2019 in Washington, DC. The …
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The Democrats in recent days have quickly latched on to the U.S. Government Accountability Office’s claims about President Trump’s hold on military aid to Ukraine, making the disputed charge a centerpiece of their impeachment campaign.

Never mind the GAO’s charge that Trump’s temporary hold on Ukraine aid violated the Impoundment Control Act would only amount to a civil issue and not a criminal offense even if Trump were found to have violated the act. Trump’s defenders, including lawmakers and attorneys, have argue the GAO’s ruling is inaccurate and the Constitution grants the president broad authority on matters of foreign policy.

Still, the GAO’s only remedy would be to sue the administration to release the aid — and even that can’t be done since the Ukraine aid package has already been released.

The Democrats are also entirely ignoring that the GAO has similarly lobbed accusations against previous U.S. presidential administrations for decades, even charging the Obama administration with violating two laws in its talks with China.  Previous GAO charges were routinely dismissed and were not utilized to take further action against other administrations.

Yet in the case of Trump, Democrats are treating the GAO charge as gospel, escalating the agency’s conclusion to an impeachable offense. This after Democrats’ previous arguments against Trump have collapsed, including disproven claims of collusion between Russia and Trump’s 2016 presidential campaign and charges of obstruction of justice despite the Trump administration’s cooperation with the Special Counsel’s Russia probe.

In the case of Ukraine, the Democrats have been painting a misleading timeline of the Trump administration’s withholding of aid, which was actually publically announced a full seven days prior to Trump’s July 25 phone call with Ukrainian President Volodymyr Zelensky.

Seven days ago and a mere hours before Trump’s impeachment trial in the Senate commenced, the GAO claimed the White House’s Office of Management and Budget violated the Impoundment Control Act by withholding $400 million in aid to Ukraine this past summer.  The law restricts a president’s ability to withhold funds already allocated by Congress unless the executive branch gets approval from Congress to do so.

Senator Richard C. Shelby, chairman of the Appropriations Committee, questioned the “suspicious timing” of the report while the GAO denied any political considerations were at play.

In his remarks yesterday at the Senate trial, Rep. Jerry Nadler repeatedly referenced the GAO report in arguing for impeachment.

Rep. Adam Schiff similarly cited the GAO report during his opening arguments on the Senate floor yesterday.

“We have seen that over the past few weeks, new evidence has continued to come to light as the Nonpartisan Government Accountability Office has determined that the hold on military to Ukraine was illegal and broke the law,” Schiff claimed.

Axios reported the GAO report was taking on heightened importance in the Democrat’s impeachment strategy. “This is a big part of our case,” a Democratic leadership aide told the news website. “It shows the extent to the president went to advance his scheme; he went so far to break the law. It’s an important piece of evidence and only adds to the mountain and body of evidence that we already have.”

Sen. John Cornyn disputed the GAO’s findings. “[It’s] certainly not a crime and something that no one had ever dreamed in the past would have risen to the level of impeachment,” Cornyn told CBS’s “Face the Nation.”

Alan M. Dershowitz, who is representing Trump in the impeachment case, argued the GAO’s conclusions are flawed.

Writing at the Gatestone Institute, Dershowitz opined:

U.S. Government Accountability Office (GAO) has gotten the constitutional law exactly backwards. It said that the “faithful execution of the law” — the Impoundment Control Act—”does not permit the president to substitute his own policy priorities for those congress has enacted into law .” Yes, it does — when it comes to foreign policy. The Constitution allocates to the president sole authority over foreign policy (short of declaring war or signing a treaty). It does not permit Congress to substitute its foreign policy preferences for those of the president.

To the extent that the statute at issue constrains the power of the president to conduct foreign policy, it is unconstitutional.

He continued:

Even if the GAO were correct in its legal conclusion — which it is not — the alleged violation would be neither a crime nor an impeachable offense. It would be a civil violation subject to a civil remedy, as were the numerous violations alleged by the GAO with regard to other presidents.

If Congress and its GAO truly believe that President Trump violated the law, let them go to court and seek the civil remedy provided by the law.

Meanwhile, Democrats hardly batted an eyelash when the Obama administration was accused by the GAO of violating the law in its dealings with China.

“In the opinion, we determined that OSTP violated a statutory provision prohibiting the agency from using its appropriations for bilateral engagements with China or any Chinese-owned company,” explained managing associate general counsel of the GAO Thomas H. Armstrong in written testimony on Nov. 2, 2011.

“Because no funds were available for such purpose,” Armstrong further testified, “OSTP’s actions also violated the Antideficiency Act, a fiscal statute central to Congress’s power of the purse.”

The New York Post provided the following summary of previous GAO charges against U.S. administrations going back decades, none of which ever amounted to anything close to impeachment:

During the Ronald Reagan years, the GAO panned the Republican president’s administration for using “covert propaganda activities” to tilt public opinion in favor of its backing of rebels fighting the socialist regime in Nicaragua.

Bill Clinton’s Democratic administration was hit by the GAO for haphazard bookkeeping that led to dozens of staffers banking unearned wages to the tune of thousands of dollars.

Republican George W. Bush’s White House ran afoul of the law by allowing private health insurance companies to restrict patients’ coverage options during a trial program with Medicare, the GAO ruled in 2004.

The Bush administration was slapped again in 2008 by the GAO for undermining the federal Environmental Protection Agency’s efforts to evaluate the danger of toxic chemicals by giving undue sway to outside bodies including the Pentagon and NASA.

The Post further cited a 2014 GAO ruling that the Obama White House’s prisoner swap with the Taliban was illegal since Congress wasn’t sufficiently notified. Also the GAO ruled against the rollout of ObamaCare.

Aaron Klein is Breitbart’s Jerusalem bureau chief and senior investigative reporter. He is a New York Times bestselling author and hosts the popular weekend talk radio program, “Aaron Klein Investigative Radio.” Follow him on Twitter @AaronKleinShow. Follow him on Facebook.

Written with research by Joshua Klein.


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