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Another Deep State Smear Of Trump

GAO Ukraine
The Government Accountability Office (GAO) said in a report issued yesterday that the Trump administration violated federal law in withholding security assistance to Ukraine. You can read the statement and the full report through this link but you should take it for the politically motivated smear that it is if you do.

The GAO issued the legal decision concluding that the Office of Management and Budget violated the law when it withheld approximately $214 million appropriated to DOD for security assistance to Ukraine. 

The GAO claims the President has narrow, limited authority to withhold appropriations under the Impoundment Control Act of 1974.  The Trump Office of Management and Budget 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 law does not permit OMB to withhold funds for policy reasons claimed the GAO in its report.

First of all, the Impoundment Control Act of 1974 is not the only law that Congress has passed that bears on when and if security assistance to Ukraine can and should be released. P.L. 114-328, the FY2017 NDAA requires that to spend more than half of the authorized funds, the Department of Defense, in coordination with the State Department, must certify that certain anti-corruption reforms have taken place. The eligible amount has varied based on authorizations, but, for FY2019, $125 million was subject to certification.

While DOD and State had issued certifications in July of 2018 and May of 2019 there is nothing that says the Trump administration could not decertify Ukraine if it found or suspected backsliding in the country’s anti-corruption efforts – indeed it very well might have been obligated to do so.

And there was ample evidence to support such suspicions.

CNBC reported in March 2019 that a decision by Ukraine’s constitutional court to row back on a key anti-corruption law may have repercussions for the country’s relationship with the International Monetary Fund (IMF).

Holly Ellyat reported that Ukraine’s constitutional court rejected an anti-corruption law that would have made the illegal enrichment of officials a criminal act, according to a state news agency. And the decision cannot be appealed.

Got that – the country’s top court says the illegal enrichment of public officials is not a crime, but Democrats say it is a crime to withhold funds that could be diverted to illegally enrich the non-criminal Ukrainian public officials.

Plus, there’s another angle to this that the GAO and the Democrats’ media lackies seem to be conveniently ignoring: the aid wasn’t actually withheld.

The National Defense Authorization Act allocates security assistance funds by fiscal year, and the federal fiscal year with the authorization in question started on October 1, 2018 and ended on September 30, 2019.

And, as David Welna reported for NPR, “One thing all parties in the impeachment saga can agree on: $391 million in security assistance earmarked for Ukraine was withheld this past summer by the Trump White House and released on Sept. 11.”

There’s absolutely nothing in the law we could find that says when the funds have to be released. There’s nothing that says the Administration has to run out and obligate the funds on the first day of the Fiscal Year, so it could be 11:59 p.m. on Sept. 30 and it would not be “impounded” according to the Impoundment Control Act of 1974, as long as the money was spent or obligated before the end of the Fiscal Year.

However, the GAO got an opening to accuse the Trump administration of breaking the law because the end result of what some have called the “slow walking” of the release of the security assistance to Ukraine was that $35 million out of $391 million did not get obligated before the end of the Fiscal Year, but was this the result of a deliberate policy or a function of the ponderously slow Pentagon bureaucracy?

Nobody can say, plus, OMB has argued the hold was appropriate and necessary.

“We disagree with GAO's opinion. OMB uses its apportionment authority to ensure taxpayer dollars are properly spent consistent with the President's priorities and with the law," said OMB spokeswoman Rachel Semmel.

Ms. Semmel is right; everyone in Washington knows that not every penny appropriated by Congress gets spent – despite the fact that bureaucrats engage in a feverish spending spree as the end of the fiscal year approaches.

The Pentagon spends more than $2 billion every day, that’s more than $1 million every minute and plenty of Americans would like to see that number go down. To claim the President broke the law because the Pentagon couldn’t spend $35 million in 19 days is nothing but a political smear.

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The President determines foreign policy

The Constitution gives no foreign-policy authority to Congress. That's the exclusive territory of the President. They couldn't legally say anything about moving the embassy in Israel to Jerusalem. If their law says that foreign aid funds cannot be disbursed without the President first certifying that they will not be used for corrupt purposes, how and when the President does that is entirely up to the President.

Policy on spending

The law does not permit OMB to withhold funds for policy reasons claimed the GAO in its report. I guess this means that a president cannot veto a spending bill based on policy!? What utter nonsense. The GAO's job is to advise congress. OMB is responsible for advising the president. GAO needs to mind it's own business.

GAO comments

For the GAO to say that it is wrong for the president to "substitute his own policy priorities" over those of what Congress has passed goes against the Constitution's separation of powers. The president is in charge of foreign policy, not Congress. It doesn't matter what Congress says in the way of foreign policy, other than declaring war. Everything else when it comes to foreign policy is up to the president. It is his foreign policy to do with as he wishes. Period.