Why the GAO’s opinion about OMB’s withholding of Ukraine security assistance is problematic (even if the conclusion is right)

When the Government Accountability Office (GAO) accused President Obama of breaking the law in 2014 when he arranged a prisoner swap with the Taliban to gain the release of then Sgt Bowe Bergdahl, it took a very different legal approach than it did when it recently accused President Trump’s adminstration of breaking the law.  Regrettably, the GAO’s analysis in both instances was problematic as too many questions are left unanswered.  Additionally, the timing of Trump case announcement predictably raised the troubling specter of partisanship.

While GAO opinions are nonbinding, they are (and should be) influential.  Consequently, unless the GAO does a better job in Presidential authority cases than what we’ve seen here, it risks eroding the legitimacy so essential to its success.

The Obama opinion

The GAO opinion about President Obama accused him, inter alia, of violating the law by failing to notify Congress before releasing the Taliban who were being exchanged for Bergdahl.  Given Obama’s Article II status as commander-in-chief, how did the GAO analyze his authority as such to extract a helpless American soldier from a hostile battlefield situation?  How about in relation to Congress’ Article I powers to regulate military and national security matters?  The frustrating answer to both questions is that it didn’t.

Instead, the GAO insisted that “It is not our role or our practice to determine the constitutionality of duly enacted statutes,” and cited some bureaucratic precedent.  In addition, it said it does not “offer any opinion on the constitutionality” of the statutory provisions in question, and asserted that “GAO is not the appropriate forum to decide the constitutionality” of the laws they were interpreting.

Instead of addressing the readily-apparent separation-of-powers issues raised by the case, the GAO provided a decidedly blinkered analysis solely of statutes that were enacted by Congress which never anticipated that they would be applied to a prisoner swap, especially one where operational security was vital, and time was of the essence.

Let’s not forget that conducting prisoner exchanges historically been a part of command in war since virtually the beginning of armed conflict – and they have been conducted by commanders throughout U.S. military history.  That’s important because scholars generally agree that “statutes that order the President to conduct warfare in a certain manner…would be unconstitutional.”

Obviously, in the Bergdahl case the President’s commander-in-chief power under Article II of the Constitution was directly implicated by a statute which was being interpreted as limiting his authority to conduct in a timely manner what has always been considered a traditional part of “the conduct of warfare.”

Thus, the legality (or illegality) of President Obama’s efforts to free a soldier captured by the enemy on an active field of battle could not possibly be resolved without engaging in an analysis of the constitutionality of the relevant statute as applied to the particulars of the President’s actions.  (In my view, President Obama acted lawfully, as I believe the statutes in question were unconstitutional as applied to the specific facts.)

The GAO can certainly adopt a policy wherein they conclude that they don’t consider the constitutionality of a given matter, but that should also mean that they don’t opine on legality in situations where determining the application of the Constitution is indispensable to an accurate legal conclusion.

Why?  Imagine if you will that some statute from the early 19th century was unearthed, one that for whatever reason escaped repeal.   Imagine further that this law condoned in some way, for example, slavery or ill-treatment of women.  The GAO’s approach as set forth in the Obama decision would dictate that they ignore the patent unconstitutionality, and draw their conclusions from the statutes alone.  It is hard to see how any such analysis would amount to competent legal advice.

The Trump opinion 

In its just-released opinion accusing the Trump administration of breaking the law, the GAO – without explanation – seems to reverse itself as to whether or not it interprets the Constitution, thus giving weight to the unflattering allegation that the GAO has arecord of flip-flops.”

Unlike the opinion in Obama’s case, in this go around it appears that the GAO decided that is was, after all, an “appropriate forum” to decide Constitutional issues.  Still, that could be good news if the issues were comprehensively and thoroughly examined, particularly since the allegations are dominating the political atmosphere.

Did they do a good job?  Take a look at how the GAO approached the Constitutional issues and decide for yourself:

“In the summer of 2019, the Office of Management and Budget (OMB) withheld from obligation funds appropriated to the Department of Defense (DOD) for security assistance to Ukraine. In order to withhold the funds, OMB issued a series of nine apportionment schedules with footnotes that made all unobligated balances unavailable for obligation.

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 “faithful execution of the laws” language the GAO uses directly references Article II of the Constitution which says that the President “shall take care that the laws be faithfully executed.”  In a December 11, 2019 letter the OMB General Counsel had a very different take on that clause by arguing that:

“[I]t is the President’s constitutional role to faithfully execute the laws. The President has an obligation to ensure that funds are being spent prudently.

The pause in obligations of the Ukraine funds at issue here is an example of programmatic delay. By its terms, OMB’s apportionment footnote expressly provided that DOD could continue all necessary activities—short of the final action obligating the funds—until there was a policy decision on the use of the funds. The statutory language of the USAI and FMF appropriations provided the Executive branch broad discretion to determine how these particular funds should be spent. It was 0MB’s understanding that a brief period was needed, prior to the funds expiring, to engage in a policy process regarding those funds. OMB took appropriate action, in light of a pending policy process, to ensure that funds were not obligated prematurely in a manner that could conflict with the President’s foreign policy.

*****

The Executive branch has a duty to taxpayers to ensure that appropriations are spent wisely, in accordance with statutory requirements. As stewards of taxpayer funds, 0MB always has and will continue to take seriously its legal duty to oversee agency spending, and apportion funds appropriately, in accordance with the ICA and all other applicable laws.”

OMB did not change this view after the GAO opinion came out.  In rejecting the GAO’s finding, an OMB spokesperson said: “[w]e 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.”

So what, if anything, was missing from the GAO’s Constitutional analysis?

The GAO concedes that the law permits OMB to withhold the fund “to provide for contingencies; to achieve savings made possible by or through changes in requirements or greater efficiency of operations; or as specifically provided by law.”  However, it rejects outright OMB’s explanation that “the withholding [was] necessary to ensure that the funds were not spent ‘in a manner that could conflict with the President’s foreign policy’.” (Emphasis added).

Importantly, the GAO makes no attempt to determine the hotly-contested legitimacy of the administration’s stated concerns about alleged Ukrainian corruption.  Instead, it simply claims in a wholly undifferentiated way that the law “does not permit deferrals for policy reasons.”

It seems then that to the GAO’s way of thinking, even if the allegations as to concerns about Ukrainian corruption were indisputably true, they would nevertheless insist that such is a mere “policy” reason, and not a permissible rationale to withhold funds.

Does “faithful execution” mandate disbursement even if the Ukrainian regime was, in fact, corrupt – or does it permit (or even require) a “brief period…prior to the funds expiring, to engage in a policy process regarding those funds”?  The GAO would evidently say “yes” to the first proposition, and “no” to the second.  My bet is that most Americans would want the reverse.

Despite its reliance on the Constitution’s “take care” clause, the GAO simply does not wrestle with the precise meaning of the phrase which has been the object of bipartisan controversy for some time (including during the Obama administration).

Put another way, assuming the administration’s contention was/is true, is a brief withholding (prior to the end of the relevant fiscal year) of millions of taxpayer dollars until the President is confident that the funds would be used appropriately (and as Congress intended) merely some “policy” or is it an essential part of the President’s constitutional “take care” duties that cannot be infringed upon by Congress?

The “foreign affairs” factor

The GAO also does not engage in any real analysis of the President’s unique foreign policy responsibilities and prerogatives.  Indeed, it doesn’t even seem to recognize that foreign policy matters can raise thorny separation-of-powers issues under the Constitution as to when and how – or even if at all – Congress can limit or condition the President’s actions related to foreign affairs.

It would seem to me that beyond the GAO’s claim about the insufficiency of OMB’s explanation, the assertion of the President’s foreign policy considerations viz-a-viz Congress’ power-of-the-purse authorities should, alone, counsel for a more in-depth examination.  After all, this is a complex and dynamic area of Constitutional law.

For example, in the 1936 case of United States v. Curtiss-Wright Export Corp. the Supreme Court famously referenced John Marshal’s 1800 speech where he called the President “the sole organ of the nation in its external relations.”  In addition, it cited an 1816 report from the Senate Committee on Foreign Relations which, among other things, said:

“The President is the constitutional representative of the United States with regard to foreign nations. He manages our concerns with foreign nations, and must necessarily be most competent to determine when, how, and upon what subjects negotiation may be urged with the greatest prospect of success. For his conduct, he is responsible to the Constitution. The committee consider this responsibility the surest pledge for the faithful discharge of his duty. They think the interference of the Senate in the direction of foreign negotiations calculated to diminish that responsibility, and thereby to impair the best security for the national safety. The nature of transactions with foreign nations, moreover, requires caution and unity of design, and their success frequently depends on secrecy and dispatch.”

More recently, in the 2015 case of Zivotofsky v. Kerry the Supreme Court for the first time explored the President’s “direct defiance of an Act of Congress in the field of foreign affairs” when it upheld his “exclusive power to grant formal recognition to a foreign sovereign.”

To be sure, Zivotofsky involved different facts than those in the GAO’s opinion about OMB, but it would still seem that there is some significant similarity as to relevant the Constitutional principles that should have been examined.

Finally, given that the case involved nearly $400 million in military aid to a nation fighting separatists back by Russia, America’s nuclear-armed rival, can we say – definitively – that the President’s commander-in-chief power is not implicated?  As Senator Lindsay Graham put it “[a]t what point does the commander in chief’s authority to control funds clash with the direction by Congress?”  Regrettably, you won’t find the answer in the GAO opinion.

All this is not to say that even a thorough unpacking of the Constitutional issues would have, ipso facto, resulted in different legal conclusions.  Rather, it is simply to point out that if the GAO is going to dive into Constitutional issues, it needs to do so far more comprehensively than it did here – particularly given the implications for the Presidency at this moment in history.  In fairness, it must also be said that it would have behooved OMB to have raised the issues more clearly and forcefully than it did.

Partisan?  Self-serving?  

The GAO styles itself as an “independent, nonpartisan agency that works for Congress.”  It is headed by the Comptroller General, Gene L. Dodaro, who was appointed by President Obama for a 15-year term in 2010.  Unfortunately, the GAO’s decision to release the opinion about a months-old matter on – literally – the eve of the impeachment trial had predictably partisan impact.

Vox stated the obvious when it observed: “[c]oming on the very day the Senate is swearing in the judge in President Donald Trump’s impeachment trial, the finding could potentially bolster Democrats’ case that the president should be convicted in its impeachment trial next week.”

The New York Times reports that House Speaker Nancy Pelosi said ““[t]his important ruling further strengthens the House’s case for impeachment and removal…”  Other pundits saw it as a “powerful indictment against the Trump White House.”  CNN cited a Democratic senator who said he “thought the GAO’s decision would become a significant part of the House’, impeachment case that’s presented in the Senate.”

Actually, as the Washington Post notes, “[n]o potential criminal penalties are associated with violating the Impoundment Control Act.”   USA Today says the GAO’s “only recourse in enforcing its legal opinion would be to file a civil lawsuit,” something that has only been done once (in 1975), and that case was dismissed.  Thus, it is uncertain how significant the GAO opinion would be or, really, should be to a question as to whether or not a sitting President should be removed.

Unsurprisingly, there has also been pushback against the GAO by the administration’s partisans.  Writing in the Federalist, Chrissy Clark said the “GAO has a long history of attempting to stay relevant in the executive branch…and that they “have consistently rushed to insert themselves into the impeachment discussion…”  That echoed the view of a “senior administration official” who told Fox News that they “believed the GAO was trying to insert itself into impeachment at a time when media attention on the matter is high.”

The Washington Post reported this slam leveled against the GAO:

The White House “complied with the law at every step,” Russell Vought, the acting director of the Office of Management and Budget, wrote on Twitter. He also criticized the GAO, saying the agency’s “opinion comes from the same people who said we couldn’t keep National Parks open during the shutdown” 12 months ago.

On a more technical level, Professor Nathaniel Cogley wrote in the Washington Examiner thatthe timing of the release of the GAO’s “decision” is not the only questionable aspect about it.”  (Hyperlink in original).  Cogley indicates that it was the GAO, not OMB who “dropped the ball.”  He also suggests that the GAO’s “logic” was self-serving in that it was aimed at “exonerating its director from a legal requirement.”

“[The law] 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.”

Republican Representative Tom Cole notes that the “aid got there within the fiscal year,” and this may have legal significance.  Even Politifact concedes that “Experts told us the fact that the aid was eventually released complicates the issue slightly.”  George Mason University Professor James Pfiffner admits that “It might be argued that the law would not actually be broken until Oct. 1, the beginning of the (2020) fiscal year.”  USA Today says that even the prospects for a civil “lawsuit would be uncertain, partly because the Trump administration released the funding to Ukraine.”  Look for yourself, but did the GAO even address these legal issues?

In any event. the GAO’s timing – along with its stinted research and its quarrelsome writing style – does not evoke the sort of methodical and objective analysis produced by other administrative agencies such as the Congressional Research Service, a highly-respected legislative branch agency within the Library of Congress with the mission to provide “policy and legal analysis to committees and Members of both the House and Senate, regardless of party affiliation.”

Unhappily, the GAO’s current approach inevitably invites the perception (if not the fact) of partisanship at exactly the time the nation doesn’t need more polarization.

Final thoughts

The GAO can and should play a vitally important role in, as it says itself, providing “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.”

However, in carrying out that mission, the GAO needs to do a more nuanced and significantly more thorough job with its legal opinions in every case, but particularly with respect to controversial and complex cases, expected to get wide public scrutiny in a hyper-politicized environment.  GAO opinions in such cases today are not simply green eyeshade memos or directives, but potentially headline-provoking statements that can be politically weaponized to have an impact much beyond the actual matter in dispute. 

Accordingly, the GAO needs to better appreciate that an opinion in such cases that is filled with conclusory statements is not helpful to the body politic.  Issues need to be explained in a deliberate way that respectfully acknowledges different views, and walks the reader through the rationale for its finding.   The GAO ought to recognize that it isn’t a court or a law enforcement agency, and avoid a polemical tone in favor of a dispassionate and factual narrative.  What might such opinions look like?  Again, the Congressional Research Service reports could be something of a model (see e.g., here).

Should GAO’s legal opinions include evaluating the application of the Constitution?  Absolutely.  In fact, with respect to the President’s foreign policy and/or commander-in-chief powers, it’s hard to see how it could be avoided.

Still, if – for whatever reason – the GAO decides (as it did in the Obama opinion) that it isn’t the appropriate forum to address constitutional issues, it ought to refrain from issuing legal opinions or, at a minimum, frame them to make it more clear to the public at large the very the limited scope of their inquiry.

Of course, it is inevitable that GAO will issue opinions that are contentious; in fact, we should be concerned if they never are.  That said, the GAO needs to be extraordinarily sensitive to creating the impression of partisanship, and in that regard it ought to recognize that timing does matter.  For an organization with a mission like the GAO, it’s essential that the fact or appearance of partisanship be scrupulously avoided.  In this respect, the GAO has not helped itself with its recent opinion.

Still, as we like to say on Lawfire®, check the facts and the law, assess the arguments, and decide for yourself!

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