I can’t GAO for that

With the impeachment trial impending, the Government Accountability Office released its “opinion” that President Trump’s brief hold on aid to Ukraine was “illegal.” It is the sort of perfectly timed hit from the deep state that has become so predictable it should produce groans, if not disgust. Whatever, I doubt it is to be taken at face value. Alan Dershowitz argues in the valuable Gatestone column, for example, “Trump Had Right to Withhold Ukraine Funds: GAO is Wrong.” Here are the bullet points of Dershowitz’s column:

• 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.

• 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.

James Freeman took a whack at the thing in the WSJ’s Best of the Web column “What did GAO staff know and when did they know it?” Freeman provided the text of an illuminating email from a former member of Congress:

The opinion is not what section 686 requires. This brief statutory section mandates that GAO report on a deferral of budget authority that the president has failed to notify Congress about. The purpose of this mandate on GAO is to let Congress know in a timely way, so that Congress can do something about the withholding of funds (i.e., make sure that they are spent as required by law).

In order for this statutory provision to do any good, GAO needs to let Congress know within weeks, not months or years. Appropriations are annual. The fiscal year ends September 30. The Impoundment Control Act gives Congress 45 days after notification to veto a deferral.
Under section 686 GAO “shall” make a report on the deferral to both Houses of Congress. The GAO report then operates as if it were the required notification from the President. That gives Congress 45 days to act (or, if the notice comes with less than 45 days remaining in the fiscal year, until September 30).

Here, by not acting until the fourth month of the following fiscal year, GAO failed to do what section 686 requires.

This last point gives rise to the pointed headline for Freeman’s column.

Although Freeman’s column is behind the Journal’s paywall, the Journal posted it with the accessible video below.

While we’re at it, you may want to use the video below for the soundtrack of this post. It can’t do any harm and it might even improve your mood.

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