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Legal ruling on withheld Ukraine aid could shake up impeachment trial

Paul M. Krawzak, CQ-Roll Call on

Published in News & Features

WASHINGTON -- Congress' investigative arm may be about to add a new wrinkle into the Senate's impeachment trial of President Donald Trump sparked by the nearly two-month holdup of Ukraine security assistance last year, which Democrats charge Trump orchestrated to extract political favors.

As early as this week, the Government Accountability Office could release its legal opinion on whether Trump and senior White House officials violated the Nixon-era budget law that requires executive branch agencies to spend appropriated funds according to lawmakers' wishes.

Sen. Chris Van Hollen, D-Md., who initially requested the GAO ruling last year, said he believes that Trump violated the 1974 law aimed at preventing such presidential "impoundments." But he wouldn't go so far as to label that an impeachable offense.

"The House charges of abuse of power do not relate directly to the (1974 budget law), they relate to the president of the United States improperly using taxpayer funds to ... pressure Ukraine into interfering in the 2020 election on his behalf," he said. "But look, this is all part of the picture that's being painted. But I don't want to elaborate further until we see what the GAO opinion is."

Nevertheless, in a Dec. 23 letter to GAO, Van Hollen wrote that Trump's withholding of the aid was illegal and part of a "scheme" to, as the House impeachment inquiry charged, "use the powers of his office to solicit foreign interference on his behalf in the 2020 election."

Speaker Nancy Pelosi, D-Calif., in a letter Friday announcing she planned to transmit the two House-adopted articles of impeachment this week to the Senate, cited concerns voiced by some Pentagon and Office of Management and Budget officials about possible violations of the 1974 budget law.

 

The hold was formally initiated July 25, the day of Trump's now-infamous "do us a favor, though" call with Ukrainian President Volodymyr Zelenskiy. While the letter was initially signed by Mark Sandy, a career OMB official, it was renewed several times by a political appointee, Michael Duffey, which budget veterans have said is highly unusual. Sandy testified in private before House investigators in November that two OMB officials resigned over the aid holdup, at least in part due to concerns about potential budget law violations.

Late last year, Democrats renewed their calls for administration officials including Duffey to testify before Congress, citing newly unearthed communications between top OMB and Pentagon officials they say buttress their argument.

In one instance, the Pentagon prepared a draft letter saying the Defense Department had repeatedly warned OMB that if the hold continued beyond Aug. 19, it would jeopardize the department's ability to obligate the funding by Sept. 30. Since the money was expiring at the end of the fiscal year, if the department couldn't get the money out the door, it would disappear, potentially putting the agency in violation of the 1974 law.

Ultimately the funds were released on Sept. 12, but the Pentagon still couldn't obligate $35.2 million of its $250 million fiscal 2019 Ukraine military assistance appropriation in time; Congress had to extend the funds' availability in a stopgap funding law. The remaining $141.5 million in State Department foreign military financing funds were obligated on time.

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