A Footnote to “Is the GAO Impartial?”

Yesterday I argued — based on experience — that the GAO’s about the illegality of withholding of military aide to Ukraine was politically expedient. Today, along comes Josh Blackman of The Volokh Conspiracy with this take:

The decision does not conclude that President Trump violated the ICA with respect to the withholding of funds. GAO did not, and indeed could not, find that President Trump personally violated the ICA with respect to withholding the funds….

[D]id GAO provide any evidence to show that President Trump personally directed his subordinates to withhold the funds? I hesitate before concluding that the President ordered his subordinates to violate the law, when there is a dispute about what exactly the law requires. Several people have cited Mick Mulvaney’s press conference, wherein he relayed a conversation with President Trump:

Mulvaney: “(Trump’s) like, ‘Look, this is a corrupt place. I don’t want to send them a bunch of money and have them waste it, have them spend it, have them use it to line their own pockets. Plus, I’m not sure that the other European countries are helping them out either.’

This is not evidence that Trump ordered his subordinates to withhold any funding. Trump merely expressed an opinion that he didn’t want to send money to Ukraine, which he viewed as a corrupt country….

Third, did GAO provide any evidence to show that President Trump directed his subordinates to deliberately violate the ICA? This question is premised on a disputed legal issue: was the withholding of certain funds, for some period of time, a violation of the ICA….

Four, did GAO find that President Trump violated the Constitution’s Take Care Clause? No. The decision states, “Faithful execution of the law does not permit the President to substitute his own policy priorities for those that Congress has enacted into law.” Did Trump violate the Take Care Clause? GAO will not say, but they are all too happy to insinuate a constitutional ruling. This driveby dictum is entirely unsupported.


There are … unresolved factual questions: (1) what precisely the President did, (2) what he intended to do, (3) when did he do it, (4) what were the consequences (if any) of those decisions, and finally, (4) what were the likely consequences to follow when those decisions were taken. But GAO has not come close to resolving these factual issues or analyzing the complex legal issues in this situation. And it was truly reckless for GAO to suggest otherwise. They offered only a threadbare constitutional analysis, during this heated and polarized time, hours before the impeachment trial began.

Case (against GAO) closed.