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.

Finally:

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.

Is the GAO Impartial?

The latest hit on Trump’s dealings with Ukraine comes from the GAO (Government Accountability Office, formerly known as Government Accounting Office). Chrissy Clark at The Federalist has the story:

The GAO determined the Trump administration broke the Impoundment Control Act of 1974. This law creates a mechanism for the executive branch to ask Congress to reconsider a funding decision or appropriation that’s already been signed into law.

“Faithful execution of the law does not permit the President to substitute his own policy priorities for those that Congress has enacted into law. [The Office of Management and Budget] withheld funds for a policy reason, which is not permitted under the Impoundment Control act,” said Thomas Armstrong, General Counsel for the GAO.

The report also concluded that the Trump Office of Management and Budget did not provide all the information needed to fulfill their duties.

“[The Office of Management and Budget] and State have failed, as of yet, to provide the information we need to fulfill our duties under the ICA regarding potential impoundments of [Foreign Military Financing] funds,” Armstrong said.

Democratic Senator Chris Van Hollen of Maryland requested the GAO investigation in December.

“This bombshell legal opinion from the independent Government Accountability Office demonstrates, without a doubt, that the Trump administration illegally withheld security assistance from Ukraine,” Van Hollen told the Washington Post.

They key phrase in Van Hollen’s statement is that the GAO’s report is simply an “opinion.” Rachel Semmel, director of communications for the Office of Management and Budget, said the GAO’s decision has no legal baring on the Trump administration.

“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,” Semmel said.

The GAO has a long history of attempting to stay relevant in the executive branch, even long before the current impeachment of President Trump. The GAO also has a record of flip-flops. They were forced to reverse a faulty opinion on legal grounds when they opposed the reimbursement of federal employee travel costs. They have consistently rushed to insert themselves into the impeachment discussion and the OMB is hopeful they will be forced to reverse their opinion again.

Notably, the Obama administration was also at fault under the GAO’s rules. A 2014 report found Obama broke the law when he failed to notify Congress about the impending prisoner swap between Sgt. Bowe Bergdahl and five Taliban leaders.

There was no legal action taken against the Obama administration for not abiding by the GAO in 2014. That same precedent should be upheld during the Trump administration as well. The OMB and Trump administration have no legal duty to abide by the GAO and their legal opinions.

I can tell you, from experience, that the GAO is once again “attempting to stay relevant”, that is, to get the “right” answer — the answer sought by the politician who requested the investigation. In this case, the “right” answer was a finding against the Trump administration.

Almost 30 years ago, the “right” answer was a finding against a kind of think-tank known as a federally funded research and development center (FFRDC). FFRDCs are an outgrowth of the operations research groups that were formed in World War II. The groups were staffed by civilian scientists, who were given access to highly classified and sensitive information that enabled them to provide timely and objective evaluations of military systems, operations, and tactics. The perceived success of the groups led to their continuation and expansion after the war. Their privileged relationship with the various armed services was denoted by their designation as FFRDCs.

Almost everything government does is either unnecessary or wasteful. The glaring exceptions are the provision of justice (when it is in fact provided) and national defense (ditto). Until the early 1990s, FFRDCs had been an integral and valuable part of the defense effort. Their privileged relationship with the armed services enabled them to do something that I would not ordinarily admit: They were superior to private, for-profit analysis firms.

I emphasize were because something happened in the early 1990s to undermine that privileged relationship. The something was a GAO investigation, instigated by some members of Congress at the behest of the Professional Services Council, a lobbying organization that represents for-profit analysis firms.

As the chief financial officer of an FFRDC sponsored by the Navy, I — like many other FFRDC officials — had to respond to long, probing questionnaires from the GAO’s investigative team. There were subsequent interviews to probe the written answers, and I recall that my interview (in company with a Navy rep) lasted at least a few hours.

I was struck by the GAO team’s studied inability to grasp the value of the privileged relationship between FFRDCs and their sponsors. What was the relationship like? And why was it so valuable to the defense effort? To answer the first question is to answer the second one as well.

FFRDCs were “bucket funded”, meaning that most of their funding came in a lump sum instead of being fought for and won project by project The continuity of funding had several beneficial results:

  • Analysts could be hired for their analytical skills; sales skills were irrelevant. This meant, in practice, that Ph.D. and Master’s degrees in quantitative sciences were more prevalent at FFRCDs than at for-profit firms.
  • Analysts could devote their efforts to analysis instead of scrambling for new contracts, often in areas where they had no great expertise (if any).
  • Analysts could work on similar problems for long periods of time, developing expertise and accumulating valuable data along the way.
  • Clients (the offices for which particular projects were conducted) could call on analysts to address emerging issues without having to go through lengthy contracting processes.
  • Funding wasn’t controlled by clients, but by a separate office. Thus there was little if any pressure to get the “right” answers — those that the clients might have preferred.

But all of that was irrelevant to the GAO team, which was bent on emphasizing the obvious fact that FFRDCs didn’t have to compete for contracts. Regardless of the benefits of the arrangement — and the minuscule fraction of the defense budget allocated to FFRDCs — the Defense Department had to change it ways because FFRDCs had an “unfair” advantage over for-profit firms.

The rest is history: FFRDCs were forced into the mold of for-profit firms, and much of the valuable continuity and analyst-client trust was destroyed in the process. “We’re just another contractor now”, is a refrain now commonly heard at my old FFRDC.

And why? Because GAO — certainly not for the first or last time — got the “right” answer, that is, the answer sought by the congressional sponsor of the investigation.