By Noah Rothman
Friday, January 17, 2020
On Thursday, the Government Accountability Office
completed a nine-week investigation into the legality of the Trump
administration’s unexplained hold on nearly $400 million in congressionally
authorized security assistance to Ukraine. Their findings are, to say the
least, unhelpful for the administration.
Congress’s nonpartisan watchdog found that the Office of
Management and Budget’s efforts to waylay Ukrainian aid, which its officials
undertook with “clear direction from POTUS,” was “not a programmatic delay.”
The GAO continued: “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 president’s actions constitute a violation of the 1974
Congressional Budget and Impoundment Control Act.
Conservatives were quick to point out that this wasn’t
the first time in recent memory that the GAO had accused a president of
engaging in nominally illegal activities. In 2014, the agency accused the Obama
administration of violating the law by failing to notify Congress’s relevant
committees of a deal it struck with the Taliban to exchange five of its
detained leaders for Army Sgt. Bowe Bergdahl. The GAO’s accusation was
dismissed by the Obama White House, and media outlets downplayed its
significance.
At first blush, this observation speaks well of the
conservative movement. There was almost no Democratic outcry when the Obama
administration violated Congressional prerogatives in the Bergdahl case (or,
for that matter, when the Obama White House usurped congressional authority to
delay the implementation of Obamacare or unilaterally extend legal status to
illegal immigrants—two infractions for which Republicans successfully sought
satisfaction from the courts). It seems, however, that this history lesson was
not provided in an effort to remind the right’s critics of their consistency
but as an excuse to engage in some hypocrisy of their own. If, as conservatives
who made the comparison seem to suggest, the Obama administration’s actions
were demonstrably illegal, what does that say about Trump? How should Congress
seek to remedy this infringement on its constitutional authority?
In the months that have passed since the GAO opened its
probe into the allegations against Trump, the public has learned much more
about the sequence of events that culminated in the president’s impeachment.
Much has changed, including the general disposition of Trump’s Republican
defenders. The facts of the case against the president are, by and large, no
longer credibly in doubt. While most Senate Republicans expressed no
dissatisfaction with Trump’s handling of U.S. relations with Ukraine, a sizable
minority described his behavior as “inappropriate,” “appalling,” and an
exercise in “poor judgment.” “If you could show me that Trump actually was
engaging in a quid pro quo, outside the phone call, that would be very
disturbing,” Sen. Lindsey Graham told Axios reporters in October. Indeed.
While “big, if true” sufficed at the time, the
intervening months have all but closed off that avenue of defense. And while it
is true that House Democrats rushed the process—a dereliction to which they
tacitly admit by seeking to slow the process down in the Senate—Republicans
cannot simultaneously argue that Democrats left crucial evidence on the table
while also refusing to seek it out themselves. What’s left to Republicans are
process arguments.
The GOP’s effort to focus exclusively on the methods by
which the president was impeached rather than the impeachment’s basis is aided
by Speaker Nancy Pelosi’s similarly myopic fixation on Senate procedure.
Nevertheless, a general refusal to engage on the merits of the president’s
conduct leads observers to conclude that his actions are not particularly
defensible.
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