In the impeachment hoax, Democrats are illegally using taxpayer funds to manipulate the 2020 election. We are watching a Democrat Party campaign event set in the U.S. Capitol. This is the best version of a Trump rally Democrats can manage.
Yet it requires a scramble to handle the latest surprises. I hate last-minute "bombshells" because the timing deprives the accused of the time and ability to properly respond. Springing last-minute surprises is fundamentally unfair.
On January 16, 2020, just as the U.S. Senate and the Chief Justice were kicking off an impeachment trial, GAO, an agency of the U.S. Congress, suddenly issued a false and erroneous report:
Decision -- Matter of: Office of Management and Budget—Withholding of Ukraine Security AssistanceFile: B-331564 Date: January 16, 2020
Curiously, however, the GAO's Decision is almost identical to at least one opinion column by a law professor (in substance but paraphrased and more precisely written). George Washington University of Law Professor Alan Morrison's article on "the Budget Control and Impoundment Act was published at Bloomberg Law way back on October 14, 2019.
If you compare the two side-by-side, the GAO's report satisfies a much more technical format. But it looks like the GAO just plagiarized the substance from Prof. Morrison. If you read Morrison first, reading the GAO "Decision" feels like déjà vu.
A "BRIEF PAUSE" IS NOT WITHHOLDING NOR DEFERRAL
The GAO accuses the Office of Management and Budget (OMB) of violating the Budget Control and Impoundment Act. Specifically, GAO says that the Trump Administration violated the terms of a deferral under 2 U.S. Code.§ 684.Proposed deferrals of budget authority.
President Trump is accused of "withholding" funds appropriated by Congress as a gift to Ukraine for 58 days. The Budget Control and Impoundment Act regulates some of the federal budgeting process.
Now mind you the Congress has not complied with the federal budgeting process for years. When it comes to violating the Budget Control Act, the Congress is in a stupor in a heroin den while Trump is accused of jay-walking.
The Act (among many other things) allows the Administration to cancel (rescind) a federal appropriation or to defer an expenditure. So the President does have the power to rescind or defer. But the Act does requires that the President notify Congress under 2 U.S. Code § 684 if the Administration proposes to (1) rescind an appropriation or (2) defer the spending of federal appropriations.
The GAO alleges that Trump's OMB deferred our gift to Ukraine but didn't notify Congress. The GAO also alleges that the OMB did not have a permissible reason for a deferral. However, the GAO also whines a lot about wanting more information. So the GAO admits (if you really read between the lines) that they don't actually know what they are claiming. They are going with the information they have, which they admit is not enough.
A "BRIEF PAUSE" IS NOT WITHHOLDING NOR DEFERRAL
One crucial error is found on page 3 of the GAO "Decision" (of 8):
On July 25, 2019, OMB issued the first of nine apportionment schedules with footnotes withholding USAI funds from obligation. OMB Response, 1–2. This footnote read:
"Amounts apportioned, but not yet obligated as of the date of this reapportionment, for the Ukraine Security Assistance Initiative (Initiative) are not available for obligation until August 5, 2019, to allow for an interagency process to determine the best use of such funds. Based on OMB's communication with DOD on July 25, 2019, OMB understands from the Department that this brief pause in obligations will not preclude DOD's timely execution of the final policy direction. DOD may continue its planning and casework for the Initiative during this period."
But a "brief pause" does not qualify as a deferral so as to come within the requirements of 2 U.S. Code § 684. A brief pause from when? There was no deadline or expected date for disbursement.
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BRIEF PAUSE IS NOT DENIAL
The GAO gives its argument away. The OMB announced a "brief pause." But that phrase clearly is not expressing any intention to deny disbursement of the funds. If that needed to be any more clear, the OMB also said that this "will not preclude DOD's timely execution of the final policy direction." And the OMB also said: "DOD may continue its planning and casework for the Initiative during this period."
The "brief pause" was clearly not a decision that the funds would not be released. This "brief pause" was simply "We are working on it. Don't rush us. Give us a moment. Hang on a sec." And this language was not secret. It was widely available throughout our government.
Therefore, merely taking some extra time to get it right is not a "deferral." Because the OMB and Administration never arrived at a decision there was no deferral. "We're thinking about it" is not a decision. A deferral is an intentional act. "We are thinking about it" or "We are working on it" is not a decision to refuse spending funds.
A DEFERRAL IMPLIES A DECISION -- NOT PROCESSING DELAYS
A "deferral" is insufficiently defined in 2 U.S. Code § 682 through 688. But deferral implies an intentional decision. The definition must be read in context of what the law-makers understood about the budgeting and federal funds process. Congress understood that:
Federal funds are never spent the day that Congress votes.
There is no deadline for the spending of federal appropriations unless explicitly specified.
There are dozens sometimes hundreds of steps required by the bureaucracy from the time that Congress votes and the President signs a spending bill until the money actually goes out the door. That's the norm.
There can be many months or years before money is actually sent to the recipient, sometimes in installments.
The processing time by the bureaucracy is not a standard or known length of time. There is no expectation that money will go out the door at any particular time. Just because Congress appropriated funds doesn't create any expectation for when money will get distributed (unless Congress adds a deadline).
Deferral does not mean just the processing time within the bureaucracy
Deferral is an intentional act -- not we are working on it, gives us a moment.
CONGRESS RESCINDED THE APPROPRIATION:
Then GAO gives away its argument again. Incredibly, the GAO "Decision" reveals that Congress actually rescinded the appropriation in question.
OMB removed the footnote from the apportionment for the USAI funds on September 12, 2019. OMB Response, at 2. Prior to their expiration, Congress then rescinded and reappropriated the funds. Continuing Appropriations Act, 2020, Pub. L. No. 116-59, div. A, § 124(b), 133 Stat. 1093, 1098 (Sept. 27, 2019).
Because the Ukraine appropriation was rescinded by Congress -- legally what happened earlier is largely moot. This undermines the accusations.
Jonathon Moseley is co-founder and Legal Counsel of Americans for the Trump Agenda, and Executive Director of the White House Defense Fund. Moseley is serving as Legal Counsel for Americans for the Trump Agenda, and is also a Virginia business and criminal defense attorney. Moseley and a co-host with the “Conservative Commandos” radio show, and an active member of the Northern Virginia Tea Party. He studied Physics at Hampshire College, Finance at the University of Florida and law at George Mason University in Virginia. Moseley promoted Reagan’s policies at High Frontier and the Center for Peace in Freedom. He worked at the U.S. Department of Education, including at the Center for Choice in Education.
In the impeachment hoax, Democrats are illegally using taxpayer funds to manipulate the 2020 election. We are watching a Democrat Party campaign event set in the U.S. Capitol. This is the best version of a Trump rally Democrats can manage.
Yet it requires a scramble to handle the latest surprises. I hate last-minute "bombshells" because the timing deprives the accused of the time and ability to properly respond. Springing last-minute surprises is fundamentally unfair.
On January 16, 2020, just as the U.S. Senate and the Chief Justice were kicking off an impeachment trial, GAO, an agency of the U.S. Congress, suddenly issued a false and erroneous report:
