By Andrew Duehren
WASHINGTON -- The Trump administration didn't have the legal authority to put on hold millions of dollars in security assistance to Ukraine, Congress's nonpartisan watchdog found, adding more scrutiny to the funding freeze last summer that led to the impeachment of President Trump.
In its decision Thursday, the Government Accountability Office wrote that the Office of Management and Budget improperly froze the money for policy reasons.
"Faithful execution of the law does not permit the President to substitute his own policy priorities for those that Congress has enacted into law," GAO wrote.
The GAO, which falls under the legislative branch, doesn't enforce penalties for its legal decisions, leaving any possible follow-up to Congress. In the past, Congress has included language in spending bills requiring reports or hearings on compliance with budgetary law, or tied funding for other issues to following the law.
The Office of Management and Budget has repeatedly defended the legality of the hold, arguing that it was necessary to allow the administration to review the security assistance. In a letter to GAO in December, Mark Paoletta, OMB's general counsel, said that the administration had the legal authority to hold the funds, which were released in mid-September.
"We disagree with GAO's opinion," Rachel Semmel, a spokeswoman for OMB, said in a statement. "OMB uses its apportionment authority to ensure taxpayer dollars are properly spent consistent with the President's priorities and with the law."
Mr. Trump and members of the administration have said that the hold was in place because of concerns about corruption in Ukraine and questions about how much money other countries were contributing to Ukraine, which is battling pro-Russian forces. The Defense Department had previously certified that Ukraine had taken sufficient steps toward combating corruption to receive the funds.
Democrats, in their impeachment investigation, charged that Mr. Trump froze the aid as part of his effort to pressure Ukraine to open investigations that would benefit him politically.
The Democratic-controlled House passed two articles of impeachment, one focused on abuse of power and the other on obstructing Congress, in December. The GOP-led Senate, which is expected to acquit Mr. Trump of the charges, on Thursday opened a trial to consider them.
Meanwhile, Ukrainian authorities opened a criminal probe into whether American citizens placed the U.S. ambassador to Ukraine under surveillance, as text messages suggest, before she was removed from her post last year.
The GAO opinion, signed by GAO General Counsel Thomas Armstrong, found that the freeze on $214 million in Defense Department funding for Ukraine didn't meet the legal standards for the administration to freeze the funds.
Under the Impoundment Control Act, the president can freeze funding in limited circumstances, including if it is to help programs run more efficiently. GAO also said that the administration didn't follow the legal procedures for notifying Capitol Hill of the hold.
"OMB did not identify -- in either the apportionment schedules themselves or in its response to us -- any contingencies as recognized by the ICA, savings or efficiencies that would result from a withholding, or any law specifically authorizing the withholding," Mr. Armstrong wrote.
Under the ICA, which was enacted in 1974, the president may formally ask Congress to defer or rescind funds -- for example, if an agency can't spend the funds before the end of the fiscal year, or decides the funds are no longer needed immediately -- but ultimately the decision rests with lawmakers, said William Hoagland, a former Republican staff director for the Senate Budget Committee.
Enforcement of the law, Mr. Hoagland said, is mainly a matter of embarrassing those found to have violated it. He said he didn't know of anyone ever facing criminal prosecution for a violation.
Responding to Mr. Paoletta's justification for the hold, GAO wrote that "OMB's assertions have no basis in law."
GAO said it was continuing to review the hold on State Department foreign military financing for Ukraine.
"OMB 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," the report said.
House Appropriations Chairwoman Nita Lowey (D., N.Y.) said that her committee was pursuing a package of reforms to prevent similar situations in the future.
"Given that this illegal conduct threatened our security and undermined our elections, I feel even more strongly that the House has chosen the right course by impeaching President Trump," she said in a statement.
Sen. Mike Rounds (R., S.D.) said that the GAO decision didn't change his thinking on whether the Senate trial should have witnesses. He noted that OMB should formally notify Congress when it freezes funding.
"In the future I would expect OMB would change it and give the appropriate notices," he said.
Top Democrats, including Senate Minority Leader Chuck Schumer (D., N.Y.) and House Speaker Nancy Pelosi (D., Calif.), said the GAO opinion underscored the necessity of the Senate reviewing documents and hearing from witnesses during the trial.
Sen. Patrick Leahy (D., Vt.) the top Democrat on the Senate Appropriations Committee, criticized the administration for holding the funds.
"I've been here since President Ford, Democratic and Republican presidents, and I have never seen such a damning report as that," he said.
Some Senate Republicans were critical of GAO's ruling, while others said it was problematic only for OMB, not Mr. Trump.
"It's the Office of Management and Budget, with whom I've had a few disagreements over the years about withholding money that's been appropriated by Congress," said Sen. John Cornyn (R., Texas). "I think we're going to hear some more about it. But I don't think that changes anything."
Sen. Rand Paul (R., Ky.) said the administration was well within its rights to hold the money.
Sen. Richard Shelby (R., Ala.), the chairman of the Senate Appropriations Chairman, criticized the GAO for what he said was overreaching. "They shouldn't be deciding who broke the law," he said.
The GAO opened its review after Sen. Chris Van Hollen (D., Md.) asked about the legality of the hold at an October hearing with U.S. Comptroller General Gene Dodaro, who leads the office.
In the weeks after the beginning of the funding freeze, officials at OMB and the Pentagon raised questions about whether the administration had the legal authority to indefinitely suspend money approved by Congress.
Mark Sandy, a career budget staffer, told impeachment investigators that he immediately flagged legal questions about freezing aid to Ukraine when Mike Duffey, his boss and a political appointee, instructed him to do so in July.
After consulting with lawyers at OMB and the Defense Department, Mr. Sandy signed the paperwork for the first pause on the security assistance.
Mr. Duffey, a former Pentagon staffer and executive director of the Wisconsin Republican Party, subsequently began signing the paperwork for apportioning funds in his portfolio and kept the Ukraine aid on hold. Mr. Schumer is seeking Mr. Duffey's testimony during the Senate trial.
Mr. Sandy told investigators he had never seen a political appointee take responsibility for signing apportionments before.
In the paperwork executing the funding freeze, OMB allowed the Defense Department to continue to prepare to spend the funds while not actually releasing them. Pentagon officials repeatedly warned that the hold could prevent them from spending the money before it expired at the end of the fiscal year on Sept. 30.
Congress ultimately included a provision in a short-term spending bill passed in September preventing roughly $30 million in unspent funds from expiring.
Siobhan Hughes and Kate Davidson contributed to this article.
Write to Andrew Duehren at firstname.lastname@example.org