While the Ukraine scandal has revealed a variety of abuses of power, there is one particular way in which Trump and his administration might have broken the law, when on his orders the administration withheld military aid to Ukraine that had been appropriated by Congress in what we now know is an attempt to coerce Ukraine into announcing an “investigation” that would smear Joe Biden.
The Government Accountability Office, the federal government’s independent auditor, released a judgment saying Trump did in fact break that law when through the White House’s Office of Management and Budget (OMB) he withheld the aid from Ukraine in the summer of 2019:
Faithful execution of the law does not permit the President to substitute his own policy priorities for those that Congress has enacted into law. OMB withheld funds for a policy reason, which is not permitted under the Impoundment Control Act (ICA). The withholding was not a programmatic delay. Therefore, we conclude that OMB violated the ICA.
To clarify some of the bureaucratese, a “programmatic delay” refers to a finite set of practical reasons the executive branch can use to justify temporarily withholding aid that Congress has appropriated. When that happens, the executive branch is required by the law to write an explanation to Congress; the Trump administration didn’t do that either.
What the executive branch can’t do is just decide it doesn’t want to give the aid because it doesn’t think the country being aided deserves it. And that’s what the White House itself claims it was doing, when it says Trump withheld the aid because he was supposedly so concerned about corruption in Ukraine.
Of course, we all know that justification has always been bogus; the idea that Trump is worried about corruption is positively comical. But even it were for a legitimate policy reason, it would have been illegal. As the GAO wrote, “In fact, Congress was concerned about exactly these types of withholdings when it enacted and later amended the ICA.”
This might seem like some obscure technical violation of the law, but it was not. In fact, as Trump was executing his slapdash effort to coerce Ukraine into helping his reelection campaign, officials throughout the government expressed various levels of dismay about it, ranging from concern up through outright panic. There were two reasons: First, it was quite clearly an abuse of the president’s office, and second, many believed it was illegal.
Even Trump’s own aides acted as though they knew full well just how wrong the president’s orders were, even as they were carrying them out. Just hours after Trump’s fateful phone call with Ukrainian President Volodymyr Zelensky, OMB official Michael Duffey emailed officials in the Pentagon to inform them the aid was being withheld and told them they had to keep it a secret. “Given the sensitive nature of the request, I appreciate your keeping that information closely held to those who need to know to execute the direction,” he wrote.
Democrats in the House subpoenaed Duffey to testify in the impeachment inquiry so he could explain. He refused to comply with the subpoena. In November, we learned that two officials had resigned from OMB in part because they believed they were being asked to participate in a scheme that violated the Impoundment Control Act.
Let’s put this in the larger context of this whole scandal. The president of the United States was determined to coerce Ukraine into helping his reelection campaign by tainting a potential rival with corruption charges. To do that, he pursued a multipronged strategy, by deploying his “lawyer” Rudy Giuliani and Giuliani’s band of goons, and by using the powers of his office to pressure Ukraine to do his bidding.
To do the latter, he illegally withheld military aid to Ukraine that Congress had appropriated. The fact that he was doing so, for the reason he was doing it, was widely understood inside the government as both an appalling betrayal of his office and a violation of the law.
For the record, Trump did eventually order the aid released — but he did so only after the whistleblower filed his complaint and Democrats in the House began their investigation. In other words, the money was finally released only once Trump realized he’d been caught.
Republicans have become fond of saying impeachment is unjustified because Trump is not being charged with violating a specific criminal statute (even though that’s not necessary; there are plenty of impeachable acts a president can commit that are not technically crimes). The first article of impeachment cites Trump’s “abuse of power,” which he committed in any number of ways.
But if you’re looking for a violation of law, well here you go.