Withholding Aid Is an Abuse of Power

by Reginald Oh

Trump’s withholding of military aid to Ukraine, by itself, was illegal and an abuse of power. In fact, that act is very similar to what Nixon frequently did during his presidency, something that nearly got Nixon impeached. Ultimately, Nixon’s actions led Congress to enact the very law that Trump violated when he withheld the aid.

What Nixon did was to impound funds that had been appropriated by Congress; i.e., he refused to spend the money that had been designated by Congress to fund government programs. Does that sound familiar?

There has been a long history of presidents impounding appropriated funds. Early presidents typically impounded funds for efficiency and cost saving reasons. That started to change with FDR, who began impounding funds for policy reasons. But, it was Richard Nixon who truly abused the impoundment power, ultimately compelling Congress to restrict that power via statute.  

An example of Nixon’s abuse of power-The Clean Water Act. In 1972, after both Houses of Congress passed the Act, Nixon vetoed it. He believed the Act tackled the problem of water pollution in an inefficient, “budget wrecking” manner. The Act, though, had overwhelming bipartisan support. Congress overrode Nixon’s veto and the Act became law.

Nixon didn’t give up his fight. When Congress appropriated funds to implement the Act, he impounded or refused to spend an astounding half of the money appropriated. Nixon was effectively trying to “veto” the Act again by refusing to fund it.

That was one example of Nixon’s abuse of the impoundment power. There were many other examples. Throughout his presidency, Nixon would impound appropriated funds to hamper or effectively eliminate programs he disagreed with. In 1972, he impounded 2.5 billion appropriated for federal highway funds and 1.5 billion appropriated to the Agriculture Department. Agricultural Department programs that went unfunded included the food stamp program.

Nixon’s use of the impoundment power usurped Congress’ power of the purse. By impounding funds, he was making final appropriations decisions, not Congress. Frustrated by Nixon’s frequent impoundments, Congress started to consider impeaching him. They eventually enacted the Impoundment Control Act of 1974. The Act severely restricts the president’s power to impound funds, permitting impoundment for budgetary reasons, but prohibiting them for policy reasons.

Thus, under the ICA, the president can seek either a rescission or a deferral of appropriated funds only for specific, identified reasons. A deferral or a temporary hold is limited to (1) provide for contingencies; (2) achieve savings; or (3) as specifically provided by law. The ICA explicitly states that “no office or employee of the United States may defer any budget authority for any other purposes.”

Flashforward to mid-July, 2019.

391 million in military aid to Ukraine was all set to be distributed to that nation. Then, on July 18, Trump inexplicably put a hold on the aid, instructing administration officials to “’tell lawmakers that the delays were part of an interagency process’ but to give them no additional information.”

A week later came the infamous July 25 call with Ukrainian president Zelensky. The hold continued on after the call, which confused Pentagon officials who had no idea why Trump was delaying the release of funds. Alarmed by Trump’s refusal, they told him that, if the aid wasn’t released by August 6, they would not be able to provide Ukraine with the full allotted amount. That date passed with Trump still refusing to release the funds. It wasn’t until public pressure started to mount that Trump eventually relented and released the aid on September 11.

Trump publicly gave different, cryptic reasons for the hold. First he claimed that he withheld the money because he was concerned about corruption in Ukraine. Then he claimed that he held up funding to put pressure on European nations to contribute to Ukraine.

Assuming those were the actual reasons for the hold, that did not make the hold legal or legitimate. By capriciously refusing to release the funds appropriated by Congress, Trump pulled a Nixon.

But worse, Trump withheld aid in clear violation of the law, the ICA. Recall that the ICA permits a temporary hold or a deferral only for budgetary reasons. It prohibits deferral on any other basis. Nixon at least did not technically violate any law. The Impoundment Control Act was enacted a month before Nixon resigned from office.

What are some of the implications of Trump’s illegal hold? First, it means that Tim Morrison was flat out wrong when he thought there was nothing illegal about Trump withholding military aid out of concern with Ukraine’s “corruption.”

Second, the illegality of the hold undermines one of the GOP defenses of Trump. Their defense is that quid pro quo transactions with foreign nations are routine and legitimate. They argue that the U.S. routinely requires recipient nations to meet certain conditions in order to receive funding, and Trump was doing just that.

But, Trump had no legal authority to use the military aid to make any kind of quid pro quo demand on Ukraine. Congress granted Ukraine the aid without placing any conditions. Trump could not then contradict Congress and add his own condition, legitimate or otherwise. It wasn’t his money to give or not to give.

It’s like a customer paying a pizza company for a pizza to be delivered to his home, and the delivery guy arrives and demands more money before he hands the pizza over. The pizza isn’t the delivery guy’s pizza to bargain with. His only job was to follow his employer’s instructions and deliver the pizza.

Regarding the Ukraine military aid, Trump was the pizza delivery guy. He had one job to-deliver Congress’ money to Ukraine. It wasn’t his money to use to get Ukraine to clean up their corruption.

Once we firmly understand that Trump had no authority at all to use Congress’ money to further his own policy or personal agenda, it should become clear that the quid pro quo was thoroughly and inherently corrupt. If the withholding of aid alone was illegal, then the subsequent threat to cancel the aid unless Ukraine investigated Biden was the fruit of a poisonous tree. Together, the illegal hold plus the threat to cancel aid makes the misconduct an egregious abuse of power that is indefensible.