My sister-in-law Katje invited herself over to my office Friday morning and camped out in the reception area chatting with Gretchen about the myriad evils of the Trump administration and regaling my paying clients about the ongoing impeachment of the President until I agreed to speak with her. As it happened, I was booked solid through six-thirty in the evening, so the deal we struck was that she would stop pestering everyone and leave; in return I would take her call at six-forty five. That allowed me about ten minutes to drink a large caramel macchiato with two extra espresso shots between the end of my final consultation of the day and having to talk to her. Not ideal, but it had to do. As they say, you can choose your friends but not your relatives. And although I am very fond of her, when Katje gets a bee in her hand-knit pink lady’s pudenda feminist power bonnet (which, by the way, she wore to the Fourth Annual Women’s March on Washington the very next day), she can, frankly, be a bit difficult to handle. So it was not without some modest trepidation that I answered my office phone at a quarter to seven that night.
Tom: Hello? Katje?
Katje: Yes, Tom, it’s me. Are you ready to talk now?
Tom: Sure, certainly. Okay. What’s on your mind?
Katje: What’s on my mind is, the Government Accountability Office decision paper that conclusively states that President Donald John Trump violated the Impoundment Control Act of 1974!
Tom: Yes, I know. It seems that this week, nobody west of Rock Creek or south of DuPont Circle could talk about anything else.
Katje: Oh, Tom, you’re such an incorrigible elitist!
Tom: Look, I’m just stating the facts. Is it my fault that the Washington the rest of the world cares about ends at the Penn Quarter and the Navy Yard? We both know that Northeast DC and Anacostia might as well be in Philadelphia or Richmond for all that the inhabitants there care about what matters to people like you and me.
Katje: “People like you and me?” Tom, if you could just hear yourself talk sometimes! You know very well I don’t live in the District and neither do you!
Tom: Yes, I know, you live in Falls Church. But you work in Washington, at that non-profit NGO, for which, three weeks ago, you quit your longtime job at Whizzonator-YoYoDyne Information Systems; and where should have been using your IT skills to save rain forests, polar bears and third-world widows and orphans this morning instead of hanging out at my office. And, despite the fact that my home is in Great Falls, Virginia, I work in Washington, too. So don’t split hairs with me, okay? It’s been a long enough day already. So yeah, all right, Trump violated the Impoundment Control Act. What’s that mean to you, may I ask?
Katje: It means, Tom, that now there’s absolutely no doubt that Donald Trump is a criminal!
Tom: Actually, Katje, I don’t believe there has been any doubt about that for quite a while.
Katje: Well, if it’s true, why hasn’t somebody done something about it yet?
Tom: I think the House of Representatives did, in fact, do something about it. And continues to do other things about it, too, such as appointing impeachment managers for Trump’s trial for removal from office, delivering the Articles of Impeachment to the Senate and pursuing further evidence of presidential misconduct. And making very sure everyone knows that Donald Trump violated the Impoundment Control Act of 1974, of course.
Katje: But Trump broke the law! It’s completely conclusive now! When it came out that Nixon broke the law, that was the end of the line for him, wasn’t it?
Tom: Look, when it came out that Nixon broke the law, you and your husband hadn’t even been born yet. Might I observe that things have changed somewhat in the United States of America since the Washington Post reported the Watergate scandal?
Katje: Really? So tell me, then, what’s the difference between Nixon and Trump when it comes to breaking the law?
Tom: Well, let me put it this way. Nixon said, “I am not a crook.” Trump basically says, “Yeah, I’m a crook. So what? Get over it.”
Katje: And he can do that?
Tom: Hell, he’s already done it. Multiple times.
Katje: But the Impoundment Control Act is a federal law, right?
Tom: It sure is, no doubt about that.
Katje: Okay, then, what I know is, when someone breaks a federal law, they get federal penalties. They pay big fines. They go to prison.
Tom: Not necessarily.
Katje: What do you mean, “not necessarily?”
Tom: I mean, there aren’t any penalties for violating the Impoundment Control Act of 1974.
Katje: [Expletive]! What the [expletive] kind of [expletive] bull-[expletive] is that? How can you have a [expletive] federal law with no [expletive] penalties?
Tom: You see, Katje, what the ICA does is define procedures, and…
Katje: It [expletive] defines [expletive] procedures?
Tom: Yes, explicit, detailed procedures whereby the President can reduce, delay, or eliminate funding in an account obligation of the United States.
Katje: So what the [expletive] does that gobbledygook mumbo-jumbo double talk mean?
Tom: Well, you see, Congress appropriates funds, then they are obligated by various agencies, commissions and other federal entities either within or independent of the executive branch…
Katje: In English, please!
Tom: Um… that was in English, but okay, look: say Congress says, “spend $391 million to provide Ukraine with the resources to stave off a Russian-backed invasion of murderers, arsonists, rapists and thieves and do it before the end of the federal fiscal year at midnight September 30, 2019,” and the President orders the Office of Management and Budget not to spend the money. The ICA defines that as precluding the obligation of appropriated federal funds, and it says that if the President wants to spend less money on something than the amount Congress appropriated, then under the Constitution, the President is required to get a special law passed giving Congressional permission to do so. And to obtain that act of Congress, the President has to send a “special message” about what is called a “rescission of funds,” explaining the amount of the proposed rescission; the reasons for it; and the budgetary, economic, and programmatic effects of the rescission. Upon transmission of the special message, the President may withhold certain funding in the affected accounts for up to 45 legislative session days. But if a law approving the rescission is not enacted within the 45 days, any withheld funds must be made available for obligation.
Katje: And let me guess. Now you’re going to tell me that Trump didn’t send Congress a message saying, “I’m sitting on that $391 million dollars you guys designated to stop a shadow army of Russian murderers, arsonists, rapists and thieves from laying waste to Ukraine until the Ukrainian government makes up some dirt on Joe Biden and announces to the world that they’re investigating him and his son Hunter for corruption.”
Tom: Correct. He didn’t. As a matter of fact, he didn’t send any message at all. Instead he had his flunkies at the Office of Management and Budget insert a bunch of sneaky footnotes in documents pertaining to release of the funding that presented a pack of spurious arguments concerning why the funding would be delayed, citing an “interagency process” to evaluate the funding. Except, naturally, there wasn’t any process of any kind conducted to evaluate the funding; the Trump Administration had simply made the whole thing up. Now, a 2018 Government Accountability Office legal opinion held that if the President proposes a rescission, he or she must make the affected funds available to be prudently obligated before the funds expire, even if the 45-day clock is still running. This means, for example, that the President cannot strategically time a rescission order for late in the fiscal year and withhold the funding until it expires, thus achieving a rescission without Congressional approval. To do so would constitute yet another violation of the Impoundment Control Act; a very obvious, overt violation that could not be readily papered over with some cleverly worded footnotes in OMB documents.
Tom: So as the days August of 2019 steadily marched toward September, and the funds were still in limbo, a lot of bureaucrats at the Department of Defense and the Office of Management and Budget started to, shall we say, require several changes of underwear every day.
Katje: And did they do anything meaningful about it, or did they just sit there, having apoplexy and [expletive] their pants?
Tom: Of course not – naturally, they wrote lots of anxious, hand-wringing CYA memoranda back and forth to each other, but nobody did anything substantive. That would have required guts, integrity and fortitude, none of which, generally speaking, federal bureaucrats have in any significant abundance. Luckily for them, however, there was one federal bureaucrat who managed to muster enough courage to anonymously tell the world that he or she had overheard Trump blackmailing the president of Ukraine. And when that got out, the funds were suddenly, shall we say, “unrescinded,” and the money went to the Ukrainians to help them stave off Russia’s invading proxy army of war criminals.
Katje: Okay, you’re saying, that by some miracle, one single, solitary federal bureaucrat grew a pair and did the right thing, and presto! The Ukrainians got the money.
Tom: Well, most of it, anyway. It took some serious federal funding gymnastics to pry the last $35 million out of hock before September 30, 2019, but yeah, they eventually got it all. In the process, however, as the GAO definitively found, President Trump clearly violated the Impoundment Control Act of 1974.
Katje: For which, you say, there is no penalty of any kind for violating?
Tom: It’s not that kind of law.
Katje: What kind of [expletive] law is it, that nothing happens when you violate it? Why even have a law like that?
Tom: Well, it’s not like violating the ICA doesn’t result in any consequences.
Katje: Oh, it does? Consequences, you say? What consequences, pray tell, oh great and wise Washington insider?
Tom: Uh, okay, it goes like this – if the President violates the ICA, the law gives Congress and / or the GAO the right to sue in federal court to get the funds released and spent.
Katje: That’s it? You’re saying, if the President decides to extort a beleaguered foreign government’s cooperation in a conspiracy to influence American elections by doing a… what did you call it… a “rescission,” and he and his accomplices get caught doing it, all the Impoundment Control Act says is that somebody can sue to get the money sent where Congress said it should go in the first place?
Tom: Yep, that’s about it.
Katje: What a total crock of [expletive]! No wonder this country’s so totally [expletive]-up! So is somebody going to sue, at least?
Tom: Ah… since the Trump administration released the money right after the whistleblower revealed what it was up to, any law suit regarding lifting the rescission would be… um… moot.
Katje: Moot! [Expletive] moot? You mean, no federal court would even hear the case?
Tom: No, they… um… well, they don’t have time for moot cases. Too many real ones, you see, and…
Katje: This is situation is totally outrageous! Can’t you see that?
Tom: Um, sure.
Katje: And it doesn’t bother you?
Tom: If one lets every outrage they encounter inside the Beltway bother them, they will either have a heart attack or go insane long before making enough money to retire.
Katje: You know what, Tom? As far as I’m concerned, being an American is beginning to become extremely absurd!
Katje: Damn it, Tom, sometimes… you… are… completely… impossible!
Tom: Hello? Katje? Hello? Um… okay, then. Goodbye.