Overnight Defense: GAO finds administration broke law by withholding Ukraine aid | Senate opens Trump trial | Pentagon to resume training Saudi students soon

Happy Thursday and welcome to Overnight Defense. I’m Ellen Mitchell, and here’s your nightly guide to the latest developments at the Pentagon, on Capitol Hill and beyond. CLICK HERE to subscribe to the newsletter.

 

THE TOPLINE: The Trump administration’s decision to freeze the release of security assistance to Ukraine violated the law, the Government Accountability Office (GAO) said in a new report.

The independent watchdog said in an opinion issued Thursday that the Office of Management and Budget (OMB) withheld the appropriated funds last summer not as a programmatic delay but in order to advance the president’s own agenda.

By doing so, the watchdog concluded, the White House violated what’s known as the Impoundment Control Act (ICA).

“Faithful execution of the law does not permit the President to substitute his own policy priorities for those that Congress has enacted into law,” the report said. “OMB withheld funds for a policy reason, which is not permitted under the Impoundment Control Act (ICA)… Therefore, we conclude that OMB violated the ICA.”

Why this matters: The GAO opinion touched on a matter at the center of impeachment proceedings against President Trump: The decision by the White House to withhold nearly $400 million in U.S. aid to Kyiv as it fights off pro-Russian separatists.

Democrats allege Trump dangled the promise of aid and a White House meeting as leverage to get Ukrainian President Volodymyr Zelensky to open investigations into a 2020 political rival. They argue the White House then sought to obstruct their impeachment inquiry by blocking the testimony of current and former White House officials, while asserting absolute immunity over their testimony.

OMB pushes back: The OMB, however, pushed back against the GAO opinion, arguing that the White House office used the “apportionment authority to ensure taxpayer dollars are properly spent consistent with the President’s priorities and with the law.”

Administration officials have argued they were seeking to ensure Ukraine was properly fighting widespread corruption, despite the Pentagon already certifying at the time of the delay that Ukraine had met the requirements set by Congress and after notifying Congress of its intent to release the funds. 

A senior administration official on Thursday characterized the GAO report as an “overreach” and blasted the independent watchdog for getting involved “in the media’s controversy of the day.”

“In their rush to insert themselves in the impeachment narrative, maybe they’ll have to reverse their opinion again,” the senior administration official said, pointing to changes to earlier GAO opinions.

Bad timing for GOP: Still, the timing of the report’s release could not be more inconvenient for Republicans, coming as the GOP-controlled Senate on Thursday opened the impeachment trial of President Trump.

Democrats, who have pushed Senate Republicans to allow new witnesses and testimony, are seizing on the GAO report as reinforcing their argument that the president abused his authority for politically motivated purposes.

Dems latch on to findings: “This bombshell legal opinion from the independent Government Accountability Office demonstrates, without a doubt, that the Trump Administration illegally withheld security assistance from Ukraine,” Sen. Chris Van Hollen (D-Md.), who requested the GAO to review the hold, said in a statement. “The GAO’s independent findings reinforce the need for the Senate to obtain all relevant documents and hear from key fact witnesses in order to have a fair trial.” 

House Intelligence Committee Chairman Adam Schiff (D-Calif.) in a statement said the GAO opinion “demonstrates once again that the President violated his constitutional duty to take care that the laws be faithfully executed as he put his personal and political interests above the interests of the nation and its security.”

Pointing to the GAO opinion that federal employees and officials take oaths to protect the law of the land, Schiff said: “Now, the Senate will have the opportunity to act on its oath.”

What the report said: The GAO report said Trump overstepped his authority. Congress has the power of the purse, the watchdog said, while the president has the power to accept or veto legislation passed by both chambers. But the president does not have the authority to then bend or ignore a law once it is enacted, the report added.

“The President is not vested with the power to ignore or amend any such duly enacted law,” the GAO said. “The Constitution grants the President no unilateral authority to withhold funds from obligation… Instead, Congress has vested the President with strictly circumscribed authority to impound, or withhold, budget authority only in limited circumstances as expressly provided in the ICA.”

The GAO noted that the White House could have provided a detailed and specific reasoning to justify the withholding under the Impoundment Control Act at the time, but the OMB did not do so.

“Not only did OMB not submit a special message with such a proposal, the footnotes in the apportionment schedules, by their very terms, established dates for the release of amounts withheld,” the GAO wrote.

The only other authority to put a freeze on the aid, the GAO said, is to withhold the funds through a deferral, a decision that would be justified if the administration had recognized “savings or efficiencies that would result from a withholding, or any law specifically authorizing the withholding.”

 

IMPEACHMENT LATEST: The Senate on Thursday officially opened the impeachment trial against President Trump, formally accepting a pair of articles presented by House Democrats.

Seven House Democrats serving as prosecutors — handpicked a day earlier by Speaker Nancy Pelosi (D-Calif.) — solemnly walked together from the House chamber over to the Senate to present the articles of impeachment, in a similar ceremonial display to when they delivered them to the upper chamber the previous night.

Stepping into the well of the Senate, House Intelligence Committee Chairman Adam Schiff (D-Calif.) read the resolution naming the seven House prosecutors or “impeachment managers” and informing the Senate that that his chamber had charged Trump with high crimes and misdemeanors.

Schiff, the lead manager, then read the two articles of impeachment — abuse of power and obstruction of Congress — pertaining to Trump’s efforts to pressure Ukraine to launch investigations into Democrat Joe Biden and other political rivals.

The ceremony, filled with pomp and circumstance, marked the official handoff of the months-long impeachment process from the House to the Senate, which in the coming weeks will vote on whether to end Trump’s presidency.

Coming up: Later Thursday afternoon, the Senate received Chief Supreme Court Justice John Roberts, who was sworn in to preside over the trial. He then administered an oath to senators.

The substance of the trial is expected to start on Tuesday following the Martin Luther King Jr., holiday. It will begin with the Senate passing a resolution that establishes rules and procedures for the trial. 

The Senate will then notify the president’s defense team, which must be given at least two days’ notice. 

That means opening arguments from the Democratic managers and Trump’s defense team may not occur until later in the week.

New details emerge: In addition to the GAO report other new details surrounding President Trump’s dealings with Ukraine are spilling out into the public, putting fresh pressure on GOP leaders to consider witnesses and new documents.

A close associate of Rudy Giuliani, Trump’s personal lawyer, delivered a trove of information to House Democrats related to Giuliani’s campaign to pressure Ukrainian leaders to find dirt on the president’s political rivals. Lev Parnas, a Soviet-born Florida businessman facing unrelated campaign-finance charges in New York, is also making the media rounds to deliver a damning message: Trump, he says, was privy to the pressure campaign from the start.

“Every day new incriminating evidence comes forward,” Speaker Nancy Pelosi (D-Calif.) said Thursday at a press conference in the Capitol. “I think that only speaks very clearly to the need for the Senate to enter the documentation into their discussion.”

Parnas told MSNBC’s Rachel Maddow on Wednesday night that Trump was aware of a scheme both to seek the removal of U.S. Ambassador to Ukraine Marie Yovanovitch and to create conditions to push Ukraine’s new president to announce investigations into former Vice President Joe Biden and his son Hunter Biden in order to help Trump’s 2020 reelection prospects.

More impeachment developments from The Hill:

— Roberts sworn in to preside over Trump impeachment trial

— Paul predicts no Republicans will vote to convict Trump

— Senators take oath for impeachment trial

— Seven things to know about the Trump trial

  

US MILITARY TO SOON RESUME TRAINING FOR SAUDI STUDENTS: Defense Secretary Mark Esper next week will visit Naval Air Station Pensacola to detail new vetting and security measures on U.S. bases following the deadly shooting by a Saudi military student in December.

Esper will travel to Florida on Wednesday and Thursday to meet with base leadership and give an update on new vetting protocols for foreign military personnel as well as revamped security procedures “which will include physical security features” at U.S. bases, chief Pentagon spokesperson Jonathan Hoffman told reporters on Thursday.

Hoffman said the Pentagon will announce the new measures “shortly” and that the military also expects to soon resume operational training for roughly 850 Saudi students in the United States. The students’ training has been limited to the classroom since early December after a Royal Saudi Air Force officer shot and killed three sailors and wounded eight others at the Florida naval base.

“We’re looking forward to turning that [training] back on in the coming days. … We should have an announcement for you soon.”

The shooting: Second Lt. Mohammed Saeed Alshamrani opened fire at the air station in Pensacola on Dec. 6 in what U.S. officials are calling an act of terrorism. Alshamrani, 21, was shot and killed by a deputy sheriff during the attack.

The reaction: Attorney General William Barr announced on Monday that while an investigation found no evidence that other members of the Saudi military had knowledge of Alshamrani’s intentions, 21 military members training in the U.S. would be unenrolled and returned home over other revelations produced by the probe. Twelve of those students were stationed at NAS Pensacola.

Following the shooting, officials announced that the Pentagon would take on a bigger role in vetting foreign students coming to train on U.S. soil.

New vetting: In the past, foreign students coming to the United States typically went through a home country vetting process, followed by additional screening from the Department of Homeland Security and State Department as well as the Pentagon.

Hoffman said last month that the Defense Department now will “take the information we can get from the Department of State, from the host countries, and then take it and run it through systems we have.”

 

ON TAP FOR TOMORROW 

The Middle East Policy Council will hold a conference on “U.S.-Iranian Confrontation: Domestic, Regional and Global Implications,” with John Limbert, former deputy assistant secretary of State for Iran; former U.S. Ambassador to Iraq and Kuwait Douglas Silliman; and former U.S. Ambassador to Oman Richard Schmierer, among others, at 10 a.m. in Russell Senate Office Building, room 485.  

Joint Chiefs of Staff Vice Chairman Air Force Gen. John Hyten will discuss the growing security challenges posed by U.S. strategic competitors, at 1 p.m. at the Center for Strategic and International Studies in Washington, D.C. 

 

ICYMI

— The Hill: Taliban offers temporary cease-fire: report

— The Hill: Iran: European nations caved in to ‘high school bully’ Trump

— The Hill: US ambassador: ‘I was personally surprised’ North Korea did not send ‘Christmas gift’

— The Hill: Trump, Erdoğan discuss tensions in Iran, Syria, Libya

— The Hill: Opinion: Expect the unexpected from Iran