SchiffShadow
© mediadc.brightspotcdnHouse Intelligence Committee Chair Adam Schiff contemplates his future self.
The 300-page Trump-Ukraine impeachment inquiry report finally identifies the argument that Democrats will use to impeach President Trump. It should be no surprise that the document is full of false narratives about the facts of the case and Trump's intentions. But the report also tries to spin the relevant law — the Impoundment Control Act of 1974, which governs situations in which the executive fails to spend authorized and appropriated funds.

Buried in the House Intelligence Committee's report is a cherry-picked, blurred, and poorly cited description of this law, which twists it as somehow cutting against the president. As I have argued previously, however, the actual text of the act casts doubt on this entire impeachment inquiry. Democrats have long sought whatever excuse was available to impeach, but the law prescribes a much less drastic remedy for when a president withholds appropriated funds.

First, the committee's report falsely characterizes what the law says about the temporary withholding or deferring of funds. On page 75, the report states,
"Any amount of budget authority proposed to be deferred (i.e., temporarily withheld) or rescinded (i.e., permanently withheld) must be made available for obligation unless Congress, within 45 legislative days, completes action on a bill rescinding all or part of the amount proposed for rescission."
But this is false. Although permanently "rescinded" funds must be made available in this manner and within that time frame, the language in section 684 contains no such requirement for funds that are temporarily withheld, or "deferred," as in the case of the aid to Ukraine.

In fact, Section 682 of the law further clarifies the difference between a congressional rescission bill and a Congressional impoundment resolution. The former must be taken up by Congress "before the end of the first period of 45 calendar days of continuous session of the Congress after ... the President's message is received by the Congress." But the latter, an impoundment resolution, has no such timeline associated with it. It "only expresses its disapproval of a proposed deferral of budget authority set forth in a special message transmitted by the President under section 684 of this title."

Second, the report implies that Trump's failure to send this "special message" is an obstructive act and, therefore, evidence of him abusing his power. But if you read the law, it is not. Section 686, which the report entirely ignores, clearly states that
"If the Comptroller General finds that the President ... has failed to transmit a special message with respect to such reserve or deferral, the Comptroller General shall make a report ... and ... such report shall be considered a special message transmitted under section 683 or 684."
Since the comptroller general is part of the legislative branch, it is Congress that dropped the ball here. The legislative branch had the power all along to invoke the Impoundment Control Act in lieu of Trump himself doing so. The current comptroller general, nominated by President Barack Obama and confirmed by a Democratic Senate in 2010, is serving a 15-year term.

Section 687 of the Impoundment Control Act, also ignored by the Intelligence Committee's report, describes what the legislative branch is supposed to do if the president refuses to spend appropriated funds, full stop. Under this section, the comptroller general is empowered to file an explanatory statement with the speaker of the House and president of the Senate concerning the situation and then, after 25 days, is "expressly empowered, through attorneys of his own selection, to bring a civil action in ... United States District Court ... to require such budget authority to be made available for obligation."

Note that things did not get this far in the case of Ukraine, because Trump merely (and lawfully) deferred the funds in question within the same fiscal year. But also note that even if he had refused to spend the money altogether, the explicit remedy prescribed in the law would have been a civil lawsuit, not an impeachment.

In sum, the House Intelligence Committee's new "Trump-Ukraine Impeachment Inquiry Report" attempts to spin the Impoundment Control Act of 1974 into something it is not, ignoring much of it and simply getting the rest wrong. If the Democrats' impeachment proceedings depend on the distortion of even the easiest facts to check, how should we view their interpretation of the far more complicated questions involved, such as Trump's motivations?
About the Author:
Nathaniel Terence Cogley is an assistant professor of political science at Tarleton State University in Stephenville, Texas.