GAO: Obama White House Violated Law in Engagements With China

By Terence P. Jeffrey | January 16, 2020 | 3:31pm EST
President Barack Obama and Chinese President Xi Jinping in Hangzhou, China, Sept. 3, 2016. (Getty Images/Wang Zhou-Pool)
President Barack Obama and Chinese President Xi Jinping in Hangzhou, China, Sept. 3, 2016. (Getty Images/Wang Zhou-Pool)

(CNSNews.com) - The Government Accountability Office concluded in a written opinion published on Oct. 11, 2011 that President Barack Obama’s White House Office of Science and Technology Policy (OSTP) had violated two laws in its dealings with the People’s Republic of China.

“In the opinion, we determined that OSTP violated a statutory provision prohibiting the agency from using its appropriations for bilateral engagements with China or any Chinese-owned company,” Thomas H. Armstrong, who was then the managing associate general counsel of the GAO, told the House Foreign Affairs Subcommittee on Oversight and Investigations in written testimony on Nov. 2, 2011.

“Because no funds were available for such purpose,” Armstrong testified, “OSTP’s actions also violated the Antideficiency Act, a fiscal statute central to Congress’s power of the purse.”

The Obama Justice Department argued that the White House could take the actions it did in its dealings with China—even though they contravened the language in the appropriations law—because the law as applied to those actions was an unconstitutional infringement on the president’s power to conduct foreign affairs.

This is a passage from the written testimony that Thomas Armstrong, then the managing associate general counsel of the GAO, gave to the House Foreign Affairs Subcommittee on Oversight and Investigations on Nov. 2, 2011.
This is a passage from the written testimony that Thomas Armstrong, then the managing associate general counsel of the GAO, gave to the House Foreign Affairs Subcommittee on Oversight and Investigations on Nov. 2, 2011.

In an Oct. 11, 2011 letter to then-Rep. Frank Wolfe (R.-Va.), then-GAO General Counsel Lynn H. Gibson stated that the GAO had determined that Obama’s OSTP had violated the appropriations act that Obama had signed on April 15 of that year. The GAO also concluded that by spending money in excess of what had been appropriated for a particular activity—in this case $0—the Obama administration had also violated the Anti-Deficiency Act.

Section 1340 of the spending law Obama had signed explicitly prohibited OSTP and NASA from engaging with China:

“None of the funds made available by this division may be used for the National Aeronautics and Space Administration or the Office of Science and Technology Policy to develop, design, plan, promulgate, implement, or execute a bilateral policy, program, order, or contract of any kind to participate, collaborate, or coordinate bilaterally in any way with China or any Chinese-owned company unless such activities are specifically authorized by a law enacted after the date of the enactment of this division.”

However, less than a month after Obama signed this language into law, his White House OSTP had a series of engagements with officials from the People’s Republic of China.

“Between May 6 and May 10, 2011, OSTP ‘led and participated in a series of meetings with Chinese officials’ as part of the Innovation Dialogue and the S&ED,” the GAO wrote in its opinion.

The “Innovation Dialogue” took place on May 6, 2011.

“Among the topics discussed,” said GAO, “were ‘market access and technology transfer; innovation funding and incentives; standards and intellectual property; and government intervention.’”

On May 8, 2011, Obama’s White House OSTP hosted a dinner for the Chinese officials.

“On May 8, 2011, OSTP hosted a dinner to honor the Chinese dignitaries,” said the GAO opinion. “Six U.S. participants attended the dinner, along with an unidentified number of ‘staff-level employees from other federal agencies.’”

“There were six Chinese invitees,” the GAO said.

On the following two days, the OSTP hosted a “Strategic and Economic Dialogue” (S&ED) with the Chinese.

“On May 9 and 10, 2011, OSTP participated in the S&ED,” said GAO. “The purpose of the S&ED was to bring together various U.S. and Chinese government officials to ‘discuss a broad range of issues between the two nations,’ including on matters regarding trade and economic cooperation.”

The GAO concluded that these interactions violated the “plain meaning” of the appropriations bill Obama had just signed.

“The plain meaning of section 1340 is clear,” said the GAO. “OSTP may not use its appropriations to participate, collaborate, or coordinate bilaterally in any way with China or any Chinese-owned company.

“Here,” said GAO, “OSTP’s participation in the Innovation Dialogue and the S&ED contravened the appropriations restriction.”

The White House OSTP did not deny that its actions were among those prohibited by the law Obama had signed.

“OSTP does not deny that it engaged in activities prohibited by section 1340,” said GAO.

“OSTP argues, instead,” said GAO, ‘that section 1340, as applied to the events at issue here, is an unconstitutional infringement on the President’s constitutional prerogatives in foreign affairs.”

In this passage from its Nov. 11, 2011 opinion, the GAO explains that the Obama White House OSTP did not deny that activities it engaged in with China were prohibited by Section 1340 of the appropriations law Obama had signed--but argued its application was unconstitutional.
In this passage from its Nov. 11, 2011 opinion, the GAO explains that the Obama White House OSTP did not deny that activities it engaged in with China were prohibited by Section 1340 of the appropriations law Obama had signed--but argued its application was unconstitutional.

“OSTP asserts that the President has ‘exclusive constitutional authority to determine the time, place, manner, and content of diplomatic communications and to select the agents who will represent the President in diplomatic interactions with foreign nations,” said the GAO opinion.

“OSTP argues” said GAO, “that, for this reason, Congress may not use its appropriations power to infringe upon the President’s exclusive constitutional authority in this area.”

While conceding it was not its role to “adjudicate the constitutionality of statutes,” the GAO countered: “In our view, legislation that was passed by Congress and signed by the President, thereby satisfying the Constitution’s bicameralism and presentment requirements, is entitled to a heavy presumption in favor of constitutionality.”

“Therefore,” said GAO, “absent a judicial opinion from a federal court of jurisdiction that a particular provision is unconstitutional, we apply laws as written to the facts presented.”

The GAO opinion then addressed the Antideficiency Act.

“As a consequence of using its appropriations in violation of section 1340, OSTP violated the Antideficiency Act,” the GAO concluded.

“Under the Antideficiency Act, an officer or employee of the U.S. government may not make or authorize an expenditure or obligation exceeding an amount available in an appropriation,” said GAO.

“By using its fiscal year 2011 appropriation in a manner specifically prohibited,” said GAO, “OSTP violated the Antideficiency Act.”

On Nov. 2, 2011, Thomas Armstrong, then the managing associate general counsel of the GAO, testified on this matter before the House Foreign Affairs Subcommittee on Oversight and Investigations.

In his spoken testimony, as in his written testimony, he repeated the conclusions in the GAO’s Oct. 11, 2011 opinion.

“In the opinion, we determined that OSTP violated a statutory provision prohibiting the agency from using its appropriations for bilateral engagements with China,” Armstrong told the committee.

“Because OSTP had no funds available for such a purpose,” he said, “OSTP’s actions also violated the Antideficiency Act. The Antideficiency Act is a fiscal statute that is central to Congress’s constitutional power of the purse.”

Then-OSTP Director John Holdren also testified before the committee that day.

“As has already been pointed out by earlier witnesses, section 1340(a) of the Continuing Appropriations Act of 2011 contains language intended to bar OSTP from continuing to engage in bilateral interactions with China,” said Holdren.

“I am a scientist and not a lawyer, so I am only going to state here very briefly why OSTP has not complied with that prohibition,” Holdren said.

“For the details I refer you to the formal opinion issued on September 19th of 2011 by the Office of the Legal Counsel in the Department of Justice, and I ask that that be added to the hearing record as an addendum to my testimony.”

“OSTP sought the Department of Justice’s guidance on Section 1314(a)’s legal effect because of the extent and the importance of OSTP’s role in bilateral diplomacy with China on science and technology issues,” said Holdren. “The Department of Justice advised us that the activities that OSTP has been carrying out in connection with that role fall under the President’s exclusive constitutional authority to conduct foreign diplomacy, and thus are not precluded by the statute.”

Armstrong, who is now the general counsel of the GAO, issued a decision today that concluded that President Donald Trump’s White House Office of Management and Budget violated the Impoundment Control Act (ICA) of 1974, when it delayed providing to the Ukraine financial aid that had been appropriated in a law signed by President Trump.

“Faithful execution of the law does not permit the President to substitute his own policy priorities for those that Congress has enacted into law,” Armstrong wrote. “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.”





 

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