As they left office, President Obama and Secretary of State John Kerry pulled a fast one. They violated the trust of the American people, showed contempt for the electoral process and upended traditional respect for congressional holds on federal money. As Americans gathered around their television sets on Inauguration Day, Kerry’s State Department, presumably with Obama’s approval, prepared an 11th-hour ploy.
A memo was requested from the deputy secretary for management and resources that would permit Kerry to “blow through congressional holds” on the money and quietly obligate more than half a billion dollars in taxpayer money to international causes that Kerry knew neither Congress nor the incoming administration favored. It smacked of deceit and outright trickery. Members of Congress were literally notified as they sat behind the president and president-elect. Longtime observers were incensed, rightly shocked.
Where did the half-billion dollars go? Out of which accounts was it taken? Is there any way to reverse this act of opposition to established inter-branch, inter-administration, democratic norms? Can the money be retrieved for the American Treasury?
Take these questions in turn. The half-billion may actually turn out to be more than that – no one is entirely sure. What is known is that $221 million, as recently reported, was “released” to the Palestinian Authority, while hundreds of millions more was “released” to the Green Climate Fund, a creation of the United Nations Framework Convention on Climate Change whose objective is “to stabilize greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system.” Still more went to the World Bank and other international actors.
All of this federal money was supposed to be held inviolate. Multiple congressional holds were placed to bar the State Department from spending money on these exact programs. How the undersecretary for management, now apparently on his way out the door, justified this legally is a mystery. But the event, by all reports, occurred.
Where the money came from is unclear, though informal sources suggest it came from other accounts tied to American commitments around the world.
Is that not double dog dirty? Inexcusable twice over? First, violation of congressional holds, then reprogramming to spend money set for other legitimate purposes?
What can be done now? Is there a way to recover these monies that were quietly obligated at the 11th hour? The answer is — possibly. The Trump White House should at least try to halt an outrageous act of defiance and disrespect. It should work to rescind what it can.
State money is often transferred to third parties, including foreign countries, the U.N. and the World Bank, through formal grants, contracts and letters of agreement. These take time. They require multiple authorizations, signatures, confirmations, drawdowns, proof of services and other formalities, all of which create delays.
Even bank-to-bank transfers can take time and are subject to conditions. Generally, an American bank holds the international money, even if that money is later liquidated, following an official obligation. And any obligation of resources is valid only if completed while an authorizing secretary is still secretary.
So there are a number of uncertainties — and they should be investigated and resolved to restore fairness and respect for regular order, Congress and ethical government decision-making.
Bottom line: This was an outrageous act of a type that disgusts most Americans — an appointed leader disrespecting other leaders and the electoral process and forgoing traditional expectations and elements of public trust on a pretense of governing. This is exactly why President Trump was elected, and why Democrats were sent packing.
On reflection, the whole thing smacks of the last-minute shenanigans that gave rise to the famous Marbury v. Madison Supreme Court case in 1803. In that seminal decision, the Court was asked to rule on whether a last-minute commission of one William Marbury by the outgoing Adams administration — not yet delivered — could be withdrawn or withheld by the incoming Jefferson administration.
The case famously established judicial review by holding that the U.S. Supreme Court could find a statute unconstitutional and thus unable to be upheld — while simultaneously opining that, had it been constitutional, the commission should be delivered. In effect, Jefferson could assert the right not to deliver the commission, which was what he wanted, but he could get that outcome only by conceding that the Supreme Court had the power of judicial review over the constitutionality of a statute. In this way, Jefferson won —Marbury was never seated — and the Supreme Court took its rightful place as the third empowered branch. A bit of early legal jujitsu.
What does the old case mean for the present? Not much. The Obama-Kerry decision seems a full-throated contravention of reasoned expectations held by an incoming administration, old and new Congresses and the American public. Those who placed legal holds on this money are still in Congress.
Bluntly, the release never should have happened. It flies in the face of honest policy, established practice, professional ethics and historical limits on executive action reaffirmed by longstanding custom.
On the other hand, if the Trump White House acts quickly, all may not be lost. It may be able to reverse this indefensible, last-minute ploy by the outgoing crowd. It should at least try, while the rest of us again shake our heads and sigh.
Robert Charles is a former Assistant Secretary of State under George W. Bush, former New York and DC litigator, Reagan and Bush 41 White House staffer, and onetime congressional staff director. He writes often on law and national policy.