It’s not every day that the Government Accountability Office (GAO) reports that the Executive Office of the President violated federal law, but that’s the conclusion the GAO released in a report this month, after reviewing bilateral talks with the Chinese government hosted by the White House Office of Science and Technology Policy (OSTP).
The White House Office of Legal Counsel (OLC) argued during the GAO investigation (but before the report was published) that the law does not constitutionally apply to the OSTP’s diplomatic activities.
The disagreement stems from meetings this past May in which officials from the OSTP met with representatives of the Chinese government to discuss technology innovation and economic issues.
After reviewing the meetings at the behest of Rep. Frank Wolf, R-Va., the GAO “conclude[d] that OSTP’s use of appropriations to fund its participation in the Innovation Dialogue and the [economic issues] violated” a section of the Department of Defense appropriations bill that became law in April.
“The plain meaning of section 1340 is clear,” wrote GAO general counsel Lynn Gibson, adding that OSTP “contravened the appropriations restriction.” The GAO report provided the text of section 1340:
“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 enactment of this division.”
Assistant Attorney General Virginia Seitz wrote memorandum in which she argued that section 1340 “is unconstitutional as applied to certain activities undertaken pursuant to the President’s constitutional authority to conduct the foreign relations of the United States.”
She also said “most, if not all, of the activities of the activities you have described to us fall within the President’s exclusive power to conduct diplomacy.”
Rick Weiss, an OSTP senior analyst and director of Strategic Communications for OSTP, said that White House OLC opinions take precedence over those of the GAO.
“That’s not our understanding,” said Dan Scandling, a spokesman for Rep. Wolf. “GAO is saying they’re in violation of the law. GAO is an independent body; [the Department of Justice] is not.”
Weiss cited a 2005 memo by Joshua Bolten, then-Director of the Office of Budget and Management under President George W. Bush, as a bipartisan corroboration of his conclusion.
“[T]he GAO does not provide controlling legal interpretations for the Executive Branch,” Bolten wrote. “Rather, responsibility for ensuring Executive Branch agencies’ compliance with law rests with their respective General Counsels and, ultimately, with the Attorney General.”
GAO’s general counsel argued that, absent a judicial interpretation of the law’s constitutionality, Acts of Congress are “entitled to a heavy presumption in favor of constitutionality.”
In any case, the Attorney General’s office approved the OSTP meeting with the Chinese government, section 1340 notwithstanding. But Seitz seems to have left open the question of whether the dialogues broke the law.
Four times in her memorandum, Seitz used the phrase “most, if not all” to defend OSTP’s activities as protected under the president’s constitutional authority.
That ambiguity seems to undermine the defense of OSTP. “OSTP does not deny that it engaged in activities prohibited by section 1340,” Gibson wrote for the GAO.
“OSTP argues, instead, that section 1340, as applied to the events at issue here, is an unconstitutional infringement on the President’s constitutional prerogatives in foreign affairs,” she said.
But Seitz does not say that “all” of “the events at issue” are protected by the “president’s constitutional prerogatives,” — she says, emphatically, that “most, if not all,” and thus leaves open the possibility that some of those activities did violate the law.
The phrase might amount to only a minor ambiguity, but she repeated the words — which get to the heart of her argument — throughout the memorandum.
When The Washington Examiner asked Weiss if Seitz intended the ambiguity, he declined to comment, referring the question instead to the Office of Legal Counsel.
The Washington Examiner has requested clarification from the Department of Justice as to what Seitz meant and whether OSTP did, in fact, break the law