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Congress wants to know if Trump officials broke a Civil War-era law during the shutdown

The Antideficiency Act bans the federal government from spending money not appropriated by the legislative branch.

by Joe Tone
Feb 5 2019, 5:22pm

It’s been a week and half since the partially shuttered government reopened — 11 days spent picking through the rubble of the longest shutdown in U.S. history.

Department of Agriculture scientists arrived on the job to find a fridge full of dead bees. Park rangers returned to vandalized bathrooms and trees ripped from the ground at national parks. NASA scientists came back to a flooded space center.

But deep inside the bowels of American bureaucracy, another clean-up effort is underway: trying to determine whether the Trump administration broke an obscure, Civil War-era spending law by asking some federal employees to keep working — and who should be held accountable. Several agencies, including the Internal Revenue Service (IRS), called workers back onto the job — in some cases, at the behest of President Donald Trump.

If those actions went against predetermined plans for how agencies’ money could be spent during the shutdown, whoever made the decision could be in trouble. Congress is already slated to hold a hearing on the matter Wednesday.

The law is called the Antideficiency Act, and employees who violate it can be demoted or fired, and can even face criminal charges, complete with up to two years in prison and a $5,000 fine. But the consequences are usually much lighter, and no one’s ever been prosecuted, experts told VICE News. Even just a formal reprimand, however, can make a big impact on a civil servant’s job.

“It could be essentially a career ender,” former Defense Department lawyer Bob Taylor told VICE News. Taylor worked in the department for the better part of two decades before leaving in 2017, and he served as the Defense Department's top lawyer from 2015 to 2016.

"It could be essentially a career ender."

The Antideficiency Act bans the federal government from spending money not appropriated by the legislative branch — and essentially grants Congress its “power of the purse.” Congress passed the law in 1870, when members noticed a troubling trend of the military blowing through its budget and coming back to the government with its hand out.

A century and a half later, the law still looms large over the everyday business of government. At each agency, managers work to make sure they spend only the money Congress appropriated. When agencies spend dollars that weren’t appropriated, investigators look closely at what went wrong.

Dozens of violations are reported to the Government Accountability Office (GAO) every year, and many reach into the tens of millions of misspent dollars. Occasionally, they make headlines: Last year, the GAO ruled that the EPA ran afoul of the Antideficiency Act when it installed a $43,000 soundproof phone booth, at the behest of acting Administrator Scott Pruitt. The EPA is now investigating the lapse and reporting back.

But most violations get buried in annual reports. If that sounds minor, it’s not. “It could torpedo your chances of getting a promotion," Taylor said.

What happened during the shutdown

The Antideficiency Act plays an especially important role during government shutdowns. Every federal agency makes a contingency plan that governs how they will spend money during a shutdown. Those carefully lawyered plans are how some employees are deemed “essential” and forced to work without pay, while others stay home.

At least, that’s how it’s supposed to work. But as this shutdown dragged on for a record 35 days — and more blame got heaped onto Trump — his administration appeared to veer away from those plans. Democrats say the president did it in service of his own political interests.

At the Treasury Department, for instance, the guidance was clear, according to contingency plans reviewed by VICE News but no longer online. For 2018, issuing tax refunds was not an “accepted activity” — something money could be spent on during a shutdown. After word spread that refund checks might not go out on time, however, the administration ordered IRS workers back to process them.

“Our mission from the president has been to make this shutdown as painless as possible, consistent with the law,” Russell Vought, deputy director of the Office of Management and Budget, told reporters on Jan. 7. Almost two weeks later, the Treasury Department released its new plan, which did allow the IRS to issue refunds.

Something similar happened at the Interior Department. Three weeks into the shutdown, furloughed workers — who the agency’s own shutdown plan deemed non-essential — were called back to process oil and gas leases, according to letters sent to the administration by several senators.

It happened at the State Department, too, which ignored its shutdown plan and brought furloughed workers back to work a conference, according to senators. And at the USDA, where workers who were supposed to be furloughed were brought back to work to help farmers — some of Trump’s fiercest supporters — process loans.

Congress is asking questions

In the final days of the shutdown, Congress started taking steps to reclaim their power of appropriations.

On Jan. 22, sixteen Democratic senators sent letters to Acting Interior Department Secretary David Bernhardt that cited the Antideficiency Act and demanded justification for calling back workers. The letter also accused the department of being “beholden to the very oil industry it was charged with overseeing.”

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Mark Warner, D-Va., talks with reporters in the Capitol on Tuesday, January 15, 2019. (Photo By Tom Williams/CQ Roll Call) (CQ Roll Call via AP Images)

Democratic Sen. Mark Warner also sent letters that same day to the Interior Department and five other federal agencies that challenged them to provide a legal basis for bringing back employees.

“It is important that the administration respect the proper roles of each branch of government, particularly Congress’s power of the purse,” Warner wrote. “The current situation should not give the administration license to substitute its own determination of proper spending priorities for that of Congress, as has been made clear through the passage of the Antideficiency Act.”

Eventually, agency investigators may start identifying violations and writing reports to Congress, as they do for every routine violation. If lawmakers find any intentional infractions, they could refer them to the Justice Department, according to Taylor. But that’s unlikely.

It’s more likely, experts said, that Congress takes on trying to hold the administration accountable for usurping its ability to appropriate funds under the Antideficiency Act. The House Appropriations Committee, which oversees Congress’s spending authority, is already holding a subcommittee hearing on Wednesday about whether the administration broke the law by keeping some national parks open during the shutdown.

This hearing won’t feature any Trump administration officials being grilled by Congress; instead, a GAO lawyer will explain the law, and witnesses will argue that the administration ran afoul of it.

“It’s blatant,” said one of those witnesses, Sam Berger, a former lawyer for the Office of Management and Budget, where he dealt with the Antideficiency Act during the Obama Administration.

Future hearings could get more combative. Congress could ask administration officials whether they bothered to consult the law before changing the rules of the shutdown. At the very least, experts said, that kind of public pressure would make it more difficult for future presidents to flout the law.

Congress could “maybe catch people in a lie,” said Taylor, the former Defense Department lawyer. “Perjury would be very serious.”

But the investigations may never get that far. Congress has a lot on its plate with the Trump administration, and the Antideficiency Act may not make the cut.

Cover image: President Donald Trump speaks in the Rose Garden of the White House in Washington, Friday, Jan. 25, 2019, to announce a temporary deal to open the government. (AP Photo/Susan Walsh)