How Trump stiff-armed Congress — and gaslighted the courts — to build his wall

DOD continues to defend its performance. But the records were sensitive enough that it took a year-long struggle by POLITICO to obtain just those covering the Navy. The department took nine months to respond to a Freedom of Information Act request, and even then, the Comptroller’s office withheld or failed to include the most relevant documents. It took another three months before this was corrected, a full year after the FOIA was filed in July 2020.

With Trump gone and a new White House trying to recover the wall funds, many in both parties want to put the episode in the rear-view mirror. But more than $1 billion is not coming back. And left behind in its place is a legacy of distrust and nagging questions as to how Congress can better protect its constitutional power of the purse.

“I think we have to keep this on our radar screen,” said Senate Armed Services Committee Chair Jack Reed (D-R.I.), who also sits on Appropriations. “Forewarned is forearmed.”

“If we should have another situation where a president wants to take money away from the military and put it into a domestic, personal, political agenda, then we should be able to stop that,” Reed added.

A ‘national emergency’

Without doubt, the Pentagon enjoyed immense discretion once the White House invoked its singular construction powers after declaring a “national emergency” in early 2019. The relevant statute, enacted in 1982 and known in political shorthand as 2808, allowed DOD to proceed “without regard to any other provision of law.”

But what made the ensuing process so remarkable was its lack of transparency: It hid from Congress and the federal courts the full scope of what was being tossed aside in favor of the wall spending.

Deciphering the diversion was no easy matter for judges with no grounding in the appropriations process. There were repeated assurances that DOD was only “reprioritizing” dollars already in its hands. If a judge asked for more details, the administration calibrated its answers to explain as little as possible.

“You said `reprioritize,’” asked U.S. Circuit Judge Daniel Collins in a 2020 hearing. “I want to understand as best I can… what actually happens. Is there a transfer and a reprogramming of money from one account to another account and then an expenditure differently? How does the money move in this case?”

“No, your honor, there’s not a transfer or a reprogramming of any kind,” Collins was told by a Justice Department attorney representing the administration at the hearing.

That answer was correct as far as it went. But the budget records plainly show that a big part of the story was left out. How could it be there was no “reprogramming of any kind?” Because DOD had exempted itself from the budget rules requiring such a reprogramming and notice to Congress.

Indeed, the whole exchange was akin to a city mayor telling his local traffic court judge that he was innocent of speeding — without explaining that he’d exempted himself from the speed limits.

A closer look at the budget ledgers released to POLITICO helps to illustrate this. The documents only apply directly to the Navy, but other military services saw the same pattern of transactions.

One document dated June 18, 2019 shows the fiscal 2019 Navy appropriations proceeding on course with DOD approvals, pretty much as Congress had anticipated.

But three months later, on Sept. 16, the corresponding ledger shows an entirely different world.

DOD had withdrawn its prior approvals and “deferred” further action on eight overseas projects for which Congress had appropriated $205.8 million to the Navy. Two-thirds of those funds carried with them statutory requirements that the dollars be spent “outside the U.S.” Nonetheless, DOD set out to do the opposite.

The full $205.8 million was “administratively realigned” with a newly created project line for the wall, inserted into the Navy’s construction budget under the heading “CONUS UNSPECIFIED.”

That sum was then “sub-allotted” fully to the Army Corps of Engineers for construction of the wall. This allowed the Corps to immediately write checks on the Navy account, avoiding a required transfer between the two services.

Sidestepping the law

Looking back, all these shortcuts were made easier by the budget exemptions assumed by DOD.

The Impoundment Control Act, adopted in response to Richard Nixon’s power grabs in the 1970’s, went by the wayside early. That law requires a “special message notification” to be filed with the Government Accountability Office whenever a department defers prior appropriations such as happened with the eight Navy projects. No such notice was ever given, the GAO confirmed.

GAO has made no ruling on the matter, but DOD’s “administrative” realignment of the Navy funds had all the markings of a required reprogramming. As defined by GAO, a reprogramming occurs when an executive agency shifts funds “within an appropriations account…to use them for purposes other than those contemplated at the time of appropriation” by Congress.

In this case, the new Navy project line for the wall didn’t even exist at the time Congress appropriated the funds in the fall of 2018. Moreover, judging from its past decisions, GAO would typically weigh the tightly prescribed rules which have long governed any changes in military construction appropriations.

The Pentagon devotes pages to reprogramming procedures in its financial management regulations. Those rules are then referenced by statute in the military construction appropriations bills. And two of the Navy projects here — one in Germany and another in Bahrain — fell squarely in the title covered by this language in the fiscal 2019 appropriations act.

As to the “sub-allocation” of Navy funds to the Army Corps, that also required some sleight-of-hand.

In fairness to DOD, there are ample precedents where some military services “sub-allot” their annual construction funds to the Corps. But the procedure is so rarely used by the Navy that it’s a stretch in this case — and one seemingly designed to avoid telling the courts a diversion of this size had required transfers.

The Navy has its own engineering command, NAVFAC. In fact, a DOD directive — updated just a year before the diversion — designated NAVFAC to be the lead agent for Navy-funded projects in the U.S.

In the past five years, only 13 out of 287 Navy’s military construction projects required any such sub-allocation of funds to the Corps, NAVFAC told POLITICO. That’s fewer than 5 percent — compared with the 100 percent sub-allocation in the wall diversion.

“The Department used the same procedures in providing funds to [the Corps of Engineers] for 2808 projects as it has used for decades,” said Christopher Sherwood, a DOD spokesperson charged with defending the Comptroller’s office. “The components sub-allotted the funds to the Army for use by [the Corps], thus all funds retained their original appropriation identification. The funds were neither transferred nor reprogrammed

Congress responds

As a West Point graduate and Armed Services chair, Reed was most sensitive to the diversion’s impact on the military, especially its personnel. From Kentucky to Maryland and North Carolina, schools, day-care facilities, and water treatment improvements were caught up in the mix, affecting troops and their families.

But from his seat on Appropriations, there’s no ignoring that “the lack of transparency is a problem,” Reed said.

“We were not being told because their interpretation …was the normal reprogramming rules did not apply because it was under 2808,” he said. “But again, the spirit of 2808 was [that] in a national security emergency, a president should have some flexibility to move funds to deal with military necessities. Trump completely disregarded this. He defied the whole spirit of the law and used it for his own political benefit.”

Congress took the first steps to try to reassert itself last winter, with Trump on his way out after the 2020 election.

The annual defense authorization bill, enacted over the president’s veto, included a House-initiated provision designed to rein in DOD’s discretion under the 2808 authority.

The department will still be empowered to go around current laws, but the path is narrowed some and will require more notice to Congress. Moreover, a $500 million cap is imposed for all military construction projects undertaken using the 2808 authority during a future emergency. In the event of a national emergency declaration in which 2808 authority would be used only to build projects only within the U.S, a tighter cap of $100 million would rule.

Beyond this, it’s not clear whether the Appropriations leadership will demand further steps to ensure it is kept better informed in the future. There is a residue of bitterness toward DOD for its back-handed treatment of the panel and its staff — a stain not easily erased. “The Department of Defense was not forthcoming,” said Sen. Jeanne Shaheen (D-N.H.) in an interview.

But as a member of Appropriations, she said there has been little discussion in the panel. “There are a lot of people who would like to address it, but there doesn’t seem to be a bipartisan willingness to do that,” Shaheen said.

In fact, when the committee met this week to approve a new military construction bill — the first of the post-Trump era — the only public discussion of the wall was in reference to helping private landowners whose property was damaged by the construction. This silence illustrates how the diversion remains so identified with Trump that any further tightening of the budget rules risks being seen by Republicans as another attack on him and, implicitly, the GOP. For Senate Democrats, who know they must win over Republicans to make any progress on appropriations bills, it’s become a bridge too far.

Largely ignored so far is the bigger root of the dispute: the National Emergency Act. Enacted in the 1970’s, it was intended to rein in White House power grabs but has since been twisted out-of-shape because of court decisions which put presidents like Trump in the driver’s seat. Reed acknowledged the NEA may need to be revisited, but thus far it is conservative Republicans with a libertarian streak, such as Sen. Mike Lee of Utah, who have been at the forefront.

Unlike many in his party, Lee was willing to challenge Trump’s emergency declaration in 2019, and his so-called “ARTICLE ONE” bill now seeks to rein in the emergency act, which Trump used to open the door for DOD to use its 2808 powers. His approach is to limit future emergency declarations under the NEA to just 30 days, after which Congress would decide if they continued or not.

With a Democrat now in the White House, Lee’s ideas have drawn more attention from the right, worried about “emergency” action on climate change, for example. But Lee has found an ally also in Sen. Bernie Sanders, the Vermont Independent who has included Lee’s proposal as part of a much broader bill reasserting Congress’ power on a range of national security issues.

The SCOTUS factor

One last outlier: the U.S. Supreme Court. What the justices decide this fall could add to the calls for Congress to do more.

At issue is a petition for writ of certiorari filed on Trump’s behalf last year after his border wall suffered a defeat in the U.S. Ninth Circuit Court of Appeals in October 2020. In that decision, a three-judge panel broke 2-1 against Trump and ruled that DOD’s use of its 2808 authority violated 2808 itself because the wall projects failed to meet the “military” standards set in the statute.

Trump sought to reverse this ruling by getting the case before the more conservative Supreme Court. It’s now Biden’s call, and to the dismay of the wall’s challengers, the new administration has effectively lined up with Trump and is asking the justices to vacate wall-related rulings which might impede Biden’s own executive powers going forward.

This strategy was first seen in June, when the Solicitor General’s office argued that an earlier wall ruling could become a foothold for meddlesome suits challenging the Pentagon’s transfer powers. The Court agreed to vacate that decision on July 2.

Smelling trouble, the wall’s challengers —a legal team led by the American Civil Liberties Union, the Sierra Club and other environmental interests — struck back in filings to the Court on July 19. Their core argument was that much as the Pentagon may use its transfer powers on a regular basis, there is nothing so common about the use of DOD’s 2808 authority. In the plaintiffs’ view, the greater risk to the nation is that vacating the Ninth’s decision will wipe out all its legal history and make it easier for future presidents to go down the same path as Trump did.

Some of Biden’s posture likely reflects the ingrained culture of the Solicitor General’s office, which rarely hesitates to defend executive power. But it’s a striking situation given the president’s long service in the Senate, and his administration has hurt its credibility by not being more straightforward about its intentions.

When POLITICO asked for guidance regarding the plaintiff filings, the Justice Department waited a full week before declining to comment on when it was filing a reply. Then, less than 24 hours later on Tuesday, the Solicitor General’s office did file, and its position was to vacate the Ninth Circuit decision.

“Multiple courts have already found that Trump’s fake emergency violated the Constitution,” said Dror Ladin, the lead ACLU attorney on the case. “I think most people would be surprised to learn that the Biden administration is still trying to erase those rulings and open the door to future presidential abuse of emergency powers.”