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theodore M I R A L D I mpa ... editor, publisher, writer. katherine molé mfa ... art director
Friday, January 17, 2020
Trump’s Ukraine Money Holdup Doesn’t Make for an Impeachable BREACH of the LAW
AFP via Getty Images
The Government Accountability Office this week found that President Trump violated the Congressional Budget and Impoundment Control Act when he delayed $215 million in foreign aid to Ukraine. “Faithful execution of the law does not permit the President to substitute his own policy priorities for those that Congress has enacted into law,” the GAO bureaucrats said.
Cue the ritual hue and cry from the left. The same folks who publicly flirted with impeachment justifications like “quid pro quo” and bribery before settling on amorphous “abuse of power” and nonsensical “obstruction of Congress” charges have now glommed on to the GAO’s finding with alacrity. There’s even been some talk of drafting a new article of impeachment based on it.
They should curb their enthusiasm. First, Trump likely did not violate the ICA. Second, even if he did breach it, that law itself comes with its own remedy baked in — and it is a far less draconian remedy than impeachment.
Congress passed the ICA to counter its belief that Richard Nixon abused his executive-branch powers by impounding duly appropriated funds — a presidential custom stretching back to the presidency of Thomas Jefferson. The ICA allows for a president to formally request that Congress rescind appropriated funds; Congress then has 45 days to approve the president’s request. The GAO alleges that Trump flouted this process, and, in turn, his Article II constitutional duty to “take care that the laws be faithfully executed.”
To be sure, expressly directing a subordinate to violate federal law is inconsistent with the Take Care clause. But the president also has other obligations under Article II of the Constitution. The very first clause of Article II vests the president with “the executive Power.” The doling out of foreign aid is an integral part of conducting foreign affairs, and, according to a 2001 Yale Law Journal article by legal scholars Saikrishna Prakash and Michael Ramsey, 18th-century English common law — which helped form the Framers’ thinking — had an “ordinary . . . meaning of executive power” that “included foreign affairs power.”
Similarly, in the 1936 Supreme Court case US v. Curtiss-Wright Export Corp., the justices describe the president as “the sole organ of the federal government in the field of international relations — a power which does not require as a basis for its exercise an act of Congress.”
Democrats might argue that Congress’ plenary power of the purse, coupled with the statutory grounding of the ICA, might override the president’s foreign-affairs power. That is, at best, a highly contestable claim. But it is certainly not new impeachment grist for House Speaker Nancy Pelosi and Senate Minority Leader Chuck Schumer — not least because the drafters of the ICA were savvy enough to provide for a self-contained remedy.
As my boss at The Daily Wire, Ben Shapiro, quickly observed after news of the GAO report hit, the ICA prescribes a precise remedy for a situation in which the president allegedly violates it. Specifically, 2 USC. § 687 provides for a cause of action by the comptroller general in the US District Court for the District of Columbia. But since the funds have been released, any legal action would be moot.
It is true that impeachment is an inherently political process. It is also true that in Federalist 65, Alexander Hamilton abstractly defines the Constitution’s “high crimes and misdemeanors” impeachment criterion as an “abuse or violation of some public trust.”
But where, as here, Congress asserts that the president committed a statutory violation and that very same statute establishes its own remedy, it would be bad faith to outright ignore that remedy in lieu of a quixotic pursuit of impeachment.
Hamilton noted in the same Federalist that impeachment would “seldom fail to agitate the passions of the whole community,” and the Founders accordingly viewed impeachment as a remedy of last resort. It would be farcical for Democrats to go the impeachment route where the purportedly breached statute quite literally contains a far lesser remedy.
Swing-state poll after swing-state poll now shows the Democrats’ partisan impeachment gambit is set to backfire and redound to Republicans’ electoral interests come November. Democrats are desperate. But they should not now also be reckless.