What Sort of “Abuse of Power” Would Amount to an Impeachable Offense?

Some have argued that the president has executive power in order to act in the national interest, and that when he uses that power to further his personal or political interests, he is abusing his office. As Professor Noah Feldman put it, “You define the abuse of power by the idea that the president is doing something that’s within his constitutional authority, it’s within his power, like putting pressure on a foreign government, but he’s doing it not to serve the interests of the United States but to serve his personal interest and the interest of getting reelected.”

But this can’t be right. The White House will negotiate a photo-op with the Queen (with no significant diplomatic content) for no other reason than creating campaign materials. Many trade deals are negotiated against a background shaped by the electoral prospects of incumbents from agricultural and manufacturing states; the timing of foreign arms control treaties is often calibrated against the timing of upcoming elections.

It wasn’t simply that President Trump in his conversations with the Ukrainian president attempted to entice a “favor” that might prove helpful in Trump’s campaign for reelection. Rather it was what the president did to get that favor: the refusal of the president to disburse congressionally authorized military assistance is a violation of law that strikes at the heart of Constitutional government. To use that violation as the basis for securing a political advantage is an abject abuse of power. The fact that releasing the funds was conditioned on Ukraine doing a political favor to Donald Trump is what transmutes an ordinary bit of politics into the subversion of our most important constitutional structures.

Many supporters of this president see nothing significant in the withholding of funds appropriated by Congress to support Ukraine in its struggle against Russian aggression—an aggression that has already claimed 13,000 lives and dismembered parts of the Ukrainian state. They may want to think again.

Suppose the next president withheld emergency disaster relief, appropriated by Congress from American taxpayers and signed into law, until a state official promised to announce an investigation into the president’s political opponent. (Watch professor Pamela Karlan’s articulation of that hypothetical in congressional hearings.)

Or suppose a president redirected funds appropriated by Congress for medical assistance to a stricken country—perhaps even one on our borders where a pandemic raged — until local officials opened criminal investigations of American political figures or their relatives.

The reason such maneuvers are so constitutionally damaging, the reason they are precisely the sort of high crime—like bribery and treason—that the framers made the basis for impeachment, is that they strike at the heart of government under constitutional law. In this case it is the constitutional law of Congressional appropriations, which is more fundamental to the integrity of our constitutional system than seems to be widely appreciated.

The central bargain of representative government is that the taxing and spending powers are placed in the hands of elected officials who are accountable to the voters every two years. When the president refuses to disburse funds, or finances US government operations out of private funds, he commits the gravest of Constitutional offenses.

This is why the Impoundment Control Act of 1974 was adopted: to prevent the president from acquiring a super-veto over legislation by simply refusing to execute appropriated funds. And that is why the finding last week by the GAO that the president had violated that law is so salient to the ongoing impeachment proceedings, and should be a game changer of sorts at least for those not fully paying attention. The GAO was deliberate in saying that President Trump’s withholding the aid ran afoul of his constitutional duty. “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 agency stated.

What’s more, this is not the only statutory (and constitutional) violation implicated by the president’s maneuvering to get the Ukrainians involved in our elections. Federal law makes it a crime to “attempt to cause any person to make a contribution of a thing of value (including services) for the benefit of any candidate…by means of the denial or deprivation, or the threat of the denial or deprivation, of…. any payment or benefit of a program of the United States,… if such…..payment, or benefit is provided for…by an Act of Congress” (emphasis supplied). It’s hard to imagine a statutory provision more closely matching the fact pattern in the Ukraine scandal than that provision.

My point is simply a clarifying one: abuse of power may indeed be the basis for the impeachment and removal from office of a president if he corruptly acts to further his political interest. This is not just a matter of perspective. To withhold funds of this magnitude in the context of active warfare in order to influence the reputation of a political adversary is a high crime of the highest constitutional importance. It is not merely a matter of politics as usual, and politics as usual do not constitute the abuse of office.

 

Philip Bobbitt is the co-author, with the late Charles L. Black, of Impeachment: A Handbook.

Image: Mark Wilson/Getty

 

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About the Author(s)

Philip Bobbitt

Herbert Wechsler Professor of Federal Jurisprudence and Director of the Center for National Security at Columbia Law School and Distinguished Senior Lecturer at the University of Texas