January 23, 2020 | Reading Time: 3 minutes

If Congress Acquits Trump for Obstruction, It Will Have Surrendered the ‘Power of the Purse’

The president will be free to use food-stamp money for his wall.

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In their defense of the president, the Republicans are focused almost entirely on the first article of impeachment in which Donald Trump is accused of abusing the power of his office for personal gain. The Republicans have said the allegation is baseless given there is no underlying crime. If there’s no crime, there’s no need for removal.

Impeachment and removal do not require law-breaking, and everyone who knows anything about legal precedent, constitutional law and American history knows this well. Involving a foreign government in an international conspiracy to defraud the American people of their right to informed consent to the governance of the president is a violation of the public trust. Impeachment and removal are the only constitutional remedies for a person who cheated to win in 2016 and plans to cheat again in 2020.

Our constitutional crisis is just beginning.

But there is an underlying crime in the first article. That crime came to light after the House voted to indict the president. It came to light after civil lawsuits pending during last year’s impeachment inquiry finally worked their way through the courts. As a result of those lawsuits, we know the president broke federal law when he held up over $400 million in military aid Ukraine needed badly in its war with Russia. As a result of those lawsuits, a nonpartisan government agency confirmed Trump’s law-breaking.

The Government Accountability Office did more than that. Its report found the president’s excuse for withholding the money was irrelevant. The White House said Trump blocked the funding in order to push Ukraine’s government into doing more about corruption. But that decision wasn’t Trump’s to make alone. The United States Congress appropriated the money. Trump had no say in how or why it was spent (other than vetoing or signing the appropriation in law, which he did). If anti-corruption were a legitimate reason for holding the aid, he first had to take it to the Congress.

That he held the money and didn’t go to the Congress mean the president violated the 1974 Impoundment Control Act. (He did release the money eventually but only after public knowledge of what he was doing.) The ICA was passed in response to Richard Nixon’s refusal to spend on federal programs he didn’t like. The law affirmed perhaps the most important authority granted by the Constitution, which is the exclusive right of the Congress to wield “the power of the purse.” The Congress always had the right, but not until Nixon did a president challenge it. The ICA codified tradition into law.

My point here is less about Trump’s criminality than about the second article of impeachment in which the president is accused of obstructing the Congress. The White House has told every government agency involved in the Ukraine scandal to refuse cooperating with the Congress, even when lawfully subpoenaed. The result has been unprecedented obstruction of not only statutes, but the will of the people. Yet almost no one, not even the Washington press corps, is fully paying attention to that article. In light of Trump’s criminality, it may be the most consequential of the two.

If the Senate finds the president not guilty of obstructing the Congress, I don’t see why future presidents would feel constrained by the Congress when it comes to virtually anything, but specifically when it comes to why and how to spend public money. The Constitution grants the Congress the power of the purse. The Impoundment Control Act affirms that authority. But if the Senate finds Trump innocent of the obstruction charge, the Congress will have in effect surrendered its authority to the executive.

The current president wants to build a wall on the southern border. Thus far, the courts and the Congress have constrained him from paying for or redirecting money for things like the general welfare and national defense to building his campaign boondoggle. But if the Senate acquits Trump for obstruction, it will have declared any future president can obstruct. The executive will be free to spend public money as he sees fit. And if the executive can ignore the Congress, why not ignore the courts, too?

We often say the president’s impeachment trial is the height of a slow-motion constitutional crisis. It might be more accurate to say we haven’t seen anything yet.

—John Stoehr

John Stoehr is the editor of the Editorial Board. He writes the daily edition. Find him @johnastoehr.

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