Impeachment

Impeachment and the Spending Power Revisited

In assessing impeachment, we should keep in mind Trump's usurpation of Congress' power over federal spending. This is a serious violation of the Constitution, and focusing on it overcomes some standard objections to impeachment.

|The Volokh Conspiracy |

Earlier today, House Democrats released two draft articles of impeachment against President Donald Trump: abuse of power and obstruction of Congress. In September, I wrote two posts explaining why, if Trump withheld congressionally appropriated military aid from Ukraine in order to pressure the Ukrainian president into investigating supposed misdeeds by Joe Biden and his son Hunter, he usurped Congress' power over federal spending, and also likely committed a federal crime in the process (see here and here).

This theory is compatible with the first article of impeachment released today, and evidence that has accumulated over the last several months makes it clear that Trump did indeed usurp Congress' power in this way. Usurpation of congressional authority is not the only abuse of power involved in Trump's actions. But focusing on it effectively dispenses with a number of standard objections to this impeachment process, such as claims that advocates have failed to specify any law the president violated, or that they rely too much on his subjective motives.

I. Trump's Usurpation of the Spending Power.

Today's articles of impeachment do not directly reference the spending power. But the first article does indicate that Trump "solicited the interference of a foreign government, Ukraine, in the 2020 United States Presidential election" and "sought to pressure the Government of Ukraine to take these steps by conditioning official United States Government acts of significant value to Ukraine on its public announcement of the investigations." One of those "acts of significant value" that Trump tried to use as leverage was "the release of $391 million of United States taxpayer funds that Congress had appropriated on a bipartisan basis for the purpose of providing vital military and security assistance to Ukraine to oppose Russian aggression and which President Trump had ordered suspended." The article goes on to claim that this suspension (and other acts committed by Trump) demonstrate that his conduct is "a threat to national security and the Constitution."

Members of the House voting on the articles can surely consider usurpation of the spending power to be part of the "threat to the Constitution" arising from Trump's conduct. The same goes for members of the Senate deciding whether to convict Trump in a trial before that body (assuming, as is likely, that the House votes to impeach).

How did the threat to withhold military aid violate the Constitution? I summarized my reasoning here:

If there is one thing that constitutional law scholars agree on, it is that the spending power is supposed to be controlled by Congress, not the president. Even most of those who otherwise favor very broad presidential power concur…..

If Trump tried to use aid money allocated by Congress to pressure the Ukrainian government into investigating one of his major political rivals, that would be a blatant effort to use federal funds for purposes that were never authorized by Congress. The legislative branch does often give the executive the power to withhold foreign aid money until various conditions are met—such as assisting US foreign policy goals, combating corruption, or promoting development. There is a longstanding debate over how much discretion the Constitution allows Congress to delegate to the president on such matters. But, in this case, Congress never even came close to authorizing the president to use the aid money as leverage to force a foreign government to try to dig up dirt on the president's own political opponents and their family members.

If the president can threaten to withhold funds authorized by Congress until the intended beneficiaries do him some personal or political favor, he would have acquired a very dangerous power indeed. He would thereby gain enormous new leverage over a wide variety of public and private organizations, both foreign and domestic. It isn't hard to see how such power can easily be abused in a variety of ways.

Even if you believe there is good reason to investigate Joe Biden and his son's dealings in Ukraine (which is not clear), the proper way to do so is to use law enforcement funds properly allocated for such purposes, not use foreign aid money as leverage to get a foreign government to do it for you. You cannot investigate the possible corruption of others by engaging in corrupt self-dealing yourself.

Even back in September, when I wrote the above, there was already extensive evidence showing that Trump did in fact withhold aid for the purpose of pressuring Ukraine into investigating the Bidens. That evidence has been reinforced by the testimony of numerous Trump administration officials who appeared before the House Intelligence Committee. It is striking that all of them had much the same understanding of the reasons why aid was withheld.

These officials' testimony cannot easily be dismissed as that of left-wingers or committed "Never Trumpers." If they had been such, it is unlikely they would have been entrusted with important policy positions in the Trump administration.

Some of the most damning testimony on this point came from Gordon Sondland, the Trump-appointed US Ambassador to the European Union, who testified that he had specifically informed Ukrainian officials that the aid would be released only if they pursued the investigations the president wanted. Far from being hostile to Trump, Sondland is actually a big enough supporter of the president that he contributed some $1 million to Trump's inauguration. As the House Intelligence Committee report points out, Sondland "testified that he developed a clear understanding that the military aid was also conditioned on the investigations, that it was as simple as 2+2=4."

At times, defenders of Trump have argued that the aid was really withheld for purposes of pushing the Ukrainian government to combat corruption more generally. But that story is undercut by  the fact that the Trump administration had previously certified that Ukraine had taken sufficient steps to combat corruption to qualify for the aid.

The claim that everything is fine because Trump eventually released the aid  money also does not get the administration off the hook. I discussed the reasons why here. Moreover, some $35 million of the aid in question actually still hasn't been delivered.

Trump's usurpation of the spending power not only violated the Constitution, but also federal criminal law:

[A] quid pro quo scheme like the one Trump apparently engaged in does qualify as a federal crime. Specifically, it would be a violation of 18 USC Section 601, which criminalizes "knowingly caus[ing] or attempt[ing] to cause any person to make a contribution of a thing of value (including services) for the benefit of any candidate or any political party, 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 employment, position, work, compensation, payment, or benefit is provided for or made possible in whole or in part by an Act of Congress." Violators are subject to a fine, a prison sentence of up to one year, or both.

Section 601 pretty clearly covers this quid pro quo scheme. The aid money is a "payment or benefit of a program of the United States," one that is "made possible… by an act of Congress" (which appropriated the money). An investigation of the president's most likely Democratic opponent in the 2020 general election is obviously a "thing of value (including services)" that benefits a candidate or a political party; in this case, Trump and the GOP. At the time Trump made the call, Biden was the leading contender for the Democratic nomination, even though Elizabeth Warren may have caught up to him since then. And, if Trump made the quid pro quo threat at all, he surely did so knowingly and with full awareness of the potential political advantages. Finally, Section 601 criminalizes attempted use of funds as leverage to gain political support, not just successful efforts to do so. Even if Trump's pressure tactics failed to achieve their goals, he still violated 601.

II. Answering Standard Objections to Impeachment.

Usurpation of the spending power is not the only abuse of power justifying impeachment in this case. But this does have the virtue of negating two standard criticisms of impeachment advanced by my co-blogger Josh Blackman, among others: that advocates cannot specify any laws Trump violated, and that they rely too much on debatable interpretations of his motives.

The law Trump violated is the Constitution. And the violation is a serious one, because it undermines one of Congress' most important powers and—if allowed to become a precedent for the future—creates a dangerous concentration of power in the hands of one person. Moreover, the effort is part of a broader pattern of usurpation of congressional spending power by Trump. That is evident in the many cases in which both Republican and Democratic-appointed judges have struck down the president's attempts to impose conditions on federal grants to states and localities, that were never authorized by Congress. The same pattern recurs in the litigation over Trump's attempts to divert funds to build his border wall, despite Congress' repeated refusal to allocate funding for that purpose. And there are plenty more examples of Trump playing fast and loose with the spending power. This pattern reinforces the point that Trump;s conduct poses a more general threat to the separation of powers, and strengthens the case for ending it by removing him from office.

In the process of violating the Constitution,  Trump also committed a criminal offense by violating 18 USC Section 601.

The spending power issue also does not depend on any potentially tendentious interpretations of Trump's motives. Even if he genuinely believed that pressuring Ukraine to investigate the Bidens was in the public interest, and  was not motivated by any potential benefit to himself, Trump still usurped the spending power by trying to use federal funds for purposes not authorized by Congress.

Similarly, in this scenario he still violated Section 601, which requires only that he "knowingly" tried to use the funds in question as leverage to "cause or attempt to cause any person to make a contribution of a thing of value (including services) for the benefit of any candidate or any political party." Trump need only have known that the "benefit" to himself as a candidate existed (an obvious fact he could hardly have missed). There is no requirement that the creation of such a benefit was his motive for using the funds as leverage.

For reasons well-explained by co-blogger Keith Whittington  and prominent conservative legal scholar Michael Stokes Paulsen, among others, impeachment can be justified even in cases of abuse of power where no specific law has been violated. I also agree with Orin Kerr's thoughtful explanation of why consideration of presidential motives is sometimes a legitimate basis for impeachment, even if the conduct in question might otherwise be defensible. But to the extent some nonetheless do believe that violations of a specific law are essential and do worry about potentially excessive scrutiny of motivations, the spending power theory avoids both problems.

III. The "Everybody Does it" Defense.

Finally, some defenders of the president argue that it's wrong to impeach Trump for using aid withholding as leverage because presidents do similar things all the time, and then Vice President Joe Biden did the same thing when he used aid withholding as leverage to get Ukraine. Even if these "everybody does it" and "Biden did it" arguments were factually accurate, they do nothing to justify Trump. If such violations of the Constitution are in fact common, that makes it all the more imperative to start curbing them by holding presidents accountable for such usurpations. To put it in Trumpist terms, this theory suggests that the swamp is really deep, and therefore we must take especially aggressive measures to start draining it! If presidents are routinely getting away with violations of the Constitution, there's no better way to put a stop to such behavior than by removing one from office in disgrace,

As already noted above, presidents do in fact often use as aid as leverage. In most cases, however, it is for purposes authorized by Congress, which often delegates relatively broad discretion to the president in this respect. There is a longstanding debate about how broad such discretion can be. But what is unusual in this case is that Trump tried to use aid as leverage for purpose that wasn't even remotely authorized by the legislative branch.

That's a sharp contrast with both general standard practice in the past, and what Joe Biden did in 2015, when he used the threat of withholding $1 billion in loan guarantees in order to pressure Ukraine into removing Prosecutor General Viktor Shokin. Shokin was forced out because he was widely perceived to be soft on corruption.  Removing him out was not an idiosyncratic project of Biden's. It had bipartisan support within the US government and was also backed our NATO allies, the International Monetary Fund, and others. This is why Biden's role in the removal was not attacked by the GOP-controlled Congress at the time. The Republicans surely would not have missed the opportunity to  score political points if removing Shokin was just a corrupt bargain for the benefit of Biden.

Moreover, the use of aid money for combating corruption in Ukraine was specifically authorized by Congress. The aid in question was authorized by a 2014 law that specifically indicated that the support provided by the act was to be used  to improve "anti-corruption efforts in Ukraine" (among other purposes). As discussed above, Trump's aid withholding had no similar justification, because his own administration had certified that Ukraine had met all corruption-related requirements for receiving the funds in question.

This is not to say that everything Biden did was proper. Given that Shokin previously investigated Burisma—the firm on which Hunter Biden was a member of the board—Biden likely had a conflict of interest and should have left the issue to other administration officials. But Biden's actions did not usurp Congressional authority, and they did not violate any laws.

It is legitimate to argue that more needs to be done to eliminate conflicts of interest by high executive branch officials. But, if so, Trump's massive conflicts of interest arising from his failure to divest himself of his large-scale international business empire—are a far graver sin than anything Biden did in Ukraine. Trump has also appointed his son-in-law, Jared Kushner, to important roles involving foreign policy towards the Middle East, despite the fact that Kushner has major business interests in the region. Kushner's glaring conflicts of interest make the Hunter Biden/Burisma situation seem like small potatoes by comparison. Here, as elsewhere, the bad behavior of previous administrations doesn't justify that of  the current one—and vice versa.

UPDATE: In the original version of this post, I quoted the wrong language from the 2014 law that authorized the loan guarantees withheld by Joe Biden in 2015. I apologize for the error, which I have now corrected.

 

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  1. I don’t think everybody does it. Our local dog catcher is pretty up and up.

  2. Thoughtful analysis. Even in the parts I disagreed with.

    From the beginning–when discussing this matter with my liberal and conservative friends–I could not understand the general attack on Joe Biden. My point was, “Biden did nothing wrong (or, at least, nothing terribly wrong), and we know this from the reaction from conservatives at the time. What was their response? Silence. No outrage from Republicans in Congress. No outrage from Fox News, Rush, etc. No outrage from other leading conservative voices. No outrage from Citizen Donald Trump (who, obviously, had NO PROBLEM criticizing anything and everything about the Obama administration he did not like.) Why the deafening silence? Because even conservatives, even the most vocal of Obama/Biden opponents (at the time!) thought that getting rid of a corrupt Ukrainian official was a really good idea.”

    I don’t understand why each public official who is slamming Joe Biden now is not asked, “Can you cite to comments you made *at the time* where you criticized Biden for pushing to get rid of this guy? Or where you criticized the Obama administration for this?”

    There might be such critical comments that were made at the time. But I haven’t been able to find them.

    1. I don’t think the full details surrounding exactly what happened were fully published at the time, including the potential conflict of interest Biden had with his son working at the Ukrainian company under investigation.

      You can’t complain about what you don’t know. It’s like how no one complained in 2013 about Hillary keeping a private server.

    2. There was so much to criticize during the Obama administration that you’ll have to forgive us for missing some garden-variety influence peddling. Actually there were articles about both the Ukraine business and the China deal going back at least as far as 2016, and none of this began until the middle of Obama’s second term.

      So I guess your contention is “You missed your chance, can’t talk about it now because…” Why is that again?

    3. So in your mind right or wrong should be determined by the loudest and most critical faction of the opposition?

      Biden’s actions were fairly normal so nobody complained. Trump’s actions were fairly normal (unless you assume corruption into every action or inaction that is) so leftists went nuclear.

    4. Many longtime DC Swamp Critter Pols on BOTH SIDES were Ok with what Biden did because they do shit like that too!!!!!

  3. Everything Biden did was proper because we decided to declare it proper. Meanwhile, when Trump did something almost indistinguishable, it was bad because we decided to declare his secret innermost thoughts were selfish.

    1. Or, to rephrase Ben,
      We all thought what Biden did was fine at the time. And we all thought it was fine afterwards. But now that he is running for president, and now that Trump is accused of corruption, “Hey, we suddenly realize that what Biden did is not okay…it’s totally corrupt also and Biden is a big ole corrupt poopy-head.”

      1. Let’s have one standard and not two.

        I don’t think Biden should be impeached either.

        1. Ben,

          You do realize that the only commonality is that aid to Ukraine was withheld.

          In the Biden situation, there is no indication that it had anything to do with advancing Biden’s personal interests and everything to do with long-standing U.S. interest in promoting good governance in countries like Ukraine. Biden’s action was supported and encouraged by everyone who cared about corruption. He openly bragged about it, because it was, objectively, a good thing.

          In the Trump situation, there is every indication that it had everything to do with his personal interest in damaging Biden’s reputation. Trump’s action was called a drug deal by Bolton and resulted in many people running off to check with attorneys or otherwise cover their own asses. No one openly bragged about it, because they knew it was wrong.

          1. You DO realize this was on the heels of a CIA/State department illegal coup against the democratically elected president of Ukraine, right? Yanukovich was (is) a corrupt piece of garbage, but that is beside the point, he was who the Ukrainians elected in an election that was declared sound by all international observers. Then suddenly a guy whose only gas experience is telling his driver to fill dad’s limo gets a job on the board of a gas company in a country he knows nothing about – sure, nothing to see here, move along. I mentioned it to a friend at the time who is a hard-line democrat, and even he said then, “Yes, my, they are doing it right out in the open, aren’t they?” I didn’t even have a clue about the salary at the time, as that has only surfaced recently.

            We weren’t “promoting good governance” – that is total unadulterated BS. Yatsenyuk and Poroshenko were just as corrupt as Yanukovich, so let’s stop playing this game that the US is “spreading democracy” – it’s a lie. We spread our corporate and hegemonic interests and nothing else.

            Trump is an abomination of a human, but to pretend that the Bidens are not as dirty and corrupt as any swamp creature out there is just not based on the reality of the situation.

            1. MVP,

              So, those are lies, except the part about Yanukovich being a corrupt piece of garbage and that Trump is an abomination.

              The U.S./CIA/State Department did not start and cannot otherwise be said to have orchestrated an “illegal coup” of Yanukovich. It was a popular uprising. The U.S. did become heavily involved in the pro-West side, but supporting a native uprising against a monstrously corrupt politician is not conducting an “illegal coup.” In fact, the Ukrainian Parliament ultimately ousted Yanukovich who fled to Russia with billions of Ukraine’s money to avoid prosecution for his many crimes.

              It is an overstatement to say Yanukovich’s election was “declared sound.” It was declared “reasonably free and fair” and, notably, this followed the prior 2004 election which he first won due to massive fraud on his behalf (and that was overturned). Moreover, there are allegations of fraud, corruption, and voter intimidation in the 2010 election. Maybe the 2010 election was as fair as Ukraine could get at that point, but it was hardly a model. Moreover, as soon as elected, he changed the rules to favor his party, made a number of pro-Russia moves, attacked the free and independent press, and harassed and persecuted his political opposition. This was all background to the popular uprising against him in 2013-2014.

              By any standard, Poroshenko was less corrupt than Yanukovich, though hardly a model, and initiated positive developments in the fight against corruption.

              Yatsenyuk, similarly, was nowhere near as corrupt as Yanukovich.

              And Zelensky seems to actually be committed to fighting corruption.

              The U.S. has been on the right side of this fight and has been supporting legitimate anti-corruption efforts.

              Given your penchant for conspiracy theories and false equivalency when it comes to comparing the corrupt Russian stooge Yanukovich to other politicians (or the false equivalence of comparing Donald “G7, I mean 8, at Doral” Trump to Biden), I can only assume you are a Russian troll.

              You are more convincing if you use more facts than fantasy.

          2. The statements supporting Biden have zero weight. Someone told you that other people agreed with Biden at the time. So what?

            The statements against Trump are meaningless. Who cares what Bolton says about anything? No evidence of intent at all, only opinions. Why should anyone care about any opinions?

            I don’t think either of them should be impeached. Get some facts first. And maybe find an offense that non-obsessed people might care about.

            1. Ben,

              They aren’t statements supporting Biden. They were statements against Shokin by independent organizations with the common goal of reducing corruption in Ukraine. That everyone interested in reducing corruption in Ukraine wanted Shokin gone carries weight, whatever state of denial you are in.

              Who cares what Bolton thinks? Trump did, apparently, and he was a leading foreign policy expert in the GOP (as wrongheaded as his geopolitical ideas are). If he didn’t want to get the stink on him, it does say something. Similarly, people don’t generally go running to attorneys when they think everything is kosher. But hand waive away the “opinions” if you want.

              There are a multitude of facts and the only one that supports your “one standard” complaint is that both situations involved aid to Ukraine. Nothing else about them is remotely similar. There is one standard. Biden did not violate it (he was pursuing the national, and international recognized, interest). Trump did (he was trying to gain personal political advantage).

              That you don’t care, doesn’t mean it isn’t a serious issue.

              1. “Former Ukrainian Prosecutor General Viktor Shokin said that his office prepared in the summer of 2016 to interview then-Vice President Joe Biden’s son Hunter Biden as part of a money laundering probe into Hunter Biden’s employer, the Burisma energy company.

                That’s when the pressure to stop investigating Hunter Biden’s possible role in the alleged crimes increased, Shokin told One America News.

                Shokin said that Ukraine’s president at the time, Petro Poroshenko, came to him and said that Joe Biden cited the probe into Burisma as the reason the Obama administration wouldn’t release $1 billion in aid to Ukraine.”

                1. Did he also mention his Canadian girlfriend?

                2. Armchair, One America News? Really?

                  Compare and contrast with the NYT. The Times just finished reporting that the FBI Inspector General found no political bias against Trump in the initiation of its Russia investigation.

                  But, the NYT is front page today with other IG Report info, excoriating the FBI for malpractice on FISA Court warrants regarding the Russia investigation.

                  You can count on both NYT stories to be accurate with regard to the IG Report.

                  Read the Wikipedia article on One America News to get the contrasting picture about OAN. You can count on them for nothing.

                  Just in general, is there some clearing house where right-wingers go to find their sketchy sources? I am constantly surprised by cites to outlandish propaganda organs I never heard of. Why can’t Trump supporters tell when the sources they rely on are just embarrassments?

                  1. Armchair,

                    Your quote doesn’t even make sense. Shokin said bad things about Biden after Biden helped force his resignation and Shokin’s corrupt practices became internationally known? We should definitely trust what Shokin says.

                    And he was preparing to interview people in Summer 2016? He wasn’t prosecutor general in 2016.

                    Those are some high quality sources for your conspiracy mongering. Be smarter than that. Please.

                    1. NOVA: It wasn’t even “after.” It was three years later that Shokin first came up with this story. And he did so after being solicited by Firtash’s/Trump’s lawyers to say it.

              2. People who consult with attorneys can be assumed to be guilty of something?

                Good luck keeping the attention of any non-obsessed person with this Ukraine stuff. It’s irrelevant to people’s’ lives and ambiguous.

                1. Ben,

                  Many of the people who consulted attorneys weren’t guilty of anything, as they weren’t the ones making the troubling statements. But they wanted to be sure they remained on the right side of the law. The implication is that something that at least looked potentially criminal was happening, so people check with attorneys to make sure they don’t go to jail. People don’t ordinarily run to attorneys when everything has happened according to standard practice (when, as in this case, it isn’t standard practice to consult attorneys after a routine call).

                  You keep talking about whether regular people care. That is irrelevant to this blog which caters to people interested in legal stuff. There are at least two categories: the legal implications and analysis of what Trump did (which is what we are discussing) and whether there is or may be public support for removing Trump via the impeachment process (which we aren’t discussing). Responding to analysis of the egregiousness of Trump’s conduct with “but the public doesn’t care” is all but a concession that you lose on the merits with an assertion that Trump will probably survive because of public apathy. Yeah, that does look like where we are.

      2. Now do obama sending money to iran for hostages. You’re good at rationalizing all your bullshit. My guess is you state improperly it was their money ignoring all the lawsuits the money could have been directed to.

      3. Even ole’ Joe is out in front of you boys now. Just the day before yesterday he said that he never realized that there was a conflict of interest because nobody ever told him there was one. So now he does know which seems to be a step ahead of you and your pals.

        Now he hasn’t yet admitted to being the corrupt poopy-head that he is but he seems to be moving in the right direction.

    2. Not exactly indistinguishable situations. President Trump cannot be accused of bribery. Biden, well, sure doesn’t look good. This post conveniently ignores some key facts suggesting that Biden acted with less than pure motives. The prosecutor was not fired in Dec. 2015 when Biden threatened to withhold aid. The prosecutor was actually fired in Feb. 2016, after taking action against Burisma and after a Feb. phone call to the Ukranian president by Biden. And Biden never asked his son to resign from the board. Seems to suggest that Joe was motivated to help Burisma, the corrupt foreign company paying his son.

      1. MKE,

        Shokin didn’t resign after taking action against Burisma.

        The investigation was dormant during the whole period from December 2015 until his ouster in 2016. If you are thinking of the reimposition of an asset seizure order with respect to Zlochevsky, the order expired in December 2015 due to a new law transferring jurisdiction of the case to a different entity (NABU) instead of the Prosecutor General’s Office. When the court’s order ending the freeze became public, there was outcry and the PGO had the order reinstated. So, Shokin let the freeze end, Biden called for his ouster. Shokin’s office had the freeze reinstated, Biden called for his ouster. If you are trying to insinuated that the asset freeze had any bearing on Biden’s position, the facts just don’t support that inference.

        “In other words, [in February 2016] there was largely a technical reinstatement of a court order that already had been in place for at least a year.” (WaPo)

        Moreover, here is a excerpt from a February 2016 article from the Kyiv Post (https://www.kyivpost.com/article/content/ukraine-politics/media-prosecutor-general-shokin-submits-resignation-408228.html?cn-reloaded=1):

        Shokin has been under fire for months by his critics, who accused him of stalling reform in the Prosecutor General’s Office, and covering up cases of corruption among his subordinates.

        Daria Kaleniuk, the executive director of the Anti-Corruption Action Center, hailed Shokin’s resignation in a post on Facebook on the evening of Feb. 16.

        “Shokin resigned. For six months we were working hard in the Anti-corruption Action Center to be able to write these two simple words,” Kaleniuk wrote.

        But I am sure the Anti-Corruption Action Center is in the tank for Biden, right MKE?

        1. I guess my point NOVA Lawyer, is that there is evidence from which to contradict Biden’s self-serving assertion that he acted with pure motives in seeking the dismissal of the prosecutor who, however you characterize it, had taken action against the corrupt foreign company paying Biden’s son (paying him for no legitimate reason I should add because he had no value other than as a means of access to favors for the US administration). Articles like this post, and your own sources, twist themselves into knots to claim there was absolutely no evidence of impropriety/corruption on the part of Biden when there is, at the very least, a legitimate basis for further investigation. At the same time, 2nd, 3rd (4th?) hand hearsay and opinions are seen as solid evidence as to the president’s motives even in the absence of any objective wrongful act.

          1. If there were a legitimate basis for investigation of Biden, why did the DOJ never open up an investigation of Biden? Why did Trump never even mention it to them? Why did Barr not submit a request to the Ukrainian prosecutor via the MLAT procedures for assistance with this investigation? Why did Trump drop the request as soon as his scheme was exposed?

            1. Why? Because the money was not conditioned on an investigation! Could it have been? Sure seems like conditioning aid on an assurance that the receiving country confirm it is addressing internal corruption (especially a country with a history of corruption) would have been proper, but the President did not do this. And the president is not constrained by MLAT procedures from submitting a request himself. He is the chief executive, And finally, who knows what Barr/Durham are investigating? Maybe the investigation will reach corrupt activities involving Ukraine or Ukrainians in 2016. Interesting how everyone just seems to assume that investigating corruption in 2016 is synonymous with investigating democrats or Biden. What are you afraid of?

              1. MKE,

                Your statement makes no sense. He dropped his request once the whistleblower complaint came forward “Because the money was not conditioned on an investigation!” The point, I think, is that if that were the case surely he wouldn’t have dropped the request at the same time he released the aid at the same time the whistleblower complaint came to light. At the very least, those three facts are highly consistent with the theory that the aid was conditioned on the investigation and highly coincidental if it wasn’t.

                “Interesting how everyone just seems to assume that investigating corruption in 2016 is synonymous with investigating democrats or Biden.”

                The only people assuming that are Republicans. Democrats and Independents don’t assume that at all. Perhaps you’ve forgotten that Republicans are claiming that Trump’s request to look into the “Bidens” was really just a general concern about corruption, which seems either incredibly naive or disingenuous to me. And most people saying it are too smart to be that naive…

                For you, I assume it is just another amazing coincidence that that only “internal corruption” Trump was concerned about involved his most likely 2020 opponent? You believe in an audacious number of coincidences. And nothing we know about Donald “G7 at Doral please” Trump indicates he cares one whit about corruption.

                1. And nothing we know about Donald “G7 at Doral please” Trump indicates he cares one whit about corruption.

                  Let’s not forget that wrt his first call with Zelensky in April, Trump’s team issued a readout¹ saying that Trump had discussed corruption with him. But Trump recently released the “transcript” of that call in an attempt to prove he’s upstanding, and corruption was never even mentioned.

                  ¹For those people who are unaware, a readout is essentially a press release put out by the government after a communication with foreign leaders, to let the media know the topic of the call.

                  1. I know, right? I find it hard to believe that anyone remotely serious believes Trump was concerned with “corruption” large or small.

                    1. And you take Schiff seriously? The guy who championed the “pee” dossier? I doubt even Schiff is stupid enough to actually believe his own lies.

                    2. Who said anything about Schiff? Which means, I take it, you concede Trump and his defenders shouldn’t be believed that he had a general concern about corruption. Thanks!

                2. I think your understanding would improve greatly if you actually read the transcript of the President’s call rather than apparently relying on Schiff’s perverted interpretation. Just to remind you, Schiff also promoted Russian collusion hoax stories, including the Steele dossier. That walking disgrace even read the entirety of the Steele garbage into the congressional record.

                  1. MKE,

                    All you have to do is read the actual transcript. Trump countered Zelensky’s request for already-approved military aid with I want you to do “us a favor though.” Then proceeded to discuss the debunked “Crowdstrike” conspiracy theory and the Bidens. Then Trump withheld the aid and all of the relevant people who have testified were under the impression (which any reasonable reading of the call also implies) that the release of the aid was conditioned on those “favors”. Plus, as Sondland pointed out, Trump has historically done business that way. He always uses his leverage to try to get more of what he wants and what he wanted was an announcement of an investigation into the Bidens. This doesn’t even seem remotely controvertible.

                    1. Not aware of any “debunked” theories. Debunked by whom? Slate? Vox? Rachel Maddow? Sondland is entitled to his opinion I guess. Although his presumptions were shown to be incorrect by his own testimony. And just as an aside, since when doesn’t the executive branch use leverage to get what it wants? You just really don’t want democrat corruption investigated. Tough Crap.

          2. That business about the hearsay? Sure, there is some hearsay. Some of it is pretty powerful hearsay, coming from a guy who has demonstrated that he can get Trump on the phone anytime, regarding all matters Ukraine. All the hearsay does is reinforce the non-hearsay. That includes at least 2 instances where Trump says publicly he wants the Bidens investigated by foreign nations. And of course, the “transcript.” And of course, David Holmes directly-heard account of Trump’s demands.

            Taken together, that is proof beyond a reasonable doubt, even if so high a standard need not be reached. MKE, Trump did what he is accused of. I don’t think even Trump’s congressional defenders are anymore trying to say otherwise. Why keep it up?

            1. Hearsay evidence that would be inadmissible in any trial, civil or criminal, is proof beyond a reasonable doubt? I feel sorry for any criminal defendant if you are the juror. And Holmes, really? The guy who heard part of private phone call in a crowded restaurant? The same “testimony” that conflicts with Sondland’s testimony, one of the guy’s actually on the call? Yeah, I’m convinced.

              1. MKE, never heard of the hearsay exceptions? Check it out. There are a lot of them, tailored to circumstances. They make a lot of hearsay admissible.

                1. The Federal Rules of Evidence apply to this kangaroo court joke? News to me. But that’s beside the point. What hearsay exception would allow admit the testimony of Holmes, let alone the BS opinion evidence of just about every “witness” brought before this disgrace? I’ve reached my limit of tolerance for this idiotic sanctimonious democrat garbage.

                  1. The Federal Rules of Evidence apply to this kangaroo court joke? News to me

                    Yes; things like logic, facts, and human decency would also be news to you.

                    What hearsay exception would allow admit the testimony of Holmes,

                    FRE 801(d)(2)¹

                    ¹Yes, for the real lawyers here as opposed to playing-one-on-the-Internet-Trumpkins like MKE, I know that’s an exclusion rather than an exception.

                    1. You’re overplaying your hand. Logic, facts and decency? Where has that been present in this entire orchestrated farce? Democrats are determined to undermine our constitutional order, doing great (irreparable?) damage to our institutions and no facts, logic or decency will dissuade them from carrying on with this disgrace. And when they fail in the senate they’ll manufacture something else.

                      And as to the supposedly (and conveniently partly) overheard conversation from a cell phone in a crowded restaurant not on speaker, not very credible, which is to say not credible at all. And his relation of Sondland’s half of this conversation, sounds a little hearsayish. Looks like we may need another exception.

                    2. Shorter MKE. You eviscerated my argument? Well…..look! Squirrel!

                    3. Just so I understand, does this mean you have no intelligent response? Because it sure seems so.

  4. Lol, yes. We should also impeach Trump because he is conducting wars in the Middle East that were never authorized by Congress. Blatant violation of the Constitution, isn’t it? Isn’t it?!?!

  5. Your analysis relies on a false assertion, that Trump used the funds for a purpose different than those approved by Congress. Slowing down the delivery of the funds is not ”using” the funds.

    You could make the argument that Trump’s use of DoD funds to build the border wall would fit that definition of “use”, as the money is actually being spent on construction. But here, the money actually was actually used on is Congressionally-approved purpose: aid to Ukraine.

    The rest of your analysis is interesting, if a little too credulous toward Dem talking points, but basing your argument on a false premise means the whole thing falls.

    1. Going to rob a bank and then giving the money back when you get caught in the lobby doesn’t mean you didn’t rob the bank.

      1. President Trump did not commit a crime (rob a bank). President Trump paused the dispersion of funds, to confirm Ukraine was doing enough to stop corruption. Its part of the executive branch responsibilities of following the statute that specifically requires no monies go to corrupt foreign governments. No amount of magic mind reading is going to cancel out the Presidents article II powers.

        1. A pause that the testimony from the OMB was normal and had been used on other countries such as lebanon. Something dishonest hacks like Sarcastro ignore.

          1. In the other thread I said that I didn’t think you were as stupid as the arguments you were making. I was mistaken.

            First, nobody authorized Trump to undertake any such “pause.” Second, it was in no way normal, which is why you know about the Lebanese situation but did not know about the Ukrainian one until the whistleblower blew the whistle. In fact, they didn’t tell OMB or Congress anyone else in the government about the reason for this so-called “pause,” which they would have done if Trump had an honest reason for it. Nor would they have unpaused once Trump’s illicit scheme were exposed if the supposed “pause” were legitimate.

            Third, there is loads of testimony that it had nothing to do with “confirming Ukraine was doing enough to stop corruption,” but that it was solely about them announcing an investigation of an American.

            1. Has somebody “authorized” Trump to pause the funds for Lebanon and other countries?

              Who is that somebody and why does he or she have more power than the Chief Executive?

              1. Who is that somebody and why does he or she have more power than the Chief Executive?

                Because our constitutional scheme puts congress in charge of making laws. The chief executive is just supposed to faithfully execute them as written. Not as he feels like.

                1. Actually, it’s pretty established that the executive branch has almost absolute prosecutorial discretion in what laws to enforce, and to some extent how to enforce them.

            2. David, David, David….C’mon buddy, you are really stretching here. 🙂

              POTUS Trump doesn’t need authorization to ‘pause’ aid. The statutory deadline to disburse aid passed by Congress was September 30. The aid was released 9/11/19. What pause? The aid was disbursed in accordance with the enabling legislation.

              If you want to overturn an election, and your previous posts indicate that is what you want, I have news for you. This ain’t it. And the polling to date seems to buttress that. People aren’t galvanized by this. The House can vote for impeachment. The POTUS will not be removed from office.

              Ultimately, I think the electorate will see this as a massive and costly waste of time. I do not see where this positively aids Team D in November 2020.

              1. Maybe it’s just about holding an American citizen to the law? Do the police consider how arresting a bank robber will “positively aid” a team in the future or do they just arrest the guy who stole the cash because he broke the law?

                Sometimes, it’s just about doing the right thing.

                1. “do they just arrest the guy who stole the cash because he broke the law”

                  But neither the DOJ or FBI (which answer Trump and Bill Barr) are investigating or prosecuting either Biden, nor has Ukraine ever investigated or prosecuted either Biden. That is almost certainly because of the fact that there is no predicate to believe either Biden violated any law. Calling for a criminal investigation (or maybe just the announcement of one) of a U.S. citizen by a foreign government where the President has no reason to believe violated any law, but does have reason to believe Biden will be his political opponent, is quite certainly wrong.

                  The right thing is to dump Trump.

              2. The aid was disbursed

                Not all of it.
                And only after Trump got caught.

                If you want to overturn an election

                Once again: impeachment doesn’t overturn an election.

                I do not see where this positively aids Team D in November 2020.

                The fact that Republicans are so desperately arguing this suggests otherwise. But I don’t care. I mean, sure, I want to see the Republicans lose. But that’s not the point of this.

            3. Pretty bold to call somebody else stupid David. Who authorized the President to undertake a pause? The president authorized it super genius. Because he is…oh let me see what’s the word I’m looking for… THE PRESIDENT! The president has near plenary authority in the conduct of foreign relations. Second, in no way normal? what the hell does that even mean? who defines normal? An obama state department hold over? An nsc slug? A cowardly “whistleblower”/leaker? And to pause or withhold aid (or even to to threaten to do so) is not unheard of. Ask Obama. Third, loads of testimony? Granted we have 2nd, 3rd, (4th?) hand hearsay and biased opinions. We also have the transcribed call showing nothing wrong. In what tribunal would unreliable hearsay and biased opinions be given more weight than the text of the conversation itself?

              1. The president has near plenary authority in the conduct of foreign relations.

                Utterly and completely false. You are confusing Trump and the U.S. for Putin and Russia.

                We also have the transcribed call showing nothing wrong. In what tribunal would unreliable hearsay and biased opinions be given more weight than the text of the conversation itself?

                We do not have a transcribed call, but the reconstruction of the call should be given a lot of weight, because it shows the exact malfeasance you aren’t smart or honest enough to see.

                1. “Utterly and Completely false”? How did Justice Sutherland put it? “It is important to bear in mind that we are here dealing…with…the very delicate, plenary and exclusive power of 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….” Not so utterly and completely false after all.

                  And yeah, good point on the call, all completely fabricated. Maybe the real one is locked away in Schiff’s Sensitive Compartmented Information Facility? You need a new conspiracy theory.

                  And I think you may be confusing President Trump with Obama, who’s the only president I know who whispered sweet nothings meant for Putin’s ears.

                2. And David, in light of your apparent ignorance of the constitution, I’m just curious, who exactly is playing internet lawyer?

                  1. MKE,

                    Sondland is not, by any stretch, a constitutional law expert.

                    If you are actually interested, this DOJ memo from the 30’s sets out the arguments in circumstances far removed from today’s passions. Jefferson and Madison rejected Sonderland’s “plenary and exclusive” characterization of the President’s powers in foreign affairs. Hamilton argued for a view similar to the one Sonderland proposed. I think David (together with Jefferson and Hamilton) has the much stronger position on the question. He is doing quite well indeed at being a lawyer and an internet lawyer.

                    1. MKE,

                      Also read Hamdi v. Rumsfeld, 542 U.S. 507 (2004). The President’s powers are subject to limits set by Congress.

                    2. Sondland? What the hell are talking about? I’d say stop before you embarrass yourself but we’re way past that.

                    3. And Hamdi v Rumsfeld is irrelevant. We’re talking about conducting foreign relations you monumental idiot.

                    4. MKE,

                      Hamdi is relevant, if you were half as smart as you think you are, you would know that. From the DOJ’s Brief:

                      “In time of war, the President, as Commander in Chief, has the authority to capture and detain enemy combatants for the duration of hostilities. That includes enemy combatants presumed to be United States citizens. ….Nothing in 18 U.S.C. 4001(a) affects the Executive’s authority to detain enemy combatants in wartime.”

                      And, yet, the Court held that, in fact, the President did not have “plenary and exclusive power” to conduct war (a foreign affair if there was one), but could be constrained by Congress. Your idea about the President’s powers is, as David pointed out, “utterly and completely false.” You are overinterpreting one instance of dicta that has since been pared back. See also Zivotofsky (“In foreign affairs, as in the domestic realm, the Constitution ‘enjoins upon its branches separateness but interdependence, autonomy but reciprocity.'”).

                      Yes, I misread your Sutherland as Sondland, mea culpa.

        2. But, did you forget the money was released without Trump getting explicitly what he asked for?

          1. Did you forget that the money was released once the whistleblower complaint came to light? Are you so credulous that you think that is a coincidence?

      2. Your analogy would apply if Trump had diverted the aid funds to another project, say the border wall, and only later replaced those funds so that he could still give something to Ukraine. As it happens, the actual funds allocated to Ukraine never left the designated pipeline.

        You can’t have larceny if the perpetrator never took the property or never deprived the rightful owner thereof. You can’t have usurpation of Congress’ spending power if the funds they allocated never deviated from their path to the target.

        1. You should re-read the OP.

          Congress gave the Ukraine financial aid and Trump changed the conditions upon which that aid would be given and then signaled that it was being withheld pending their agreement to investigate his political rival’s son. Trump cannot add new conditions without the consent of Congress.

          That he released the money when he found out about the whistleblower does not make it any less of a crime. As was said above, if the bank robber gives the money back to the bank when caught, he’s still a bank robber.

      3. You are still saying stupid shit and pretending it is poignant.

    2. I think, as a legal matter, slowing down funds is a “use.” Using funds is not (necessarily) a synonym for “spending funds.” One can “use funds” without spending them, say, by “using” them to earn interest or to secure a loan by depositing them in a bank. If Trump had the funds deposited in a personal account, slowed down the payment so he could earn the interest on it, and then transferred them to Ukraine, he would have been (mis)using the funds, even though he spent them as directed by Congress. Here, assuming his purpose was improper, he was “using” the funds to achieve that end. So your distinction does not stand. Try again, because the premise is valid.

      1. assuming his purpose was…

        “Assuming” I can lock up a lot of people by assuming things.

        You are talking about committing a crime. If Nadler had a crime, he would have cited a crime. So pick a narrative, Crime? or…something nebulous, like Orange Man Bad. But don’t keep interchanging the required elements of Impeachment.

        1. What a dumb response.

          1. Just because you cant rebutt it, doesn’t mean its dumb.

            1. 1. can’t, not cant. 2. rebut, not rebutt. 3. it’s, not its.

              Three out of 10 words is pretty impressive. But you did spell “dumb” correctly, which is irony, or humor, or something else entirely.

            2. The speling polize have arived iowantwo. One more air and your outta hear.

            3. Yours was a dumb response because you attacked the word “assuming”, but his comment was about whether the action alleged, if proven true, would constitute a “use” of funds. He didn’t take a position on whether the “assumptions” were true. You missed the whole point of the comment. Ergo, your response was dumb.

        2. Impeachment doesn’t require a crime, but Nadler did provide two counts of directly violating the Constitution.

      2. In your hypothetical, Trump would have actually taken personal possession of the funds. I would agree that would be a “use.” But nothing like that happened here; possession of the funds never changed.

        1. Control and possession are pretty close and considered nearly the same in most legal contexts. He controlled the funds, and used them for a different purpose. Control is basically constructive possession.

      3. That’s not how we read law. First principle is the rule of lenity. Any ambiguity in the law must be read in the best interest of the accused

        Second, the request for an investigation is not a political donation. Investigating corruption is a legitimate government function. To argue that Trump would benefit politically is silly. Everything a politician does is for his political benefit. Under this reading of the law, politics are illegal

        Third, in US vs.Blagojevich, the t rading of official acts, which this would be, is by definition neither bribery nor extortion

        Finally, no one has tied the aid to the investigations. Everyone said they “assumed” no one said Trump explicitly said so

        1. Finally, no one has tied the aid to the investigations. Everyone said they “assumed” no one said Trump explicitly said so

          2+2 = 4.

          Or is that too complicated for you?

          1. 2 + 2 = 4 is deduced from the Peano axioms which are motivated and justified.

            Assumptions don’t work that way. It is, in fact, more complicated than you think.

          2. Sondland himself, with his own mouth, said that he “assumed” that it was quid pro quo.

            You can’t only reference the parts of the testimony you like and ignore the rest.

            For the record, I think Trump is a piece of garbage. But listen to professor Turley’s testimony; this will set a very bad precedent.

            Or better, listen to Nadler himself during the Clinton impeachment circus – he condemns his own hearing with his own words…the video is out there.

            Of course, none of this really matters anyway. Presidential elections in this country are a farce and the notion that “we the people” have any real say in our governance is the stuff from which unicorn stories are made.

            1. “the notion that ‘we the people’ have any real say in our governance is the stuff from which unicorn stories are made”

              You are certainly diligent in doing Putin’s work.

            2. Sondland himself, with his own mouth, said that he “assumed” that it was quid pro quo.

              Do you understand that in civil and criminal courtrooms every day across the country and probably the world, juries draw inferences from evidence? It is not the case that they are only allowed to reach a verdict if there is a confession. If person A says, “I want X,” and person B, who works for person A, does X, we are allowed to “assume” — conclude, actually — that B did it at A’s direction.

              If person A says, “Go talk to my lawyer about what I need,” and then person B talks to the lawyer and the lawyer says, “Go do X,” we are allowed to “assume” — conclude, actually — that A wanted B to do X.

      4. I’ve never heard anything so ridiculous as saying Trump was “using” or “misusing” the funds. The funds never left the treasury so he could not have been using them in any sense.

        They tried a similar charge against Perry when he was Governor of Texas when he vetoed a bill funding an public integrity unit under the Travis County DA when she refused to resign for a DUI and abuse of power. The Court said 1) there is no possible way funds that never left the control of the treasurer could be considered miused and 2) the governor can use his veto for anything he pleases, absent a bribe.

        1. They even said he could veto because of a bribe. The bribe was illegal, but that’s the agreement beforehand. The other branches cannot attach conditions to the exercise of the veto power directly. Presumably a pol could go to jail for a bribed veto, but the veto could not be reversed because it cannot be made illegal nor does the judicial branch have the power to reverse a veto i.e. un-veto.

    3. ¨Slowing down the delivery of the funds is not ”using” the funds.¨

      Unclear on the concept of an inchoate offense?

      1. For that, wouldn’t you need some evidence, that Trump intended to spend the money for a purpose not authorized by Congress?

        1. For that, wouldn’t you need some evidence, that Trump intended to spend the money for a purpose not authorized by Congress?

          You mean, like the overwhelming, undeniable¹ evidence that he intended to spend the money to get the Ukrainians to announce a phony investigation of his political rival?

          ¹Note that this word is not to be interpreted overly literally. “Water is wet,” after all is not literally undeniable: “Water isn’t wet.” See? I denied it. I mean that no intelligent person speaking in good faith can deny it.

          1. I’m sure maybe the Democratic house staff lawyers discussed the possibility of charging misuse of the funds, at 3am after 10 hour session coming up with nothing, 3 hours after they cracked the whisky and an hour after they finished it.

            Then after it was brought up they realized they’d been at it too long and went home for the night.

            1. If you end up arguing ‘this can’t be true because I’ll bet it was considered and discarded by the other side because it wasn’t true’ you’ve got nothing.

              1. Tell you what Sarcastr0…If Team D truly believes they have POTUS Trump ‘dead to sights’, then try and bring a case for an actual violation of law.

                Are abuse of power and obstruction of congress are actual laws on the books? 🙂

                1. Tell you what, figure out what impeachment is about and for and then maybe we can talk.

                  Insisting ‘impeachment must mean full criminal charges and criminal due process’ is ridiculous.
                  And it says a lot about what kind of arguments the GOP has been left with that they’re resorting to pushing this one.

                  It is less silly than ‘all the things the Dems coulda charged Trump with are proof the Dems case is weak on the things they chose to charge Trump with.’

                  1. You have a problem. You are not trying to convince academics of penumbra and emanations. Democrats have to convince real people that President Trump committed acts so egregious, corruptocrats in Washingtion DC are going to overturn the last election, and not allow voters in this election to choose the President of their preference.
                    All by making claims that are non-sensical, to real people living workaday jobs that don’t take kindly by Politicians overriding what little power they posses by going to the polls

                    1. You’re doubly confused. First, impeachment doesn’t overturn an election.

                      Second, it’s the voters in the last election who didn’t get to choose the president of their preference. That’s why Trump is president: the electors overruled the voters.

              2. The house isn’t charging misuse of funds because it’s ridiculous.

                They had to drop bribery because it’s ridiculous.

                They had to drop treason because it’s ridiculous.

                They went with abuse of power because it’s not a crime, and they wouldn’t have to prove an actual criminal act.

                They went with obstruction of Congress because they needed another charge, and it’s not criminal either.

                1. Well, obstruction of Congress made sense, since everyone agrees that he did it. Zero ambiguity to that.
                  One side says, “Yeah, he did obstruct the House investigation. But it was a BS investigation because [insert Republican theory here] and there is no duty or obligation to comply with a BS investigation.” The other side argues that refusing to comply with subpoenas, etc is itself sufficient to impeach, and presidents do not get to pick-and-choose what investigation of themselves are legit and which are not–for (what Democrats see as) obvious reasons.

                  That seems like a straightforward argument, and eventually the American people will have a chance to vote, to reward or punish politicians who are on what those voters see as the “wrong” side of this debate.

                  To NOT include an Obst. of Congress charge would have been insane. And would have been Unamerican . . . we definitely want be telling future presidents, “Hey, if you refuse to comply with congressional investigations in the future, you’re deliberately putting yourself at risk of impeachment.” [Will that stop all future presidents from obstruction in all future investigations? Almost certainly not. But it will sometimes help, and that is/will be a huge benefit to our country.]

                  1. Seeking Judicial review is obstruction? Wow, just wow

                    1. Refusing to act until you are sued into it isn’t ‘seeking judicial review.’

                    2. Refusing to act until you are sued into it isn’t ‘seeking judicial review.’

                      Right; in fact, the argument to which you’re responding is particularly dishonest because Trump’s team didn’t take the position, “We want the courts to decide whether we have to testify.” Rather, they took the position, “We don’t want to testify and the courts have no business deciding this.”

                  2. As Turkey said if Congress impeached Trump because he asked for judicial review then it’s an abuse of power, an abuse of Congress’ power.

                    If they had a bigger blog here I could list the times Obama, Bush, Clinton etc went to the courts to resist congressional subpoenas. That’s why we have 3 branches of government not 2. If Congress thinks they are right then let them make their case in court. If Trump defies the courts, well then finally you’ve got a legitimate impeachment count, and that will get enough GOP support to remove Trump.

                    But that’s not really what this impeachment is about, it’s a desperate, and futile, attempt to damage Trump enough that he won’t win reelection.

                    1. Blanket refusal and no negotiation is a whole different thing.

                      Having to drag the judiciary in for every single investigatory move Congress makes has never been the normal functioning of our government, don’t pretend it is some intended system.

                    2. As Turkey said if Congress impeached Trump because he asked for judicial review then it’s an abuse of power, an abuse of Congress’ power.

                      Your typo is apt, because Trump didn’t ask for judicial review.

          2. So, the argument here is, essentially, that once the President realizes that not spending the money until he’s legally obligated to is beneficial to him, he’s legally obligated to spend it before he’s legally obligated to spend it.?

            If sitting on the money, but still spending it by the deadline, would help him, he has to hurry to spend it, instead?

            1. This formalist BS is not how the law works. The funds were for a purpose. Trump used them for a different purpose – one that was for him personally, not the nation.
              Faffing around about timing is trying to distract us from the forest by pointing to the trees.

              1. Yes we are firmly in the mind reading and projection component of how the law works.

                1. The law looks at intent all the time. Don’t be an uncritical tool.

              2. Next you are going to say paying my phone bill with my travel rewards card is a misuse of funds because I shouldn’t be getting a personal benefit from paying my phone bill.

                1. Sure, K, sure. That’s a great analogy.

                  1. It’s just as ridiculous as saying Trump misused the funds.

                    I’d like to see a flow chart showing us how the funds were diverted to another use. I’m sure the House has forensic accountants that can trace the funds.

                    The charge reeks of desperation.

                    1. No, it’s not. Your analogy sucks and retreating to ipse dixit isn’t much better.

                      Your standard that misuse of funds requires their expenditure is childlike, and ignores the entire OP.

                      You keep posting about desperation like it’s a new talking point.

              3. Let’s assume, purely for the sake of argument, that Trump delayed handover of the funds for the purpose you claim. (Note that this runs contrary to the Democrats’ own testimony, which says that he was trading a White House visit, not the aid, for the investigation.)

                He clearly did not do this instead of the Congressionally mandated purpose, because the money was handed over before the statutory deadline, fulfilling Congress’ purpose. At worst, he got a dual use out of it. At worst.

                But even to get there you have to assume the motive behind the delay, where there are perfectly legitimate motives available. And so, once again, you decide his guilt is obvious, because you are assuming the central element of the offense to be true, instead of demonstrating it is true.

                1. First, Trump traded both. Or tried to. It was full court press for Biden dirt.

                  It sure was instead of the Congressional mandated purpose until he got caught and gave the money over. Such action does not cure the initial wrong.

                  You do not need to assume the motive – Trump explained his intent during the phone call. That’s all you need for what Prof. Somin is talking.

                  But as with any case, motive does help. Good thing it’s so easy to infer from the phone call. And the State Department testemonials. And Trump’s own words shortly after the Whistleblower complaint came in. And Trump’s hilariously incriminating ‘I want nothing!’ reaction after the complaint came in. And Giuliani’s action up through right now.

          3. “This is what he actually meant, but didn’t actually say” is assumption and opinion, not really evidence.

            I’m willing to believe he might have done wrong, but a procession of lawyer-politicians and professors standing onstage at The Moth telling a story doesn’t really cut it for something so serious.

          4. “You mean, like the overwhelming, undeniable¹ evidence that he intended to spend the money to get the Ukrainians to announce a phony investigation of his political rival?”

            No, that would count as spending the money as appropriated.

  6. The Dems are now the laughing stock of this country. The best they could come up with was an article of impeachment for Trump not cooperating with witch hunt investigations and another one for him using the phone. What a joke.

    Time for the treason trials to start. Fat Man Nadler can be the first up.

    1. Do you insult morbidly-obese Trump with the same vigor you tease Nadler? (I actually think Nadler should be congratulated on his weight loss . . . I just saw video of him from 20+ years ago and he must have been 50-100 lbs [really] heavier back then.)

      1. Yes the obvious take away you should get out of the Dems cranking out two laughable articles of impeachment is Fat Man Nadler shouldn’t be called fat. Awesome.

        1. Obvious troll.

        2. It was the only part of your post worth engaging with, is all.

          1. That means he is better than you it seems.

  7. TL/DR

    I guess finals are over, time to write 2500 word posts.

    1. So you’re still taking your finals and don’t have time to read 2500 words, but do have time write silly comments.

      1. LOL

        I went to college so long ago my first year tuition was $1800.

  8. “The spending power issue also does not depend on any potentially tendentious interpretations of Trump’s motives. Even if he genuinely believed that pressuring Ukraine to investigate the Bidens was in the public interest, and was not motivated by any potential benefit to himself, Trump still usurped the spending power by trying to use federal funds for purposes not authorized by Congress.”

    OK, but, correct me if I’m wrong, in order to convict on the first article, the Senate would have to find a corrupt motive, precluding a belief that Trump considered himself to be acting in the public interest. The language of the charge does not allow for an innocent interpretation of Trump’s motives, does it?

    Serious question – doesn’t the House have to prove Trump guilty under the terms of the Articles of Impeachment as actually issued, not in terms of articles which *could* have been issued?

    1. On a similar note, it seems the first article says that delaying the aid endangered the national security. To prove this, wouldn’t the House have to demonstrate to the Senate that there’s a national-security interest in providing military aid to another country with which we don’t even have an alliance? I guess that wouldn’t be a problem with all the interventionists in the Senate, but at least some Senators who are skeptical of interventionism might wonder if they can conscientiously vote to convict under this sort of national-security theory?

      1. It would also require the epitome of rationalization to ignore obama not sending arms in 8 years even when Ukraine was under attack. If it was such an issue to national security… why was it delayed then? Likewise Kent testified the arms were never held up in review, but merely in delays for normal procurement.

        1. Kent did not in fact testify to any such thing.

      2. If the National Security interest required no delay in delivering the funds to Ukraine then why did Congress set a September 30 deadline? According to NPR, Trump hadn’t even reached the deadline for notifying Congress that the aid would be delayed, if he had decided to delay it further:

        “When it comes to congressional funds, it’s “use it or lose it.” So when September arrived, the White House was skirting close to the deadline by which they were legally required to alert Congress to an official reason for the freeze.”

        “Skirting close” means he only had until the end of the month.

        1. So, Ilya’s argument becomes, Trump was using the funds for another purpose by not disbursing them faster than he was legally required to.

          Does Ilya really never think about the fact that he’s proposing basis for impeaching Trump that would be applicable to, like, every President in living memory?

          Now, if he’d just come out and say, “Every President in living memory should have been impeached, and I said as much here, here, here and here! So I’m not treating Trump differently.” I’d be cool with that. I think that’s a respectable position.

          But I just don’t recall him being obsessed with impeaching any prior President.

    2. I heartily encourage the investigation of all future politicians holding up money, if that is a High Value now.

      Somehow I think once the dust has settled, it will be back to business as usual, giving lie to the facade this is about constitutional violations and somberly staring into the camera rather then gettin’ a political opponent real goodlike by shifting through half a dozen goalposts one after the other.

  9. //Orange Man Bad!

    1. Agreed.

  10. I STILL have not seen any dates. When was the foreign aid supposed to be disbursed? End of fiscal year? In installments over the year? At some other date?

    And as far as threatening to withhold the money being a crime in itself …. suppose I am pissed at the car dealer who financed my purchase, and call them up and threaten to not make the next payment unless they fix the broken car. Is that itself criminal? Why is this any different?

    Dates, please. And then explain why threatening to delay the payment, but actually paying on time,is a crime. Whether or not the legislation authorizes Trump to delay the foreign aid, show me the dates and show how he actually did delay it, or show me the legislation which makes even the threat of a delay illegal.

    The way this matter of dates is so strenuously avoided makes me wonder why.

    1. https://www.lawfareblog.com/role-omb-withholding-ukrainian-aid The disbursal depended on certifications, not dates. If you’re truly interested, read that detailed article.

      1. President Trump is the person responsible to verify that certification. Was corruption being addressed. The President, well within his Article II powers, paused the aide to confirm.

        1. The president has no Article II powers to decide whether to spend money that Congress ordered him to spend.

          1. That’s plain old false, he can withhold the aid, but there are procedures.

            “Over the last 15 years, he says, the U.S. has developed a framework for withholding foreign aid — especially those struggling with corruption.

            In 2005, for instance, the U.S. withheld aid from Yemen when the country appeared to be backsliding on reforms. But everyone — Congress and the White House — was in agreement.”

            And:
            “For instance, when the president worried about migrant caravans at the border, he stopped payment to Honduras, Guatemala and El Salvador earlier this year.”

            And according to rules, set by Congress, the President had until the end of September to notify Congress if he was withholding the funds, and the reasons. The aid was released September 11th.

            You really should do some research before you baldly assert crap that’s not true.

            1. I do not see anything contradicting DMN’s statement president has no Article II powers

              1. Your quibble is conceded.

                If I were the argumentative type I might go with “faithfully execute the laws”. But that’s a charge not a power. And it’s difficult for even a devoted Trump supporter like my self to use Trump and faithfully in a sentence.

                1. Amusingly, there’s a law blog, Take Care, dedicated to attacking Trump on take care duty grounds.

                  As would surprise nobody, many of their complaints have to do with Trump taking care to faithfully execute laws they happen to dislike, such as immigration laws, or his failure to adequately violate constitutional rights they dislike.

                  Yes, they’re attacking him right now for deciding that it wasn’t constitutional to prohibit the online distribution of plans for firearms. A two-fer; He’s in the wrong for upholding the 1st AND 2nd amendments at the same time!

      2. That’s interesting reading, and I thank you, but it still doesn’t answer my question concerning exact dates.

        Once Congress designates money for a program, the executive is typically bound to spend those funds on that program.

        OMB might have had the ability to withhold this aid if the White House had provided Congress with a message meeting the ICA’s requirements.

        There’s mention of a “typical” 45 day period.

        But nothing says when allocated and appropriated funds MUST be spent. Again: is it end of fiscal year, does the legislation lay out specific dates and specific schedules, or what?

        “Typical” and “Customary” don’t cut the mustard. Delay isn’t the same as not disbursing.

        1. It had to be dispersed by Sept 30th. It was. Democeats cry impeachment. There was testimony from OMB saying the delays were normal and had been done for other countries. The dishonest liberals here will never admit to anything counter to their narrative.

          1. Yes, I went into that bank with a gun and robbed the teller, but the guards stopped me before I could get out the door. Therefore I committed no crime. Let me go free.

            1. More like, yes, I thought about writing a holdup note,and thought about buying a mask, but I didn’t.

              1. A tellingly bad attempt at a counter-analogy, since Trump actually did withhold the funds.

                1. For values of withholding represented by dispursed prior to the required due date, sure.

              2. Yes but in lib world you were arrested for a thought crime anyway.

            2. It’s more like I thought about walking in the bank and asking for some money, but I talked to my lawyer and he said it could be misconstrued so I didn’t.

            3. The funny (not in a ha-ha sense) thing is, Trumpkins are making an argument that Trump himself isn’t making. He didn’t say, “No, even before I was caught I was totally going to pay the money I was legally obligated to pay by September 30, even if I didn’t get what I wanted.”

          2. Actually, there was about $35 million that wasn’t dispersed by Sept. 30. I doubt that anyone from the OMB actually testified that it was normal to hold funds for so long that the funds could not be dispersed in the current fiscal year. Congress passed a law allowing the $35 million to be dispersed after the Sept. 30 deadline when it became clear that the Sept. 30 deadline could not be met. I don’t believe Congress has ever done this before, and it is certainly not normal.

  11. It never ceases to amaze me when people as supposedly as smart as Ilya is purported to be can be so willfully ignorant in support of their agenda of Orange Man Bad.

    1. It never fails to amaze me when people as supposedly smart as Reason readers (!) willfully defend Trump’s abuses of power. Trump’s wannabe autocracy is not libertarianism.

      1. The abuse of power defined so broadly every president is guilty. You go with that. Doesnt make you seem stupid at all.

    2. It never ceases to amaze me when people as supposedly as smart as Ilya is purported to be can be so willfully ignorant in support of their agenda of Orange Man Bad.

      It never ceases to amaze me that rather than admitting that you’re wrong about Trump, you would rather conclude that all the people smarter than you are bizarrely ignorant.

  12. “If Trump tried to use aid money allocated by Congress to pressure the Ukrainian government into investigating one of his major political rivals, that would be a blatant effort to use federal funds for purposes that were never authorized by Congress.”

    That is a big “if”, one that in my opinion is not supported by the facts in evidence. Your mileage may vary.

    “… there was already extensive evidence showing that Trump did in fact withhold aid for the purpose of pressuring Ukraine into investigating the Bidens.”

    I disagree. The balance of this paragraph and several more depend on this assumption.

    “A quid pro quo scheme like the one Trump apparently engaged in does qualify as a federal crime”

    I don’t see a quid pro quo, so what?

    “The law Trump violated is the Constitution”

    If you accept that he violated the law, that would be important.

    “This pattern reinforces the point that Trump’s conduct poses a more general threat to the separation of powers, and strengthens the case for ending it by removing him from office.”

    If you accept that Trump’s behavior violates separation of powers, which I do not.

    “Even if he genuinely believed that pressuring Ukraine to investigate the Bidens was in the public interest, and was not motivated by any potential benefit to himself, Trump still usurped the spending power by trying to use federal funds for purposes not authorized by Congress.”

    Trump’s belief is not germane, his actions are. No quid pro quo, no violation. QED

    “But to the extent some nonetheless do believe that violations of a specific law are essential and do worry about potentially excessive scrutiny of motivations, the spending power theory avoids both problems.”

    And what a lovely and convenient theory it is, too.

    “Finally, some defenders of the president argue that it’s wrong to impeach Trump for using aid withholding as leverage because presidents do similar things all the time, and then Vice President Joe Biden did the same thing when he used aid withholding as leverage to get Ukraine.”

    Everybody does it because that is how government works. You don’t get to pick on Trump and ignore every other president’s actions.

    “But Biden’s actions did not usurp Congressional authority, and they did not violate any laws.”

    I’m not so sure as you seem to be.

    “But, if so, Trump’s massive conflicts of interest arising from his failure to divest himself of his large-scale international business empire—are a far graver sin than anything Biden did in Ukraine. ”

    Your judgement represented as a fact not in evidence.

    “Trump has also appointed his son-in-law, Jared Kushner, to important roles involving foreign policy towards the Middle East, despite the fact that Kushner has major business interests in the region. Kushner’s glaring conflicts of interest make the Hunter Biden/Burisma situation seem like small potatoes by comparison.”

    Opinions and a unmentionable body part – everyone has one.

    1. “Opinions and a unmentionable body part – everyone has one.”

      Really? That’s your conclusion?

      “There is a cult of ignorance in the United States, and there has always been. The strain of anti-intellectualism has been a constant thread winding its way through our political and cultural life, nurtured by the false notion that democracy means that ‘my ignorance is just as good as your knowledge.’” -Asimov

      1. “One of the saddest lessons of history is this: If we’ve been bamboozled long enough, we tend to reject any evidence of the bamboozle. We’re no longer interested in finding out the truth. The bamboozle has captured us. It’s simply too painful to acknowledge, even to ourselves, that we’ve been taken. Once you give a charlatan power over you, you almost never get it back.”
        ― Carl Sagan, The Demon-Haunted World: Science as a Candle in the Dark

  13. The arguments Somin presents here seem pretty solid to me.

    Yet it is frustrating to read and write about. It seems almost beside the point. Trump is obviously guilty over so much more than this there could have been 30 Articles of Impeachment not just 2. The Peolsi strategy seems clear enough: If we can’t convict him on these two clear cases the rest are pretty much irrelevant. Trump will be able to do whatever he wants from here on in.

    Trump compromised national security for his own self interest. The evidence shows that not only did he do it he could not care less. To him the “big things” are those things which help the PR of his re-election effort. Whether Ukraine gets crushed by Russian military superiority is nothing to him. Republicans don’t care. Barely a peep.

    The true impeachment issue is that Trump has shown time and again that he has absolutely no interest in serving the common interest. What he cares about is: 1) the thunderous applause of the next MAGA hat rally, 2) steer taxpayer money his way or as close as he can, 3) use the office of the presidency to shield himself from investigations into his shady business practices.

    To remove him over these Articles almost feels like winning on a technicality. But I’ll take it.

    And — by some bizarre chain of coincidences — each and every foreign policy blunder and military setback benefits Putin’s Russia somehow. No collusion, but with Trump all roads lead to Putin.

    1. “Trump is obviously guilty over so much more than this there could have been 30 Articles of Impeachment not just 2. ”

      Lol. So nadler and Pelosi are so fucking stupid they could only come with two very timid articles?

      1. They are adults. They approved only those things that Republicans showed signs of being troubled by. Not hard for me at least to understand.

        1. Moreover, if there had been 30 articles of impeachment, we would’ve heard, “Obviously what he did with respect to Ukraine wasn’t so bad, or Democrats wouldn’t have felt the need to also add all this other stuff in.”

          Plus, rather than saying, “Wow, 30 reasons to impeach? This guy has to go immediately,” they’d be saying, “Well, No. 4 isn’t so bad. And you can’t prove No. 18. So this whole thing is a sham.”

      2. JesseAZ….How much do you want to wager that Orbital Mechanic is from one of four states: CA, NY, NJ, or IL? 🙂

        Must be the water that fucks up their brains.

    2. I could grant all that and it’s irrelevant. This is about getting rid of a rake for political differences. The motive is impure and everybody is arguing about how many angels dance on the head of a pin.

      There are two constitutional concerns here: Trump’s actions, and the actions of the Democrats pulling out all the stops doing what they aren’t supposed to be able to do: use the power of government to harm a political enemy. Any “constitutional concerns” they express are crocodile tears, as they high five each other, dropping their somber faces off-camera.

      Which one is the greater constitutional danger? Don’t dare say the former. That is just violation-of-the-moment. Democratic efforts are destroying the Constitution long term.

      1. In short, even if Trunp should be impeached and removed, and is, we’ve still uncovered a vastly more problematic constitutional issue — the powerful investigating political enemies who get in their way.

        If Trump goes for essentially this, investigating a rival, it’s just desserts to Mr. “Lock Her Up!”

        But anybody doing this should be punished. I’ll hold my breath for misuse of the power against Trump to be addressed.

        1. Which is why Benghazi destroyed Hillary Clinton.

          If Congress wants to make fools of itself by going all Ahab on the President, that’s their Constitutional right. Nothing problematic about it unless the President stonewalls them.

  14. 2020 elections are going to be epic.

    1. Trump compromised national security for his own self interest
      National security. How exactly is the Nations national security interests determined? Hint. Those elected by the people. Specifically, the President of the United States under those powers enumerated in Article II of the constitution, to conduct foreign relations.

      1. “I will nuke you tomorrow unless you transfer $1 billion into my personal check account.”

        According to iowantwo, perfectly within the President’s powers.

        1. If it’s a [D] President it would just be chalked off to, “Business as usual..”

          1. Contrary-to-fact partisan counterfactuals are great to convince yourself you’re a victim, but not for arguing with other people.

            And yes, I include when liberals argue ‘if Obama had done this, the GOP would be impeaching him for sure!’

        2. If it’s a White House initiative to STOP sending taxpayers money to foreign countries and we have an [R] President it’s an impeachable act. I guess….

  15. How to quantify Trump’s personal gain?

    The 491 million? Is it money borrowed at interest, paid by the U.S.? At least some of it is. The daily interest on that amount is not trivial. Assuming only 1% annual, on half the amount, isn’t the use of that fraction costing the U.S. somewhere just short of $7,000 per day?

    Multiply accordingly for higher percentage rates, or for a larger proportion of the total amount—or for any fraction held longer, or not delivered. So for Trump’s personal advantage of ~5 weeks’ hold on the money, figure about a quarter million dollars in interest paid by taxpayers. Maybe more, or less, depending on assumptions about interest rates, time intervals, and the fraction borrowed, but plainly substantial unauthorized value for Trump.

    That is the value Trump gained for his personal use during the time he held onto that money to pressure Ukraine—something on the order of half his annual $400,000 salary.

    1. He didn’t put the money in his private account, you dummy.

      1. Right! He spent it straight out of the public till, for his personal political gain.

        1. Careful when you use that standard….Obama has lots to answer for in the Stimulus Bill, and any politician who voted yes on a pork barreled law for that matter.

          1. Yeah, the stimulus bill was all used to line Obama’s pockets and smear his opponents.

            Just throwing everything at the wall these days, eh?

            1. You’re so ignorant at times, it hurts. The very definition of politics from political science is “who get’s what, when, and how.”

              Obama can’t cut a check to his supporters from the treasury, but who do you think benefited the most from the infrastructure spending in the stimulus, Union Democrats to be sure. And really, the stimulus it included education aid to the states to keep teacher unions happy and in their jobs. It is a stretch for even a Keynesian economist to show that we must get spending flowing and sluice the pipes by giving states money for teachers.

              This is a two party problem you know. As you’ve aptly noted before, more military bases are in the South, a GOP stronghold. Two whit, I pointed out that they are mostly there due to the weather and before the South went GOP, but GOP defense spending is still bringing home the bacon for their districts.

              1. You think the stimulus was a giveaway to unions?
                Prove it.

                Hard to do, no? Alas, there seems to have been no phone call with Obama asking for a favor. Nor lots of officials willing to testify that guidance from the White House was that it must be a giveaway to unions.

                Be consistent about what kind of evidence you find convincing.

                1. King of double-downs, you are. There is a Kenny Rogers song I recommend for you, I think you know which one.

                  I didn’t say the stimulus was a giveaway to unions, but I did say that they benefited enormously from it at the behest of those who wrote an passed the law. You’re moving the goalposts, and being silly: politics itself is about distributing resources…which usually go to the policies and supporters of those who win office. Imagine that? Wow!

                  Consistency? I will take that bait. Obama shouldn’t have been impeached for the IRS scandal due to plausible deniability, despite the IRS officials being at the Whitehouse over 100 times (an unusually high number) during the specific targeting of conservative organizations that they apologized for at a later point.

                  1. I didn’t say the stimulus was a giveaway to unions, but I did say that they benefited enormously from it at the behest of those who wrote an passed the law.
                    So what’s the distinction here?

                    politics itself is about distributing resources…which usually go to the policies and supporters of those who win office. Imagine that? Wow!
                    No, I’m asking you to prove your thesis, not say ‘hey, it happens a lot, ergo, QED.
                    Of course, your statement also highlights why Trumps actions were special – distribution of resources not to help a broad group, but one guy.

                    The IRS never apologized for targeting conservative organizations because they never targeted conservative organizations.

                    1. “The IRS admits that its treatment of Plaintiffs during the tax-exempt determinations process, including screening their applications based on their names or policy positions, subjecting those applications to heightened scrutiny and inordinate delays, and demanding of some Plaintiffs information TIGTA determined was unnecessary to the agency;s determination of their tax-exempt status was wrong. For such treatment, the IRS expresses its sincere apology.”

                      https://www.npr.org/2017/10/27/560308997/irs-apologizes-for-aggressive-scrutiny-of-conservative-groups

                    2. My recollection is that the IRS did not target conservative organizations, and then stupidly seemed to apologize as if they had. At the time, I noted some stupid short-term political benefit they seemed to be angling for with the apology (the congress was being stampeded by Republican howling over the made-up targeting). I remember thinking, “This is not going to be worth it to them.”

    2. Do you do this for every appropriation not spent immediately or in any sort of review? Because what you’ve stated here is pure idiocy.

    3. Interesting. I understood Trump had chosen to forgo his salary, donating it instead to various Federal government departments and services.

      Does this mean that under your calculations Trump could have held onto the money twice as long before going into the red net-net?

      1. I understood Trump had chosen to forgo his salary, donating it instead to various Federal government departments and services.

        Trump said he was going to do that, but there is no evidence that he did.

        Of course, I wouldn’t be surprised if you and the other Trumpists believed it.

        1. “Trump said he was going to do that, but there is no evidence that he did.”

          Your not bothering to check if he did it does not constitute a lack of evidence.

          Trump donates 2019 salary to USDA, surgeon general

          “President Donald Trump continues to maintain his campaign promise to donate his $400,000 annual White House salary with U.S. government agencies.

          In August, a White House spokesman announced that Trump donated $100,000, his second-quarter salary, to the U.S. Surgeon General’s office.

          “I donate 100% of my President’s salary, $400,000, back to our Country, and feel very good about it!” Trump tweeted Aug. 16.

          His first-quarter salary in 2019 went to the U.S. Department of Agriculture.

          Trump donated his third quarter salary for 2018 to the National Institute on Alcohol Abuse and Alcoholism. Trump’s older brother Fred Jr. died after struggling from alcoholism in 1981.

          The president donated his 2018 fourth quarter salary to the Department of Homeland Security and has donated to various federal entities during his time in office, including the National Park Service, the Department of Education and the Veterans Administration.”

        2. Bernard,

          This is dishonest of you. A simple google search of “Trump donates salary” would reveal that he donates it quarterly to a variety of departments within the government.

          A failure to reasonably look for evidence doesn’t mean there is no evidence. It’s a failure on your part.

    4. How idiotic can you possibly be Lathrop?

      We don’t actually have that money to give to Ukraine, we have to borrow it. So when the fake money we are going to send to the Ukrainians is in the treasury it means we aren’t paying interest on it.

      Once we send the money then we will be paying interest on it the rest of our lives and on into our grandchildren’s lives. That you could possibly conclude we could be losing interest on money we don’t have by not borrowing it sooner to send to someone else just shows abject financial literacy.

  16. Error
    Assumes Congress has the power to take our money and give it to other nations governments.

    Never seen that one in the Constitution.

      1. Could you point out the “Congress can spend money on any damn thing it wants to” clause.

        1. Article 1 section 8 clause 2, as interpreted by the US Supreme Court.

          1. Clause 3, not clause 2. We still don’t have an edit button.

        2. Bold stance to come out against the Marshall Plan.

  17. Has any federal court specifically ruled on the legality of Trump withholding military aid from the Ukraine?

    1. Who would have standing to bring that to court?

  18. Ilya’s hail Mary as the impeachment falls apart.

    But both Ilya’s scred and the House’s impeachment articles don’t reflect reflect what the House’s investigation uncovered. Their best witness Sondland said, even though even that was a suposition, that Trump was conditioning the Whitehouse visit on the investigation, not the aid. Plus the aid was delivered by the congressionally set deadline for delivering the aid. So when the House says: “sought to pressure the Government of Ukraine to take these steps by conditioning official United States Government acts of significant value to Ukraine on its public announcement of the investigations.” are they saying the Whitehouse visit was a “Government acts of significant value”? That’s ridiculous.

    Then Ilya tries to drag in the Sanctuary city police grants. That is equally ridiculous, Sessions and Trump made an administrative decision they thought was permissible, it was tested in the courts, they complied with the court decisions. And as I recall they even won one of them.

    1. Obama’s 2011 Dear Colleague Letter was also an usurpation of the spending clause.

  19. What is missing from the analysis is the existence of a writ of mandamus, or other court order or judgment, requiring Trump to immediately issue the aid in question.

    I agree with Alan M. Dershowitz that a mere dispute between Congress and the President over the latter’s ministerial duties and discretion should be addressed by the courts. Only if the President defies a court order should impeachment be on the table.

    President Obama’s 2011 Dear Colleague Letter was arguably an usurpation of Congress’s power of the purse, as it was a threat to withhold federal funds from universities unless they set up kangaroo courts to violate the due process rights of male students. But absent Obama defying a writ of mandamus to release the funds to the universities notwithstanding the Letter, impeachment would have been too harsh a remedy.

    1. I don’t know if Prof. Somin’s argument will prevail, but these arguments are not good.

      You don’t need a court order saying something is illegal for something to be illegal, and you needn’t have something be illegal for it to be impeachable.

      The Supreme Court has held that impeachment is between Congress and the President, and the judiciary should not get involved. And it’s not like a robbery isn’t illegal till a court says it was bad.

      1. The Supreme Court has held that impeachment is between Congress and the President, and the judiciary should not get involved. And it’s not like a robbery isn’t illegal till a court says it was bad.

        the 2011 Dear Colleague Letter is even more egregious than what President Trump is accused of doing.

        Trump did not violate the Bidens’ civil rights.

        Obama threatened to withhold money appropriated by Congress unless universities violated the due process rights of male students.

        Should Obama have been impeached over the 2011 Dear Colleague Letter, even in the absence of a judgment or writ ordering him to withdraw the letter or release the funds to the colleges and universities?

        1. Well, this has nothing to do with my comment or your comment above.
          Your outrage about the 2011 letter didn’t make the grade as impeachment fodder, it seems. Continue to tilt at your windmills, but this thread is about Trump’s activities.

  20. I think this is certainly a potentially stronger legal theory than those presented in the actual articles of impeachment (which in no way reflect this theory, despite the good professor’s twisting them to kinda sorta encompass it).

    However, the legal theory falls apart because the foreign aid statute in question (much like the travel ban statute previously discussed), has language in it that explicitly gives the executive discretion (in this case he must positively certify) over the funds. Is this discretion unconstitutional delegation of the power of the purse? Perhaps. But if so we have the President being impeached for following an unconstitutional law that used to be constitutional according to 80 years of precedent. Oh, and by the way, a huge % of the budget is unconstitutional.

    1. “a huge % of the budget is unconstitutional” <<< EXACTLY

      And that part of the budget is wildly supported and passed by the Democratic party.

      That is what makes their "constitutional" claim so contradictory. If I had even a pebble of faith that the Constitution could be restored by giving up the best president we've had in years – I'd accept purity starting today; but I KNOW FOR A FACT that Democrats have no intention of upholding the Constitution and only use the rules of it when it suits their specific witch-hunting agenda.

    2. Thew foreign aid statute in question was the FY19 appropriations bill, I thought.

      1. Yes, and a lot of that is somewhat discretionary on part of the executive on how to spend it. And the FY19 budget alone doesn’t govern foreign aid. There are previous, non-budgetary, laws that also control.

        §1237(c) of the 2017 NDAA is specific to Ukrainian aid and requires State and Defense to certify Ukraine is doing all sorts of things. To be honest, if you read the section, I’m actually kinda convinced the SOS and SOD violated the act by releasing the funds at all.

        Another example, the US cut off $255m in Aid to Pakistan in early 2018, under a similar provision regarding Pakistan.

  21. There are several flaws with this.

    First, Trump never withheld the money. He didn’t spend it but the appropriations bill only said the money had to be spent by the end of the fiscal year which was done

    Second, if Congress thought Trump was withholding the money illegally, then they had the power under the impoundment act to file suit and force the money to be spent. They did not

    Third, investigating corruption is what a President is supposed to do. If Biden was a crook willing to sell out America, the voters would want to know

    1. “Investigating corruption is what a President is supposed to do.”

      Yup. Once Trump won the nomination, Obama should have immediately ordered the FBI to investigate Trump. If the FBI refused to open an investigation due to the lack of predicate facts, that’s no excuse. There are a number of countries that the United States has refused to sign extradition treaties with due to the weak rule of law. Surely, Obama could have convinced the leader of at least one of those countries to accept a bunch of foreign aid, or even something simpler like a White House visit, as an adequate substitute for a few predicate facts.

      Though if the accusations that Obama spied on the Trump campaign are true, we should give him credit for that.

  22. Problem with such analysis the funds were held within a period law authorized them to be held and Trump released them before the law required. There was never any unlawful withholding, something I am sure the Senate will draw attention to. As far as the hearsay evidence goes, once the funds were released before required by law that hearsay evidence by witnesses became unreliable as far as the intent of the President since they are contridicted by actual actions.

    1. Nope. Trump was never authorized to hold the funds for his personal political gain, not for a minute. And the arguments about how releasing the funds made everything okay have always been bogus. The delay occurred, and it produced the effect Trump wanted for it—compliance by Ukraine. That has been testified to, and is beyond question.

      Even the notion that Ukraine did not know there was a delay is silly. They knew they had not got the money, and they needed it. Every moment they did not have it was making them anxious about their situations, military and political. It was to produce that anxiety that Trump withheld the money. Trump wanted to trade relief from the anxiety for “the deliverable.”

      Trump got caught. Trump is guilty as charged. The only question yet to be discovered is whether he takes down Republican Senators—who know they will put a lifetime blot on their reputations by covering for him. At least some Senators will care about that.

      Trump may even still be removed from office. If there is anything but a sham trial, if Democrats get to cross-examine his defenders, I expect Barry Berke to do in the Senate what he proved twice he could do in the House—reduce his targets to flustered confessions of evasion and deception (see Corey Lewandowski).

      If Berke were to get to cross-examine Trump, the resulting TV footage would so threaten to bring down the Senate majority that McConnell would likely cave, and organize sufficient pressure to force Trump’s resignation before the trial ended.

      McConnell cares a lot more about staying Majority Leader than he does about the difference between President Trump and President Pence. That means there is more vulnerability for Trump than the reiterated super-majority figure implies. It will probably take only a serious threat of election defeat for about 4 Senators to dislodge Trump.

      Creating a sham trial will be critical for keeping Trump in office. It is not yet clear that Republicans can command a majority for rule-making purposes, unless they provide fair process. Some Rs may refuse to endorse an obvious travesty. CJ Roberts may prove a wild card.

      The question is whether Republicans can do it, and whether they will continue to want it, as they watch their reputations corrode in public, and speculate about whether their majority will diminish or vanish.

      1. Lathrop….Make your argument to the electorate. This entire matter is going to the electorate next November, and We The People will fight it out at the ballot box.

        Personally, I can’t wait. It is gonna be mighty interesting the day after the election.

        1. Tell me more about what you foresee.

          Maybe you could foresee in the alternative:

          1. President Pence’s defeat.

          2. President Trump’s victory.

          3. President Trump’s defeat.

          I left out President’s Pence’s victory, because I am pretty sure nothing worth special note would follow.

      2. Lathrop, I hate to break it to you, but Berke is going to be on the sidelines if the Senate has a trial. The Senate rules, unchanged from the Clinton impeachment, don’t allow staff members to present the case or question witnesses. Congressmen only can participate.

        You’ll have to get your Perry Mason fix on DVD.

        1. Kazinski, can you cite that rule? I can see where the managers are appointed by the House, and I think all of them were Representatives in the Clinton exercise, but I can’t find an authority that says they have to be. A general rule that only members of Congress can participate seems unlikely considering how that would restrict choice of counsel for the person impeached.

          1. That just applies to the ‘prosecution’, the President of course can use his own lawyers for his defense.

            From Politico:
            “Managers will play a central role during the Senate’s impeachment trial. Only the managers, the president’s lawyers, and Supreme Court Chief Justice John Roberts — who will preside over the trial — will be permitted to speak.”

            1. Kazinski, how can we distinguish whether that is a citation, or a political estimate by Politico? I concede Republicans will do everything they can to keep Berke from any role.

              But If the President gets a lawyer, what view of process says the prosecution can’t have a lawyer?

            2. Kazinski, even crediting that Politico got it right, that quote doesn’t say the managers must all be members of the House.

            3. Kazinski, I bet you agree with me that testimony by Trump, and cross-examination by Berke, would be disastrous for Trump’s defense. How many Republican Senators do you suppose would want to acquit Trump, and then campaign for re-election in the face of the campaign ads that would enable?

              I suggest that prospect tells us everything we need to know about both the case on its merits, and also the underlying political circumstances. In short, Trump’s acquittal, both formally, and in the arena of public opinion, depends utterly on Republicans’ ability to rig a Senate trial to keep the truth from the public.

              What kind of person thinks that over, and then says, “Sure, so let’s rig the trial?”

  23. I hope Ilya and Co keep this impeachment charade in the public consciousness as long as possible.

    1. The political outcome of impeachment is yet to be seen, but the overconfidence of the right is proof they’ve become very adept at convincing themselves of whatever they want.

      1. I’m inclined to agree with you for a change. The polls show impeachment is a loser, but the polls being what they are, we should have had Hillary walk away with it in 2016.

        That said, absent other evidence, I’m still going to say based on the last impeachment on relatively weak grounds, that this won’t be a winner for the party engaged in the process.

        Unwittingly, the Dems have galvanized and united the GOP around Trump, including marginal voters who see this as a sham, something I didn’t think was possible. There will be a high turnout for him because of this, and there is no corresponding rally point for Dems to encourage turnout in 2020. Their candidates are non-inspiring as was Dole or Romney, and only the fringy types in the party wanted impeachment.

        1. You think they would have learned from Kavanaugh. The allegations took a marginally liked nominee and made opposing him for any reason unthinkable. Why? Because we knew that if he was denied the nomination on the basis of an unsupported and irrefutable half-allegation of sexual assault, there would never be another nomination without such an accusation.

          The Law-and-Order vote has always been in the Republicans’ favor. The Democrats are just making them angry with these repeated attempted political prosecutions.

          1. Hmm, good point about Kavanaugh’s hearings. He was, and to an extent is, not “likable”. I agree. I don’t expect someone in a non-elected position to have tons of charisma.

            That said, it was pretty hard for someone not from the left to be blind to how he was being screwed over, and it did unite the Right.

  24. The House and Ilya are being profoundly dishonest in saying Sondland “testified that he developed a clear understanding that the military aid was also conditioned on the investigations, that it was as simple as 2+2=4.”

    According to CBS’s account:
    “9:00 a.m.: Sondland says in his opening statement that there was a “quid pro quo” scheme to arrange a White House meeting in exchange for opening investigations, contradicting testimony from witnesses on Tuesday. He also said the desire for Ukraine to open investigations into the Bidens was “no secret,” and that “everyone was in the loop.”

    Even if Sondland’s unsupported supposition were true that completely guts their whole case because charging a quid pro quo over withholding a White House meeting would make them even more of a laughing stock.

    So in their desperation they need to twist Sondland’s weak ‘everyone knew but no one said’ surmise to be about the aid not the meeting.

  25. Boy, how impeachable would it be if a president did not delay a fraction of a billion dollars (in order to further the explicit purpose of the allocated funding), but instead spent multiple billions in each of multiple years with no Congressional appropriations for that purpose?

    Ah, right, it was totally okay when Obama spent those billions of dollars on “cost-sharing reductions” without authorization, because Democrats.

    1. I said at the time, on this blog’s comments, that I thought that it Obama’s conduct was an impeachable offense because it was a clear violation of the Constitution to spend billions of unappropriated money. I also said the House should not impeach Obama because it was a political loser.

      Trump’s withholding spending is not an impeachable offense, and it’s not politically tenable impeachment either. Perhaps if the House had kept their powder dry Trump would have blundered into something they could run with. Perhaps even this Kerfuffle would have sufficed if they let it play out longer and let Trump do something really stupid, but rushed into it and blew it.

      This is about their 4th run at impeachment, and they wonder why no one cares.

  26. The “everybody does it” defense is another way of saying “selective prosecution.” While conduct might violate the letter of the law, it does not violate the substance of the law. The public corruption statutes are broadly written and include much behavior that is clearly not criminal. In particular, if there is a legitimate interest along with an illegitimate interest, the presence of the legitimate interest precludes a criminal intent.

    SCOTUS has ruled on many occasions that convictions for public corruption were void because the behavior at issue was not criminal. One need only look at what happened to the recent conviction of a former Virginia Governor (whose name escapes me right now).

    Prof. Somin stands for the principle that people in his class can perform certain acts with impunity while other people cannot. That is why people are losing faith in the law, in the courts, and in government. The law of the elites, by the elites, but only for the people is an abomination.

  27. “If such violations of the Constitution are in fact common, that makes it all the more imperative to start curbing them by holding presidents accountable for such usurpations. ”

    The above quote is a perfect example of selective prosecution. What Prof. Somin is saying is that this behavior was fine when one of his class was doing it, but we can’t allow other people to do it. This is hypocrisy (and I give that term a very narrow interpretation). It is a lie.

  28. I think the political and pragmatic rationale for limiting articles of impeachment’s to just one or two with the most egregious incidents, clearest legal theories, and strongest evidence, is sound. More would be unlikely to lead to a different practical result, and could only prolong proceedings and keep the country in limbo longer, confuse the public, and increase the risk of negative side effects.

    I also agree that this argument is not the strongest one.

    In general, I wouldn’t consider holding up funds approved by Congress to be itself an impeachable offense. Expenditure delays are common, for all kinds of reasons, sometimes unavoidable, sometimes due to non-impeachable inefficiency and mal-administration. Appropriated funds sometimes get left over at the end of a year. It happens.

    It seems clear that something more than this is nececessary to rise to impeachability. Otherwise, every recent President could have been impeached. There were funds that didn’t get spent on time in every recent Presidency.

    For this reason, I think it was prudent for the House not to have made the expenditure delay itself an impeachable offense, and not to use usurpation of the House’s spending power as a legal theory.

    1. In general, I wouldn’t consider holding up funds approved by Congress to be itself an impeachable offense. Expenditure delays are common, for all kinds of reasons, sometimes unavoidable, sometimes due to non-impeachable inefficiency and mal-administration. Appropriated funds sometimes get left over at the end of a year. It happens.

      Fender benders are common for all kinds of reasons, sometimes unavoidable. That does not mean that deliberately ramming your car into someone else’s car isn’t a serious crime.

  29. Also, in general, in my view the fact that an action was done consistently by multiple past administrations is a good defense to impeachment. Political considerations do not just go in the direction of making impeachment easier. They also go in the direction of making it harder. Not every violation of law is an impeachable offense. You may technically be able to impeach a president for a parking ticket, but no conscientious Congress should do that. Impeachable offenses have to have a level of seriousness that make them stand out.

    For this reason, the fact that multiple Past administrations have done something does not make it right, but it does tend to indicate that Congress has concluded impeachment is not the way to deal with it, and to undermine the credibility and legitimacy of an impeachment effort based on it.

    Mr. Trump is not only entitled to the benefit of law, for our own safety’s sake. He is also entitled to the benefit of politics. For the same reason.

  30. What’s funny is pretending that President Trump would find Joe Biden such a threat to his (incumbent) re-election that Joe had to be investigated and stopped.

    No, No… If Obama can be elected for another term; I’m just not seeing President Trump having any problem in re-election and it just makes a lot more sense to say this impeachment inquiry is a fabricated investigation due to the “threat” of President Trumps re-election.

    1. Yeah, that’s the ticket. Trump’s reelection is so assured that anything that looks like a dirty trick is probably something else. Just like Nixon in 1972.

      This is just getting dumber and dumber. The lack of shame is almost impressive.

      1. The “dirty trick” of asking for a possible corruption to be looked into??

        B.S. It’s EXACTLY the opposite of Nixon – It would be like trying to impeach the FBI for trying to link Watergate to the white house administration…

        You got one thing right though; it just keeps getting dumber and dumber. Witch-hunting usually has a large amount of dumb to it.

        Do you think the FBI should be shamed for investigating Nixon?

        1. Stay on target, chief.
          Nixon won 1972 in a landslide. Ergo, he had no reason to cheat. Which means he must not have cheated.

          That’s the same logic as your 1:11 post.

          Trying to analogize the Ukraine to the FBI is…quite a move.

          1. Prosecuting crimes that have absolutely NO motive what-so-ever?? Maybe Nixon was framed by the Democrats…. Wouldn’t surprise me with the stupid impeachment hearings we have today.

            Not like Democrats have any ethics and is why 73% of the prison population consists of them.

            If they can make the weather changing a crisis; they can obviously frame Nixon and get away with it..

            1. Defending Trump so hard you start thinking Nixon was innocent…quite a move to make.

              I am enjoying the prison statistics to smear Dems generally. Neato fallacy. Most broccoli are green must mean most green things are broccoli, eh?

              1. Defending Trump so hard you start thinking Nixon was innocent…quite a move to make.

                To be fair, I don’t think he actually thinks Nixon was innocent; I think he neither has the intelligence nor knowledge base to have any idea whether Nixon was innocent.

              2. Looks like you’re all dancing around any topic you can find in a desperate attempt to all but ignoring any substantial points..

                You’re right; I don’t know about Nixon and unless you know personally you don’t know either. You’re “claimed” intelligence and knowledge base is no better and just a reflection of biased authors of mainstream news that’s been spoon fed to you with your bibs on.

                That’s hardly of any relative information to the point of no one wakes up one day and decides they are going to commit crimes today just for fun and without any motive of which you’ve suggested.

                1. The last refuge of the pathetic. When cornered on the facts, they retreat to pure postmodern nihilism: who can really know anything? Anything might be true, false, no way to tell the difference.

                  1. The last refuge of the pathetic. Dodging the point going from one subject to the next until the whole point is totally forgotten about. Then when getting called on it starts making personal attacks.

  31. Not sure what to think about this analysis.

    Torn between “yawn” and “meh” ….

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