The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.