The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Many are advocating impeachment in response to President Donald Trump's apparent attempt to use withholding of $400 million in aid funds as leverage to pressure Ukraine into investigating possible malfeasance by Joe Biden and his son Hunter Biden. Meanwhile, critics fear that investigation and impeachment could unduly undermine confidentiality of the president's conversations with foreign leaders and his control over foreign policy more generally. Largely overlooked in the debate so far is the fact that, if Trump did indeed try to use the aid funds as leverage, he not only engaged in improper self-dealing but also usurped Congress' power of the purse. That's an important constitutional issue that goes beyond Trump's many personal flaws.
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. For example, few if any experts have a broader conception of presidential power over foreign affairs than John Yoo, who has argued—among other things—that the president can go so far as to start wars without congressional authorization. But Yoo nonetheless recognizes that Congress has the power to control spending on foreign and defense policy. He even contends (wrongly, in my view) that this power is enough to prevent presidential abuses of the extremely broad war powers he believes the executive is entitled to.
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.
In a recent New York Times op ed criticizing calls for impeachment over the Ukraine issue, John Yoo argues that it would undermine presidential control over foreign policy, and also reassures us with the suggestion that Congress could eventually get at the truth by using its spending power to cut "intelligence, military and diplomatic funding" if the administration refuses to disclose relevant evidence.
This overlooks the fact that a potential usurpation of Congress' spending power is precisely the point at issue. As Yoo recognizes in other contexts, Congress is entitled to control over the power of the purse, even when it comes to spending on foreign policy. And the threat to use spending cuts to incentivize executive cooperation is only likely to be credible if the president knows that efforts to divert federal funds away from their authorized purposes will be properly investigated and punished. Otherwise, he can circumvent future spending cuts he opposes by reallocating funds Congress intended to be used for other purposes.
Given the importance of the power of the purse, Congress has every reason to review what happened here. That includes both considering the transcript of Trump's call with Ukrainian president Volodymyr Zelensky (which Trump says he will release tomorrow), and the internal whistleblower report that first attracted public attention to this issue. In a rare show of bipartisan agreement, the Senate has unanimously demanded the report's release; Trump should comply [see update on this below]. If there is anything that Congress has the power to investigate, it is whether the funds it allocates are actually being spent for their authorized purposes.
And if it turns out that Trump did indeed try to use these funds as leverage to dig up dirt against a political opponent, that sort of unconstitutional diversion of federal funds for personal gain is exactly the kind of abuse of power that the Founders believed impeachment should be used to curb. It is not merely a form of personal corruption, but a dangerous undermining of the constitutional separation of powers. There is obvious reason to avoid giving any one man or woman the power to use the federal treasury as a piggy bank for their own personal agendas.
It is also worth recalling the Trump administration has an extensive prior history of attempting to usurp Congress' powers over spending. 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—all for the purpose of coercing them into helping enforce the administration's immigration policies. 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.
Trump is not the first president to try to undermine Congress' control over spending. Barack Obama, for example, illegally diverted funds to pay for Obamacare subsidies that were not authorized by Congress. But Trump is unusual for doing it so brazenly and so often. If he manages to get away with it, we will have created a dangerous precedent. Republicans who may support him now are unlikely to be happy when future Democratic presidents use similar tactics.
UPDATE: I have made some minor additions to this post.
UPDATE #2: Politico reports that the administration has indicated it will indeed release the whistleblower's report, though this decision may not be completely final.