Trump Had Right to Withhold Ukraine Funds: GAO is Wrong

by Alan M. Dershowitz
January 17, 2020 at 7:00 pm

The Constitution allocates to the president sole authority over foreign policy (short of declaring war or signing a treaty). It does not permit Congress to substitute its foreign policy preferences for those of the president.

To the extent that the statute at issue constrains the power of the president to conduct foreign policy, it is unconstitutional.

Even if the GAO were correct in its legal conclusion — which it is not — the alleged violation would be neither a crime nor an impeachable offense. It would be a civil violation subject to a civil remedy, as were the numerous violations alleged by the GAO with regard to other presidents.

If Congress and its GAO truly believe that President Trump violated the law, let them go to court and seek the civil remedy provided by the law.

The Constitution allocates to the president sole authority over foreign policy... It does not permit Congress to substitute its foreign policy preferences for those of the president. (U.S. National Archives and Records Administration, Wikipedia Commons)

U.S. Government Accountability Office (GAO) has gotten the constitutional law exactly backwards. It said that the "faithful execution of the law" — the Impoundment Control Act—"does not permit the president to substitute his own policy priorities for those congress has enacted into law ." Yes, it does — when it comes to foreign policy. The Constitution allocates to the president sole authority over foreign policy (short of declaring war or signing a treaty). It does not permit Congress to substitute its foreign policy preferences for those of the president.

To the extent that the statute at issue constrains the power of the president to conduct foreign policy, it is unconstitutional.

Consider the following hypothetical situation: Congress allocates funds to Cuba (or Iran or Venezuela). The president says that is inconsistent with his foreign policy and refuses to release the funds. Surely the president would be within his constitutional authority. Or consider the actual situation that former President Barack Obama created when he unilaterally made the Iran deal and sent that enemy of America billions of dollars without congressional approval. I do not recall the GAO complaining about that presidential decision, despite the reality that the Iran deal was, in effect, a treaty that should require senate approval that was never given.

Whatever one may think about the substantive merits of what President Donald Trump did or did not do with regard to the Ukrainian money— which was eventually sent without strings —he certainly had the authority to delay sending the funds. The GAO was simply wrong in alleging that he violated the law, which includes the Constitution, by doing so.

To be sure, the statute requires notification to Congress, but if such notification significantly delays the president from implementing his foreign policy at a time of his choice, that too would raise serious constitutional issues.

Why then would a nonpartisan agency get it so wrong as a matter of constitutional law. There are two obvious answers: first, in the age of Trump there is no such thing as nonpartisan. The political word is largely divided into people who hate and people who love President Trump. This is as true of long term civil servants as it is of partisan politicians. We have seen this with regard to the FBI, the CIA, the Fed and other government agencies that are supposed to be nonpartisan. There are of course exceptions such as the inspector general of the Department of Justice who seems genuinely non-partisan. But most civil servants share the nationwide trend of picking sides. The GAO does not seem immune to this divisiveness.

Second, even if the GAO were non-partisan in the sense of preferring one political party over the other, it is partial to Congress over the president. The GAO is a congressional body. It is part of the legislative, not executive, branch. As such, it favors congressional prerogatives over executive power. It is not surprising therefore that it would elevate the authority of Congress to enact legislation over that of the president to conduct foreign policy.

In any event, even if the GAO were correct in its legal conclusion — which it is not— the alleged violation would be neither a crime nor an impeachable offense. It would be a civil violation subject to a civil remedy, as were the numerous violations alleged by the GAO with regard to other presidents. Those alleged violations were barely noted by the media. But in the hyper-partisan impeachment atmosphere, this report received breathless "breaking news" coverage and a demand for inclusion among the articles of impeachment.

If Congress and its GAO truly believe that President Trump violated the law, let them go to court and seek the civil remedy provided by the law. But let us not continue to water down the constitutional criteria for impeachment by including highly questionable, and on my view wrongheaded, views about violations of an unconstitutional civil law.

Alan M. Dershowitz is the Felix Frankfurter Professor of Law Emeritus at Harvard Law School and author of the book, Guilt by Accusation: The Challenge of Proving Innocence in the Age of #MeToo, Skyhorse Publishing, November 2019. He is a Distinguished Fellow at Gatestone Institute.

Just like Rudy !,Rudy ! Rudy ! Guiliani ,Alan Dershowitz should have quit while he was ahead with the O J case-both had accomplished a legacy.His association with Trump,like all his former staffers careers have been ruined.
True ,conducting foreign policy is left solely to the President.He has the right to conduct it in whatever manor that he feels will yield results that will be in the countrys' best interest.The key words are THE COUNTRYS' BEST INTEREST -not his best interest ...withholding military funding/assistance from the Ukraine contingent upon reciprocal favors that would be beneficial to him personally is not what the Constitution stipulates.What was Alan Dershowitz thinking.

Did he or did he not ask within the context of the Hot" `10` ," phone call for Zenlensky to do him a favor ?
What does,and what is The PRESIDENT of the United States and a rich billionaire doing asking for a favor from a foreign country any way.Is that customary for a president of the United States to be asking other lesser countries to do him a favor,knowing full well the country he is requesting a favor from is in dire need of a favor from him and already had expectations of receiving this favor,not knowing there was a catch 22,er I mean catch twenty two.

Trump Had Right to Withhold Ukraine Funds: GAO is Wrong

by Alan M. Dershowitz
January 17, 2020 at 7:00 pm

The Constitution allocates to the president sole authority over foreign policy (short of declaring war or signing a treaty). It does not permit Congress to substitute its foreign policy preferences for those of the president.

To the extent that the statute at issue constrains the power of the president to conduct foreign policy, it is unconstitutional.

Even if the GAO were correct in its legal conclusion — which it is not — the alleged violation would be neither a crime nor an impeachable offense. It would be a civil violation subject to a civil remedy, as were the numerous violations alleged by the GAO with regard to other presidents.

If Congress and its GAO truly believe that President Trump violated the law, let them go to court and seek the civil remedy provided by the law.

The Constitution allocates to the president sole authority over foreign policy... It does not permit Congress to substitute its foreign policy preferences for those of the president. (U.S. National Archives and Records Administration, Wikipedia Commons)

U.S. Government Accountability Office (GAO) has gotten the constitutional law exactly backwards. It said that the "faithful execution of the law" — the Impoundment Control Act—"does not permit the president to substitute his own policy priorities for those congress has enacted into law ." Yes, it does — when it comes to foreign policy. The Constitution allocates to the president sole authority over foreign policy (short of declaring war or signing a treaty). It does not permit Congress to substitute its foreign policy preferences for those of the president.

To the extent that the statute at issue constrains the power of the president to conduct foreign policy, it is unconstitutional.

Consider the following hypothetical situation: Congress allocates funds to Cuba (or Iran or Venezuela). The president says that is inconsistent with his foreign policy and refuses to release the funds. Surely the president would be within his constitutional authority. Or consider the actual situation that former President Barack Obama created when he unilaterally made the Iran deal and sent that enemy of America billions of dollars without congressional approval. I do not recall the GAO complaining about that presidential decision, despite the reality that the Iran deal was, in effect, a treaty that should require senate approval that was never given.

Whatever one may think about the substantive merits of what President Donald Trump did or did not do with regard to the Ukrainian money— which was eventually sent without strings —he certainly had the authority to delay sending the funds. The GAO was simply wrong in alleging that he violated the law, which includes the Constitution, by doing so.

To be sure, the statute requires notification to Congress, but if such notification significantly delays the president from implementing his foreign policy at a time of his choice, that too would raise serious constitutional issues.

Why then would a nonpartisan agency get it so wrong as a matter of constitutional law. There are two obvious answers: first, in the age of Trump there is no such thing as nonpartisan. The political word is largely divided into people who hate and people who love President Trump. This is as true of long term civil servants as it is of partisan politicians. We have seen this with regard to the FBI, the CIA, the Fed and other government agencies that are supposed to be nonpartisan. There are of course exceptions such as the inspector general of the Department of Justice who seems genuinely non-partisan. But most civil servants share the nationwide trend of picking sides. The GAO does not seem immune to this divisiveness.

Second, even if the GAO were non-partisan in the sense of preferring one political party over the other, it is partial to Congress over the president. The GAO is a congressional body. It is part of the legislative, not executive, branch. As such, it favors congressional prerogatives over executive power. It is not surprising therefore that it would elevate the authority of Congress to enact legislation over that of the president to conduct foreign policy.

In any event, even if the GAO were correct in its legal conclusion — which it is not— the alleged violation would be neither a crime nor an impeachable offense. It would be a civil violation subject to a civil remedy, as were the numerous violations alleged by the GAO with regard to other presidents. Those alleged violations were barely noted by the media. But in the hyper-partisan impeachment atmosphere, this report received breathless "breaking news" coverage and a demand for inclusion among the articles of impeachment.

If Congress and its GAO truly believe that President Trump violated the law, let them go to court and seek the civil remedy provided by the law. But let us not continue to water down the constitutional criteria for impeachment by including highly questionable, and on my view wrongheaded, views about violations of an unconstitutional civil law.

Alan M. Dershowitz is the Felix Frankfurter Professor of Law Emeritus at Harvard Law School and author of the book, Guilt by Accusation: The Challenge of Proving Innocence in the Age of #MeToo, Skyhorse Publishing, November 2019. He is a Distinguished Fellow at Gatestone Institute.

Did he or did he not ask within the context of the Hot" `10` ," phone call for Zenlensky to do him a favor ?
What does,and what is The PRESIDENT of the United States and a rich billionaire doing asking for a favor from a foreign country any way.Is that customary for a president of the United States to be asking other lesser countries to do him a favor,knowing full well the country he is requesting a favor from is in dire need of a favor from him and already had expectations of receiving this favor,not knowing there was a catch 22,er I mean catch twenty two.

The President of the United States is perfectly within his authority to ask a favor of the leader of a country with whom we have diplomatic relations. The US is a signatory of the Budapest Memorandum on Security Assurances. This memorandum included security assurances against threats or use of force against the territorial integrity or political independence of Ukraine, Belarus and Kazakhstan. The US, UK, Russia and Ukraine signed the memo. Bill Clinton signed for the US.

Why don't you take a look at Ted Kennedy's Soviet gambit. Now, there is a real case of Russian collusion. This was back before the Soviet Union dissolved.

The president of the United States is beyond the realms of his authority while under commission and operating on the United States behalf to request a favor, using the leverage of meeting out monies(monies that are not his) or not meeting out monies contingent upon whether the favor is met or not, for his personal gain.This constitutes -a you scratch my back, I'll scratch yours,This constitutes a quid pro quo.This also comes dangerously close to being extortive by it's nature,which is certainly a high crime(felonious), and lastly, this is an obtusive abuse of power.

"You People"are so hung up on being the master intellect you can never admit when you are wrong.if you are wrong you can't be supreme now can you.In this respect you are worse than and dumber than N_ _ _ _ _ you malign.You throw the word hatred out there out of your shear lack of master intellect,or lack of supremacy.Why should I hate Trump,he didn't kill my mama, she died of old age.I simply don't agree with his politics and can see,unlike some of you master intellects he is not qualified to be president, consequently he will implement certain laws and federal ordinances adversarial to my life liberties and pursuit of happiness.As for obtuse once again simply because you don't have an understanding of how words can be used due to your lack of education doesn't mean that I am wrong and need to look it up.I had a college years ago pertaining to that of becoming a journalist and writer so my command of words is somewhat greater than yours.is a couple of examples to show you to be the fool your are.Obtuse for example,when talking about it in mathematical contexts there's what you call an Obtuse triangle,what specified that it is an Obtuse triangle is that it has an angle that exeeds the other 2 angles in degrees,the oversize angle (Obtuse )of say 110° there fore the other two angles must be angles of totalling no more than 70°