no propaganda please Loc: moon orbiting the third rock from the sun

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 p**********l decision, despite the reality that the Iran deal was, in effect, a treaty that should require senate approval that was never given.

Wh**ever 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 h**e 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 d******eness.

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.

Liberty Tree

It must also be reminded that the GAO works for Congress and will side with it over the Executive Branch.

JFlorio Loc: Seminole Florida

The GAO is wrong often. Even according to the Obama administration.

DM

JFlorio: ...."according to the Obama administration?" You've got to be kidding! Obama is an authority
ON ANYTHING!...THE GUY WHO MASTERMINDED THE WHOLE SPYING EPISODE ON TRUMP'S CAMPAIGN
AND PRESIDENCY. OBAMA HAS NO AUTHORITY ON DOODLE POOP! A GUY PLANTED IN THE US AND
SENDS MONEY TO IRAN FOR THEM TO BE TERRORISTS....GIVE US ALL A GREAT.....BIG....BREAK!

JFlorio Loc: Seminole Florida

Relax. My point being even the asshole Obama couldn’t get along with Conclusions from the ridiculous GAO.

PeterS

If it was right for him to withhold the funds why did he release them?

“O.M.B. withheld funds for a policy reason, which is not permitted under the Impoundment Control Act.”

This is why it was illegal and OMB belongs to the White House but the GAO doesn't belong to Congress...just to clear that up.

son of witless

The GAO is infested with Obama ERA Lice.

JFlorio Loc: Seminole Florida

He was required by law to release the funds by the end of September. He released them September 12. You are so clueless you’re dumb.

Liberty Tree

The GAO is a legislative branch department.

federally indicted mattoid

Carrful Peter, the t***h hurts them. The delicate Snowflakes need their imaginary world.

Lonewolf

Question why did he release funds in his first 2 years in office? ,and if he was concerned why not ask the justice dept to act?

badbobby Loc: texas

thank you sir

Smedley_buzkill

You apparently need your imaginary world in which you know more about the law than one of the most respected lawyers and authorities in this country's history. A man who is not, by the way, a fan of Trump. Alan Dershowitz is a Liberal by any definition. He is also, unlike your boy Obama, a REAL authority on the Constitution.

federally indicted mattoid

Noone can answer this.

They've tied themselves into gordian knots with their many narratives over the course of the impeachment hearings.

son of witless

He is President, that is why.