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.

What crime, the Biden issue has been beat up nine ways to sunday? The reality of what intelligence reported to the senate intelligence committee is far different than the Russian created Giuliani fantasy conspiracy...

this crap lives in the heads of the right and never will go away. The idea of having Biden testify is a right wing fantasy, and the GOP has enough sense to know they want nothing to do with it, it's a bluff to deter dems from relevant witnesses...and here's a newsflash, dems might just give them this thing they really don't want if it's pushed it would make the GOP look like pure fools to bring in the facts from intelligence that they already know.

================
N P, thank you for posting this. I had been looking for it.
This validated my argument the other day, that GAO was wrong concerning the its decision on finding the Office of the President in violation. This was seconded by professor Jonathan Turley.

GAO’s REPORT.
GAO declared that the president’s office withheld the military aid to Ukraine to be unlawful. Based on the Impoundment Control Act. Enacted in 1974.

Professor Dershowitz decisions.
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.

This is Professor Turley stands.
GAO Declares Trump’s Action on Ukraine Aid to Be Unlawful
https://jonathanturley.org/2020/01/16/gao-declares-trumps-action-on-ukraine-aid-to-be-unlawful/#more-151494

There was 180-degree difference between these two professors.
Now, I found that professor Dershowitz was right. Based on the following.
1.P**********l separation of powers. Once the budget is released to OMB, the full responsibility lays on the shoulder of the president. Foreign Affairs business is under the President, and therefore policies and protocol are made to accomplish his duties. Failures of following them will be a dereliction of duty.
2.GAO could not fully render an independent decision because it directly reports to Congress. Independence is one of the General Audit Standard requirements.
3.Therefore, I have to agree with professor Dershowitz pronouncement.
4.The 7 years of my audit practice on state, and corporation, had always been independent otherwise I could not make an unqualified report for the for them. Note: Unqualified means meeting all audit standards on all GAAP financial reports being audited. No exceptions.
5.Consistency was also required on all GAAP financial reporting matters or other reporting audit matters. And therefore, I was consistent following professor Dershowitz’s decision.
6.I agree with him 100%. I question that of professor Turley. Both of them are brilliant professors in academic discipline.
7. The president therefore did not violate any of the Ukraine aid funding. The president under his executive power on foreign affairs, did follow all protocol/policies, before releasing the funds to Ukraine, ensuring the integrity, reliability, and meeting all required policies on conducting affairs with foreign states.

8. The delay of funding was not a violation, and therefore Congress could not use that as a reason to impeach the president. The president is innocent
9. The delay of aid did not materially affect any Ukraine policy for short delay. The president of Ukraine said so.
10. There are no issues on impeachment. They all have no merits.
11. The impeachment case MUST BE DISMISSED at the Senate. A waste of time and money of the taxpayers.

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.

Trump cannot withhold funds that were authorized by Congress without consulting with Congress. The GAO is absolutely correct. Trump and his legal cronies just play with words to create crazy conspiracy theories and beside Trump has offered no evidence to prove his comments he did absolutely everything perfect. If he did everything perfect let’s put his people under oath and let them testify why do Trump supporters ignore a basic concept of a trial. Besides Trump was not impeached because of withholding those funds and it’s clear the evidence shows he withheld those funds to get a foreign country to get dirt on a political opponent.
Only a GD i***t can deny the evidence, and only a Trump supporter thinks a fair trial can be run with no witnesses and no documentation.

Trump cannot withhold funds that were authorized by Congress without consulting with Congress. The GAO is absolutely correct. Trump and his legal cronies just play with words to create crazy conspiracy theories and beside Trump has offered no evidence to prove his comments he did absolutely everything perfect. If he did everything perfect let’s put his people under oath and let them testify why do Trump supporters ignore a basic concept of a trial. Besides Trump was not impeached because of withholding those funds and it’s clear the evidence shows he withheld those funds to get a foreign country to get dirt on a political opponent.
Only a GD i***t can deny the evidence, and only a Trump supporter thinks a fair trial can be run with no witnesses and no documentation.