Posted by Curt on 16 January, 2020 at 3:58 pm. 2 comments already!


“Faithful execution of the law does not permit the president to substitute his own policy priorities for those that Congress has enacted into law.” That is the reasoning of the Government Accounting Office, which has just concluded that President Trump’s budget office violated federal law in freezing U.S. aid to Ukraine.

It certainly would have been nice to hear this from the GAO when President Obama was imposing his own immigration policy priorities by executive edict and as a substitute for contrary priorities Congress had enacted into law.

In any event, the finding is in an eight-page report by which the reputedly non-partisan CBO has plunged itself headlong into the deeply partisan impeachment controversy just hours before the Senate impeachment trial is to commence (at least ceremonially; the substantive commencement of the trial will occur next Tuesday).

So … what is the upshot? Are Democrats preparing the ground for another article of impeachment? Obviously, the law that President Trump is said to have violated is not a criminal statute. And it is simply not true that the president never has the authority to countermand a congressional statute prescribing foreign aid; Article II of the Constitution gives the president nigh plenary power over the conduct of foreign relations; and other congressional statutes (such as the International Emergency Economic Powers Act) confer sweeping power on the president to regulate foreign commerce if the nation is under threat or in a state of emergency.

No one could credibly argue that Ukraine presented an emergency situation, and I am inclined to believe that Congress’s statutory grant of defense aid to Ukraine had the force of law and should have been honored. But is an inconsequential flouting of a non-criminal law under circumstances where the aid was conferred with just a brief delay, with no harm done, a high crime and misdemeanor warranting impeachment?

I don’t think so, but I imagine House Democrats would beg to differ. That is certainly their right — the president, after all, is sworn to execute the laws faithfully.

But that is the point I was driving at in a column published on Wednesday night, arguing that the impeachment trial should be postponed until the House impeachment investigation is finished.

A trial cannot be fairly conducted if a defendant is still under active investigation for the same alleged corrupt transactions, particularly when prosecutors are publicizing new evidence and new findings. That patently prejudices the trial court’s consideration of the formal charges that have been transmitted to the court.

In just the last 48 hours, congressional Democrats have raised the specter that the president and his underlings (said to be acting with his knowledge and approval) conducted surveillance of a U.S. ambassador they believed to be an obstacle to their campaign to pressure Ukraine into investigating the Bidens; and did not merely undermine U.S. policy but actually violated U.S. law by delaying congressional aid.

Simultaneously, House Democrats are coordinating with Senate Democrats to orchestrate calls to expand the Senate’s imminent impeachment trial to explore any new allegations and witnesses that arise out of continuing investigations of the president, even though these allegations are not covered by the two articles of impeachment voted last month.

The transparent objective is to convert the Senate impeachment trial into a continuing grand jury investigation of Trump. This is an abuse of the impeachment power which would corrupt the solemn purpose of a Senate impeachment trial — namely, to give fair consideration and render judgment on the actual articles of impeachment, which the House finally delivered on Wednesday with much pomp and circumstance.

I’ll repeat the point I made in Wednesday night’s column: Legitimate trial courts do not allow themselves to be abused this way. The Senate should not put up with it.

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