Trump Had Right to Withhold Ukraine Funds: GAO is Wrong

A prolific father and son team of shoplifters are caught red handed on CCTV plundering a shop. Instead of arresting these two robbers, the police charge the shopkeeper for leaving his shop door open. What's the difference here between the Bidens and Trump? The same analogy can be applied to the Clintons and Obama.

Yes, the president has sole authority, except war and treaties, to conduct foreign affairs. BUT, Congress—specifically the House—has the power of the purse. So, yes, the president makes foreign policy, but Congress is not compelled to fund it, a way of Congress to co-opt foreign policy passively.

Of course this impoundment case is the reverse: Congress is making foreign policy and compelling the president to fund it. Here's the problem: The funds in question—have they been appropriated by statute, signed by the president? Dershowitz is right, Congress cannot make the president spend money on foreign policy. But at some point the appropriation in question got signed into law by some president.

Not sure if this is Trump's argument, but it should be: The appropriation makes foreign policy legislatively, which is unconstitutional. Trump's refusal to spend the money has nothing to do with impoundment, hence nothing to do with the Impoundment Law he is alleged to have violated.

Nor has the issue anything to do with presidential violation of Congress's power of the purse but rather with Congress's violation of the president's power to make foreign policy. Supreme Court, US v Curtis-Wright, 1936: "The President has sole authority over foreign policy and does not need Congress to delegate power to the executive branch in this area." Further: "In view of the delicacy of foreign relations and of the power peculiar to the President in this regard, Congressional legislation which is to be made effective in the international field must often accord to him a degree of discretion and freedom which would not be admissible were domestic affairs alone involved."

The president has SOLE power to conduct foreign policy, and if Congress should nevertheless pass legislation in the international field, then it must accord the president "discretion and freedom" appertaining.

Let's say Congress added this appropriation to a law with other provisions the president wanted to enact. But the Supreme Court threw out line item vetoes in 1998. That's why we're hearing about line item veto in this debate.

This is what needs to be done: the president can't line item veto, but the Supreme Court can. Trump refuses to spend the money because it unconstitutionally legislates foreign policy, which is his SOLE purview. There should be a suit before the Supreme Court, who can declare that appropriation a violation of the presidential prerogative in foreign policy, declare that part of the law void and unenforceable. So there, line item veto accomplished, appropriation out. A messy process but worth it as a valuable precedent for future presidents.

It would have been impeachable offense if President Trump or any of his relatives would have benefited financially from this. He did not gain a penny -- not only that, he has to spend money to protect himself from this baseless accusation. While Biden that his son made a fortune -- that should have been an impeachable offense but gets clean bill of health at the cost of taxpayers and does not spend a penny. Spiro Agnew, VP of Nixon, was forced to resign when his corruption prior to becoming VP came to light, while Biden, who committed his corruption while he was VP, is acceptable.

Trump and Netanyahu are made from the same cloth and given authority from the same God. They proceed for what's good for their country and citizens and refuse to bend to the UN, and Arab demands.

Prof. Dershowitz, you almost make it sound like the Democrats do not know or would somehow be embarrassed to admit they are subverting the Constitution and rule of law; which for them is only an expedient for power. Next you will be arguing that they care more about victims they help create than bona fide criminals they protect.

All this impeachment procedure is in fact an attack against democracy.

Thank you Mr Deshowitz. You are a a true defender of the American Constitution and ergo, our great nation.

Well, the GAO is just an extension of whatever political party is in Congress, so it's not a surprise. They were actually asked to do this by one of the Maryland Congressman. They can try to represent themselves as an unbiased outside agency, but they're not. The head of the GAO was hired by Obama. But really, hadn't the GAO accused just about every president since the 1970's of criminality? They're pretty much just cranks.

Nowhere in the Constitution is foreign policy explicitly mentioned except for treaties and ambassadors. In both cases, approval by Congress is required. The president is Commander in Chief of the Army and Navy, but only Congress can declare war. All of this is in Article II, Section 2. I hear many supporters of Mr. Trump claim this authority, but I do not see it in the Constitution.

If we remember that the President is the Chief Magistrate of the United States, then his handling of the Ukraine funds and prior/subsequent actions pertain to the investigation of possible criminal actions and conspiracies of, and by, a person who once was Vice-President of the United States (and of/by the son of the former V.P.) to be concise. Such investigations have unleashed a firestorm of vicious obloquy and hatred issuing from the party of the former V.P. and from the partisan media. Prof. Dershowitz et al. will bring cleansing light to the polluted darkness of the partisan miasma.

Professor Dershowitz is wrong on two counts.

1. This is not a matter of foreign policy. This is a matter of the power of appropriation, which belongs to Congress. Congress appropriated these funds, subject only to assent by the DoD that Ukraine was making progress on corruption. That assent was given. Therefore, the funds could not be withheld.

2. Trump did not withhold the funds on account of his exercise of foreign policy. He withheld the funds for personal reasons - to get rid of a major political opponent. Giuliani has said as much repeatedly, in person and in his texts and emails. If this were a third world country engaged in such practices, we would be clamoring for a regime change.

Mr. Dershowitz is not wrong very often but there is another group of people besides Trump Haters and Trump Lovers, there are people like me who just hate Trump Haters.

The Democrats are wrong not only about the law, but the facts. There was no immediate need of the aid. A truce, under the aegis of the Trilateral Contact Group, had been in place since March, to facilitate negotiation of the Steinmeier Formula (Latest Donbas Truce Proves Most Effective-OSCE, Interfax-Ukraine, 8-22-19.) Yovanovitch, in her recent testimony, styled the aid a "symbol" of support.

The Deep State is deeper than anyone thought. First, Democrats discovered that their Articles didn't state a high crime or misdemeanor.

And then, suddenly, presto zing, wham bam, the Deep State announces a crime.

Coincidence? Miracle? Or just another Deep State dirty trick?

Now *this* is what a constitutional scholar sounds like, not the usual politicized hacks whose loyalty is to party or ideology instead of the actual Constitution.

All of the above being what Mr Dershowitz will tell the Senate sometime in the near future, and which is far more than sufficient to put an end to this impeachment nonsense.

Alan Dershowitz as always, provides a simple and clear perspective. Thank you for providing him a platform. "To the extent that the statute at issue constrains the power of the president to conduct foreign policy, it is unconstitutional". That is solid thinking and excellent writing.

If you're Racist, KKK, Blackface, Democrat Governor Ralph Northam of Virginia, you can unconstitutionally ban guns at the State Capital, but if you're a patriotic Republican President like Trump, failure to send guns to a foreign country in a timely manner makes you a criminal and you must be removed from office. Go figure. Additionally, according to Democrats, defending the borders of a country is xenophobic. No borders, no walls, no Ukraine at all.

As Professor Dershowitz said, the GAO is a Congressional body with bias. If reports that Paul Pelosi Jr. was employed by an Ukrainian energy company, Speaker Pelosi has as bad a conflict of interest as Joe Biden did in trying to stop investigations of influence peddling, money grubbing, likely mail/wire/bank fraud, and 2016 election interference. The difference is that Speaker Pelosi and her Kangaroo Kourt Kommittees have used the impeachment process for political ends and engaged in official misconduct at taxpayers expense. The "whistleblower" and other government employees who were involved in Biden's tainted deal which coerced the Ukrainian government to fire the prosecutor investigating the company (Burisma) which employed Hunter Biden abetted Schiff in abusing the impeachment process.

Congress allocates funds as a ceiling but the Executive is not mandated to spend every penny. If that were true, then there would be no reason for competitive bids nor would there be mechanisms for returning unspent funds to the treasury.

As usually, an excellent and high documented comments of Prof. Dershowitz! A great specialist and intellectual! He is completely right, now all the official bodies are no longer bi-partisan but deeply split by the incredible hate, disdain and violence developed by the new Democrat Party which became leftist and its allies, neo-communists, socialists, Islamists. It is a great monstrous coalition to destroy the foundations of the American nation and Republic from 1776!

Anything that is not in the current Articles as delivered should not even be mentioned at the trial.
The Senate does not have the power of impeachment, only the House. The Senate cannot add new charges, evidence or supplement what the House sent in any way.
The House is free to write and vote on other Articles covering these issues if they choose.

It's a stretch, but I have to keep reminding myself that these are just partisan attacks on Trump. I never thought not getting your way over the direction of the country would stir such hatred for our current President.
But, I suppose I would hate any President who was creating a liberal court system that promotes the power of the Federal Government over the individual.

The interesting thing is that in reality, Joe Biden intervened in Ukrainian internal affairs to stop investigations about corruption in an energy company (Burisma) where his son, Hunter Biden was a member of the board. He even got the Ukrainian attorney general fired and bragged about it publicly.
The Democrats have a very bad case in their attempt to have Donald Trump impeached. I think their attack on the president is going to backfire quite severely.

Thank you Professor Alan for your concise and accurate article. Many Trump supporters will be deeply grateful.

The GAO is staffed by Obama holdovers and anti Trumpers. What do you expect?

A wonderful eye-opener article on the misquotes and the misapplications of the Constitution to serve destructive partisan purposes.
Thank you, Professor Dershowitz.

Thank you for all of your very timely, astute and accurately written articles, Professor Dershowitz... a rare find for readers who look and hope for Truth and for justice; there are obviously additional writers having those qualities today but the media in it's various costumes does not allow room for very many any more...

Your article of this evening was a gift of fresh air!

Best wishes!

I agree with Att'y Dershowitz that the President was within his presidential prerogatives to deny the military aid to the Ukraine. However that is not the main issue. The main issue is whether he used the aid or the threat to withhold it, as a means to coerce the Ukrainian government to do one or more thing enuring solely to the benefit of Mr Trump, and not to the USA as a country or a government.

Thank you Allen, you reinforced what I thought I knew about executive privilege. I find myself reading my pocket constitution, looking up the basics more and more, with the way this whole mess has unfolded. So many want to be experts in our House. Most haven't even read the docs since high school if ever.

Thank you Gatestone and Mr. Dershowitz for this article. All the latest media coverage of this particular broadside against the President certainly leads one to think he is definitely done for now. What ever became of journalists and journalism that was supposed to be impartial. I hesitate to use the term 'Fake News' but it surely seems to describe what we hear from the MSM. Thanks again!

Good argument bringing clarity and perspective without sensationalism.

If only Mr. Dershowitz could be cloned the world would quickly become a saner place. Thanks Gatestone.

The obvious reason this impeachment is going forward is the very low refused the Democrat party has for the constitution. The Dems just don't see the need for the rule of law unless it can be twisted enough to get more "free stuff"!!!

Very nicely put together. Way to go Professor Dershowitz.
Looking forward to the hearings at the Senate. Thank you for also representing President Trump as one of his lawyers.

The relevant test for if this should even have been investigated is the date the funds were supposed to be authorized and disbursed and the date that they were actually authorized and disbursed, with the single key item being the disbursement.
If the funds were disbursed on time then there should be no further question or even an issue with respect to the ~process~ leading up to that disbursement brought into question or scrutiny.
Time to investigate the GAO for Abuse Of Process.