President Trump has been impeached on two articles --- Abuse of Power and Obstruction of Congress --- not because of disagreement with his policy, as he and his supporters are attempting to argue, but because his actions were viewed as both illegal and unconstitutional.

The grounds for those charges are straightforward. Please allow me to explain in very clear and simple terms...

Impoundment of funds

Ukraine is at war with Russia. Vladimir Putin, following a controversial referendum, annexed the entire Crimean peninsula, which had previously been a part of Ukraine. Russian-backed separatists are engaged in armed conflict in the Donbass region, in the eastern part of Ukraine, with 13,000 having reportedly been killed in that conflict since April 2014. In February 2019, after years of similar actions approved by Trump, Congress appropriated $391 million for military and security assistance to Ukraine in hopes of preventing further loss of territory. Trump signed the bill into law. He then withheld the funding from Ukraine without notifying Congress. In so doing, he broke the law, specifically, the Impoundment Control Act.

Whether or not one believes or agrees with Trump's stated motivation is not the issue. Even if he was concerned that the money might be embezzled, he broke the law.

Our Constitution is "the supreme Law of the Land" (Article VI, paragraph 2). Under the Constitution, legislative power resides in the Congress, and executive power resides in the President. "(H)e shall take Care that the Laws be faithfully executed" (Article II, Section 3). He takes an oath of office "to preserve, protect and defend the Constitution of the United States." (Article II, Section 1, last paragraph)

Under the Constitution, "All Bills for raising Revenue shall originate in the House of Representatives" (Article I, Section 7, paragraph 1). The Senate may propose amendments. The President may sign or veto the bill, and the Congress may sustain or override his veto. The President does not have the power of a "line item veto." He cannot sign into law some of the bill and veto parts of the bill.

President Nixon on numerous occasions impounded funding appropriated by Congress and signed into law. He was investigated for this as a possible cause for impeachment. The result was that Congress passed the Impoundment Control Act of 1974, reaffirming the President's lack of Constitutional authority to act on his own. If the President wishes to impound duly appropriated funds, he may do so only under narrowly defined circumstances; and the law requires that he inform Congress and obtain their consent, without which the funds must be disbursed within 45 days. In this case, President Trump never did notify Congress, and, as the timeline shows, he withheld the funds for at least 55 days, releasing them only after his own Inspector General notified the House Intelligence Committee about the whistleblower complaint.

Public testimony of various witnesses in the U.S. House Intelligence Committee's impeachment inquiry confirmed allegations by a whistleblower that the President "had issued instructions to suspend all U.S. security assistance to Ukraine" in hopes of "using the power of his office to solicit interference from a foreign country in the 2020 U.S. election."

Bribery

Federal case law defines bribery as "a specific intent to give or receive something of value in exchange for an official act." The reference to "quid pro quo" exists only in the case law, not in the statute itself. [United States v. Sun-Diamond Growers of California, 526 U.S. 398, 404-405 (1999)]

The Federal Bribery Statute, in relevant part, defines as guilty of bribery "Whoever - being a public official ..., directly or indirectly, corruptly demands, receives, accepts, or agrees to receive anything of value ... in return for being influenced in the performance of any official act" [18 U.S.C. § 201(b)(2)(A)] This relates directly to what Trump is alleged to have done. This is the underlying cause for the first Article of Impeachment, "Abuse of Power". The Constitution specifically names "bribery" as one of the grounds for impeachment and removal from office (Article II, Section 4).

It is important to understand that, under the law, attempted bribery is bribery (as attempted extortion is extortion, and attempted blackmail is blackmail). The asking is the crime. It does not matter whether the attempt is successful, or whether or not anything of value is given or received.

Foreign interference in elections

Similarly, it is a federal crime "for a person to solicit, accept, or receive" "a contribution or donation of money or other thing of value" "from a foreign national" --- that is, someone who is neither a United States citizen nor a permanent resident. [United States Code, Section 30121, paragraphs (a) and (b)] This is intended to prevent foreign interference in our elections. Surely the announcement of an investigation into the Bidens would be a thing of value to Trump's reelection campaign. It does not matter whether or not such an investigation can be justified. It is illegal to ask a foreigner to do it.

It may be inappropriate or unethical for a person to receive large amounts of money, especially from overseas sources, by trading on the family name of someone holding high political office. But it is not illegal. I do not know how a prohibitive statute could be worded. Merely going into business cannot be a crime just because one of your family members is in politics.

Separation of powers

Congressional oversight authority is implied, not explicitly stated, in the Constitution. It derives from the specified powers of Congress (mainly in Article I, Section 8). It is said that the Constitutional framers assumed that Congress would conduct investigations as the British House of Commons conducted them.

The Constitution states that the House of Representatives "shall have the sole Power of Impeachment." (Article I, Section 2, last paragraph). The President has refused to produce any documents subpoenaed by the House, other than the reconstructed account (not a verbatim transcript) of the July 25 phone call; and he has directed his high-ranking officials not to testify before Congress (even though many of them have appeared before Congress in matters of less importance). This is the cause for the second Article of Impeachment, "Obstruction of Congress". If the House cannot gather the relevant evidence, then the power of impeachment is meaningless. President Nixon, to his credit, did not prevent his high-ranking officials from testifying against him.

To be sure, President Trump himself cannot be forced to testify. No person "shall be compelled in any criminal case to be a witness against himself" (Amendment V). While this impeachment inquiry is not precisely a criminal case, criminal conduct has been alleged, and the rights of the accused must be respected. However, the accused does not enjoy the right to prevent other witnesses from testifying. In a criminal case, this would constitute witness tampering and obstruction of justice.

President Trump declined an open invitation from the U.S. House Intelligence and Judiciary Committees to participate in the impeachment inquiry or to send his attorneys, or both --- an opportunity no accused person is ever allowed in a criminal grand jury proceeding.

The President must take care that the laws are faithfully executed, and he sometimes must issue orders to his executive agencies in order to do so. But the President does not have the authority to create new law, or to prevent the execution of existing law, by "executive order" or otherwise. The powers of the President, and the powers of Congress, are limited by the Constitution.

Richard Hayes Phillips is a published historian and genealogist whose books, Without Indentures, Birth and Shipping Records, and The Search for Survivors, are available in paperback from Genealogical Publishing Company, and in hardbound archival editions are available directly from the author for the same price as the paperbacks. He is also an election fraud investigator whose unprecedented forensic probe of the 2004 Presidential election in Ohio is documented in Witness to a Crime: A Citizens' Audit of an American Election. Signed hardcover copies are also directly available from the author.

                 

Article Categories: U.S. Constitution, Impeachment, Accountability, U.S. House, Richard Nixon, Donald Trump, Russia, Vladimir Putin, Ukraine