The House of Representatives begins televised impeachment hearings today, and, if Republicans weren’t so desperate to avoid holding President Donald Trump accountable, they could add their own count to the indictment. Each of the three branches of government—the executive, legislative, and judiciary alike—has vital constitutional duties to perform, and no branch is free to delegate those duties to other branches of government or anybody else. Conservative legal scholars have been trying for years, for instance, to roll back legally binding regulations written by executive-branch bureaucrats rather than Congress.
But along came Trump. Overseeing American foreign policy is both the prerogative and the obligation of the president. In outsourcing U.S. policy toward Ukraine to Rudolph Giuliani, a private citizen whose loyalty lies with Trump personally—not to the office of the presidency, the interests of the United States, or the Constitution itself—Trump has been derelict in his constitutional duties.
A central question at this week’s hearings is whether Trump offered anything to Ukrainian President Volodymyr Zelensky in exchange for publicly announcing a criminal investigation into matters implicating Joe Biden and his son. By various witness accounts, the carrot dangled before Ukraine was some combination of a White House meeting and, more troubling, the release of $391 million in congressionally authorized but curiously delayed military aid that the beleaguered country needed to stave off Russian aggression.
If a president demands something of personal value to himself in exchange for an official act, the transaction can amount to extortion or bribery—the latter of which the Constitution specifically lists as grounds for impeachment. To which Trump’s allies respond: Who cares? If no actual exchange occurred, the argument goes, then attempted bribery can’t give rise to an impeachable offense. This logic runs counter to the standard interpretation of American criminal laws, and it also doesn’t let Trump off the hook for other offenses—including his improper handoff of a major foreign-policy matter to Giuliani.
This handoff is of profound constitutional significance because, with rare exceptions, the Constitution does not bind private parties. That’s why neither NFL players’ decision to take a knee nor NFL owners’ icy reaction to it raised First Amendment concerns—the government is not their boss. It’s also why an airline passenger can sue the Transportation Security Administration for constitutional violations if an agency employee groped her during a security check, but not if the worker is a private contractor hired by the TSA.
There have been many instances in which private entities have exercised government powers delegated to them, and there are better and worse ways by which those powers can be handed over. When the Obama administration, for example, controversially phased out the Commerce Department’s oversight role in the granting of new names for domains on the World Wide Web—handing that task off to a private nonprofit known as the Internet Corporation for Assigned Names and Numbers (ICANN)—U.S. officials at least signaled their intentions well in advance. A formal transfer of power occurred when a contract between Commerce and ICANN was allowed to lapse.
The Financial Industry Regulatory Authority (FINRA) is an independent nonprofit, as well. Although a private entity, the organization helps pass rules that govern the conduct of financial brokers and dealers. FINRA’s role is enshrined in federal securities laws, even though the Constitution arguably gives the job exclusively to Congress and, barring that, to federal agencies accountable to the people through the president. Similarly, consumer-product manufacturers create safety standards that Congress has instructed a federal agency—the Consumer Product Safety Commission—to rely upon, even though the manufacturers’ fidelity is to profit margins and shareholders, not to the American people.
These handoffs of government power to private entities at least are transparent to the public and carry some kind of official imprimatur. The Supreme Court has tolerated them on a number of theories, which boil down to the notion that, so long as Congress and the executive branch retain some measure of oversight, the handoffs are constitutionally legitimate. Certain justices on the U.S. Supreme Court—including Clarence Thomas and Samuel Alito—have balked at this line of cases, and rightly so. But for now, extra-constitutional exercises of power otherwise lodged in government actors under the Constitution are legally protected.
The Giuliani situation is quite different. To the American diplomats who interacted with Ukraine, it was quite clear that the president’s lawyer was in charge of U.S. policy toward that Eastern European nation. Gordon Sondland, the Republican donor whom the president tapped as the U.S. ambassador to the European Union, testified that, in an Oval Office meeting, Trump directed him to ask Giuliani about Ukraine matters. “He just kept saying, ‘Talk to Rudy, talk to Rudy,’” Sondland said.
Congress did not legislate a handoff of foreign-diplomacy power to the president’s personal lawyer. He is not working pursuant to a government contract containing legal remedies for the United States if he breaches the terms of his employment. He did not take an oath of office to uphold and defend the Constitution—unlike members of Congress, who will have to weigh that oath heavily as the evidence bearing on impeachment mounts in the coming weeks. He is not bound by federal conflict-of-interest, transparency, or ethics laws—including the Freedom of Information Act—passed by prior Congresses to ensure that people entrusted with the American populace’s authority to self-govern do their jobs with integrity to the Constitution, the rule of law, and the norms that undergird our system of justice.
As Trump’s personal lawyer, Giuliani’s ethical obligation is solely to his client, Donald J. Trump—the individual, not his office. The Ukraine narrative is plain in this regard. Trump’s interests in tarnishing Biden in furtherance of his own reelection bid were at odds with official U.S. policy toward Ukraine. For decades, the United States has supported the democratization of Ukraine against Russian aggression on the rationale that Ukraine is physically situated as a bulwark for a slew of Western European democracies. Unless we are to believe that Giuliani was acting with zero Trumpian collaboration—a logical impossibility that some of Trump’s most stalwart defenders are nevertheless testing out as an alibi for the president—it appears that Giuliani went rogue on Ukrainian foreign policy at Trump’s personal behest.
Past presidents, to be sure, have at times directed private citizens to conduct back-channel diplomacy with foreign governments. During World War II, Franklin D. Roosevelt used Harry Hopkins, a trusted confidant without an official title, as his liaison to other Allied leaders. As William Taylor, a top diplomat in Ukraine, recently testified, “It’s not unusual to ask people outside the government to play a role” in foreign policy, “so long as it’s consistent with and supports the main thrust of U.S. foreign policy.” But Giuliani’s ministrations were at cross-purposes with stated American policy. According to Taylor, “The irregular channel seemed to focus on specific issues, specific cases, rather than the regular channel’s focus on institution building … I think under the influence of Mr. Giuliani … irrespective of whether it helped solve the corruption problem” in Ukraine.
This is an abuse of power, plain and simple. Trump tapped someone who operated outside the U.S. Constitution and federal law to supplant sworn diplomats and implement a policy that has wholly private objectives aimed at helping Trump personally, to the detriment of the foreign-policy interests of the United States. The role Giuliani has played in matters of state is less Harry Hopkins than Rasputin, the Siberian shaman whose close but amorphous relationship with the Russian royal family afforded him enormous power over matters of church and state.
Trump’s willingness to hand over control of American policy toward Ukraine to such a figure is remarkable, especially in light of conservative jurists’ long-standing efforts to hold each branch of government to its duties as formally spelled out in the Constitution. Even if House Republicans can’t justify impeaching Trump for shaking down the Ukrainians, they should at least call him to account for an unconstitutional behavior whose gravity, in all likelihood, would be obvious to them if the president were from the other party.
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