If the nation’s Founders didn’t want to constrain the president’s power, they wouldn’t have put impeachment in the Constitution. “They gave us the tools to do the job,” Representative Adam Schiff declared yesterday in his closing argument in Donald Trump’s trial. The president’s camp, meanwhile, insists that the legislative branch still has several levers of power against Trump. The defense attorney Patrick Philbin argued last week, “Congress has numerous political tools it can use in battles with the executive branch—appropriations, legislation, nominations, and potentially in some circumstances even impeachment.”
But what’s happening in the Senate this week suggests the exact opposite: that most of the checks and balances Congress provided against the president’s power are effectively gone. Despite ample evidence of serious misconduct, the Republican-led Senate appears certain to acquit Trump in his impeachment trial. And all the other political tools that Philbin listed seem quaint in light of everything else Republicans in Congress have decided to forgive.
Philbin argued, for starters, that Congress can still exert control over the executive branch through its appropriations power—its authority, that is, over the federal purse strings. So if the president takes actions that Congress does not like, it can theoretically put a financial stranglehold on executive power.
The problem with this solution is laid out in the Government Accountability Office’s legal analysis of Trump’s withholding of $391 million in Senate-approved aid to Ukraine. The move violated the Impoundment Control Act, the GAO insisted. Congress had appropriated the aid, and the president had no authority to ignore that decision—at least without simultaneously alerting Congress to his plan, as the statute requires. With an impending acquittal, the Senate is saying to Trump and all future presidents that they can ignore Congress’s appropriations decisions without consequence. Trump can withhold or spend money as he likes—even if Congress has already said otherwise.
In fact, he was already doing so in other ways. When Congress refused the president’s request for funds to build a wall on the southern border—notwithstanding a three-month government shutdown with which the president tried and failed to force lawmakers’ hand—Trump plundered other pots of appropriated funds to do what he wanted anyway, an action declared illegal by a federal judge.
Next on Philbin’s list is lawmaking. Congress can always pass legislation that confines the president’s discretion. It makes loads of laws—criminal laws, antidiscrimination rules, constraints on monopolies, environmental restraints on businesses, and so on. The Constitution gives the president veto power, but if a bill passes anyway, the president is obliged to “take care that the laws are faithfully executed.” While a president cannot reasonably enforce every potential violation of the law, Trump cannot, under a system of separated powers, affirmatively violate laws himself. Yet for Trump, the GAO determined that he did just that: treated the Impoundment Control Act as optional—not binding.
One doesn’t have to dig too deep to find other examples. Trump’s team kept the whistle-blower complaint from Congress as well, despite a clear statutory obligation to hand it over. And Trump had the backing of the Justice Department for this maneuver. Federal-government lawyers’ apparent lack of independent judgment and fidelity to the rule of law make it particularly hard for Congress to expect presidents to respect its laws from now on.
As for Philbin’s third option, which derives from the Senate’s constitutional power to give or withhold consent for a president’s appointment of federal officers and judges, he said that Congress “can refuse to confirm his nominees.” But that threat works only if the president submits his nominees to the Senate for consideration. Trump has repeatedly flouted any expectation that the presidential appointees tasked with making government policy will be vetted in the manner spelled out in the Constitution.
Rudy Giuliani is the most glaring example. A former New York mayor serving as the president’s private lawyer, Giuliani conducted foreign policy in Ukraine on Trump’s behalf without enduring the confirmation process or even going under contract with the U.S. government. And he did it in ways that were at odds with official American policy, as numerous career diplomats and national-security officials testified in the House impeachment proceedings.
Trump has also refused to fill crucial vacancies within the executive branch—leaving the Federal Election Commission unable to take any enforcement actions for violations of federal campaign laws in the lead-up to the 2020 election, for example. Moreover, rather than making formal appointments and soliciting the Senate’s advice and consent, as the Constitution requires for top-tier officials, Trump has installed temporary appointees in key posts in his administration—including giving Mick Mulvaney the dual titles of acting White House chief of staff and acting director of the Consumer Financial Protection Bureau. Of course, Trump isn’t the first president to appoint acting officials. But he has explicitly defended his extensive use of this stopgap tool because of the flexibility it gives him.
In short, Philbin is badly mistaken if he thinks that, after the trial is over, Congress can counteract Trump’s worst instincts by holding up his nominees.
The last option Philbin listed was impeachment itself. Trump and his allies have deceived themselves and their supporters that impeachment—the ultimate guard against presidential excess—is nothing more than a cynical instrument of partisan warfare. Senator Joni Ernst, a Republican from Iowa, announced yesterday that Trump’s impeachment over the Ukraine scandal opens the door to impeachment of a future President Joe Biden over activity by him and his son in the same country.
Worse still, Trump has set a precedent that compliance with investigations by the legislative branch would diminish his own power, and is therefore purely optional. Impeachment cannot work if Congress lacks the basic facts bearing on the grounds for impeachment. This president has roundly defied subpoenas for witnesses and documentary evidence, and he has suffered no adverse consequences for doing so. Oversight of the sprawling and powerful executive branch is a vital function of Congress, yet why would any future president of either party comply with politically damaging congressional investigations if Trump got away with evading them with impunity?
All told, Philbin’s list of Congress’s remaining levers of presidential oversight is antiquated—as a Trump lawyer, of all people, should know—and in fact provides a point-by-point argument for why the constitutional stakes are now so high.
Last week, another of Trump’s lawyers, the law professor Alan Dershowitz, starkly said, “If a president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment.” This is a theory of presidential power with no limits. The ruler’s personal interests supersede everything else. But America’s Founders specifically rejected a system in which the interests of the ruler and the state are presumed to be one and the same.
I am among the many constitutional scholars who believe that the viability of our constitutional system of separated powers is in great peril. The 2020 election may be all that’s left of presidential oversight—a reality that Trump’s lawyers appear to wholeheartedly endorse with their constant complaints that impeachment is bad because, by definition, it voids the results of the previous presidential election.
The Republicans’ argument—let the voters decide—has a superficial logic to it. Assuming, of course, that 2020 will be a legitimate election, free of corruption at the top.