Cline on the Constitution, Impeachment Chronicles, Part Four
As of this writing, Senators are availing themselves of the opportunity to take to the floor of the Senate to explain how they will vote regarding the impeachment of the President. And why. Their speeches at this point it is all about home district consumption.
While District Attorney, I traveled to Washington D.C. a few times to work with members of Congress on legislation and to secure funding for important projects like the Rural Crime Program. More often than not we were working in the Capitol building at night and I was always struck by the ever-present T.V. broadcasting speeches from the floor when the only person present on the floor was the member talking. Turned out those speeches were being filmed for the constituents back home so they could see how their congressman or Senator had taken to the floor in support or opposition of whatever it was they were supporting or opposing. Given the angle of the camera, it mattered little there was no one on the floor listening to all the fine talk.
Though there has been a swirl of activity during the impeachment trial with arguments by the House Managers and President’s counsel, much of it has been repetitive and little new ground has been plowed from a Constitutional perspective. Most of it has been covered in prior posts. I discussed the inadequacy of the Articles of Impeachment and the modern dangers presented by slip-shod one-party impeachment attempts being employed to weaken a President politically. Kenneth Star surprised me with his eloquence in addressing this very issue. And, as I predicted, the pattern and practice of attempting to influence the proceedings by placing and perfectly timing the release of “bombshells” continued. This one involved John Bolton and his book.
In regard to the Bolton issued, Senate Majority Leader, Mitch McConnell, showed once again he is the Master of the Senate. Knowing a little about politics and political maneuvering, I marveled at how one of his best friends just happened to show up as one of the four Senators whose views were soft enough to have the media and the other party salivating over the prospect they would vote against their party and open up the Senate trial to Bolton and an endless series of “bombshell” witnesses. And then I smiled as his friend brought one of the other three with him to vote down the proposal. Mighty Mitch won again.
As for the performance of the presenters, it was the usual mixed bag. For the House Managers, Adam Schiff was the worst. He reminded me of a lot of defense attorneys I tried cases against over the years. Flamboyant to a fault, there was never a fact they wouldn’t embellish, never a legal point they wouldn’t overstate, never a comment about an opposing view they wouldn’t exaggerate. Many a client of theirs was impressed. And they shared how good a show their attorney had put on in their trial. Usually to their cellmates. Because the attorney’s perfidy inevitably leaded through as the true facts of the case came out, they just as inevitably lost.
On the other hand, Congresswoman Zoe Lofgren of California was very effective. She was low key, respectful but precise and persuasive. She had actually participated in one capacity or another in all three impeachments we have seen in our lifetime. Her experience and maturity showed.
For the President’s team, the worst was professor Dershowitz. And erstwhile Constitutional Law professor he got way out over his skis and fell flat. Like so many of his colleagues in Academia he got lost in the weeds. He was so intent on winning his debate with another Constitutional Law professor, Lawrence Tribe, he forgot the proceeding were not about him. He stretched his argument so far it provided fodder for the other side to color him in the tones of a fool.
The best on the President’s side was the steady one, Philbin. Precise, measured, careful of his own credibility, he knew not only his case, but the opponent’s case so well all their bluffs and puffery went “Poof!” when he walked to the podium and spoke. He’s the type that wins. And he wins big.
On reflection, there were a couple of issues in the Constitutional Law field that were touched upon that are worthy of discussion.
The President’s Power over Foreign Affairs is paramount. The President derives his power implicitly from the language of the Constitution, practically through historical practice and explicitly from decisions of the Supreme Court. Modernly, both Congress and lower federal courts frequently attempt to intervene and frustrate Presidential actions in foreign affairs, but their acts are eventually deemed unconstitutional when challenged.
As to the Constitution, the President is granted the power over making treaties on behalf of the U.S., appointing ambassadors and ministers, receiving foreign ambassadors and ministers, and his command over military affairs are intimately tied to the conduct of foreign affairs,
In 1936, the Supreme Court in the case of U.S. v. Curtiss Wright Export Corp., upheld the actions of the President in prohibiting the sales of arms to combatants in South America in a situation similar to what occurred with Ukraine.
The Court said, “The President alone has the power to speak or listen as a representative of a nation . . . The President is the sole organ of the nation in external relations, and its sole representative with foreign nations.”
There is a rationale for this recognition of Presidential power. The Court explained, “[the President], not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries, and especially is this true in time of war. He has his confidential sources of information. He has his agents in the form of diplomatic, consular, and other officials. Secrecy in respect of information gathered by them may be highly necessary, and the premature disclosure of it productive of harmful results.”
Given, the power over Foreign affairs, Does the President have the power to withhold funds appropriated by Congress for the use of Foreign nation?
Article 2 of the Constitution, provides that the President “shall take care that the laws be faithfully executed.”
Seems straightforward enough. However, the courts have recognized that there is an element of executive discretion in the enforcement of laws. Like District Attorney’s nationwide the President possesses Prosecutorial Discretion, that is he has the power to decide whether and when to investigate, prosecute, settle, and appeal individual cases. For example, President Obama ordered U.S. Attorneys not to prosecute violations of federal marijuana statues. Similarly, if the President determines a law is unconstitutional, he can either refuse to enforce it or refuse to defend it in Court like what was done in the Defense of Marriage Act (DOMA), regarding the inheritance rights of Gay couples.
But does he have the discretion to withhold funds appropriated by Congress? There is a significant history of Presidents taking actions to impound funds appropriated by Congress when the President decided to exercise his discretion and not spend the funds. Though the cases are relatively few the general rule is that if it is a domestic appropriation the President’s refusal is an interference with the fiscal powers expressly delegated by the Constitution to the Congress. On the other hand, if it deals with foreign relations then the Presidential prerogative is more persuasive. For example, Congress would be encroaching on the Presidential powers by funding an embassy in a nation from which the President has withdrawn diplomatic recognition. Congress did, a few years back, pass an Impoundments act to restrain Presidents from such exercises of discretion, but its constitutionality has been denied by all Presidents since its passage.
So, while there was a dispute over why the President delayed releasing the funds to Ukraine. It seems clear, the Constitution delegated to him the power to do so.