Why Trump’s ‘Foreign Policy’ Impeachment Defense Will Fall Flat
Trump says he’s constitutionally allowed to pressure foreign countries to do his bidding. He’s misreading our laws.
With public impeachment hearings set to begin next week, Republicans are struggling to find a coherent defense that can withstand the new evidentiary blows coming their way almost every day. The days of arguing “no quid pro quo” have come and gone, and Trump’s repeated exhortations to “read the transcript” don’t help him, since the document, which was released by the White House, only confirms the allegations against him.
Among the new administration trial balloons being floated is a constitutional argument: Trump’s actions amounted to the president crafting “foreign policy.” The theory of the case seems to be that the president has the power to unilaterally dictate foreign policy, and therefore Trump’s withholding aid for Ukraine, in sync with pressure to investigate the Bidens, cannot be a basis for impeachment. This defense is not only wrong as a matter of law and practice, it has the potential to backfire spectacularly against Trump.
It’s true that among the branches, the executive has the most latitude and discretion in the realm of foreign affairs. This is spelled out in powerful language in the 1936 Supreme Court case United States v. Curtiss-Wright Export Corp., which notes the president’s “plenary” foreign affairs authority and his role as the nation’s “sole organ” in international relations. Not surprisingly, this case is a favorite for supporters of expansive presidential power — the sweeping language appears to suggest unfettered presidential discretion in foreign policy.
What people often forget to mention is that Curtiss-Wright is actually a case where Congress delegated foreign affairs authority to the president. In fact, the legal question raised was whether Congress had unconstitutionally delegated too much discretion to the executive branch.
The case is an illustration of how the president’s power over foreign affairs can be shaped, expanded, or constrained by Congress’ constitutional powers in this area. Consider, for example, the Senate’s authority to ratify treaties negotiated by the president — it can tank an agreement reached by the president with a foreign head of state. Congress also holds the power to regulate international commerce, under which it can impose sanctions on countries as a way of incentivizing or discouraging particular kinds of behavior. Trump’s signature travel ban was upheld by the Supreme Court under authority delegated to him by Congress’ immigration powers, not his own Article II authority.
Of course, the most potent weapon in Congress’ constitutional tool kit is its appropriations power. On this front, Iran-Contra is an instructive comparison and counterpoint to the current Ukraine mess. To recap that convoluted scandal: In the ’80s, Congress passed the Boland Amendment, which prohibited the use of federal funds to support the Contras in Nicaragua, who were fighting against the Communist-backed Sandinista regime. President Reagan’s National Security Council tried to circumvent Congress’ prohibition by getting third-party funds to the Contras from the sale of arms from Israel to Iran. The congressional investigation that followed resulted in the indictment of 14 individuals — all of which were either vacated by courts or pardoned by Reagan with the help of one William P. Barr, now, as then, the attorney general of the United States.
The entire reason this was a scandal was that the Reagan administration had contravened the will of Congress, thereby breaking the law. Reagan’s defense was that he had no clue what was happening. But, had he copped to being in on the plan, he might have had at least a colorable “foreign policy” defense. After all, it was the official foreign policy of the United States, with bipartisan agreement, to stop the spread of Communism. And given Nicaragua’s geographical proximity to the U.S., Reagan could have argued that he was justified in overriding Congress’ wishes in order to fulfill his duty to protect the U.S. from an imminent threat. In short, Reagan could have plausibly aligned his actions with both longstanding foreign policy goals and the security interests of the U.S.
Calling his actions “foreign policy” won’t change the fact that Trump attempted to secretly subvert Congress’ constitutional authority by coercing a foreign government to investigate a U.S. citizen for his own personal gain.
Trump, by contrast, can do neither. Let’s first take his assertion that his goal was to battle “corruption.” It’s not clear where there is a foreign policy interest in Ukraine investigating two U.S. citizens, who are already within the jurisdiction of the United States. This is especially so given that the U.S. criminal code has robust laws to fight corruption — including corruption by U.S. citizens in foreign business dealings — it’s called the Foreign Corrupt Practices Act. Apart from being unnecessary, it’s also diplomatically embarrassing: Outsourcing the investigation and prosecution of U.S. citizens to a foreign country is an admission that our own legal system is unequipped or too weak to deal with it. In fact, the U.S. has typically resisted foreign jurisdiction over U.S. citizens, precisely because we believe in the fairness and reliability of our judicial system.
More importantly, Trump’s decision to withhold aid from Ukraine was against the national security interests of the United States. The foreign policy of the United States has been, with bipartisan agreement, to help defend Ukraine against Russian aggression, and, in turn, limiting Russia’s global influence — this was the entire purpose of the aid in the first place. To date, Trump has not articulated a single reason why withholding these funds would have benefited the U.S. — in fact, his donor and own political appointee, Ambassador Gordon Sondland, testified that Trump’s actions were “ill-advised,” echoing the sentiments of the rest of Trump’s career foreign policy team. The aid appropriated for Ukraine, moreover, did not provide Trump with the power to exercise this kind of discretion in withholding it. He was, to put it bluntly, merely the pizza delivery guy — a “covfefe” boy, if you will.
Trump’s attempt to put a constitutional gloss on his actions will only highlight the self-serving interests of his attempted transaction. It will also illustrate that he sees Congress’ power of the purse as his personal piggy bank, to be ignored or exploited for his own ends — much in the same way that he did an end-run around Congress’ refusal to finance a wall by declaring a national emergency. Calling his actions “foreign policy” won’t change the fact that Trump attempted to secretly subvert Congress’ constitutional authority by coercing a foreign government to investigate a U.S. citizen for his own personal gain. A high crime by another name is still a crime.