Updated: Aug 27, 2020
February 4, 2020 | by Reginald Oh
The GOP senators refused to call witnesses and will acquit Trump on Wednesday. That’s a travesty of justice especially given that Trump has openly confessed to the bribery scheme. How so?
Trump’s primary defense is that he temporarily withheld military aid to Ukraine out of his sincere, legitimate concern about Ukraine corruption.
The problem with the defense?
If he was truly concerned about corruption, his only legal option was to seek to cancel the aid entirely. He had no legal authority to put a temporary hold on the aid. His corruption defense actually proves the illegality of the hold.
Trump’s central defense for withholding aid to Ukraine has two key elements: The purpose behind the hold and its temporary nature. Regarding the purpose, he contends that he put the aid on pause out of his concern that the money might be depleted or wasted through Ukrainian corruption. Because a concern about corruption is legitimate and reasonable, he argues that the temporary hold on the aid was entirely appropriate.
Trump and his defenders also emphasize the temporary nature of the hold, strategically calling the hold a “pause” and claiming there was no harm, no foul. Because Trump’s concerns about corruption were allayed, the pause was lifted and Ukraine ultimately received the aid.
The problem with the “I paused the aid because of corruption” defense is the Impoundment Control Act. Under the Act, if the president has a policy concern about obligating or disbursing Congressionally appropriated funds, he has only one legal recourse under the ICA: To inform Congress that he wants to rescind the appropriated funds.
And by rescind, the term means exactly what it sounds like: the funds would be cancelled entirely, not just temporarily paused.
If he wanted to just temporarily hold the funds, he could not do it, precisely because his stated reason was a policy concern. It does not matter if the policy concern was genuine. The ICA clearly prohibits the President from temporarily withholding funds for policy reasons.
Why? Because of Richard Nixon. Nixon would routinely abuse his powers by refusing to spend Congressionally appropriated funds based on policy grounds. So, Congress passed the Impoundment Control Act to strictly regulate if and how the president can refuse to spend funds, whether permanently or temporarily.
The ICA states that, if the president has a “fiscal policy” concern about appropriated funds, he has only one option: To seek what’s called a “rescission” or a cancellation of those funds.
The ICA does give the president the power to temporarily withhold funds, but only for non-policy, budgetary reasons. A temporary hold is called a deferral, and the ICA states that the President can seek a deferral for only 3 reasons: 1) to provide for [budgetary] contingencies; 2) to achieve savings; 3) as provided by law.
Because Trump explicitly and emphatically argues that he had a *policy* reason for withholding aid (concern about Ukraine corruption), he is effectively admitting that he had no legal authority to defer or put a temporary hold on the funds. His so called legitimate reason for the hold is precisely what makes the “pause” illegal or unauthorized.
The implications should be clear. Each time Trump and his defenders raise the corruption defense, they are admitting that he engaged in illegal action.
If Trump sincerely cared about Ukraine corruption, he would have followed protocol, sought a rescission, and informed Congress of that decision as required by the ICA. Trump and his aides knew this, which is likely why he did neither of those things.
The illegality of the temporary hold also undermines Trump’s defense that there was no harm, no foul, because he ultimately released the aid. However, if the hold was truly about corruption, then, under the ICA, it’s up to Congress, not Trump, to determine if the aid ultimately should be released or rescinded. His unilateral decision to release the aid after holding it up on policy grounds actually operated as a usurpation of Congressional authority.
One may wonder, why didn’t he go through the proper legal channels and formally seek a rescission? For a couple of reasons. First, it would have created a political firestorm. Seeking to cancel aid to Ukraine would have raised bipartisan confusion and outrage in Congress.
Second, the truth is that the hold was never about Ukraine corruption. It was about an illicit goal to smear Joe Biden to further his re-election chances. Informing Congress of his wish to rescind the aid would have made it impossible for him to use the withheld aid as leverage to coerce Ukraine to announce an investigation of Biden.
Bottom line, the Ukraine corruption rationale actually undermines rather than supports Trump’s claim that the “pause” on the release of funds was appropriate. Trump raised a defense that amounts to a confession. The corruption argument is the emperor without any clothes.
In light of Trump’s open confession, the Senate acquittal should not be seen as an exoneration.