Thread by @hilzoy

1/ Thread. You should read the whole article, if you haven't already. You should also read this, about the legal issues involved:

justsecurity.org/67489/trumps-h…

I just want to focus, now, on the absurdity of the legal reasoning that, per NYT, the budget office advanced.

https://twitter.com/SamBerger_DC/status/1211450389628768257

2/ NYT: "Their argument was that lifting the hold would undermine Mr. Trump’s negotiating position in his efforts to fight corruption in Ukraine. ...

3/ ... The president, the lawyers believed, could ignore the requirements of the Impoundment Control Act and continue to hold the aid by asserting constitutional commander in chief powers that give him authority over diplomacy."

Wrong.

4/ The Impoundment Control Act specifies very particular circumstances in which a President can withhold Congressionally appropriated funds. None of these circumstances obtained.

Moreover, it requires that whenever a President does withhold funds, he must notify Congress.

5/ Assuming for the sake of argument that the President did need to withhold funds in order to advance some important diplomatic objective, why would this prevent him from notifying Congress?

It wouldn't.

6/ Oops, forgot to add a link to the Impoundment Control Act. Read it yourselves!

law.cornell.edu/uscode/text/2/…

Here's the most relevant part:

law.cornell.edu/uscode/text/2/…

7/ Anyways: here's the part of the Constitution. Note that it does not say that the President has the right to do anything that might be called "diplomacy."

It says that he has the power to make treaties with the advice and consent of the Senate, and to appoint ambassadors.

8/ The fact that his enumerated power to make treaties depends on the approval of the Senate does not exactly suggest that there is some penumbral power to engage in diplomacy that lets him defy Congress.

9/ But consider some other ways in which an alleged power to engage in diplomacy might conflict with federal law.

Suppose that Ukraine promised to do something that would really advance our interests, but only if the President declared martial law in the US.

10/ Would his (unenumerated, penumbral) right to engage in diplomacy give him the right to do that?

I don't think so.

11/ Again, suppose that Ukraine wanted to do that same great important thing, but only in exchange for a trillion dollars, which Congress refused to appropriate.

Would the President's (unenumerated, penumbral) power to engage in diplomacy give him the right to send the $1T? No.

12/ The Constitution does not explicitly give the President the right to engage in any old diplomacy; just to conclude treaties. No treaty was at issue here.

13/ If there is a Presidential power to conduct diplomacy, it presumably follows in the penumbra of his treaty-making power. But that power depends on Senatorial consent, and thus it cannot be used to justify defiance of Congress.

14/ That power is bounded by laws, and in this case, the laws specifically prohibit withholding funds WITHOUT NOTIFYING CONGRESS.

Granting, for the sake of argument, that Trump did need to withhold funds for a diplomatic objective, why did he need to keep Congress in the dark?

15/ If he did not need to keep Congress in the dark, then even an expansive reading of his supposed power to conduct diplomacy would not give him the power to violate the laws requiring Congressional notification.

16/ Thus far, I've pretended that the President did have an important diplomatic objective, and does have a penumbral, unenumerated power to engage in diplomacy.

But of course he did not have such an objective.

17/ If you think he was doing this to stop corruption, please point to the specific steps he took to advance that end.

If your only answer is "investigating Hunter Biden!", please explain why the President chose to leave this investigation to a foreign country ...

18/ ... and specifically a foreign country that he thought was hopelessly corrupt.

If you think Hunter Biden broke the law, why not investigate him ourselves?

19/ Lawyers in the federal government work for us. They should not be putting out this kind of garbage legal analysis whose only point is to provide a pretend justification for a lawless President's acts.

Fin. 😡