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Old 01-20-2020, 04:03 PM
Max S. is offline
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Is President Trump's violation of the Impoundment Control Act an impeachable offense?


President Trump has directed his officers to violate the Impoundment Control Act of 1974*. Does this impoundment itself constitute an impeachable offense?

* If you disagree, please head over to the other thread, "Did President Trump direct OMB to violate the Impoundment Control Act?"
***
I am leaning slightly towards "no". This is because 2 U.S.C. ß 686(a) appears to task the Comptroller General with sending the requisite special message when the President fails to do so.

2 U.S.C. ß 686(a)
SPOILER:
(a) Failure to transmit special message
If the Comptroller General finds that the President, the Director of the Office of Management and Budget, the head of any department or agency of the United States, or any other officer or employee of the United States--
(1) is to establish a reserve or proposes to defer budget authority with respect to which the President is required to transmit a special message under section 683 or 684 of this title; or
(2) has ordered, permitted, or approved the establishment of such a reserve or a deferral of budget authority;
and that the President has failed to transmit a special message with respect to such reserve or deferral, the Comptroller General shall make a report on such reserve or deferral and any available information concerning it to both Houses of Congress. The provisions of sections 682 to 688 of this title shall apply with respect to such reserve or deferral in the same manner and with the same effect as if such report of the Comptroller General were a special message transmitted by the President under section 683 or 684 of this title, and, for purposes of sections 682 to 688 of this title, such report shall be considered a special message transmitted under section 683 or 684 of this title.

The Comptroller General is the head of a legislative branch agency called the Government Accountability Office (GAO). On Thursday that agency issued a report "pursuant to [GAO's] role under" 2 U.S.C. ß 686. https://www.gao.gov/products/B-331564

I can't say why Comptroller General Dodaro waited so long to produce his report for Congress. I think that was a failure on the Comptroller General's part, but whether the Comptroller General (head of a legislative branch agency) failed to satisfy his statutory obligations has no bearing on whether the President (head of the executive branch) should be impeached. It appears to me that the law itself prescribes a remedy, should the President fail in his statutory duty. I think this lends a little weight to the argument that the President's statutory failure is not itself a high crime or misdemeanor.

~Max
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Old 01-20-2020, 04:07 PM
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But he isnít impeached for violating the ICA. Heís charged with abuse of power, and violating the ICA as part of his scheme to use the tools of government for his own benefit is most definitely good cause for removal.
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Old 01-20-2020, 04:11 PM
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But he isnít impeached for violating the ICA. Heís charged with abuse of power, and violating the ICA as part of his scheme to use the tools of government for his own benefit is most definitely good cause for removal.
Right, I didn't make this clear in the original post but the President has not been impeached for impoundment. ETA: The question is whether he should be impeached for impoundment.

~Max

Last edited by Max S.; 01-20-2020 at 04:15 PM.
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Old 01-20-2020, 04:27 PM
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I can't say why Comptroller General Dodaro waited so long to produce his report for Congress. I think that was a failure on the Comptroller General's part, but whether the Comptroller General (head of a legislative branch agency) failed to satisfy his statutory obligations has no bearing on whether the President (head of the executive branch) should be impeached. It appears to me that the law itself prescribes a remedy, should the President fail in his statutory duty. I think this lends a little weight to the argument that the President's statutory failure is not itself a high crime or misdemeanor.
If you read the file, requests were sent to the OMB (and a bunch of other organization) in late November, they replied in late December. What a mystery it must be to figure out why the report was released in mid January.
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Old 01-20-2020, 04:34 PM
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If, as I agree with the Department of Justice is the correct interpretation, the President cannot be indicted under federal law while in office, then the logical conclusion is that impeachment is the only recourse for any federal offense committed by the President, and that therefore all crimes committed by the President are impeachable offenses.

So, yes, he should be impeached for his violation of the ICA. He should also be impeached for tax evasion, sexual assault, fraud, and misrepresentation of National Weather Service data.
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Old 01-20-2020, 05:25 PM
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If, as I agree with the Department of Justice is the correct interpretation, the President cannot be indicted under federal law while in office, then the logical conclusion is that impeachment is the only recourse for any federal offense committed by the President, and that therefore all crimes committed by the President are impeachable offenses.
I’ve never thought it about this way, but that is a very clear analysis of the issue.

I would be curious to hear from the OP what they see as the difference between an impeachable crime and a non-impeachable crime, as general matters.

Last edited by Ravenman; 01-20-2020 at 05:26 PM.
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Old 01-20-2020, 05:34 PM
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If you read the file, requests were sent to the OMB (and a bunch of other organization) in late November, they replied in late December. What a mystery it must be to figure out why the report was released in mid January.
This is a tangent, but is that how it is supposed to work? I don't know very much about GAO (I assume you mean GAO, not OMB). If GAO was supposed to wait until Congress asked for a report, section 686 seems sort of useless.

I would have expected the report sometime in July or August at the latest.

~Max
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Old 01-20-2020, 06:25 PM
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If, as I agree with the Department of Justice is the correct interpretation, the President cannot be indicted under federal law while in office, then the logical conclusion is that impeachment is the only recourse for any federal offense committed by the President, and that therefore all crimes committed by the President are impeachable offenses.

So, yes, he should be impeached for his violation of the ICA.
I would refer you to 2 U.S.C. ß 687 which explicitly lays out the legislative branch's recourse should the President fail to obligate funds. In short, the Comptroller General is authorized to bring civil suit and force the obligation of funds.

2 U.S.C. ß 687
SPOILER:
ß687. Suits by Comptroller General
If, under this chapter, budget authority is required to be made available for obligation and such budget authority is not made available for obligation, the Comptroller General is hereby expressly empowered, through attorneys of his own selection, to bring a civil action in the United States District Court for the District of Columbia to require such budget authority to be made available for obligation, and such court is hereby expressly empowered to enter in such civil action, against any department, agency, officer, or employee of the United States, any decree, judgment, or order which may be necessary or appropriate to make such budget authority available for obligation. No civil action shall be brought by the Comptroller General under this section until the expiration of 25 calendar days of continuous session of the Congress following the date on which an explanatory statement by the Comptroller General of the circumstances giving rise to the action contemplated has been filed with the Speaker of the House of Representatives and the President of the Senate.

~Max
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Old 01-20-2020, 06:36 PM
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Originally Posted by Max S. View Post
This is a tangent, but is that how it is supposed to work? I don't know very much about GAO (I assume you mean GAO, not OMB). If GAO was supposed to wait until Congress asked for a report, section 686 seems sort of useless.

I would have expected the report sometime in July or August at the latest.

~Max
The withholding of funds wasnít even known until late August.
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Old 01-20-2020, 06:58 PM
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The withholding of funds wasnít even known until late August.
Right you are. But I still don't see why it took all the way until November.

~Max
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Old 01-20-2020, 08:19 PM
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Right you are. But I still don't see why it took all the way until November.
GAO asked for OMB to explain its actions, and OMBís response came in something like mid-December.

Plus, the State Department never responded to GAOís questions. The report released last week stated that GAO will issue an opinion on whether State Department aid was also illegally held up when it can gather more info on that issue.

GAO is slow. It is slower than anything you can imagine. I would not want to have lunch with GAO, for deciding on the soup or salad would require several review boards. But in this case, GAO reported in a timeframe thatís quite reasonable, and also with greater alacrity than the courts have in matters relating to the scandal.
  #12  
Old 01-21-2020, 02:04 AM
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The reason that the legal system has a lot of "outs" is because it's not the intention of the legal system to put everything on rails and run the world off the edge of a cliff if someone accidentally lays a track that goes that way, and somehow the "world-train" just happens to get on that track. You have special injunctions, pardons, jury nullification, appeals, etc. There's a lot of room to maneuver a result that's clearly wrong onto the track, through the process of "let's employ some common sense here, not chop our arm off because the programmer missed an edge case."

The rules are meant to be there for the 99% of the time that everything just works the way that it was intended. But the people - judges, mayors, juries, etc. - are there to detect and solve that 1% case.

The President is not Congress' demure minion, nor are they his puppets. There is no intention that they should be. In the ideal world, they all work together - more or less, with good and friendly intent - but in the worst case, the Constitution gives some rules for how they are meant to wrangle it out if the President detects a 1% situation that requires manual intervention.

(Presumably) Reagan thought that he needed to support the Contras. That was a genuine policy decision that Reagan (likely) made, in his belief that it was ultimately for the good of the country. It went against what Congress said but no one involved did it to try and build themselves a mansion in Bermuda, it was in the name of the Constitution.

If Congress cared enough, they could have held his budget and punished him. That would have been completely fair. But, if they'd tried to impeach him, that would have been wrong. Trying to remove the President for doing things that you don't like is not sufficient grounds for the matter. You have to demonstrate a corrupt intent, not a policy difference.

With Congress limiting the budget, they're serving the role that they're intended to, advising and monitoring. If you don't trust the President with his powers, don't give him a big enough budget to do anything, and force him to take on advisors who are more sane. And if he doesn't like that, then he'll just veto everything left and right, and refuse to obey any demands that Congress gives.

The government engine with seize and stall out.

Ultimately, the voters will have to pick a side, vote for it, and the engine will start up again.

But, anything else and Congress is just trying to take over the Executive role and force it to obey. Then we wouldn't have three branches of government.

The Constitution would never allow any branch to be able to control another branch. It goes against the idea of checks and balances. So long as the President is working for the country and not his own self-interest, he's immune except for his budget and policy advisors.
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Old 01-21-2020, 02:15 AM
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Addendum to the previous: The members of the Executive branch might be arrested for obeying the President. That's okay.

Likewise, the President might pardon those people. Presuming that the President had no corrupt intent in his actions, that's also okay. However, I think that power could use a review and some tweaking to handle this situation better.

Quote:
Originally Posted by Max S. View Post
Right you are. But I still don't see why it took all the way until November.

~Max
They tried to review the matter, waited a reasonable amount of time for answers, got none, and eventually gave up.

They were late because they granted the White House a presumption of good faith.

Presumably, on the side of the White House, they view the GAO as the mandatory "snitch" wing of the Executive branch.

Inspector Generals are a middle ground between snitches and faithful servants. Technically, they serve the role of investigating the Executive branch for Congress. But, from a practical standpoint, they only ever write negative things about anything since their focus is on operational improvement, so they're sort of useful, in some situations.
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Old 01-21-2020, 04:33 PM
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Originally Posted by Ravenman View Post
GAO asked for OMB to explain its actions, and OMBís response came in something like mid-December.

Plus, the State Department never responded to GAOís questions. The report released last week stated that GAO will issue an opinion on whether State Department aid was also illegally held up when it can gather more info on that issue.

GAO is slow. It is slower than anything you can imagine. I would not want to have lunch with GAO, for deciding on the soup or salad would require several review boards. But in this case, GAO reported in a timeframe thatís quite reasonable, and also with greater alacrity than the courts have in matters relating to the scandal.
That's a shame. But as far as GAO's duty under section 686, there's no reason to wait so long for the executive to offer an explanation. Their primary duty is to notify Congress that the money is being withheld, so that Congress has the opportunity to approve the withholding - it helps none if this notification reaches Congress midway into the next fiscal year. GAO has the power to sue the executive and force them to obligate money, provided they make a report to Congress 25 days before suing. So if I were GAO, I would wait on the determination of illegality and just send the report as-is: the money is being held up, the administration won't tell us why. Could have gone out in late August or early September, definitely should have gone out quickly after Senator Johnson's return from Ukraine.

~Max

Last edited by Max S.; 01-21-2020 at 04:36 PM. Reason: no reason to wait so long for the executive to offer an explanation
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Old 01-21-2020, 04:38 PM
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Presumably, on the side of the White House, they view the GAO as the mandatory "snitch" wing of the Executive branch.
I've been binge-watching the Office over the last couple of weeks. If Trump is Michael Scott, then the GAO is Toby Flenderson.
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Old 01-21-2020, 04:46 PM
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That's a shame. But as far as GAO's duty under section 686, there's no reason to wait so long for the executive to offer an explanation. Their primary duty is to notify Congress that the money is being withheld, so that Congress has the opportunity to approve the withholding - it helps none if this notification reaches Congress midway into the next fiscal year.
Hold on now -- it's the Administration's responsibility to notify Congress of rescissions or deferrals. That section exists only to serve as proper notice to Congress that the Administration failed in its responsibilities. That message from GAO is NOT the same as the legal analysis that was released last week.

To use an analogy, the special message that is required of the Administration (or GAO if the Administration fails to do so) is like a process server giving notice to someone that a legal proceeding has commenced that demands their attention. The legal analysis released last week is more like an attorney's legal brief on the issue.

Quote:
Originally Posted by Sage Rat
Presumably, on the side of the White House, they view the GAO as the mandatory "snitch" wing of the Executive branch.

Inspector Generals are a middle ground between snitches and faithful servants. Technically, they serve the role of investigating the Executive branch for Congress.
You have this backwards.

The GAO is part of the Legislative Branch, not the Executive Branch. And IGs work for the Executive Branch, and do not serve the Congress. They are generally required to report to Congress of misdeeds soon after reporting them to Executive Branch officials, which is what you may be thinking of. But in no way whatsoever does Congress exercise any direction or control over IGs.

Last edited by Ravenman; 01-21-2020 at 04:50 PM.
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Old 01-21-2020, 04:53 PM
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The reason that the legal system has a lot of "outs" is because it's not the intention of the legal system to put everything on rails and run the world off the edge of a cliff if someone accidentally lays a track that goes that way, and somehow the "world-train" just happens to get on that track. You have special injunctions, pardons, jury nullification, appeals, etc. There's a lot of room to maneuver a result that's clearly wrong onto the track, through the process of "let's employ some common sense here, not chop our arm off because the programmer missed an edge case."
I don't fully comprehend what you have written here.

I think you are saying, even if the ICA itself provides a remedy with section 687, that does not preclude impeachment. Contrast with my opinion, which says because the ICA itself provides a (civil) remedy, the President's violation of the ICA itself isn't impeachable. I get the impression that the President's violation is not really a crime so much as a civil or "regulatory" offense. If he doesn't follow that law, the legislative branch forces him to follow it in court. I don't think it would be appropriate for Congress to threaten the President with impeachment for impoundment qua impoundment.

~Max
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Old 01-21-2020, 04:57 PM
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Hold on now -- it's the Administration's responsibility to notify Congress of rescissions or deferrals. That section exists only to serve as proper notice to Congress that the Administration failed in its responsibilities. That message from GAO is NOT the same as the legal analysis that was released last week.

To use an analogy, the special message that is required of the Administration (or GAO if the Administration fails to do so) is like a process server giving notice to someone that a legal proceeding has commenced that demands their attention. The legal analysis released last week is more like an attorney's legal brief on the issue.
That makes more sense. Here I was thinking the linked decision was the special message.

~Max
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