The Trump Impeachment Inquiry

It has taken me some time to build a proper response to only the first three points here, and the other two (about bribery and impoundment) I will have to address later.


The question is this: is it necessarily an abuse of power for the President of the United States to personally ask a foreign country to investigate a political rival’s family member?

I say no, it is not necessarily an abuse of power.

Within the Constitution I find an inherent authority for the President to poersonally investigate and uphold the Laws of the United States, and further that the Congress lacks authority to deny the President his constitutional grant of executive power. Congress may shape the law, and the Supreme Court may interpret it, but the President is personally responsible for putting the law into action.

The Congress may by law create officers subordinate to the president, to assist him in his duties, and may even restrict the President’s authority to fire these officers in cases where the officers exercise a legislative and not executive power. But the power to investigate an individual suspected of committing some crime against the United States does not fall under that exception, even if that individual is a political rival’s family member.

Even if the President does not have these powers, the Attorney General does, by statute. If the Attorney General orders an investigation of a political candidate’s family member based on probable cause, I do not find room to impeach the President for encourageing or cooperating with that investigation.

It may also be appropriate for the president to ask a foreign country to investigate a political rival’s family member. Within the Constitution I find that the President has the power to meet with foreign ministers, including heads of state. If an existing domestic investigation calls for foreign cooperation, I find that the President is within his power to raise the subject with the head of that foreign state.

Neither do I find any problem with the President’s use of a personal representative or special envoy, especially when the position of ambassador is vacant.

In the present case, I am of the opinion that it is possible that the President or Attorney General had or reasonably believed they had probable cause to order an investigation of Hunter Biden or Burisman Holdings, LLC for criminal acts against the United States committed in Ukraine, and that the investigation required assistance from Ukrainian authorities. Therefore it is possible for it to have been appropriate when the President asked the President of Ukraine to work with the Attorney General and a personal representative. Until this possibility is ruled out, I am staunchly against conviction in the Senate for the high crime or misdemeanor of abuse of authority on these grounds.


The President Has the Authority to Investigate and Prosecute Crimes

[SPOILER]I am of the opinion that the power to investigate and prosecute crimes against the United States generally falls within the executive power. The Constitution provides that “The executive Power shall be vested in a President of the United States of America.” U.S. Const. art. II, § 1. When enumerating the categories of “executive Power”, the Constitution declares that the President “shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.” U.S. Const. art. II, § 3.

Exegesis begins by noting that the Constitution plainly vests “The executive power” with “a President”, singular. This grant of power is similar in many ways, but critically different, to that grant given to Congress, which reads “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives” (emph mine). U.S. Const. art. I, § 1. Whereas there are multiple distinct legislative powers split between two chambers of Congress, the whole executive power is vested in a (single) president. Also note that not all legislative powers are granted to Congress, only those which where listed and granted “herein”. No such restriction accompanies the grant of executive power to the President.

The implication is that the legislative powers are restricted to those which are enumerated in the Constitution, while executive powers are all-encompassing. If a law is Constitutional, the President personally has the power to execute that law.

The framers had good reasons to create such a powerful presidency. Directly preceding the Constitutional goverment were the Articles of Confederation, which lacked (among other things) an executive power and was plagued by indecisiveness. When drafting the Constitution, the framers wished to create a strong, efficient executive. It was agreed that the best way to do that was to provide for a “unitary” executive.

Mr. Randolph’s original Virginia Plan proposed a “national executive… to be chosen by the national legislature”. Immediately Mr. Wilson of Pennsylvania moved to amend the resolution so as to read “that a National Ex. to consist of a single person to be instituted”. Mr. Randolph claimed that a single executive is the “fetus of monarchy”, and that a council would do better. Mr. Wilson argued that a single executive would be the best safeguard against tyranny. Both agreed that the executive ought to be independent of the legislature, and after debate Mr. Wilson’s amendment eventually passed.

Consider also Publius (A. Hamilton) of The Federalist No. 70, who wrote that “Decision, activity, secrecy, and despatch” are better realized through a single man than many. He specifically noted that one of two ways to destroy that unity is by subjecting the President, “in whole or inpart, to the control and co-operation of others, in the capacity of counsellors to him.” Valid concerns are also raised that independent executive authorities wil abdicate responsibility in favor of blaming each other.

I find limited support in opinions of the Supreme Court. First, if Congress has delegated authority to the President, the President may delegate his authority to his subordinates. Second, Congress may delegate their own powers to executive branch officials, and may somewhat restrict the President’s authority to remove those officials. The Court has not to my knowledge ruled on the question of whether Congress can unilaterally delegate the President’s own inherent powers to his subordinates, but I argue that this goes against the doctrine of separation of powers.
The President May Delegate His Own Authority to Subordinates

“The President speaks and acts through the heads of the several departments in relation to subjects which appertain to their respective duties”. Wilcox v. Jackson, 38 U.S. 498, 513 (1839). (Noting that the war department’s reservation of Indian territory is “in legal effect, a reservation made by order of the President”). The Court said it must be so because it would be “impossible” for the President to actually “perform in person the the numerous details incident to services which, nevertheless, he is, in a correct sense, by the Constitution* and laws required and expected to perform” (emphasis added). Williams v. The United States, 42 U.S. 290, 297 (1843). (Where the Treasury had the authority to provide cash advances to marshals without explicit Presidential consent). Finally, note that the President necessarily appoints all principle officers in the administration.

Congress May Delegate Certain Powers of Their Own to The President’s Subordinates

[SPOILER]“*n our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives.” Mistretta v. United States, 488 U.S. 361, 372 (1989). “Delegation by Congress has long been recognized as necessary in order that the exertion of legislative power does not become a futility.” Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 398 (1940).

While “the legislative power of Congress cannot be delegated” in general, United States v. Shreveport Grain & Elevator Co., 287 U.S. 77, 85 (1932), specific powers can be delegated if accompanied by an “intelligible principle”. J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409 (1928). The current doctrine requires a “legislative standard”, which is essentially identical to the intelligible principle standard. See Panama Refining Co. v. Ryan, 293 U.S. 388 (1935). See also A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).

For example, the power to set tariffs has been delegated to the President himself and upheld in court. J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928). (It follows that the President can delegate that same power to his subordinates, see the previous section.) Congress has delegated to the Federal Power Commission the power to issue rules and regulations affecting or pertaining to the justness and reasonableness of natural gas rates and charges. 15 U.S.C. § 717c(a); upheld in Federal Power Com’n v. Hope Natural Gas Co., 320 U.S. 592 (1944). Congress has delegated to the Federal Broadcasting Commission the power to issue rules and regulations pertaining to broadcast licensing. National Broadcasting Co. v. United States, 319 U.S. 190 (1943). The list goes on, and on, and on. Virtually every executive agency regulation is based on a Congressional delegation of power to the President’s subordinates.

Congress may also delegate their power to appoint officials, which are otherwise nominated by the President and appointed by Congress. “Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the courts of Law, or in the Heads of Departments.” U.S. Const. art. II, § 2. These “inferior Officers” include among their ranks the independent counsel, which is currently appointed by the DC Circuit as provided by 28 U.S.C. § 593. Morrison v. Olson, 487 U.S. 654 (1988). If Congress so wished, the appointment of independent counsel could be a power granted to the Attorney General.[/SPOILER]
The President Has the Power to Remove His Subordinates from Office, If They Interfere with the Faithful Execution of the Law

[SPOILER]The President “shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.” U.S. Const. art. II, § 3.

The President has a personal responsibility to see that the Laws are faithfully executed. If he has not the power to remove insubordinate officers, how can he fulfil his duty? The reasonable inference is that “in the absence of any express limitation respecting removals, that as [the president’s] selection of administrative officers is essential to the execution of the laws by him, so must be his power of removing those for whom he can not continue to be responsible.” Myers v. United States, 272 U.S. 52 (1926), citing Fisher Ames, 1 Annals of Congress, 474.

But the President is not without limits. He is not at liberty to remove officials who exercise what are essentially legislative or judicial powers, as opposed to executive powers. Humphrey’s Executor v. United States, 295 U.S. 602 (1935). (Holding that a member of the Federal Trade Commission is not subject to the President’s removal power except as specified by statute, because the FTC exercises quasi-legislative powers). See also Weiner v. United States, 357 U.S. 349 (1958). (Holding that the President may not remove quasi-judicial officers from the War Claims Commission except as specified by statute).

But what if Congress creates an office charged with executing the law? Can Congress deny the President the power to remove officials that execute the law? The Supreme Court has explicitly answered that question in the negative. “Congress cannot reserve for itself the power of removal of an officer charged with the execution of the laws except by impeachment.” Bowsher v. Synar, 478 U.S. 714 (1986).

The most recent and most relevant case on removal power is Morrison v. Olson, 487 U.S. 654 (1988). There the Court held that “the real question is whether the removal restrictions are of such a nature that they impede on the President’s ability to perform his constitutional duty [to take care that the laws are faithfully executed], and the functions of the officials in question must be analyzed in that light”. After considering the temporary nature of the office, its limited jurisdiction, and its oversight purpose, the Court ruled that the President through the Attorney General cannot remove the independent counsel but for cause, as statute specifies.[/SPOILER][/SPOILER]
The Power to Investigate an Individual Suspected of Committing a Federal Crime is an Executive Power

[SPOILER]What does it mean to execute the law, if investigating and prosecuting lawbreakers is not included? The Supreme Court has ruled that the investigatory and law enforcement functions of the independent counsel were executive in nature.Id. At the very least, it follows that the President could, if he so wished, investigate and fire his own cabinet members who he determines are not faithfully executing the law. In my understanding of the law, the President can personally investigate and prosecute any member of the public in order to uphold the law, although he must still respect constitutional rights including those enshrined in the Fourth, Fifth, Sixth, Seventh, and Eighth Amendments.

Even if the President has no such personal power, it should not be controversal to assign the power of criminal investigation and prosecution to the executive branch of government, as an “executive power”. In my opinion such a power is implied by the second article of the Constitution, much like the Court has ruled that Congressional power of Contempt is implied by the first article of that document. Anderson v. Dunn, 19 U.S. 204, 225, 226, 227 (1821). “To enforce [Congress’s] laws upon any subject without the sanction of punishment is obviously impossible.” Id at 223. And so too is it impossible to execute and uphold a criminal statute without the power to investigate and prosecute criminals.[/SPOILER]
Congress May Not Delegate Away the President’s Power to Investigate and Prosecute Criminals

[SPOILER]Given that the Constitution grants the President the power to investigate and prosecute criminals, and Congress may not deny another political branch their Constitutional powers, it follows logically that Congress may not deny the President the power to investigate and prosecute criminals. Congress may redefine the criminal statutes, but that is subject to Due Process and cannot infringe upon the President’s sole power to grant pardons; such a revision cannot name particular individuals and exempt them from criminal investigations and prosecutions.

This fits in with the framers’ idea of a unitary executive. As I wrote above, Publius (A. Hamilton) argued in Federalist No. 70 that one of two ways to destroy executive unity is by subjecting the President, “in whole or inpart, to the control and co-operation of others, in the capacity of counsellors to him.” If we allow Congress to delegate the President’s power to investigate and prosecute to the Attorney General, that is effectively subjecting the President to the control and co-operation of the Attorney General, in the capacity of a counsellor to the President.

Nay, the Department of Justice does not find its authority to investigate and prosecute crimes in the United States Code or any statute. That power comes directly from the President; only the funding comes from appropriations of Congress. The President may delegate investigatory and prosecutory powers to the Department of Justice, if he so wishes and as he has done by appointing an Attorney General. But this does not constitute forfeiture of his power to investigate and prosecute a case personally. No act of Congress can remove the President’s power to investigate or prosecute a case personally.

Neither is it necessarily an abuse of power when the President takes charge of a case, even in the face of impropriety. The president is not abusing his position to usurp someone else’s investigatory power. He has the power to investigate and prosecute crimes. Whether personal involvement in or commencement of an investigation is an abuse of power will turn on whether the President’s actions were appropriate: did he have probable cause?[/SPOILER]
Even If the President Cannot Investigate, the Attorney General Can

The power to investigate crimes is vested by law in the Attorney General. Even if specific divisions of the Department of Justice have explicit investigatory functions, 28 U.S.C. § 509 vests in the Attorney General personally all of their functions. It also happens to be the Attorney General who appoints officials that “detect and prosecute crimes against the United States”. 28 U.S.C. § 533 (1).

The President Has The Authority to Meet with Foreign Heads of State

[SPOILER]This shouldn’t be controversial either. The President “shall recieve Ambassadors and other public Ministers”. U.S. Const. art. II, § 3. It is undisputed that the President alone has the power and discretion to recieve foreign heads of state or their ambassadors when they visit our nation. In 1799 Representative John Marshall, later Chief Justice Marshall, said quite plainly, “The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.” 10 Annals of Congress 596, 613 (1800). So too does the President have the power to visit heads of state in their own nations, for example when President Nixon visited China.

The framers of the Constitution did not envision transatlantic telephone communications, but it follows logically that the President is within his powers to speak with a foreign head of state during a transatlantic phone call. Whether such a call constitutes an abuse of power turns on whether what the President said or did was appropriate.[/SPOILER]
The President May Ask a Foreign Head of State to Assist with an Investigation

[SPOILER]Assuming that there is a valid domestic investigation, be it the President’s or the Attorney General’s or both, it may be appropriate for the President ask a foreign nation (via their head of state) to investigate a person or business. The circumstance that makes such a request appropriate is the existance of a mutual legal assistance treaty providing for such requests, such as the Treaty Between the United States of America and Ukraine on Mutual Legal Assistance in Criminal Matters, ratified by the Senate on October 18, 2000.

Article 2 of that treaty designates the Attorney General as the United States “Central Authority” which may request from Ukraine’s Central Authority (Prosecutor General) such assistance as testimony, documents, etc. as listed in Article 1.

When President Trump tells President Zelenskyy, “I would like to have the Attorney General call you or your people…”, or “I would like [Mr. Giuliani] to call you. I will ask him to call you along with the Attorney General”, or “I will have Mr. Giuliani give you a call and I am also going to have Attorney General Barr call and we will get to the bottom of it”, it can be interpreted as letting Ukraine know that our Central Authority wants to make some requests as provided under the treaty.

In fact you can take President Zelenskyy’s response (and President Trump’s response to that) as a bit of a warning that he will have the new Ukrainian Central Authority request U.S. assistance for a Ukrainian investigation of former Ambassador Yovanovitch.[/SPOILER]
The President May Send a Personal Representative on Diplomatic Missions

[SPOILER]I quote from my previous [POST=21918015]post #21918015[/POST]:

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~Max