With the House Intelligence Committee’s public impeachment hearings underway, committee members on both sides are making their case about whether or not there is sufficient evidence to believe that President Trump committed an “impeachable offense.” The two sides are currently debating the intentions of the president and the value of hearsay evidence.
As House Intelligence Committee Chairman Adam Schiff articulated in his opening statement, the allegation that is being pursued against Trump is that he “sought to condition, coerce, extort, or bribe an ally into conducting investigations to aid his reelection campaign and did so by withholding public acts, a White House meeting or hundreds of millions of dollars of needed military aid.”
Even if this narrative is to be believed, the case for an impeachable offense is implausible — if only because Trump lacked the ability to execute such a plan without Congress's consent.
First, “withholding … a White House meeting” is clearly not a crime, regardless of the reasons behind it. So cross that one out.
But concerning the withholding of funds, there is no potential crime here either. There is a process in place to sort out any disagreement between Congress and the president on such a matter. Section 683 of the Impoundment Control Act of 1974 states that “whenever the President determines ... that such budget authority should be rescinded … [or] reserved from obligation for such fiscal year, the President shall transmit to both Houses of Congress a special message” to that effect with an explanation. The Congress then has 45 calendar days to concur, or the funds are to be “made available for obligation” and “may not be proposed for rescission again.”
Although Section 684 calls for a special message if the funds are to be deferred within the fiscal year, this special message does not force Congress to concur.
The lack of a special message from Trump for either section is not an impeachable offense. First, the president clearly had not made a conclusive decision that he wanted to propose the funds should be “rescinded” or “reserved from obligation.” Neither Trump nor his Democratic critics disagree that he was awaiting further information before deciding whether or not he wanted the funds conclusively rescinded. All he had done as of this summer was to withhold the funds temporarily. Therefore, it would have been premature for Congress to receive a proposal from him to rescind the funds.
Second, even if one were to make the case that a “special message” was due to comply with section 684 because of a deferral within the fiscal year, the appropriate course of action in the absence of such a message is for Congress to invoke section 686, not to impeach the president. Section 686 states that if the comptroller general, who is part of the legislative branch, finds “that the President has failed to transmit the special message,” he shall “make a report” and send it to Congress and that report “shall be considered a special message transmitted under section 683 or 684.” The reason why the comptroller general did not send such a report is a question for him, not for the president.
It is a heated point of debate whether or not there was an intention on Trump’s part to link the release of the funds to the Ukrainian government to an announcement of an investigation of the Bidens. But from a legal perspective, this point is technically irrelevant. Section 683 of the Impoundment Control Act of 1974, cited above, means that the president would have needed to get congressional approval to conclusively rescind such funds, regardless of what his motives for wanting to do so might have been.
Only Congress's approval — which would have been highly unlikely — would have legitimized the action. So, either it would not have happened, or it would have been legitimized by Congress.
Either way, the Impoundment Control Act makes the current allegation that Trump committed an impeachable offense implausible at best.
Dr. Nathaniel Terence Cogley is an assistant professor of political science at Tarleton State University in Texas.
