This semester, I have the pleasure of teaching a seminar titled, “The Impeachment and the American Constitutional Balance” at Georgetown Law School. From time to time, I may post the work of some the students in that seminar. Here is one such contribution. — F. Bowman
By Hamdi Soysal
on the number of House Democrats in favor of an impeachment inquiry, President
Donald J. Trump will likely be the third president to be impeached in American
history, barring unforeseen circumstances. What united the Democrats behind
impeachment – more than the Mueller Report, illegal hush money payments to a
pornstar, or his alleged violations of the Emoluments Clause – was the
President’s request from Ukraine to investigate one of his potential rivals in
the 2020 election.
are many reasons why the Ukraine affair is unworthy of the Office of the
President of the United States. One is its blatant compromise of the nation’s
foreign policy and consequently, national security. The favor the President
asked for in his now-infamous call with the Ukrainian President Zelensky was not
closer cooperation against U.S. adversaries, more intelligence-sharing, or participation
in a foreign policy that would make the U.S. safe. It was help with his
in a different context, the possible betrayal of American foreign policy for
personal gain was in the minds of the Founding Fathers while defining impeachable
offenses at the 1787 Constitutional Convention in Philadelphia. On the way to their
confining those offenses to “Treason, Bribery, [and] High Crimes and
Madison said impeachment is required because the president “might betray his
trust to foreign powers.”
Similarly, he argued at the Virginia ratifying convention that a president who
made a treaty that “violated the interest of the nation” could be impeached. At
the same convention, Edmund Randolph said a president “may be impeached” if
discovered “receiving emoluments from foreign powers.”
framers’ concerns with undue foreign influence were not limited to the
impeachment context. One measure they enacted was the aforementioned Emoluments
over which the Second Circuit recently revived a lawsuit against Trump.
Moreover, in his farewell address, George Washington mentioned the “insidious
wiles of foreign influence,” deeming it “one of the most baneful foes of
republican government” and urging the nation “to steer clear of permanent
alliances with any portion of the foreign world.”
Likewise, in a 1787 letter to Thomas Jefferson, John Adams wrote that he
understood Jefferson’s apprehension of “foreign Interference, Intrigue,
Concerned about corruption in the political system, Adams argued that America
should not conduct elections often, because “as often as Elections happen, the
danger of foreign Influence recurs.”
Similarly, Alexander Hamilton wrote in his Federalist Paper Number 68 about the
dangerous desire of foreign powers to “gain an improper ascendant in our
Founders could not have been clearer: there should be no foreign interference
in the American democracy, and no president should be urging such interference.
As some legal scholars opined, using the Office of the President of the United
States for personal political benefit fits both the standard understandings of
bribery and the broader category of high crimes and misdemeanors.
the same Founders who repeatedly warned about the danger of foreign
interference in elections and the corruptibility of the president by foreign
influences also gave the president authority over most aspects of foreign
affairs. The Founders gave Congress the power to declare war, raise armies and
provide for other aspects of national defense,
but it is the president who appoints ambassadors, negotiates treaties, and deals
with other heads of state.
raises a conundrum: Does the discretion granted to the president in the realm
of foreign affairs mean that he should not be as vulnerable to impeachment over
a situation like the Ukraine affair? One answer to this could come from the
constitutional law of separation of powers. Although not in response to an
impeachment setting, in his famed concurrence in the seminal Youngstown
Sheet & Tube Co. v. Sawyer case, Justice Robert Jackson laid out three
categories of presidential authority vis-à-vis Congress.
The first category is “when the President acts pursuant to an express or
implied authorization of Congress,” he explained.
Under this category, “his authority is at its maximum, for it includes all that
he possesses in his own right plus all that Congress can delegate.”
The second category is “[w]hen the President acts in absence of either a
congressional grant or denial of authority.”
In this case, Justice Jackson opined that “there is a zone of twilight in which
he and Congress may have concurrent authority…”
Ultimately, when a president acts amid silence from Congress, “any actual test
of power is likely to depend on the imperatives of events and contemporary
imponderables rather than on abstract theories of law.”
Lastly, a president could take measures incompatible with the express or
implied will of Congress. Then, the president’s power “is at its lowest ebb,
for then he can rely only upon his own constitutional powers minus any
constitutional powers of Congress over the matter,” Justice Jackson explained.
The level of authority President Trump has
with respect to the withholding of anti-tank missiles from Ukraine thus in part
depends on Congress’s implied or expressed will – or the lack thereof –
concerning the matter. When viewed through this lens, it becomes clear that the
Ukraine affair falls under Justice Jackson’s third category, where a president
could take measures incompatible with the will of Congress and his power “is at
its lowest ebb.” Before
President Trump’s call with Zelensky, the military aid to Ukraine had already
been appropriated with “broad bipartisan support” in Congress.
The issue was a “rare foreign policy issue that united members of both
Hill largely viewed support to Ukraine as a way to deter Russian aggression and
secure the region.
Based on recent reports, it bothered many in Congress that “the money was being
held up without a clear explanation or briefings about a changing policy
prescription in the region.”
bipartisan reaction in Capitol Hill to President Trump’s withholding of
military aid to Ukraine for reasons unbeknownst to them is a good indication
that the President acted against the will of Congress. Thus, no matter the
discretion granted to the executive in foreign affairs, his authority at the
time was at its minimum. In other words, even the ample authority the President
has with respect to foreign policy would not be enough to save him from being
impeached. If they were here to see the President’s blatant betrayal of the nation’s
safety and security, the Founders would definitely agree.
 Alicia Parlapiano et. al., Complete List: Who
Supports an Impeachment Inquiry Against Trump (Oct. 3, 2019, 11:00 AM), https://www.nytimes.com/interactive/2019/us/politics/trump-impeachment-congress-list.html.
 Transcript of Phone Call Between Presidents Donald
Trump and Volodymyr Zelensky, (July 25, 2019, 9:03 AM), https://www.whitehouse.gov/wp-content/uploads/2019/09/Unclassified09.2019.pdf.
Const. art. II, § 4.
 2 The
Records of the Federal Convention of 1787, at 66 (Max Farrand ed., 1911).
Jonathan Elliot, The Debates in Several State Conventions of the Adoption of
the Federal Constitution 346 [hereinafter 3 Elliot] (statement of James
Elliot, supra note 3, at 326.
Const. art. I, § 9, cl. 8.
 Zoe Tillman, A Court Revived Another Lawsuit Against Trump
For Continuing To Profit From His Businesses (Sep. 13, 2019, 10:41 AM), https://www.buzzfeednews.com/article/zoetillman/donald-trump-hotel-lawsuit-back-emoluments.
 President George
Washington, Farewell Address to the People of the United States (1796).
from John Adams, United States Minister to the United Kingdom and Netherlands,
to Thomas Jefferson, United States Minister to France (Dec. 6, 1787).
Federalist No. 68 (Alexander Hamilton).
 Leah Litman, Trump’s Ukraine call mentioning Biden
is the strongest reason yet for impeachment (Sep. 24, 2019, 5:45 PM), https://www.nbcnews.com/think/opinion/trump-s-ukraine-call-mentioning-biden-strongest-reason-yet-impeachment-ncna1057921.
Const. art. I, § 8.
Const. art II, § 2.
Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case), 343
U.S. 579, 635-38 (1952) (6-3 decision) (Jackson, J., concurring).
Steel Seizure Case, 343 U.S. at 635.
 Id. at
 Id. at
 Lauren Fox, Stalled Ukraine military aid concerned
members of Congress for months (Sep. 30, 2019, 10.30 AM), https://www.cnn.com/2019/09/30/politics/ukraine-military-aid-congress/index.html.