Daily Wire Editor-at-Large Josh Hammer, who is a constitutional attorney by training, had the following piece yesterday at the New York Post.
If one accepts the Democrats’ tendentious narrative of what transpired on the now-infamous July 25 phone call between President Trump and Ukrainian President Volodymyr Zelensky, their “abuse of power” impeachment article arguably fits within Alexander Hamilton’s description, in Federalist 65, of the Constitution’s “high crimes and misdemeanors” as an “abuse or violation of some public trust.” But their “obstruction of Congress” charge fails.
Worse, it is utterly nonsensical and misunderstands and undermines the entire separation-of-powers framework upon which our constitutional republic was built. To speak of a president “obstructing” Congress is to speak of spotting a unicorn. It is a nonsensical fantasy. And leveling the very allegation, in the first instance, evinces a fundamental constitutional illiteracy.
Our tripartite separation-of-powers edifice was hardly devised for the purpose of ensuring amiability between the legislative, executive and judicial branches. On the contrary, the Framers envisioned a national government in which the three branches existed in a state of continuous, unyielding tension with one another.
In particular, the two political branches — Congress and the executive branch — were meant to be jealous guardians of their own ambits and spheres of influence. Ceaseless tussling between them was to be the norm. “Ambition,” James Madison told us in Federalist 51, “must be made to counteract ambition.”
Accordingly, inter-branch political showdowns are routine. The president can veto legislation. Congress, using its power-of-the-purse prerogative, can defund presidential priorities. And so forth. Each branch has various tools at its disposal to help “counteract [the] ambition” of the other.
That is how our separation of powers is supposed to function — in a state far closer to animosity than to geniality. Which is precisely why House Democrats alleging “obstruction of Congress” as an article of impeachment makes no sense.
If the president disagrees with what Congress is doing, then he should lawfully impede or obstruct its efforts. And the proper way for Congress to push back on a frustrative president is not to resort to the extreme and uniquely anti-democratic remedy of impeachment but to simply defund his legislative priorities or perhaps force a government shutdown.
Fact is, it is wholly improper — and counter to the spirit embodied in our constitutional framework — for Congress to attempt to impeach the president for obstructing its congressional responsibilities. To pout over purported “obstruction of Congress” is to moan that the president is reasserting the truism that he is, in fact, a separate branch of government and capable of pushing back on the other branches.
By attempting to impeach the president because he wields presidential power, House Democrats reveal that it is they themselves who are the ones abusing power.
By contrast, an article of impeachment for “obstruction of justice,” especially if it were to entail the president directly defying a judicial order to heed a congressional subpoena, would carry more heft. Obstruction of justice has historically been cited in articles of impeachment. Not so the utter fabrication that is “obstruction of Congress.”