On Friday, Daily Wire Editor-at-Large Josh Hammer, a constitutional attorney by training who has been a frequent commentator on Democrats’ current partisan impeachment effort, joined “Tipping Point With Liz Wheeler” on One America News Network (OANN) to discuss the recent report from the Government Accountability Office (GAO) purporting to show that, by initially withholding the disbursement of foreign aid money to Ukraine last summer, President Donald Trump violated the Congressional Budget and Impoundment Control Act of 1974 (ICA). It is this withholding of Ukrainian foreign aid money that forms the crux of the Democrats’ impeachment push.
As The Daily Wire initially reported last Thursday, the officially nonpartisan GAO claimed that Trump violated the ICA and, by implication, also the Take Care Clause of Article II of the Constitution. “Faithful execution of the law does not permit the President to substitute his own policy priorities for those that Congress has enacted into law,” the GAO report asserted, as The Daily Wire reported. “[The Office of Management and Budget (OMB)] withheld funds for a policy reason, which is not permitted under the [ICA]. The withholding was not a programmatic delay. Therefore, we conclude that OMB violated the ICA.”
Hammer penned an op-ed in Saturday’s New York Post in which he argued that “Trump likely did not violate the ICA,” but that “even if he did breach it, that law itself comes with its own remedy baked in — and it is a far less draconian remedy than impeachment.” He then elaborated:
To be sure, expressly directing a subordinate to violate federal law is inconsistent with the Take Care Clause. But the president also has other obligations under Article II of the Constitution. The very first clause of Article II vests the president with “the executive Power.” The doling out of foreign aid is an integral part of conducting foreign affairs, and, according to a 2001 Yale Law Journal article by legal scholars Saikrishna Prakash and Michael Ramsey, 18th-century English common law — which helped form the Framers’ thinking — had an “ordinary … meaning of executive power” that “included foreign affairs power.”
Similarly, in the 1936 Supreme Court case U.S. v. Curtiss-Wright Export Corp., the justices describe the president as “the sole organ of the federal government in the field of international relations — a power which does not require as a basis for its exercise an act of Congress.” …
[Furthermore,] as my boss at The Daily Wire, Ben Shapiro, quickly observed after news of the GAO report hit, the ICA prescribes a precise remedy for a situation in which the president allegedly violates it. Specifically, 2 U.S.C. § 687 provides for a cause of action by the comptroller general in the U.S. District Court for the District of Columbia. But since the funds have been released, any legal action would be moot.
On Friday’s OANN appearance, Wheeler began by asking Hammer whether the alleged ICA violation is impeachable. Hammer strongly opined that it should not be viewed as impeachable, and went on to describe the current Democratic mentality and antics as “desperate,” “reckless,” and “borderline dangerous”:
The Impoundment Control Act in 1974 actually provides for a precise remedy within the statute. So a lot of people are talking about this as a possible impeachment vehicle, but it is a deliberate, disingenuous, bad faith effort to attempt to impeach as a draconian remedy where the statute itself has the savviness and the foresight to provide for a much lesser remedy.
And let’s talk about that remedy. It’s [title] two of the United States Code, then sub-section 687, I believe. The remedy is the Comptroller General of the United States is allowed to file suit in the federal trial court in the District of Columbia to force the president, essentially, to disburse the funds. Liz, here’s the problem with that: The funds have already been disbursed! They were released and there was barely any delay. So even according to the statute’s own remedy — according to the statutory structure … it’s a moot case. In law school, you learn this is called a moot lawsuit because the funds were disbursed. Ukraine didn’t even know that the funds were being withheld.
So all of this is starting to remind me a lot of the whole [Brett] Kavanaugh [Supreme Court nomination] fiasco, where they would just throw mud at the wall and see what sticks. You know, we talked about [how] the Democrats first were talking about quid pro quo, [but] that didn’t poll-test well. Then they were publicly flirting with bribery and they knew they didn’t have the legal gravitas to make that argument. They are just so desperate, at this point. Swing state poll after swing state poll shows they’re gonna lose next November — Wisconsin, Michigan, Indiana, all these voters are starting to turn against the Democrats. And this is really starting to get reckless; it’s actually borderline dangerous, at this point, I would say.
Wheeler agreed, saying that the Democrats do routinely “move the goalposts.”
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