Jonathan Bernstein

The confrontation between Donald Trump and the House of Representatives — in which Trump is doing everything he can to block the House’s normal oversight powers — has me thinking about impoundment.

That’s an old Nixon-era controversy, in which President Richard Nixon tried to not spend – “to impound” – money that Congress had appropriated for some programs Nixon opposed. He wasn’t the first president to do it, but the scope and scale of what he tried to do were beyond anything that his predecessors had attempted.

Eventually, Congress made it clear it wouldn’t stand for this, in part by passing a new budget law in 1974. That same Congress also passed the War Powers Act after Nixon had bypassed Congress in expanding the Vietnam War into Cambodia. Again, other presidents had done similar things, but Nixon took it a step further.

All this is relevant now because it gets to why impeaching Trump might be necessary. Nixon didn’t just commit crimes. Many presidents have done that. The real breaking point was that Nixon simply refused to play by the rules set forth in the Constitution. And Trump appears to be on the same course.

Of course, Nixon had done a lot of things that were plainly illegal, both in the constellation of activities lumped together under “Watergate” and in the obstruction of justice in covering up those acts. And there was the realization among Nixon diehards, when the “smoking gun” tape demonstrated the president had directly lied to them, that he just couldn’t be trusted at all and was willing to make his supporters look foolish when they vouched for him.

But Congress’s decision to push ahead with impeachment was also motivated by Nixon’s fundamental rejection of Congress’s own legitimacy. 

Every president since at least Woodrow Wilson has shown some inclination to believe that the election conferred almost mystical connections between the president and the nation. And Trump, to be sure, hasn’t seemed to need the (sort-of) validation of the electorate to feel that he alone is the voice of authority on pretty much every topic and that no one else has any legitimacy whatsoever. Nixon took this to an extreme.

By insisting he is above the law – by insisting that the presidency cannot be checked by the other branches of government – Trump is forcing everyone else in the system to either accept a permanent shift in the constitutional order in favor of presidents, or to stand up and fight back.

For the House, that makes impeachment a much more serious consideration. It also means that Congress should carefully consider the weapons available for fighting back other than impeachment, including aggressive use of the spending power, whether it’s to micromanage appropriations so the executive branch doesn’t have its usual discretion, or even to retaliate by cutting off funding for salaries to specific officials or to the White House generally.

For Republicans in Congress, and for judges and justices who might otherwise tend to take a Republican president’s side, it forces the question: If push comes to shove, will they be loyal to their institution and the constitutional order, or to their party? Or, perhaps more accurately, to their party’s president.

And Vice President Mike Pence is still sitting right there, ready and able to be a normal Republican president if and when congressional Republicans decide they’ve had enough of the freak show.

Bernstein is a Bloomberg Opinion columnist.


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