Kim Wehle writes:

If the nation’s Founders didn’t want to constrain the president’s power, they wouldn’t have put impeachment in the Constitution. “They gave us the tools to do the job,” Representative Adam Schiff declared yesterday in his closing argument in Donald Trump’s trial. The president’s camp, meanwhile, insists that the legislative branch still has several levers of power against Trump. The defense attorney Patrick Philbin argued last week, “Congress has numerous political tools it can use in battles with the executive branch—appropriations, legislation, nominations, and potentially in some circumstances even impeachment.”

But what’s happening in the Senate this week suggests the exact opposite: that most of the checks and balances Congress provided against the president’s power are effectively gone. Despite ample evidence of serious misconduct, the Republican-led Senate appears certain to acquit Trump in his impeachment trial. And all the other political tools that Philbin listed seem quaint in light of everything else Republicans in Congress have decided to forgive.

Philbin argued, for starters, that Congress can still exert control over the executive branch through its appropriations power—its authority, that is, over the federal purse strings. So if the president takes actions that Congress does not like, it can theoretically put a financial stranglehold on executive power.

The problem with this solution is laid out in the Government Accountability Office’s legal analysis of Trump’s withholding of $391 million in Senate-approved aid to Ukraine. The move violated the Impoundment Control Act, the GAO insisted. Congress had appropriated the aid, and the president had no authority to ignore that decision—at least without simultaneously alerting Congress to his plan, as the statute requires. With an impending acquittal, the Senate is saying to Trump and all future presidents that they can ignore Congress’s appropriations decisions without consequence. Trump can withhold or spend money as he likes—even if Congress has already said otherwise. [Continue reading…]