Impeachment is Dead! Congress is Broken! Can The Courts Really Stop Trump? (w/ Ben Wittes)

Summary

Bulwark Takes: Impeachment is Dead! Congress is Broken! Can The Courts Really Stop Trump? (w/ Ben Wittes) Release Date: February 15, 2025

In this compelling episode of Bulwark Takes, host Jonathan V. Last (JVL) engages in a profound discussion with Ben Wittes, a seasoned contributor from Lawfare and Dog Shirt Daily. The conversation navigates through critical issues concerning the separation of powers, executive overreach, the efficacy of impeachment, and the United States' stance on the Ukraine conflict. Below is a detailed summary capturing the essence of their insightful dialogue.

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1. FEMA Funds Dispersal and Elon Musk's Intervention

The episode opens with a discussion about a recent incident involving the Federal Emergency Management Agency (FEMA). JVL recounts an event where FEMA disbursed $80.5 million to New York City as per congressional mandate. The funds were held in Citibank due to New York City's preference for private banking. However, Elon Musk intervened by demanding the return of these funds, leading to Citibank retracting the money without notifying the city comptroller.

Notable Quote:

"The Citibank did not even tell the City of New York. Hey guys, that $80 million that we moved into your accounts yesterday. Yeah, we just decided to take it out and give it back." [00:42]

Wittes expresses skepticism about the legality of Musk's actions, highlighting the aggressive stance of the administration on impoundment issues.

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2. Executive vs. Congressional Appropriations Power

The conversation delves into the constitutional dynamics between the executive and legislative branches, particularly regarding the "power of the purse." Wittes explains that the current administration is attempting to redefine this power by asserting that Congress has only the authority to authorize, not mandate, spending. This shift would significantly bolster executive discretion over federal funds.

Notable Quote:

"The administration's positions about what are called impoundment issues is extremely aggressive. And if you want to translate the word aggressive to mean lawless, I will not resist that." [02:49]

They discuss historical attempts, such as Bill Clinton's push for a line-item veto, which ultimately did not materialize at the federal level.

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3. Potential Executive Defiance of Court Orders

JVL and Wittes explore a hypothetical scenario where the administration's defiance of court orders escalates to a Supreme Court showdown. Wittes outlines the possible repercussions, including contempt motions and enforcement challenges, emphasizing that courts rely on the executive branch to implement their rulings.

Notable Quote:

"The courts are highly isolated. But now you're describing an end stage of something that has a lot of stages in between now and then." [08:13]

They caution against immediate catastrophic outcomes, suggesting that while the Supreme Court is likely to uphold traditional powers, the executive branch may cause significant institutional damage during legal confrontations.

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4. The Fragility of Impeachment as a Political Tool

A substantial portion of the discussion centers on the efficacy of impeachment as a mechanism to check presidential overreach. Both speakers agree that impeachment has become a "dead letter," losing its deterrent power due to political polarization and repeated occurrences where presidents were impeached yet remained in office.

Notable Quote:

"Impeachment is dead! Congress is broken!" [Throughout the episode]

Wittes elaborates on how strategic ambiguity once made impeachment a potent threat, but now, its effectiveness has been eroded by precedent and political realities.

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5. Ukraine and U.S. Foreign Policy Critique

The dialogue shifts to U.S. foreign policy, specifically Trump's administration's handling of Ukraine. Wittes shares his personal dismay over the president's actions, which he describes as "callous hostility" towards an ally. He highlights the moral and strategic failures, drawing parallels with past administrations' foreign policy missteps.

Notable Quote:

"I have never seen a president behave toward an ally with more callous hostility and with a kind of gleeful siding with a genocidal moral monster." [22:23]

The speakers express concern over the potential repercussions for Ukrainian refugees and the broader implications for U.S. credibility on the world stage.

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6. The Broken Systems and Democratic Accountability

JVL and Wittes discuss the systemic sclerosis within American governance, where traditional checks and balances, like impeachment and constitutional amendments, are no longer viable or effective. They argue that the erosion of these mechanisms has led to a dysfunctional political landscape where accountability is severely compromised.

Notable Quote:

"Impeachment was broken, but we didn't know for sure that it was broken. And so it functioned as a deterrent." [20:54]

The conversation underscores the need for renewed democratic processes to restore effective governance and prevent executive overreach.

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7. Conclusion and Promotional Remarks

As the episode draws to a close, Wittes promotes Lawfare's upcoming podcast series, Escalation, which delves into the history of U.S.-Ukraine relations post-Soviet Union and its engagement with Russia. The series aims to provide a nuanced perspective on the ongoing Ukraine conflict.

Notable Quote:

"Please subscribe to it. It's the Escalation podcast and it is genuinely different from anything you've ever heard on the subject." [31:13]

JVL wraps up by encouraging listeners to engage with Dog Shirt Daily and Lawfare, expressing gratitude to Wittes for his valuable insights.

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Key Takeaways:

• The incident involving FEMA and Elon Musk exemplifies the ongoing struggle between executive actions and legislative mandates.
• The administration's attempts to redefine appropriations power threaten the traditional balance of the purse strings between Congress and the executive branch.
• Impeachment has lost its efficacy as a political tool, rendering it an ineffective check on presidential misconduct.
• The handling of Ukraine under the Trump administration reflects deep-seated issues in U.S. foreign policy and democratic accountability.
• Systemic failures within American governance necessitate urgent reforms to restore effective checks and balances.

This episode of Bulwark Takes offers a deep dive into the fragility of American political institutions and the pressing need for robust mechanisms to uphold democratic principles.

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For those interested in further exploring these topics, be sure to check out Lawfare's Escalation podcast series, slated for release on February 24th, coinciding with the anniversary of the full-scale invasion of Ukraine.

Transcript

[A]

I'm JVL from the Bulwark and I am here with my friend of years, friend of tears, Ben Whittis of many places, Lawfare. Also Dog Shirt Daily, which is, I think of it as the Nightline of our time. It began as an emergency pop up thing and has become an institution all of its own.

[B]

You know, I love Dog Shirt Daily. I love doing dog shirt TV which you should join any, any 8am that you're want to have a freewheeling conversation, join us on Dog Shirt tv.

[A]

I can't wait. So you know, like normal, we've got nothing but good news to talk about today. Yay. And I want to, I want to start with a story from, story from yesterday. And I am not a lawyer. Not a lawyer, but you're basically a lawyer, you know, a practitioner of the practice, I think is what they, what they would say in academia. Yesterday what seems to have happened is that FEMA dispersed how much money here. Sorry, I want to make sure I get this right. $80.5 million to the city of New York. This money had been congressionally mandated. It was allocated by the federal government and the people who work at fema. The CFO of FEMA complied with the law in dispersing this money. The way things work in New York, New York City has to use private banking as its holding. So this money went to Citibank. When Elon Musk found out about this, a few things happened. He fired the comptroller. Sorry, the comptroller. He fired the CFO of FEMA for following the law. His position seems to have been that the CFO of FEMA should have defied the law and listened to Elon Musk instead. But then Musk seems to have gone to Citibank and said, give me the money back. And Citibank did it. Didn't even tell the city comptroller. The Citibank did not even tell the City of New York. Hey guys, that $80 million that we moved into your accounts yesterday. Yeah, we just decided to take it out and give it back. Sorry, not even that.

[B]

How was that legal? So what I would say is. So first of all, the FEMA impoundment issues are one that I. Ones that I have not followed especially closely. I did note that the judge in Rhode island who has been a hawk on a bunch of things and does seem to think the FEMA issues are different and that they are outside of his order. And so I am actually not in a good position to answer this question. It seems, as you describe it, it Seems completely indefensible to me. And. But there may be some reason that it is less so than that. I am aware. Look, as a general matter, the administration's positions about what are called impoundment issues is extremely aggressive. And if you want to translate the word aggressive to mean lawless, I will not resist that. The one except to say that they are, I think the best way to understand what they're doing is they're attempting to establish a new principle of law, which is that when Congress assigns, when Congress. The Constitution gives Congress the power of the purse, it means Congress has the power to authorize spending, not to mandate it. So in other words, the amount that Congress appropriates is the maximum amount that the executive is allowed to spend.

[A]

It's a negotiation.

[B]

It's, well, you know, has the purse strings. And what they're trying to establish is that Congress has one of the purse strings. Right. And that the executive has the other purse string. That is not the traditional understanding of the power of the purse. And I actually am skeptical that they are going to prevail on this question at the supreme, even at the Supreme Court level, even with this Supreme Court. That said, there's no way to try something like this other, like a blitzkrieg. And that's what they're doing. And they're going to destroy a lot of government agencies along the way while figuring out the answer to the question. I think they're going to lose, but they're going to do a lot of damage while they, while, while we find out and there's a 20% chance, maybe 30 that they'll win. And that's a revolution in constitutional law in a very, very profound sort of tectonic level area.

[A]

I mean, you and I were kids when Bill Clinton spent a lot of political capital pushing for a line item veto. Right. And this is. And couldn't do it. And that that's a thing like certain governors have, but it has never been part of executive power at the federal level. And if you wanted to do that, you could try to enact a constitutional amendment, I suppose, to create a line item video, but it doesn't exist. And so they're just trying to do this through force.

[B]

Yeah. So actually it creates more than a line item veto. So a line item veto would mean is simply a rescission of the lines that you don't like. And presumably Congress can override your line item veto. Right here. The override. Right. It's you, you. It's thinking of the entire federal budget, including the budgets of whole Agencies. Right. As instead of you, the Congress gave me, gave, instructed me, spend this much on health care for poor people. Spend this much for Ukrainian media. Spend this much for. Instead of seeing it as an instruction, it's a permission. You may spend as much. Or you could reprogram it.

[A]

Right.

[B]

Or you could not spend it at all. Or you could. So it's really shifting some very large percentage of the appropriations power to the executive.

[A]

So will you catastrophize with me for a moment?

[B]

I generally don't catastrophize. I know, but Jonathan, I love your catastrophizing. You sort of do it me, and I listen to you do it and I say I don't have to catastrophize now because JVL has done it for me.

[A]

So I want you to just walk with me a little bit on this. Let's pretend that the impoundment issue goes all the way to the Supreme Court. And as you suggest, the most likely outcome is that the Supreme Court says, no, you can't do this.

[B]

Yes.

[A]

What requires. Not require. That's the wrong word. Let me phrase this. What could compel the executive branch to go along with that? Right. So what we have seen already is them defying district court orders and defying even after the judges have wrapped them on the knuckles and said, no, I issued a TRO on your impoundment. You got to disperse funds. And when, when FEMA went and did this, they just fired the, the civil service bureaucrats who complied with the law. What, a president who can grant immunity? What is to prevent him from saying, all right, well, I'm just going to appoint as my CFO the person who actually pushes somebody has to push the button making money go out and I'll just put for you Lewandowski or somebody like that, who I can trust will not actually push the button in that job. And you know, if, if they want to send them the US Marshals in to arrest him, well, then I'll just pardon them and I'll put another person in there who will do. And I'll pardon that guy, too. And I'll pardon that guy, too. Then I will simply show them that they can't force me to do this thing. It's not possible.

[B]

Right. So there are a few possible answers to this question, and none of them is completely satisfying because there is actually a completely satisfying answer to this question, but it doesn't reside with the Supreme Court. It resides with the Congress of the United States.

[A]

Impeachment.

[B]

Well, impeachment is one of the answers. There's three components. Impeachment is the last resort answer. Appropriations is the first answer. You know, we forbid you to spend any money on the White House helicopter on, on implementing the following, you know, deporting anybody who you want to write. We're going to defund all your priorities until you come to the table about complying with our spending rules. Right. That's the first line. The second line is getting in the way of the things the administration needs. For example, you want Cash Patel confirmed. We're not confirming anybody until you're following our appropriations law. Congress has the power to work its will if it chooses to use it. The. The impeachment authority is the last step in that. Right. And we can kick you out of office. Now, the, the problem that we face and what has isolated the courts to the degree that they're isolated is that chooses not to use any of its tools, and it chooses that for partisan reasons that are very alien to the separation of powers structure. All right, so the result is that the courts are highly isolated. But now you're describing an end stage of something that has a lot of stages in between now and then. And so the first is that, you know, it is not quite true that the administration is defying court orders. What the administration is doing is not quite complying with court orders for one reason or another, and then going to the courts and saying, hey, we had a problem with X compliance, we had a problem with Y. We're working toward compliance. Right. Or in case of the FEMA thing, saying, we don't interpret your order to cover fema. You agree with that? Right. And the judge actually did agree with that for reasons I'm not sure I understand because I haven't read the order in question. So the defiance you have to imagine operates a little bit differently. The defiance is we acknowledge that you've issued an order and we are not complying with it. And we're saying that because you don't have the authority to issue the order because President Uber alles blah, blah, blah, right? That they are not doing. And so now imagine that there's an order that they're inclined to defy. They're not going to defy it in the first instance. They're going to appeal it, because why have a nuclear confrontation that can alienate a lot of the moderate Republicans, such as they are, that really puts you on a bad foot when you could, you know, ask Clarence Thomas for help, Right? So you're going to have a set of orders that they comply with. You're going to have a set of orders that they appeal. And then to get to your scenario, you have to imagine that one of these orders, let's say it's one they really care about, but they lose, goes all the way up to the Supreme Court. And let's say they lose by a 7 to 2 vote. Maybe it's 5 to 4 if you want to make your scenario, I think a little bit more plausible. So now it goes back down to the district court and you know, John Roberts and Amy Coney Barrett. It's not, you know, just the libs, right. It's the solid center of the court has said the president is not legally entitled to do this. And then you have a motion to enforce the order of some form, contempt or a motion to compel or something. And then you had an actual defiance. So the answer is the court has a number of means of effectuating orders, some of which require the executive branches participation. For example, if they want to order Elon Musk jailed, the US Marshals have to carry that out. And they ultimate to the President, some of them require a little bit less direct participation by the executive branch. For example, escalating fines. Right. Those are debts. And you can, with, with people other than Elon Musk, those can get ruinous real fast. And you know, and so I think the, and remember this would all be happening with the Supreme Court having stood behind the lower court's underlying order. So I, I think in order to imagine, to catastrophize it. And I'm not saying one shouldn't be worried about this scenario. As I said in my column the other day, it's out there. I do think the courts would be in a very strong position sort of morally. And you know, if you're, if you're thinking about the swing, the marginal vote in the Senate. Right. And, and I think the capacity for the president to lose that fight politically is real. That said, we would not be the first people to note that the courts are the, as Madison said in Federalist4048, I think the least dangerous branch. Right. Because they have neither force nor will and they require the executive to effectuate their orders. So like this is not a new problem. It's an old problem. And it's a old problem that, you know, a lawless president who doesn't want to apply court orders, you know, presents, who doesn't want to comply with court orders, does present.

[A]

I feel a little bit better. Thank you.

[B]

The road to it is a little bit more incremental than the current. You Know, and. And I think, you know, there is nobody more dangerous than an angry district judge whom you cannot get reversed. And remember, every lawyer who practices in front of that judge has. Is subject to his sanctions or her sanctions. Every witness who appears is subject to contempt. Every. It's not just the government that is subject to contempt if they defy its orders. It's the individual people who defy the orders. You know, and so you're. You're. It's not quite as totalizing as the JD Vance rhetoric or the. The Mike Lee rhetoric makes it sound. That said, it's dangerous.

[A]

Yeah. So what you're saying is it could take us as many as 10 weeks to get to a nuclear showdown.

[B]

Yeah, well. And the nuclear will develop more slowly than the panic over it.

[A]

Right. All right, so I want to shift gears and talk about Ukraine. Pete Hegseth said some stuff about Ukraine today.

[B]

Raises a very good point in the chat that I want to address. Can presidential pardons cover contempt? And this is a really important question because they. Because this is the question of whether Trump can pardon his way out of court orders. Right. And the answer is no. Court orders are. When you're in contempt of a court order, there's two kinds of contempt. There's called criminal contempt, which is to punish you for the contempt. But there's. The much more important form of contempt is civil contempt, which is not a punishment. It is a coercive mechanism. I am going to fine you $10,000 a day until you comply with this order. And there is no pardon for that. That's an inherent power of every district judge. And, you know, so if you imagine an underlying court order that says you're gonna do your job as the FEMA director and release this money, which is, of course, not what the court said, but, you know, they can make that hurt, you know, if they have the backing of the courts above them.

[A]

Well, that's nice to know, I guess, you know.

[B]

Yeah. All hope is not lost. That said, it's the wrong branch of government to be doing this thing. There is one branch of government that is designed for confrontations with the president and to keep the. And it is not the courts.

[A]

Isn't it the case that the fact. This is something I've said before, and I'm sorry for people who've heard me say it, but one of my operating theses is that part of the problem we have in America is systemic, and it is that this is what sclerosis looks like.

[B]

Yes.

[A]

That. That things which used to be viable systems and Mechanisms simply are not any longer. And so, like, amending the Constitution isn't really a viable pathway anymore. And I think we've proved that impeachment is no longer a viable mechanism. Like, it was a thing which was, you know, existed in theory and was nice, but it's basically broken. I don't think there's anything that any president. I mean, somebody attempted a coup and didn't get impeached or did get convicted of impeachment. There is no other line to go over.

[B]

Okay. I don't think it's worse than broken.

[A]

Okay.

[B]

Many things are broken and work anyway. So, for example, if you see a car coming toward you, you're going to get out of its way and you're not going to ask, is that car moving because the engine is functioning and somebody's pushing, putting on the gas, or is that car moving because it's just rolling? Right. And the GAR is completely broken? But it's a deterrent anyway. You still don't want to be in the street for a long time. Impeachment was broken, but we didn't know for sure that it was broken. And so it functioned as a deterrent. People were afraid of getting impeached.

[A]

Strategic ambiguity.

[B]

There was a kind of ambiguity. Could you ever get the majority together to make impeachment viable? It was viable enough in 74 that Nixon resigned rather than faced it. Clinton, to his discredit, stared down the impeachment process, and he actually even didn't go through the process of having a trial. Right. He just thumbed his nose at the process and said, fuck it, and survived with a 70% approval rating. Trump has done the same thing twice. And now the impeachment power is. It's not just that it's broken, it's that everybody knows it's broken. So that car that you see off in the distance, you know, it's not even rolling at all. So you're not afraid of it.

[A]

Yeah. It's a dead letter. Right. This is. Everybody knows it. All right. Ukraine. So in the Oval Office, Donald Trump was asked, do you view Ukraine as an equal member of this peace process? Trump said, it's an interesting question. I think they have to make peace. That was not a good war to go into.

[B]

Yeah, okay.

[A]

What a moral monster.

[B]

Yeah. So I want to. Usually I speak, I try to be very analytical and not be emotional about things. I can't do that about this stuff. You know, I have spent the last three years very personally involved in all kinds of Ukraine matters, some of them very public. I spend a lot of time shining lights on the Russian embassy, projecting Ukrainian flags on the embassy. I also, in my private life, I spend a lot of time with Ukrainian refugees and people who are here who are, by the way, a lot of them are going to get thrown out of the country because of the immigration stuff. You know, everybody thinks it's, you know, people who come in illegally over the southern border. There's, you know, a couple hundred thousand Ukrainians here on tps. They're all going to, you know, on some parole or some other parole status.

[A]

Yeah, well, we got to make room for the South African refugees.

[B]

Yeah, the white South Africa.

[A]

Yeah. For the Africaners. We got to make sure we have room for them. So some of the Ukrainians need to go back to Kyiv. Sorry.

[B]

No, I mean, so this is something that I have a lot of friends who are very immediately affected by this, both here in Ukraine and in Ukraine. And I have never been so embarrassed by anything that a United States president has done as what the president did yesterday. And I've watched many, many as you have. We're right around the same age. We've watched any number of foibles in foreign policies from the Biden botched withdrawal from Afghanistan that, you know, that got a lot of people killed and left a lot of translators and Afghans behind to the Iraq war. I have never seen a president behave toward an ally with more callous hostility and with a kind of gleeful siding with a genocidal moral monster. Not even for any reason. And so, yeah, I thought the. I got a text this morning from a State Department person who said she'd never been more embarrassed to be an employee of the State Department or an American. And I'm not an employee of the State Department, but I feel that way as an American. I feel like it's a matter of some national shame that our president did this. And, you know, it doesn't make it less painful to watch to say that I didn't vote for him and that I did everything in my power to make him not be president. It's just. It's a very dark and upsetting day.

[A]

That's the thing, is he. He actually is all of our presidents, and this stuff is done in all of our names.

[B]

I love to tweet out, not my president, but the thing. Not true.

[A]

Not true.

[B]

He actually does get to speak for me, even if I don't like what he says and even if I don't accept the moral authority, his moral authority to speak. And, you know, he doesn't have to look in the eye. The Ukrainian kid who I made a video with projecting on the Russian embassy who's 17 years old and came to the United States at the beginning of the war by herself as a 14 year old. Like I do have to look that kid in the eye and I have to explain it to her and I can't. And I. And so yeah, I feel very angry in a very non analytical and very childish kind of anger at things that we don't have control over. And it's the kind of anger that causes people to curse God.

[A]

I mean this is. There is a way to explain it which is that the American people are wicked.

[B]

So I will not get in the middle of your dispute with Sarah about this.

[A]

You sniffed me out.

[B]

I will say the following. Hi, Sarah in the Democr. Well, and, and I'm going to give you a lot to work with in that conversation. In a democracy, over time, the people get what they want. And if the definition of what they want is what they keep voting for, it's not what they tell poster pollsters, it's not what, it's not what they say in individual process tracing interviews. There we actually have a method for deciding what the people want. And, and I don't want to say that in a close election where I don't want to totalize, but I do think an enormous number of people voted for evil. They did it knowing what they were doing. They did it a second time, in some cases a third time. And I don't forgive the public for their choices. Now I do agree with Sarah that that is not a useful operative political assumption with which to. Or organize. You know, like sure, but that's not.

[A]

Our jobs right now. We're just here to say true things.

[B]

So evil. But like, like if you're, you know, it would be one thing if this were something that Trump would had done a bait and switch about. But Trump's promising to end this war on roughly these terms as long as he's been nothing but honest about this. Um, he's been nothing but honest about the January 6th pardons. He was going to do it. He told you he was going to do it. He campaigned on it. Right. This is the way the system is. And by the way, the same is true with Doge. He announced, do you know. And so like what he is doing is evil and loathsome. But it is not a surprise. And in fact he won the American public over.

[A]

Yes, at the beginning of this, the American public was overwhelmingly on the side of Ukraine and Trump did not stake out. Trump staked out the unpopular position and he argued America into it.

[B]

That's exactly right. Right. So I do, you know, the one person I can't blame as a democratic matter, as a moral matter, as a foreign policy matter, as a, as a what's good, the right thing to do matter, I blame Trump. But as a demo matter of democratic theory, the one person you can't blame here is Donald Trump. And in that sense, I agree with you that we have to look toward the question of the American people's eagerness to vote for this sort of thing. And that said, I will be out with lasers, not at the embassy this weekend or early next week, but somewhere a little bit more visible to the American policy establishment.

[A]

Fantastic. Ben, that is a great place for the last word. Everybody, if you are not doing dog shirt daily, please go sign up for it. It's fantastic. And watch the people of Lawfare. And Ben, you're the best. Absolutely the best. Thanks for coming on.

[B]

Can I plug one thing on, please? Last subject?

[A]

Yeah.

[B]

On February 24th, which is the anniversary of the full scale invasion, it's the third anniversary of the fourth full scale invasion. We are, this is Lawfare now are releasing a narrative podcast series called Escalation, which is a history of the post Soviet US Ukraine relation in dealing with Russia. It is completely unlike anything that has ever been done on the subject. It is hosted by my two colleagues, one of them Ukrainian Anastasia Lapatina and the other the managing editor of Lawfare, Tyler McBride. Brian, we released the trailer the other day. Please subscribe to it. It's the Escalation podcast and it is genuinely different from anything you've ever heard on the subject. And it is for American patriots who are upset about what happened yesterday and for people who are interested in the Ukraine war. I cannot recommend recommend it highly enough.

[A]

And will that be just on Substack or will it be on Substack plus Apple podcasts, plus Google Play, et cetera, et cetera?

[B]

The feed is already there because it's the feed we use for a bunch of our narrative podcasts. So if you look up, it's the Escalation feed. But yeah, it's anywhere you get your podcasts.

[A]

Okay, so everybody go and do that. I'm going to do it too. Ben. Thanks a lot, guys. I'll be back next Tuesday with I forget who our guest is next Tuesday, Kathleen, remind me. I hope these conversations are fun and interesting and enjoyable. I'm sorry that there are too many of you talking in the comments for me to meaningfully pay attention to them. Otherwise, like, you know, if we could just get this audience down to, like, 10 people, then I could interact in the comments.

[B]

See, that's what you could do if you came on Dog Shirt tv.

[A]

All right, guys, Enjoy the Fall of the Republic and everything else that's terrible. Good luck, America.