The MAGA crowd in the House of Representatives and at the state level is at it again in their efforts to shield Donald Trump from accountability for his misdeeds. Their latest gambit is to withhold funds from prosecutors who have filed the four criminal indictments against the former president.
According to a local ABC News report, Georgia Republican Congressman Andrew Clyde, who described the Jan. 6, 2021, attack on the Capitol as “not an insurrection,” plans to use the annual budget process to help Trump “by introducing amendments to prohibit the use of federal money in cases against major presidential candidates before the 2024 election.”
Others in the MAGA crowd have concocted similar schemes. In June, Rep. Marjorie Taylor Greene announced that she was “writing an appropriations rider to defund Jack Smith, special counsel, his office and the investigation.”
Greene did not try to hide her political motivation. “This,” she said, “is a weaponized government attempt to take down the top political enemy and leading presidential candidate of the United States, Donald J. Trump.”
One month later, Florida Congressman Matt Gaetz proposed legislation to defund Smith’s office and, not be outdone, Tennessee Representative Andy Ogles has introduced legislation to stop paying Smith’s salary.
Republican Representative Jim Jordan has also threatened to use the power of the purse to force the FBI to produce a subpoenaed document involving allegations of criminal activity by then-Vice President Joe Biden. “Where we ultimately have authority,” Jordan said, “is the power of the purse … you are not going to get money for certain things, you can’t use money for certain things, we are going to restrict the amount, the overall amount, we may cut how much goes there.”
Jordan listed numerous ways to use the appropriations process to punish the FBI and get it to aid in his campaign to smear Biden. “Here is an easy one: They want a new facility that’s going to cost hundreds of millions of dollars, no way. No way we should sign off on that. Then we should say, no funds in this appropriation can be used in any way to retaliate against whistleblowers. We should put other restrictions on them…. We should put all kinds of what we call riders, language that limits how they spend American tax dollars.”
At the state level, Trump’s Georgia allies have raised the possibility of calling a special legislative session for the express purpose of curtailing the work of Fulton County District Attorney Fani Willis. They want to defund her office or impeach her.
They are showing their fealty to Trump, who has directed a withering barrage of invective at Willis. On August 21, he called her “the crooked, incompetent & highly partisan D.A. of Fulton County….” He alleged that “Fani Willis, who has allowed murder and other violent crime to MASSIVELY ESCALATE. Crime in Atlanta,” Trump said, “is WORST IN NATION. She should be impeached for many reasons, not just the Witch Hunt (I did nothing wrong!)”
Georgia Governor Brian Kemp has resisted the efforts to interfere with Willis’s prosecution of Trump, saying not only is there no evidence that she has done anything wrong, but that they may “ultimately prove to be unconstitutional.”
Kemp is right to recognize that using the power of the purse to target and punish particular officials for the responsible exercise of their authority is a serious abuse of power and a clear deviation from the Constitution. As Yale Law Professor Kate Stith explains, Congress’s power of the purse “lies at the very foundation of our constitutional order.”
Congress, Stith argues, has the authority to use that power to “constrain executive branch officials as long as these constraints do not prevent the Executive from fulfilling indispensable constitutional functions.” Prosecuting people who violate the law is certainly one of those functions.
The Republican planned misuse of the power of the purse is reminiscent of an earlier era. In the colonial period when legislative assemblies did not like the behavior of royal officials, as Professor Josh Chafetz notes “they frequently withheld or diminished their salaries. In 1751, the South Carolina House of Commons refused to pay the rent on the governor’s house after he had exercised the royal veto one too many times.”
But using the power of the purse in that way is the financial equivalent of a bill of attainder. A bill of attainder uses legislative power to target a particular individual and declare that they are guilty of violating the law. Bills of attainder are prohibited in Article 1 Section 9 and Article 1 Section 10 of the Constitution. Article 9 prohibits federal bills of attainder, and Article 10 prohibits them in the states.
In 1977, the United States Supreme Court held that Congress could not use any of its legislative power to punish individuals. It said that the key in making a determination about whether it was doing so would be whether its action “when viewed in terms of burdens and severity, can reasonably be said to further non-punitive purposes….” And whether the intent of the action was “to further punitive goals.”
Like other Trump allies, Representative Clyde is clearly following the MAGA playbook in his efforts to bring prosecutors to heel and to punish them. Referring to Smith’s indictment of Trump for election interference, Clyde said, “It’s wrong, what we’re seeing. And I think the only way to fix that is to defund it.”
“Using the tremendous power of the federal government against a political opponent, I mean that’s clearly election interference,” Clyde added.
“The American people,” Clyde went on “get to decide who wins the White House—not Deep State actors who have shamelessly attacked Donald Trump since he announced his first bid in 2015. It is imperative that Congress use its power of the purse to protect the integrity of our elections, restore Americans’ faith in our government, and dismantle our nation’s two-tiered system of justice.”
Whatever the blather about election interference and two-tiered justice, calls to defund prosecutions of Trump are clearly punitive. As Governor Kemp explained, they threaten the separation of powers by directly interfering with “the proceedings of a separate but equal branch of government.”
Rep. Ogles made clear what the Republicans aim in withholding funds from the special counsel. “It’s well past time,” he said, “that Congress uses its power of the purse to tell Jack Smith ‘You’re fired.'”
Sorry, Congressman, under the Constitution, Congress doesn’t get to fire executive branch officials or use the power of the purse to curtail prosecutions of which some members disapprove.
Columbia Law Professor Philip Hamburger offers a framework for understanding the dangers of what Trump’s allies in Congress and in Georgia want to do. Hamburger warns that the power of the purse should not be used to “purchase submission.”
Hamburger notes that when members of Congress cannot get something done because it might be unconstitutional, they may turn to what he calls the “irregular path” of using the power of the purse to achieve their nefarious purposes.
The nefarious purposes animating the Republican misuse of that power to save Trump have no rightful place in this country’s constitutional design.