Joe Biden risks falling foul of impeachment law that snared Trump

Joe Biden has provoked fury from Republicans after announcing he will refuse to provide weapons to Israel that could be used by Benjamin Netanyahu to invade Rafah.

The US president said on Wednesday that “if they go into Rafah, I’m not supplying the weapons”, arguing that the humanitarian cost of the war has already been too high.

Republicans immediately accused Mr Biden of breaking his pledge of “iron clad” support for Israel’s security, and some have called for his impeachment.

They argue that Mr Biden has broken the same law as Donald Trump in 2019, when he was impeached by the US House of Representatives for withholding security assistance to Ukraine.

At the time, Mr Trump had told Volodymyr Zelensky, the Ukrainian president, that he would hold back $400 million (£319 million) of funding that had been authorised by Congress unless he announced an investigation into foreign interference to support Mr Biden’s campaign.

Republicans now argue that Mr Biden is guilty of the same crime of refusing to spend money that has already been allocated by lawmakers. Last month, both houses of Congress approved $17.6 billion in funding for Israel, including money for weapons and supplies for the Iron Dome missile system.

Senator Tom Cotton, a Republican from Arkansas, said on Thursday: “The House has no choice but to impeach Biden based on the Trump-Ukraine precedent of withholding foreign aid to help with reelection. Only with Biden, it’s true.”

The claims are based on the Impoundment Control Act, a 1974 law passed at the height of the Watergate scandal, which restricted a president’s ability to block funding for projects Congress had approved.

The law says that “policy reasons”, such as those of Mr Trump in 2019, are not a sufficient reason to block government spending that has already been set out in law.

Under the law, the White House must spend the $17.6 billion on support for Israel by September 2025, or call a vote in Congress to cancel it. Without the support of lawmakers, or a legitimate reason under the Impoundment Act, it is illegal for the money to be withheld.

House Republican sources say that representatives are now seriously considering taking up the argument in a fresh attempt to impeach Mr Biden, after launching an ill-fated inquiry on the president’s links to his son’s business dealings last year.

However, experts say Mr Biden has not broken the law – yet – and that any impeachment proceedings are unlikely to succeed.

‘No money for Rafah munitions’

Unlike Mr Trump in 2019, Mr Biden has not said he will cancel all assistance to Israel – just that he will not allow the money to be spent on munitions that could be used in Rafah.

There is no requirement in the Israel supplemental last month that US funds should be spent on supporting a specific operation.

The text of the legislation says the US will fund the procurement of ammunition, weapons and missiles, plus supplies for the Iron Dome missile system, but it does not specify that they must be the high-payload bombs that the Pentagon blocked this week.

Alan Morrison, a constitutional law expert at George Washington University, said Mr Biden would only be in breach of the Nixon-era law if he refused to send any weapons before next September, without calling a vote in Congress.

“Biden wouldn’t be violating the impoundment Control Act, simply by not sending particular items of weapons to Israel,” he said.

“In the Ukraine case, Trump was withholding the money, and there was no claim that there was a basis for withholding it.

“The president may have a basis for not sending particular arms at a particular time, but that’s different from not sending Israel the money.”

With Republicans outraged over the White House’s new “red line” on Rafah, it seems likely that Mr Biden’s opponents in Congress will launch a challenge to his policy from the GOP-controlled House.

Congress could still launch an inquiry into Mr Biden’s decision in the hope of discrediting him before November’s election, but the legal facts suggest he cannot be removed from office over this decision alone.