Here’s a piece of friendly advice for you: Beat the Christmas rush and get to know the Supreme Court decision Worcester v. Georgia.
I’m not going to go into the whole background of the case here. It’s fascinating—it was basically a land dispute between the Cherokee nation and the state of Georgia (that is, Georgia wanted to evict the Cherokee from their native land and steal it). The tribe, which was pretty well organized politically, took it to the Supreme Court—and won. The famous Chief Justice John Marshall wrote the decision holding that Georgia had no right to enforce state laws in Cherokee territory.
What’s this got to do with the price of orange hair tonic? President Andrew Jackson’s reaction, that’s what. He said (reportedly): “Mr. Marshall has made his decision. Now let him enforce it!”
In other words—there is precedent for a president to defy a court. Even the Supreme Court. Jackson did it. And who is Donald Trump’s favorite president, after himself? Hmmm.
Right now, the House Democrats are trying to subpoena Trump administration officials to come testify. Trump officials, under his orders, are refusing to comply. Obviously, this will end up in the courts, probably eventually the Supreme Court.
Most people seem to agree that, hackishly right-wing though many of our present-day jurists may be, the Constitution and the law on Congress’ right to conduct oversight are so clear-cut that the courts probably can’t rule for Trump. If they do, of course, then we’re really screwed.
But let’s say for now that the courts rule for Congress. That the Supreme Court itself, with John Roberts joining the four liberals, rules for Congress. A great day—then: Don McGahn and Hope Hicks the whole lot of them will have to testify.
Trump will order defiance of the Supreme Court.
Is there any doubt about this? No. Of course he will. He divides the world into loyalists and enemies, period.
If Roberts rules against him, Roberts becomes an enemy to Trump. And if he becomes an enemy to Trump, he becomes an enemy to Fox News, the whole right-wing propaganda network, MAGAmerica, QAnon, the whole network of them. They will never give in to an enemy.
If there’s someone around Trump who’s literate and knows some American history, I could even envision Trump tweeting: “Mr. Roberts has made his decision. Now let him enforce it!”
And the Supreme Court has no enforcement powers. Its only enforcement powers repose in the Constitution (and the power the court gave itself in Marbury v. Madison), and in the sense of shame or duty or civic decency or whatever you wish to call it of most Americans. It has neither sword nor purse, as Alexander Hamilton put it.
But now, we have a president who knows no shame and has zero sense of duty or civic decency. So he will disobey the courts. Count on it. This will be a serious crisis of the Constitution: a president disobeying an order of the Supreme Court. And this isn’t necessarily some distant thing. It could happen soon—this summer.
What do we do then? I ran through some possibilities on the phone last week with a former House Democratic staffer who worked on these issues. “Ultimately, if he ignores a court order, you’d have to impeach,” the staffer said. “I’m not sure if you could.” Meaning, not sure if the Senate would convict.
Obviously, a Republican Senate would not convict. So the House would have made a statement—a necessary one under the circumstances. I’m on the fence about the efficacy of impeachment now, but if Trump were to defy the Supreme Court, then I do think the House would have little choice (not to mention that public support for impeachment would likely grow under those conditions).
The staffer did point out that former White House staffers would be free to follow their own consciences (so, for that matter, would current ones, if they were willing to give up their White House jobs). Thus, this person thought, McGahn might actually go testify after such a Supreme Court ruling. “McGahn is a real lawyer,” the staffer said. “Nobody else embarrasses, but he does.” If McGahn decided to defy Trump and appear, the staffer says, “the White House would have to go sue him. And my guess is the White House would lose.”
Finally, my source suggested one other course of action: If House Democrats aren’t quite ready to impeach Trump, they should impeach Attorney General William Barr and Treasury Secretary Steve Mnuchin “as a way of getting documents,” because certain grand jury materials that would not be made available to Congress during regular oversight hearings could be made available for an impeachment hearing.
My overall point is this: People who want impeachment hearings yesterday seem to think they’ll change things. They won’t change anything. Trump will deny and defy customs and laws and yes, even a ruling of the Supreme Court, until he’s absolutely out of options—meaning, until Mitch McConnell and Lindsey Graham tell him the ballgame’s over, and it’s hard right now to see that day coming any time soon.
Not only will he defy. He and Rudy Giuliani will try to find a way to turn the tables on Congress and the court. This is what people like this do. It’s what Andrew Jackson did. Not only did he thumb his nose at Marshall’s ruling—he worked with the state of Georgia to remove Indians from their lands, doing exactly the opposite of what the Supreme Court said, ultimately leading to the Trail of Tears, one of the great tragedies in this country’s history.
Trump will destroy Congress and the Supreme Court if he feels he needs to. The only question is: Will Republicans let him do it?