With Donald Trump, there’s never a strategy; only the tactic of upping the pressure on his enemies.
That is why Trump—whose only lasting accomplishment if he leaves office next year will be the confirmation of young, right-wing federal judges—is asking the courts to give up their power over the Executive Branch, a power that forms the very basis of their legitimacy and maintains the balance of power in our system of government.
The nation’s Founders were preoccupied with the evils of tyranny. They had overcome the rule of a king, but feared a new tyranny could emerge from within the nation itself, just as it had during the collapse of the Roman Republic. Washington bolstered the spirits of his downtrodden troops at Valley Forge with a play about Cato the Younger, who valiantly attempted to preserve Roman democracy from the tyranny of Julius Caesar and who ultimately chose to take his own life instead of accepting a pardon from the dictator.
The Framers designed the Constitution as a bulwark against tyranny, including by limiting the authority of both Congress and the president. During succeeding decades, presidents undermined the constitutional balance by seizing power at Congress’ expense. But another branch emerged as a counterweight: the judiciary.
The nation has long accepted that the Supreme Court has the authority not only to interpret the Constitution but also to tell the rest of the government what it can and cannot do, including by deciding which laws can be enforced and, once, even what person would inhabit the White House. Yet the courts’ power is, at bottom, ephemeral. Judges have no army, and depend on the respect that others in the government, particularly the president, show to their authority.
“They keep saying the Founders, Founders,” Trump—who’s never thought much about the origins of our constitutional system, let alone the role of the judiciary within it—recently told Rush Limbaugh. “I’ve never heard the word Founders so much in my life.”
Indeed, the 45th president is now seeking to undermine the judiciary’s authority to gain a tactical advantage in his battle with the House to prevent yet more evidence of his criminal misconduct from coming to light. Yet John Bolton’s declaration Monday that he now stands ready to comply with a congressional subpoena in the absence of a court order to the contrary demonstrates just how easily Trump’s effort to box out the courts could backfire.
Last Friday, the District of Columbia Circuit heard arguments on two appeals of subpoenas seeking evidence in connection with Trump’s impeachment, including the testimony of former White House Counsel Don McGahn. While McGahn left the White House long before Trump cooked up his Ukraine scheme, the stakes of the case remain huge, because it concerns just about the only legal defense Trump has raised to the enforcement of demands for testimony from his current White House advisers, including Mick Mulvaney and Bolton.
Trump claims these advisers are “absolutely immune” from any and all congressional demands for their testimony, even if—as now appears all but certain—they witnessed the president directing a traitorous criminal scheme. Unfortunately for Trump, while other presidents have argued for the existence of such immunity, the legal basis for it is extremely weak. It has never been accepted by a court, and was easily rejected as overreaching by the trial court last year. Therefore, there would be every reason for Trump to expect to lose if he pressed the appellate, or thereafter the Supreme Court, to endorse his argument.
A somewhat normal president, even a criminal one, would be prepared to take the loss, even if it might mean the end of his presidency, as did Richard Nixon when, in U.S. v. Nixon, the court ordered him to turn over the White House tapes. But Donald Trump is no normal president; neither is William Barr a normal attorney general. Unlike Elliot Richardson, who resigned rather than carrying out Nixon’s demand that he fire the Watergate special prosecutor, Barr lied to the nation and its legislators about the findings of Special Counsel Robert Mueller and did his best to hide the Ukraine whistleblower’s report from Congress.
Barr’s allegiance is plainly to the president, to whom he accords near dictatorial powers, not to the Constitution. That was evident during Friday’s arguments, which focused almost entirely on the Department of Justice’s contention that the courts should stand by and allow Donald Trump and other Executive Branch officials to categorically defy congressional subpoenas regardless of their legality.
A DOJ lawyer told the three-judge appellate court panel hearing the McGahn appeal that it would undermine confidence in the judicial system if “unelected” and “unaccountable” judges were to rule on the legality of Trump’s categorical stonewalling of congressional demands for testimony from government officials regarding his crimes. The panel, which was comprised of a majority of judges appointed by Republican presidents other than Trump, did not seem receptive to the DOJ’s claim that the public will lose respect for the courts if judges insist that Trump follow the law.
But matters took a striking turn when the appellate court began hearing the second appeal, which concerns a subpoena seeking material in the Mueller Report that the DOJ has withheld because it was obtained by a grand jury. Judge Neomi Rao—a former Trump administration official Trump appointed to take Brett Kavanaugh’s seat on the appellate court—was part of the panel hearing that appeal, and she was strikingly receptive to the proposition that the courts should stand by and allow presidential defiance of duly issued congressional subpoenas.
During that argument, the House’s general counsel, Douglas Letter, observed that, if, in the face of Trump’s stonewalling, the courts decline to direct the president and other Executive Branch officials to comply with congressional subpoenas, Congress would have no choice but to send armed officers to seize documents (and presumably imprison witnesses until they talk). As Letter observed, while Congress actually has such “inherent contempt” enforcement power, it has not used it in decades, because no other president has categorically refused to comply with congressional demands for information.
Letter, quite reasonably, took it as a given that each of the judges hearing the appeal would accept the proposition that leaving it to Congress’s sergeant at arms and the Secret Service to literally battle for custody of documents, as the courts stood, by would be harmful to the constitutional order.
Rao, however, strongly disagreed with Letter, and argued that Congress should probably use its own tools—possibly including the use of force—to wrest information from a president defying Congress, rather than calling upon the courts to “help” in the House’s impeachment inquiry by directing the president to comply with his legal obligations.
Rao’s position is significant, not only because she has a vote on the outcome of this appeal, but also because she reflects the Trump administration’s views in their purest form. As Barr said during a recent speech, he believes that judges should simply refuse to decide disputes between the president and Congress, whatever their merits. Thus, Rao’s open approval of armed conflict between the branches is startling, but nonetheless consistent with Barr’s view of government as a kind of freewheeling prize fight between the branches, without need for a referee.
Whatever the outcome of these cases in the appellate court, we can expect them to be heard by the Supreme Court. Furthermore, many of the same issues may come up in the appeals in cases involving subpoenas for Trump’s financial records, which the Supreme Court will be hearing soon. Therefore, we can expect the DOJ to vigorously advance the argument that courts should not require the president to comply with the law before the nation’s highest tribunal soon.
Furthermore, it is entirely possible that the now extremely conservative Supreme Court majority will accept Trump’s argument, and avoid rejecting his defective immunity claim by refusing to consider the merits of these cases at all. But that might not be the victory for the president that Barr has anticipated.
If the Supreme Court declines to enforce the law against a lawless Republican president, just how can the court expect its authority to be respected by a future Democratic president? In 2016, Brett Kavanaugh cited the Nixon decision as one of “greatest moments in American judicial history,” as the courts “stood up to the other branches, were not cowed, and enforced the law.”
It is because of the legitimacy and respect that the court derived from such moments of courage that, 20 years ago, a five-justice Supreme Court majority was able to effectively decide the outcome of a presidential election in George W. Bush’s favor, and have its ruling accepted by the losing Democratic candidate, Al Gore, who said, “while I strongly disagree with the court’s decision, I accept it,” as final and binding.
Donald Trump’s court-packing project is grounded on the premise that the young, right-wing jurists that he has placed on the bench will be accorded the same authority and respect by a future Democratic president, even when they issue audacious rulings involving the courts directly in the democratic process, in Bush v. Gore, or more recently, when the Supreme Court nullified the core of the Voting Rights Act only years after it had been overwhelmingly renewed by Congress and signed by President Bush.
But if the Supreme Court does, in Kavanaugh’s words, allow itself to be “cowed” before Trump, and effectively grants him an unfettered license to break the law, then there is no reason to expect that the judges he has appointed will be granted such deference in the future. And while Congress does have the authority to send armed officers into the streets to enforce its authority against the Executive Branch, that is never going to be an option for judges.
Furthermore, even Trump’s calculation that pushing courts out of the way will serve his short-term interests may prove wrong. On Monday, Bolton shifted his position, declaring that he is now willing to appear before the Senate if it issues a subpoena for his testimony. Majority Leader Mitch McConnell quickly responded by refusing to even consider issuing a subpoena for Bolton’s testimony until after opening arguments, despite Bolton’s offer to comply with one. Sen. Marco Rubio went further, flatly stating that the Senate should refuse to hear from Bolton. Yet, as Rubio acknowledged in an unguarded moment, that would encourage the House to issue a subpoena to the former national security adviser.
Now that Barr’s DOJ has taken the unequivocal position that the courts have no business involving themselves in congressional demands for information from the Executive Branch, the DOJ could not credibly go to court in an attempt to prevent Bolton’s testimony, or even to assert a potentially meritorious executive-privilege claim to limit the scope of the questioning.
Accordingly, while Trump believed as recently as last week that defanging the courts could serve the desperate gambit to prevent even more evidence of his criminality from coming to light, the opposite might prove to be true.