At The Crossroads
The other day Paul Krugman noted that we are really not prepared for the onslaught that will come from Trump after the midterms, no matter whether the Democrats win at least one house of Congress or not. If the Democrats don’t win at least the House, Trump will interpret the result as a green light for all of his worst instincts. And even if Democrats do win the House, Trump will claim their victory is illegitimate and treat them accordingly.
Even with Democratic oversight power finally backed up by the power to subpoena, the Trump administration will engage in unprecedented obstruction. As Krugman says, “Republicans will claim that the election was stolen, and deny the majority’s legitimacy…Democrats will gain subpoena power — but expect the Trump administration to simply defy requests for information…And they’ll use claims of voter fraud to justify their disregard of the law and Constitution.” And it’s not like the Trump administration has not already used unprecedented tactics to block Congressional oversight. Krugman mentions the refusal of the Veterans Administration (VA) to turn over documents relating to the reports that three private citizens, members of Mar-a-Lago, have been directing VA policy.
And it’s not like Trump administration officials have been wary about lying to Congress even when they do testify under oath. At least five of Trump’s original cabinet members lied under oath. It is clear that Don Jr., Erik Prince, Brett Kavanaugh, Emily Murphy, Kirstjen Nielsen, and others too numerous to mention have all been caught lying to Congress. Some, like Wilbur Ross, have lied multiple times about multiple subjects. There is no reason for that stop simply because the Democrats control the committees in the House.
Trump has every incentive to block any attempts for Democratic oversight and turn them into to life-and-death partisan battles. He will rail against the illegitimacy of the Democrats and claim he is the victim of a vicious partisan attack that is an attempt to overthrow his own legitimate election. And he will now have the Supreme Court to back him up in this constitutional struggles. Sarah Kendzior has stated that “autocrats will rewrite the law itself so that they will no longer be breaking it”. The Roberts Court stands ready to do just that for this president,
The Court is already flexing its ultra-conservative muscle in remarkable ways. The Court recently spared Wilbur Ross from being deposed about his lie to Congress about the origins of the idea to add the citizenship question to the census. More disturbing, however, was Gorsuch’s dissent on the decision which basically stated that there was no legal basis for questioning the decision of the Commerce Department to add the question and that the case brought against Ross and the Department should be dismissed. Gorsuch’s dissent seemingly claims that the executive branch can execute any policy it wants without necessarily following the proper administrative and bureaucratic channels. And now Gorsuch’s dissent has helped prompt the DOJ to ask for a delay in the citizenship trial so that they can make another filing with SCOTUS to have the case thrown out. Of course, a long enough delay will make it impossible to stop the question from being added. All of this does not bode well for the effectiveness of Democratic oversight.
In addition, Justice Roberts just intervened in a highly unusual way in order to temporarily halt a landmark environmental case brought by young plaintiffs ranging in age from 11 to 22. The case has been controversial from the start because of its massive discovery process and the possibility that it usurps the power of Congress and the executive. But, so far, courts have allowed the case to proceed and it was scheduled to finally go to trial on October 29th. The federal government was currently challenging that decision to go forward to the Court of Appeals until Roberts stepped in.
As one law professor noted, “It is extremely rare, if not unprecedented, for the Supreme Court to enjoin a trial when the Court of Appeals is still considering the case. Ordinarily they’ll wait for the lower court to rule”. Not anymore. With the Court now firmly in partisan conservative control, the Justice Department is more and more frequently bypassing lower courts and taking their case to the comfortable venue of the Supreme Court. It’s nice to be able to venue-shop at the nation’s highest court.
Control of the Court will become important as the results of the midterm elections are contested by one or both parties, which may require legal adjudication, as will those in control of the electoral processes in the various states where these close and contested elections occur. And it is certain that Trump and the GOP will contest or challenge the results if the Democrats win the House.
Similarly, the Court will become important when the President defies subpoenas from the Democratic House or Robert Mueller. As Newt Gingrich said in response to a question about what would happen if the Democrats subpoenaed Trump’s tax records, “Then they’ll [the Democrats will] be trapped into appealing to the Supreme Court, and we’ll see whether or not the Kavanaugh fight was worth it”.
I have already written about the coming evisceration of DOJ independence after the midterms. “Trump and the GOP have already been emboldened by the previous capitulation of the DOJ to their political demands”. After the success of the Kavanaugh confirmation, “Trump will only test the boundaries further. It is already in the cards that Jeff Sessions will be gone after the midterms and the Mueller investigation will be vastly constricted or killed entirely at the same time. With Kavanaugh’s views on the ‘unitary executive’ being similar those espoused by Dershowitz and the Federalist Society crowd, Trump can pardon everyone of his cronies that Mueller has already indicted and convicted. And then he can begin the investigation of both Democratic and democratic opponents, including a purge in the DOJ/FBI itself, under the guise that China is attacking our elections by targeting Trump voters with its retaliatory tariffs”. Alan Dershowitz clearly states that the President has the authority “to tell the Justice Department who to investigate, who to prosecute, and who not to investigate, and who not to prosecute” and you can be sure the President will use and abuse that power. It’s not like he hasn’t already tried this already and has, in fact, had limited success. The DOJ, for example, re-opened the investigation into Hillary’s emails.
Earlier this week, Trump ordered the military to be deployed to our southern border under the pretext of protecting the country from the arrival what he falsely calls a “caravan” filled with MS-13 and terrorists. This collection of refugees is still over 1,000 miles away from the US border and won’t arrive at our border for another few weeks, if at all. When this idea was floated earlier this spring, one border patrol official described it as a having “no benefit” and a “colossal waste of resources”. But Trump is now successfully using the military for purely political and propaganda purposes. In addition, at the urging of John Bolton, there is a proposal floating around to simply seal off the southern border. There has been very little pushback on this deployment, mostly because of bigger issues the country is confronting, but, having gotten away with this now, you can be sure that Trump will escalate his use of the military for political purposes in the future. At present, the military deployment will merely support regular Border Patrol in a non-enforcement role. But remember, as far as the Border Patrol is concerned, the actual border extends 100 miles into the US from any existing border line, meaning that at least theoretically, the US military could be conducting operations well inside the US.
Early this month, I wrote that “It seems probable that we will see what is essentially government-sponsored violence, mainly driven by Trump’s divisive and destructive rhetoric” in the post-election period. I did not expect that this would happen before the election or that the entire Democratic and opposition leadership against Trump would be targeted for assassination. But it has happened and Trump’s response has been essentially to green-light further attacks from his partisan supporters. And Trump’s attacks and provocations against his opponents will not only continue but escalate in the post-election period. The 2020 election begins the moment the midterms end and continually fueling the anger in his base is the only path Trump has to victory in 2020.
Sarah Kendzior has described our current situation as being at the crossroads of a failing democracy and a budding autocracy. Obviously, the upcoming elections will be almost determinative of the direction the country chooses. But simply winning the House and, most optimistically, the Senate as well, and obtaining the oversight power necessary to at least put some kind of check on Trump, will only be the opening battle in the struggle to save our democracy. The constitutional crisis that has been on a slow burn for the last two years will finally come to a boil after the midterms as Trump rejects the legitimacy of any Democratic power or any real restraint on his own.
Republicans have played the long game for decades. Because that party is less ideologically diverse, that has been far easier for them than for Democrats. But Democrats must adopt that long game strategy to combat Trump and the emergence of the radical, violent right. It will not take one or two elections to revive our democracy, with all the structural changes that will be required. It will take a concerted, perhaps decades-long, effort to recreate the foundations for the ideals that the founders had for this country two and a half centuries ago.