The End Game

Jeremy Bash, the MSNBC contributor, struck to the heart of the matter the other day when he mused about where we will be when the Supreme Court rules against Trump in one of the myriad of Congressional oversight cases against him and Trump openly defies the Court. The best his fellow guests could answer was that would be a real constitutional crisis. But, based on everything we know about Trump, is there any good reason to suspect the President would do anything but defy the Court.

Both the President’s government and personal lawyers are currently arguing that Congress has no right to investigate any unlawful or corrupt acts by the President because that is essentially a law enforcement function and is not related to any legislative purpose. This seemingly puerile defense ignores the obvious point that understanding the details of unlawful or corrupt acts is perhaps the most effective way for Congress to craft legislation ensuring they get treated that way. Of course, combined with the DOJ’s current view that a President can not be indicted bases on the results of a DOJ law enforcement action, the President’s current legal argument is basically that he is above the law.

Moreover, this administration already has a history of defying the courts, almost from the moment it began. There is plenty of evidence that CBP officials refused to abide by the nationwide injunction against the Muslim ban, instituted within days of Trump’s inauguration, for many hours after they became aware of the decision and threatened airlines to prevent them from complying with the injunction as well. ICE and CBP have consistently defied court orders on the southern border and government lawyers have repeatedly lied to the courts concerning the family separation policy. Kurt Eichenwald reported on the numerous occasions in the past where the Trump Organization had “systematically destroyed or hidden thousands of emails, digital records and paper documents demanded in official proceedings, often in defiance of court orders”. Defying the courts is nothing new to the President.

Now, admittedly, Trump has also had a long history of extending litigation as far as he can and then finally settling with plaintiffs, usually at a negotiated price far below the original ask. But Democrats are not going to settle for getting much less than they are asking for when it comes to documents and testimony. Instead, it is possible that Trump is using this same litigious tactic to keep these cases tied up in court until after the 2020 election. That may or may not be feasible.

Eventually, however, Trump will lose one of these battles at the Supreme Court, assuming, of course, the Court hasn’t totally gone in the tank for the President and still believes in upholding the law rather than making it, and he will be required to turn over the documents requested or allow witnesses to testify. At that point, I’m guessing rather than defying the Court outright, he will attempt to negotiate. For instance, instead of providing all of his tax return, he will provide the 1040 itself without the Schedule Cs that actually provide the details of his businesses. Instead of producing all the Mueller grand jury evidence, he will invoke some national security privilege over certain testimony. Like Don Jr., he will attempt to negotiate just how long witnesses will be able to testify. Like Lindsey Graham, he will encourage them to take the Fifth or refuse to answer on some amorphous executive privilege claim. Like his written answers to Mueller’s questions, Trump will provide only half-answers for what the Court is instruction him to do, but it will be defiance of the highest court nonetheless.

That defiance will probably cost Trump nothing. After all, the judicial branch in this country relies on the executive branch to enforce its rulings. Who in the present Trump administration is actually going to do that? In fact, Congress has more power to enforce their various subpoenas than the courts actually do and Trump has certainly shown he is willing to defy the legislative branch. Of course, if Trump does defy the Court, the demands will increase dramatically for Democrats to pursue impeachment proceedings if they haven’t done so already. But the real pressure should be exerted on Republicans. Are they really going to allow the President to defy the Supreme Court with just half measures? Sadly, I think we all know the answer. And the autocratic takeover of what was American democracy will be complete.