Court Awareness
Republicans in the US Senate effectively rendered congressional oversight of the executive branch moot with their vote to not convict Trump in his impeachment trial without even calling any witnesses. Trump, in his usual fashion, has taken that vote as carte blanche to extend his rule of lawlessness, now directing the Attorney General to directly intervene on his behalf in a number of cases, including that of Roger Stone, Trump’s co-conspirator in the Russian hacking of the 2016 election. That apparently also includes a Turkish company that evaded sanctions on Iran which Trump is trying to use as part of what John Bolton described as the President’s personal business with Turkey.
Senate Republicans, having abdicated their own powers and responsibilities, now look to the courts to restrain Trump’s increasingly autocratic behavior. As Mitt Romney, last week’s “hero” in impeachment, declared, “I hope the Justice Department is independent of politics and any indication that that’s not the case would obviously be a real problem. But fortunately .. it will reach the courts and the judge will make a decision”, adding that he had faith in the judicial system.
In the particular cases involving Roger Stone and Mike Flynn, Romney is probably correct. Judge Amy Berman Jackson, who is overseeing the Stone case, will probably do her best to ignore Barr’s intervention in the case and sentence Stone largely along the lines of the sentencing guidelines. She will properly consider the fact that Randy Credico felt threatened not by Stone personally but more by some right wing nut that Stone would have incentivized, as well as by the fact that Jackson herself was threatened by Stone.
Similarly, Judge Emmett Sullivan will do the same when and if he considers the sentence for Mike Flynn in yet another case where Barr has overruled the original sentencing recommendation from the line prosecutors and requested a lighter punishment, in this case only probation. Flynn has flip-flopped between pleading guilty and wanting to go to trial and between cooperating and refusing to cooperate with prosecutors. In his original sentencing hearing, astonishingly nearly 15 months ago, Sullivan made clear that he considered Flynn’s crimes as serious, stating “Arguably, you sold your country out”. Nothing Flynn has done or produced since that hearing would seemingly change Sullivan’s opinion.
Of course, both Stone and Flynn are doing everything in their power to delay sentencing until after the November election when they expect to be pardoned, thereby avoiding any jail time for the crimes they have admitted and been convicted of.
But if Jackson and Sullivan finally do make their rulings before Trump can pardon Stone and Flynn, the pundits will tell us that the system is still working, that the checks and balances in the form of the separation of powers that the framers instituted are still strong. And while that may be the case in these two cases, despite Trump’s and Barr’s efforts, despite the defendant’s delays and obfuscations, the reality is that the judiciary is also struggling to adapt to Trump’s autocratic methods.
Perhaps the judiciary’s biggest failure with regard to Trump’s power grabs is clinging to the reluctance to resolve disputes between the legislative and executive branches. In the current environment, this refusal solely benefits the executive, namely Trump. It has allowed Trump and his administration to ignore valid subpoenas for testimony and documents, even delaying responding to a request for information that the administration is statutorily required to provide to Congress.
Steve Vladeck has written, “doctrines that make it harder for courts to reach the merits in suits challenging government action invariably redound to the benefit of the Executive Branch—especially as political checks have become increasingly ineffective. That’s not an argument that these doctrines are wrong…it’s just to say that these rules aren’t ‘neutral’ in the sense that they don’t affect / constrain all parties equally. These doctrines are usually justified as protecting the political branches from overbearing courts—but there’s an assumption baked into that justification that the political branches are checking each other. As separated parties overtake separated powers, that assumption falters”. While Vladeck is not specifically referring to disputes between the legislative and executive branches, but his point still applies.
Vladeck is, however, specifically referencing a situation similar to the DC Circuit’s latest decision dismissing CREW’s suit against Trump for violating the Federal Records Act by not properly recording his interactions with foreign leaders. According to the decision dismissing the case, “the Court is bound by Circuit precedent to find that it lacks the authority to oversee the President’s day-to-day compliance with the statutory provisions in this case”, effectively neutering the judicial branch in arbitrating whether the President is breaking the law. As one lawyer summarizes the issue, “It’s so awesome how we have all these statutes and Constitutional clauses about the President but the sole remedy for a breach of any of them is impeachment”. Or the ballot box.
A similar situation exists in the aforementioned case involving the House Ways and Means Committee’s request to get Trump’s taxes as allowed by statute. The judge in the case has simply put the case on hold until the Supreme Court gets around to deciding whether Don McGahn is required to honor his congressional subpoena. The judge provides no legal basis for his decision and the core of the case is wholly unrelated to McGahn’s case because the House has the statutory ability to request these documents and the Treasury is required to provide them. There is no issue of mythical absolute immunity or executive privilege.
Another example is the recent decision, again proffered by the DC Circuit, that individual legislators have no standing to sue over violations of the Emoluments Clause. The Court left open the possibility that the House itself could sue, stating that “Only an institution can assert an institutional injury”.
Even as their inaction redounds to Trump’s benefit, their actions often, but not always, seem to do the same. The Supreme Court was willing to accept what everyone understood to be a bogus rationale for Trump’s Muslim ban. At least four members of the Court were willing to do the same with the Census question. Even worse, when lower courts have actually ruled, the Supreme Court has intervened at the Trump administration’s request and stayed those decisions. As Vladeck again notes, the Trump administration has asked the Supreme Court to issue stays of lower court’s decisions 24 times, with 13 of those being fully or partially granted. This compares to just eight requests for stays in the 16 years before Trump took office. These requests for stays actually bypass normal judicial procedure that prefers to let lower courts hash out the constitutionality of individual cases before they finally reach the Supreme Court. Worse, the stays usually provide a benefit to the Trump administration, generally leaving whatever policy the Trump administration has implemented but the lower court had attempted to block in place.
Last fall, Justice Sotomayor, joined by Justice Ginsburg, wrote a sharp dissent lamenting this departure from normal procedure. Sotomayor declared, “G]ranting a stay pending appeal should be an ‘extraordinary’ act. Unfortunately, it appears the Government has treated this exceptional mechanism as a new normal. Historically, the Government has made this kind of request rarely; now it does so reflexively…Not long ago, the Court resisted the shortcut the Government now invites. I regret that my colleagues have not exercised the same restraint here”. Ian Millhiser adds, “The Trump administration, in other words, is behaving as if the Court is its personal concierge service — and the Republican-controlled Supreme Court is doing little to disabuse the administration of this idea…Some of the justices, in other words, do not simply appear willing to ignore the Court’s ordinary procedures when the Trump administration seeks extraordinary relief. They also may be applying one legal regime to regulations they disapprove of, and another, more permissive, legal regime to the Trump administration”.
Things get even more disturbing when you compare the Court’s inaction when responding to the legislative branch’s efforts to get the judicial branch to support its constitutional duty for oversight of the executive branch to its approach to actual policy and legislation passed by Congress. Millhiser again writes, “Judges, by contrast, have become the most consequential policymakers in the nation. They have gutted America’s campaign finance law and dismantled much of the Voting Rights Act. They have allowed states to deny health coverage to millions of Americans. They’ve held that religion can be wielded as a sword to cut away the rights of others. They’ve drastically watered down the federal ban on sexual harassment. And that barely scratches the surface. The judiciary is where policy is made in the United States”. Thanks to Mitch McConnell’s decade-long efforts to keep Democrats from filling open seats on the nation’s courts, “that policy is likely to be made by Republican judges for the foreseeable future”. And the Supreme Court’s docket awaiting decisions this spring will be a testament to that.
The media seems unwilling or unable to fathom just how far along the road to fascism we have already gone. While Trump and Barr destroy the rule of law and set fire to the constitution, the press to clings to displays of normalcy such as the Democratic primary (and the concomitant political advertising revenue) and occasional bursts of judicial independence in the hopes that our democracy may survive. But the judicial branch is showing itself to be equally susceptible to a budding autocrat, with @emptywheel reflecting the thinking of many when she wonders “whether Trump has succeeded in replacing the judiciary sufficiently to get away with what comes next”. In many respects, the current state of the judicial branch, especially among the conservatives on the Supreme Court, differs very little from Barr’s actions in defense of Trump which is aptly described by David Frum as “For my friends, everything. For my enemies, the law.” And with the Court, the law is what they say it is.