In the next few hours, Republicans in the Senate will vote to give Donald Trump near dictatorial powers, signaling perhaps the penultimate step in the destruction of our democracy. The fight over whether to have witnesses was merely a sideshow because the ultimate verdict was already destined. The President’s lawyers argued that the President is free to do virtually anything, even commit crimes, for his own personal benefit as long as he or she determines those acts are also in the national interest. Alan Dershowitz made this quite clear when he declared, “If a president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment”, adding, “A complex middle case is ‘I want to be elected, I think I’m a great president, I think I’m the greatest president there ever was and if I’m not elected, the national interest will suffer greatly.’ That cannot be an impeachable offense.” As David Rothkopf notes, “Nixon said that if the president does it, it is not a crime. Trump is going a step further and saying that if the president does it, it is in the national interest. This gives him not only license to do anything but justification to direct the gov’t to serve him above all”. By voting to acquit Trump and allow this, which is virtually guaranteed at this point, GOP Senators will agree that the President can use the entire government as part of a racketeering enterprise, much as Trump has already done for the last three years.
This decision by congressional Republicans will further endanger the chances for anything remotely like a free and fair election this November, if we even have one. As one CNN commentator noted last night, Trump would be “foolish not to” try to rig the 2020 election because the Senate has just declared it would be “perfectly permissible behavior”. Trump, at minimum, benefitted from direct foreign interference in 2016. His extortion of Ukraine has not only been used to obstruct the Mueller investigation but also targeted what he believed would be his strongest election opponent. With impeachment dispensed with, there is now no limit on how far Trump will go to ensure his re-election. After all, he began extorting Ukraine for his 2020 election literally the day after it became clear Mueller would not touch him. Worse, Senate Republicans are apparently hoping he will use the extraordinary powers they just granted him to similarly ensure their own re-elections.
More broadly, the Senate Republicans have now decided that the President can thwart any congressional oversight by simply defying legal subpoenas or abusing the national security process to hide documents from Congress. The President is not bound by the laws that require the executive branch to spend authorized monies in the way Congress directed and intended. In essence, the legislative branch has effectively neutered itself, abrogating near-dictatorial powers to the executive branch. While we all know that Republicans will change their tune in a heartbeat if a Democrat miraculously becomes President, the fact is that the precedents will already have been set.
While we all focus on the failure of the legislative branch, a similar collapse is occurring in the judicial branch, the third leg of our democracy. It is a remarkable failure of justice that the courts have still not resolved the issue of whether Don McGahn is required to obey a lawful subpoena from Congress from April 2019, over eight months ago. Considering the subpoena is for testimony that would show that Trump was attempting to obstruct the lawful investigation by Robert Mueller, one would hope the judicial branch might be interested in a legal attempt to obtain that information. Apparently not, considering one of the judges on the DC Circuit Court of Appeals openly wonders if the judicial branch has any role in a legal dispute between the executive and legislative branches. Trump’s DOJ is arguing exactly that, namely Congress has no grounds to ask the Court to enforce the subpoena, at exactly the same time that Trump’s lawyers in the Senate impeachment trial are arguing that the House should have pursued their subpoenas for witnesses and documents through the courts.
Another House lawsuit asks for the release of grand jury testimony again related to the Mueller investigation. That lawsuit was filed in July 2019 and is now being heard by a three judge panel at the DC Circuit Court. In this case, a Trump-appointed judge actually suggested that the courts had no power to compel the DOJ to release the material even if the court authorized its release, suggesting the Trump administration would be within its rights to ignore the Court’s order. The House Ways and Means Committee subpoenaed Trump’s taxes back in May 2019. That case is apparently on hold as the judge waits for a final ruling in the McGahn case which will determine whether the courts really do have a role in disputes between Congess and the executive branch, despite the fact that the law clearly states the Treasury Secretary “shall” provide those documents. Since any decision made by the DC Court will automatically be appealed, it will be many more months before there is a final answer to that question.
The House Oversight Committee issued a subpoena to Mazars, Trump’s accountant, for documents related to Trump’s hush money payments to porn stars through Michael Cohen way back in April 2019. The DC Circuit Court upheld that subpoena but the Supreme Court immediately issued a stay on that decision and agreed to take the case with an expected decision this June. A similar case looking for documents from Mazars made by the Manhattan DA has also been delayed awaiting the Supreme Court’s decision.
As these cases dragged on for months last summer and fall, the consensus was that the courts would act more expeditiously in these cases if the House actually began impeachment proceedings. In fact, Trump’s own lawyers made that claim as part of their initial defense of Trump’s defiance. And yet, when Pelosi announced the beginning of impeachment investigation and included all the various House committees that had outstanding subpoenas in that process, there was no discernible impact on the lethargic pace of the ongoing court cases.
Last night, Elizabeth Warren asked a most prescient question, inquiring “At a time when large majorities of Americans have lost faith in government, does the fact that the Chief Justice is presiding over an impeachment trial in which Republican senators have thus far refused to allow witnesses or evidence contribute to the loss of legitimacy of the Chief Justice, the Supreme Court, and the Constitution?”. The immediate purpose of this question is obviously to put Roberts on the spot should there be a 50–50 tie in the vote about whether to hear witnesses. If he punts on that decision, he will become just as complicit as Senate Republicans in the cover-up of Trump’s crimes. But on a broader level, the fact that the courts have refused to render a decision on the validity and enforceability of the House’s subpoenas as the impeachment case proceeded already makes them somewhat complicit in Trump’s cover-up. The impeachment process is a trial and yet there is evidence that should be available for that trial but is not simply because the courts refuse to render expeditious rulings. The treasured “independence” of the judiciary is not a free pass to ignore its responsibilities to the people and our democracy. Yet that is exactly what the courts are doing.
The legitimacy of the currently configured Roberts’ Supreme Court is already suspect because of Merrick Garland’s stolen seat. And that question of legitimacy comes not just from the left but also from the Trump administration itself. It is the Trump administration that went in front of the Supreme Court, and lower courts for that matter, and lied about the evidence in the Census question case. Worse, Justices Thomas, Gorsuch, and Kavanaugh ridiculed the lower court judge who questioned the administration’s veracity in the case, something that the judge was subsequently proven to have correctly surmised. It is Trump’s Solicitor General who recently went in front of the Supreme Court and lied about a critical piece of evidence in one of the Muslim ban cases. That same Solicitor General recently misled the Court about the law in an age discrimination case. This term, the Court is considering three cases that will decide the fate of DACA recipients. Chief Justice Roberts is apparently under the impression that ending DACA will not lead to deportations, claiming the Trump administration has “said they’re not going to deport the people”. That opinion stands in direct opposition to the current director of ICE who declared that when “DACA is done away with by the Supreme Court, we can actually effectuate those removal orders”.
While Trump assaults the courts with a barrage of verbal abuse, his attorneys, both personal and in the DOJ (whom he considers personal attorneys as well), will continue to lie and mislead the courts. After all, his impeachment lawyers made arguments that one constitutional scholar described as “constitutional nonsense”, arguments the Republicans in the Senate will essentially ratify later today. But the courts themselves, now dominated by Federalist Society hacks, are also attacking the fundamentals of our democracy by simply denying the legitimacy of congressional laws they disagree with. That is best illustrated by two judges in the Fifth Circuit who provided the absurd majority ruling that the entire ACA is now unconstitutional simply because Congress dropped the individual mandate penalty to zero. Those judges declared “that the entire law was enacted as part of a fraud on the American people, designed to ultimately lead to a federal, single-payer healthcare system”. Beyond the fact that Congress specifically voted not to repeal the entire ACA, the idea of a court describing a law passed by Congress as a fraud on the American people is a statement inconsistent with our democratic government. It is a statement of judicial tyranny.
This new judicial tyranny is no longer bound by legal precedent. In Florida, the State Supreme Court, filled with recently appointed Federalist Society cronies, overturned the law that prohibited judges from imposing the death sentence without the consent of the jury, only requiring the jury to unanimously agree on one “aggravating circumstance”. The Court provided no special rationale for overturning precedent as is usually required, simply stating that it would overturn any law “when we are convinced that a precedent clearly conflicts with the law we are sworn to uphold”. This echoes Clarence Thomas’ view, who has written, “The Court’s multifactor approach to stare decisis invites conflict with its constitutional duty. Whatever benefits may be seen to inhere in that approach-e.g., ‘stability’ in the law, preservation of reliance interests, or judicial ‘humility,’-they cannot overcome that fundamental flaw”. As Justice Kagan wrote, “Stare decisis, of course, is ‘not an inexorable command.’ But it is not enough that five Justices believe a precedent wrong”. The attack on precedent is the conservatives’ latest effort to unilaterally undo the progressive gains since the New Deal which they have been unable to accomplish through the legislative action. Eliminating stare decisis, or simply ignoring it, will create a new era of judicial tyranny.
And one last note for the fourth leg of our democracy, the fourth estate. Many of us have been predicting this day for years now. But our cries have largely been ignored by the mainstream media who not only created Trump but have treated his entire presidency as some sort of tactical game rather than an existential threat to our democracy. Autocrats will find a way to control the media and now an unrestrained Trump will be coming for you next. As we saw with how the press was treated at his rally last night, it has already begun.
I have written extensively about the dysfunctional nature of our electoral system, vividly illustrated by the 2016 election which again produced a minority President. Thus had led to children in cages; American citizens being detained simply because of their birthplace; a sham trial; attempts to rig an election. We are already well on our way to dictatorship. Brexit and impeachment acquittal on the same day; Putin must be laughing all the way to the bank.
It’s quite possible that the Supreme Court might finally get around to upholding the validity of these House subpoenas later this year. But that will not produce documents or testimony. It will only trigger another extended court battle over “executive privilege” which surely will not be resolved until after the election. Just like Mueller and Bolton and impeachment, the courts will not save our democracy. They have proven just as cowardly as Senate Republicans. Only we, the people can do that. November will be the last chance to save our democracy. Like any other country trying to overthrow a dictatorship and overcome a rigged election, it will take a massive effort. As we already know, a simple majority will not be enough. And, even if we win the election, we will not have saved this democracy. It will take another massive effort to restore the institutions of democracy.
Originally published at https://thesoundings.com on January 31, 2020.