Blog No. 219 Constitutional Crisis? No, Not Yet.

Winston Churchill’s observation concerning democracy has seldom seemed more apt:

No one pretends that democracy is perfect or all-wise. Indeed, it has been said that democracy is the worst form of Government except all those other forms that have been tried from time to time.

The present situation in Washington tests the strength and durability of our own democracy. The test is presented by a president who conspicuously displays his autocratic instincts on a regular basis, a behavior unprecedented in our history.

–Many past presidents have expressed discomfort or disagreements with the media, but no previous president has launched the kind of unrelenting attack on the media that Trump has, uttering endless cries of “Fake News” whenever the media accurately reports news he simply doesn’t like.

–Other presidents have criticized judicial decisions they disagreed with, but previous presidents have not singled out individual courts and judges for attack.

–No previous president has invoked national emergency powers to provide funding for a project (the Wall) that Congress had elected to withhold.

–Other presidents have sometimes misled the public or, more rarely, lied. No president before Trump, however, has proceeded day after day to offer outlandish fabrications.

–No previous president has refused to disclose his tax returns so as to permit assessment of the conflicts of interest they may reveal.

–No previous president has repeatedly threatened to prosecute a former political rival (“lock her up”).

–Previous presidents have felt obliged to deal civilly with foreign leaders who were autocrats or brutal dictators, but none of them ever displayed the kind of personal admiration and affection for such men that Trump has. (Hungary’s Victor Orban being the latest to join the ranks of Vladimir Putin, Kim Jong Un, Mohammed bin Salman, Xi Jinping and Tayyip Erdogan.)

–No  president since Richard Nixon has attempted to obstruct an investigation into his own conduct or that of his close associates.

And, finally,

–Past presidents have withheld information from Congress on occasion, but no president has attempted to erect a wall of silence by a broad directive ordering his subordinates not to comply with Congressional subpoenas.

Why has the president been able to proceed in this fashion with, more or less, impunity? The answer is, really, our democracy, combined with a constitutional structure designed to make removal of a president difficult–by requiring a 2/3 vote in the Senate to convict following impeachment by the House. In Trump’s case, that difficulty is compounded by the current political landscape. As I and others have pointed out, Senate Republicans are largely captives, imprisoned on islands of constituents in the archipelago of the Trump base.

By itself, however, that stalemate is not a constitutional crisis; rather it is a political battle, larger, broader and nastier than many in the past, but still a political battle. Put another way, it is the kind of affliction to which democracies are inherently vulnerable. The Trump base may be misguided (let us agree not to say “deplorable”) but it represents a significant segment of the electorate claiming a legitimate voice.

A constitutional crisis has not been created—yet—by the developing war between the administration and House Democrats over the latter’s demands for information. According to the Washington Post, Trump is seeking to block “more than 20 separate investigations by Democrats into his actions as president, the Justice Department announced that the his personal finances and his administration’s policies.” Last Friday, the Treasury Department announced that it would not comply with a subpoena for the President’s tax returns. Then on Monday, the President directed former White House Counsel, Donald McGahn, to defy a subpoena by the House Judiciary Committee.

Those subpoenas, and no doubt others, are likely headed for litigation in federal courts. (I think it quite unlikely that the House will attempt to exercise its “inherent power” to arrest and imprison anyone.) A constitutional crisis will remain in the background, unless and until Trump or his administration refuses to comply with a court order requiring compliance with a subpoena. The odds of that happening are impossible to calculate, even in an approximate way. It is, for example, not clear how many of the Congressional demands will ripen into litigation, what the disposition of the litigation will be, and how long it might take.

A number of observers have suggested that Trump might be able to run out the clock–that is, keep litigation going until after the 2020 election. That may happen, but it may not. For example, the Watergate case, United States v. Nixon, proceeded rather swiftly. In that case, the Special Prosecutor’s subpoena for tapes was served on April 18, 1974, a motion to quash was denied on May 20, and an appeal to the circuit court and a simultaneous petition to the Supreme Court were filed on May 24. The Supreme Court granted certiorari, and the case was argued on July 8 and decided on July 24. There would be important differences in enforcing Congressional subpoenas addressed to the Trump administration. The subpoena at issue in Nixon was not Congressional but was issued by the Special Prosecutor to gain evidence for the upcoming trial of John Ehrlichman, Robert Haldeman and others. (There were subpoenas for tapes issued by the Ervin Committee and the House Judiciary Committee, but they were never enforced judicially). Nevertheless, the point remains that expeditious resolution is not beyond the capacity of the courts under the right circumstances.

The most likely prospect for expeditious resolutions may lie in subpoenas seeking Trump’s financial information from third parties: the President’s accountants, Mazars, and his major lender, Deutsche Bank. In the Mazars case, the judge on Monday rejected the government’s attempts to block the subpoena. An appeal will no doubt be filed, but whether a stay will be granted pending appeal remains to be seen. Since the subpoenas in the Mazars and Deutsche Bank cases are not addressed to Trump, enforcement of them will not risk a constitutional crisis. Nevertheless, the subpoenas could yield evidence that might trouble even the Republicans in the Senate.  

In Blog No. 217, I suggested that, rather than undertaking an endless attempt to explore collusion and obstruction, “House Democrats may be better advised to focus on an area left untouched by Mueller’s probe: whether Trump had or has financial ties to Russia that have influenced his attitude toward Russia and spawned his peculiar and embarrassing deference to Vladimir Putin.” It now appears that the House Intelligence Committee is doing precisely that. The subpoena to Deutsche Bank (posted on the Rachel Maddow blog) specifies that the Committee is investigating, among other things:

Whether any foreign actor has sought to compromise or holds leverage, financial or otherwise, over Donald Trump, his family, his business, or his associates [and]

Whether President Trump, his family, or his associates are or were at any time at heightened risk of, or vulnerable to, foreign exploitation, inducement, manipulation, pressure, or coercion, or have sought to influence U.S. government policy in service of foreign interests.

Information produced by the Mazars and Deutsche Bank subpoenas could be even more telling than any sought by the subpoenas of the Trump administration now being stonewalled by Trump. The Deutsche Bank inquiry became even more interesting on Monday when a story in the New York Times reported that Deutsche Bank’s internal watchdogs had suspected that entities controlled by Trump and Jared Kushner were engaged in money laundering.

Returning to the question of a constitutional crisis, the ultimate crisis would occur if Trump were defeated in 2020 but refused to accept the results. Any such thought would have been considered ludicrous in the case of any past president, but as Trump reminds us almost daily, he is not just another president. Indeed, the New York Times has reported that Speaker Nancy Pelosi explicitly addressed such a scenario in an interview with that paper. According to the Times, Pelosi has discussed with associates her fear that “Mr. Trump would not give up power voluntarily if he lost re-election by a slim margin next year.” That dire possibility has also been taken seriously by eminent constitutional scholars Laurence Tribe and Michael Dorf.  

In short, there is no constitutional crisis immediately at hand, but we cannot rule out the possibility of one arising further down the road.