Should We Rend Our Garments? Or Should We Just Savor the Sour Smell of the Flop Sweat?

Jeffrey Toobin, The Constitutional System is not Built to Resist Trump’s Defiance of Congress

Washington Post Editorial Board, Don’t let Trump run out the clock in court

Greg Sargent, The big unanswered question at the core of Trump’s corruption

checks-and-balances.org

Toobin—who, I think, should know better—goes the garment-rending route, lamenting that there is no effective constitutional check on Trump’s ability to stonewall. Sargent, meanwhile, savors the flop sweat, and expatiates on the point that Trump, sure as shootin’, is mighty scared of something. (Could it be that he’s been running a criminal enterprise, fueled by Russian mob money?)

There are lots of things we don’t know, and a few things we do know, or at least should know.

We know that, in the next weeks and months, it will be up to the courts to deal with Trump’s stonewalling of Congress. We don’t know how well or how badly the courts will do their job. But we can anticipate, I believe, that if the courts do their job—I said “if”—Trump will probably defy the courts just as he is defying Congress. And we can reasonably anticipate that, if and when Trump defies the courts, it will be up to other institutions—maybe including the military—to uphold the Constitution, or just to let the country devolve into a banana republic.

As I said, we don’t know what the courts will do, but let’s identify some of the straws in the wind, with particular focus on how the Federalist Society judicial types might react to the coming legal challenges.

 Four Straws in the Wind

(1) As I noted in an earlier post, predictions that Trump will “run out the clock” do not fully take into account that courts have wide discretion over the pace of any particular lawsuit. As the Washington Post editorial notes, a district judge has just availed himself of that power to fast track Trump’s effort to block his own accounting firm from turning over financial records to the House Oversight Committee.

(2) You will remember how Sherlock taught us to listen for the sound of dogs that did not bark in the night. Well, here’s an example of a non-barking dog. Remember that statement signed by hundreds of former federal prosecutors, opining that they would definitely have charged obstruction based on the facts in the Mueller report?

Well, who from the Federalist Society contingent has stepped up to say they were wrong? Pretty much, nobody.

(3) Don McGahn, former White House counsel and Mr. Federalist Society court-packer extraordinaire, hasn’t exactly gone out of his way to defend Trump.

If, by chance, you are a newly appointed Federalist Society judge, and if you plan to decide cases based on gratitude instead of on the facts and the law—and perish the thought that any judge might hold such an attitude, but I’m just sayin’—then you have a much better reason to be grateful to McGahn than to Trump.

(4) An active contingent within the Federalist Society is urging the courts to do justice and to protect the Constitution. Check ‘em out at checks-and-balances.org.

And there is more at stake than mere constitutional principle. One reason why rightwing judges might want to preserve checks and balances is the fact that the next president may be a Democrat.

So I, for one, will be cautiously optimistic as I savor the sour smell of the flop sweat.