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.

 

What if Someone Just Ignores a Subpoena?

pollyanna

Last night Dr. Aardvark and I were sitting in connubial contentment watching the PBS Evening News when she asked, “What happens if someone just ignores a subpoena?” I am afraid that my top-of-the-head answer was not entirely complete or accurate.

These two posts provide lots of helpful insights into the question:

Philip Bump, How the Trump-Congress subpoena fight is likely to play out

Martin Longman, Congress Needs to Lock Up Non-Complying Witnesses

Pollyanna Speaks Again

The flavor of the day is gloom and doom over Trump’s ability just to stonewall and “run out the clock.” But I have talked this situation this over with my daughter, Polyanna Aardvark, and she has some helpful thoughts.

First, by signaling that he will oppose any and all subpoenas, Trump has weakened his ability to advance any plausible argument he may have that any particular subpoena suffers from some legal defect.

Second, stonewalling doesn’t make you look “strong.” It makes you look guilty.

The strategy will appeal to those who don’t care whether or not Trump has done this or that execrable act. And there are many such people. But, to those who were unsure, but might be inclined to give Trump the benefit of the doubt as to his wrongdoing—and there are lots of those folks, too—obstruction will not accrue to his advantage.

Third, Pollyanna’s sense is that the situation will be very strongly influenced by what Don McGahn decides to do, or not to do.

McGahn, the former White House Counsel, current six- or seven-figure Jones Day partner, and Mr. Pack-the-courts-with-rightwingers par excellence, sang like a canary to the Special Counsel. Any arguable executive privilege has long since been waived with respect to the topics about which he would testify to Congress. Any arguable attorney-client privilege, ditto.

Jones Day partners, upon receipt of a proper subpoena, do not tell the entity that issued the proper subpoena to go take a flying fuck. For one thing, if they did take that course of action, then the D.C. Bar Association would not take kindly to it.

Trump has already “punished” Jones Day by taking business away from it. He doesn’t really have a hold on McGahn or on Jones Day.

Pollyanna thinks it’s likely that McGahn will testify in public, reprising the role of John Dean—and of Martin Sheen playing John Deen in the movie.

She also thinks that Brett Kavanaugh, who owes his seat on the Court to McGahn, will sit up and take notice.

Finally, she thinks that, in the aftermath of the McGhan testimony, things are likely to really go pear shaped for the Trumpster.

I told Pollyanna that we are getting a little ahead of ourselves, but she might well be right.

In the immortal words of President Eisenhower, “The future lies ahead.”

Thank You, Mr. President! Signed: Love and Kisses, Jones Day

briar patch

Don McGhan, former White House counsel, shivved Trump in his testimony to the Special Counsel. McGhan has now returned to his day job: partner at Jones Day.

In retaliation, Trump has decided to “pay back” Jones Day by cutting back his campaign’s legal expenditures with the firm.  “’Why in the world would you want to put your enemy on the payroll?’ said one adviser close to the White House.”

Jones Day’s economic success depends on its ability to keep on recruiting high quality cannon fodder to replenish the 2,500 lawyers in its 43 offices. And, trust me, a reputation of being in the can for Donald Trump is going to do nothing positive toward recruiting the best and the brightest new lawyers. (It might attract some of the worst kind of Young Republican twerps, but those are not the kinds of people you want.)

Trump’s retaliation is a huge favor for Jones Day.