Trump Has Successfully Gamed the Courts

Choosing to treat Trump-related cases as normal, even when there are signs of a national emergency, is a choice.

At its simplest level, the impeachment of President Donald Trump looks like a collision between the legislative and executive branches of government. In that fight, each side is trying to defend its prerogatives as it sees them: For Congress (or at least the Democratic-led House), this includes the power to appropriate foreign aid, and the power to conduct oversight; for the executive branch, this means the power to make foreign policy as it sees fit, and to protect its internal deliberations.

What is missing from this portrait is the crucial role of the third branch of government, the judiciary, which has powerfully shaped the impeachment process by declining to exercise its prerogatives, rather than defending them. By choosing to treat the current moment as business as usual, federal courts have effectively removed themselves from the process. In effect, that has dictated what arguments can be mounted in the impeachment fight and what witnesses Congress, and the public, can hear—narrowing and obscuring the case against Trump.

None of this absolves Democrats of the decisions they’ve made. The House majority could have chosen to fight in court to compel testimony from current and former administration officials, especially former National Security Adviser John Bolton. Those fights would not have been resolved in time to hold an impeachment vote before Christmas, but that deadline is self-imposed and politically motivated. Democrats could have waited, or they could have pursued the court battle while also charging ahead.

Nor, more consequentially, does it absolve congressional Republicans, who have resorted to almost slapstick willful blindness in an attempt to let Trump off the hook for his clear extortion of personal favors and electoral interference from Ukraine. Some have insisted that other witnesses could exonerate Trump, without grappling with why the White House is refusing to allow them to testify. (If House Republicans truly believed this, they could pressure the administration to free the witnesses; Trump’s about-face on hosting the G7 summit shows that congressional GOP pressure can be effective.)

Finally, the president’s unprecedented stonewalling and refusal to cooperate with a lawful impeachment proceedings isn’t excused by the absence of court rulings affirming that this is wrong.

Nonetheless, the behavior of the courts—either deliberate or lackadaisical, depending on one’s interpretation—has been one of the most powerful forces in American politics during the Trump administration. Time and again since 2016, federal judges have been presented with novel arguments: that Trump can ban Muslims from entering the country; that he can reappropriate funds to pay for his border wall over Congress’s opposition; that he can’t be held accountable for accepting emoluments from foreign governments; that he is immune to criminal prosecutions and also to congressional investigations; that he could shoot a man on Fifth Avenue without consequence.

This is uncharted territory for federal courts, because no previous president has had the audacity to make such claims, though Trump’s actions are simply extensions of other, earlier assertions of executive privileges. It is not, however, uncharted for Trump, and in fact it is a road he knows well. During his private-sector career, Trump used lawsuits tactically. Even when it was clear that he or his company didn’t have a tenable position, they could buy time, raise the cost for his opponents, and generally bog things down to his advantage. By the time there was a ruling or a trial, the outcome might be effectively irrelevant to Trump.

The White House signaled early in the present Congress that it would use the same tactic to fight oversight. So far it’s been highly effective. Not that Trump is winning decisions—on the contrary, just as in some of the outlandish claims he’s made pre-impeachment, courts have tended to slap the administration down. But it doesn’t matter, because it’s eating up time ahead of the 2020 election. Trump could lose every one of the relevant cases at the Supreme Court, and it might not matter to him. The trick is to get to Election Day and hope voters choose him—if necessary, with the assistance of foreign governments whose arms have been twisted.

To see how this works out in practice, consider one ongoing case that predates the impeachment inquiry. In August, House Democrats went to court seeking to compel former White House Counsel Don McGahn to testify about potential obstruction of justice related to Special Counsel Robert Mueller’s probe. In late November, a district-court judge thunderously rejected the administration’s claim that McGahn was “absolutely immune” from testifying. “Stated simply, the primary takeaway from the past 250 years of recorded American history is that presidents are not kings,” wrote Judge Ketanji Brown Jackson.

That sounds like a win for Democrats, and legally, it is. But practically, who knows? The decision was quickly stayed. The case will have to slowly work its way through the circuit court, and then will almost certainly be appealed to the Supreme Court. It could be months before there’s a clear answer.

The judicial system is equipped to deal with frivolous lawsuits, but it isn’t set up to deal with them in an especially timely fashion. There aren’t obvious systemic fixes that would close the loophole Trump has discovered or created. The appeals process is structured for rigor, and most Americans would agree that the courts need to be deliberate and careful. Across the country, some courts have established “rocket dockets” for simple matters, but those are vulnerable to error and don’t necessarily make good models for the abstract questions raised by the Trump suits. It’s also easy to imagine an expedited process becoming subject to abuse. Beyond that, who is to decide what would merit the fast track? Many of the cases that come through federal courts, especially in D.C., are nationally significant. Who is to judge what’s most important?

One answer might be: judges. There are examples of federal courts acting quickly in a pinch, including where the presidency is involved. Almost exactly 19 years ago, on December 12, 2000, the Supreme Court ruled in Bush v. Gore, the matter of the Florida recount of that year’s presidential election, after moving at lightning speed to hear and decide the case. The justices concluded that they needed to step in and guarantee an orderly resolution to the presidential election, in an emergency situation. While their ruling is subject to criticism, the decision to hear the case on an expedited basis holds up.

It also proves that courts can move fast when they have a mind to do so. Choosing to treat the Trump-related cases as normal, even when there are signs of a national emergency, is a choice. Perhaps that insistence of maintaining normalcy will some day be remembered as a wise and courageous stand that stood against and helped dispel chaos. The nature of Trump’s challenges to the rule of law and impartial courts means that it might be a grave error, too, though—with the stubborn clinging to the regular pace amounting to cutting off one’s face to spite one’s nose. By the time history renders its verdict, it could be too late for the federal judges to render theirs.