The essential genius of the American constitutional system is checks and balances: none of the three branches of government possesses enough constitutional authority to dominate the others, and each requires the cooperation of the others to fulfill its duties. So when the system works, nobody can dominate.
One of the rarely used but essential powers of Congress is of course impeachment: if a majority of the House of Representatives votes to impeach, and two-thirds of the Senate votes to convict, any federal official, including the president, is removed from office.
We now have a president whose conduct occasioned the appointment of a Special Prosecutor, Robert Mueller, to investigate whether there was Russian interference in the 2016 election to undermine Hillary Clinton and favor Donald Trump, and whether Trump or his campaign knew of or cooperated with such intervention.
It is now well known that the Mueller report found that there was extensive Russian intervention to favor Trump, that the Trump campaign did know about it, but that there was not sufficient evidence to charge Trump personally with conspiracy (“NO COLLUSION!!”).
Surely even the conservative justices and especially the Trump appointees would look for high profile ways to show that he doesn’t own them, that they really are independent.
Moreover, the report detailed numerous incidents wherein the president sought to influence or block the investigation, including trying to dismiss Mueller. But because of the Justice Department’s policy (the Constitution is silent on this) that a sitting president may not be indicted, the report reached no conclusion on the issue of obstruction of justice, while stating explicitly that Trump was not exonerated.
Over 450 former federal prosecutors, of both parties, affirmed that were Trump not president, he would have been indicted for obstruction of justice.
The president has also engaged in other questionable conduct, including keeping control of his various businesses and manifestly gaining revenues from private interests and foreign governments that have reason to curry favor. There are lawsuits currently moving through the courts that address the question whether this conduct violates the Constitution’s prohibition on any official receiving “emoluments” from foreign governments.
Thus Congress now has ample reason to investigate whether the President has committed any “high crimes or misdemeanors” that would warrant his impeachment. And with the House now under Democratic control, efforts are under way in various committees to gather relevant information. But the Executive Branch, under orders from Trump, is systematically refusing to provide any such information, including the full, unredacted Mueller report. It is refusing to permit present or former officials to testify before congressional committees.
In sum, the Executive Branch holds a policy that a sitting president may not be indicted, so that the only constitutional remedy against presidential misconduct is impeachment. And then they deny Congress the information that it would need to make a determination about impeachment.
Surely even the conservative justices and especially the Trump appointees would look for high profile ways to show that he doesn’t own them, that they really are independent. A congressional appeal to the courts is not a slam dunk for either side.
This impasse can only be resolved by the courts. Since John Marshall’s opinion in Marbury v Madison (1803) the Supreme Court has been the final arbiter of whether legislation or executive actions are constitutional. And while Trump and his obedient Senate majority have been quite successful in appointing judges and justices, their focus has been more on attitudes about abortion and economic deregulation, not the president’s prerogatives. Once confirmed, judges and justices are removable only by impeachment: they are, by constitutional design, insulated from political pressure.
Thus, while the current Supreme Court has a 5-4 conservative majority, that doesn’t guarantee a 5-4 conservative vote on every case. The Chief Justice, John Roberts, can be a swing vote, and he has shown an awareness of the importance of maintaining the independence and legitimacy of the Court (for example, saving the core of the Affordable Care Act, and publicly rebuking Trump for implying that there are “Trump judges and Obama judges”). It is a central role of the Court to maintain the balance between the Executive and Legislative branches, and Roberts ought to see that the balance would decisively shift to the Executive if Trump’s defiance of Congress in this matter is allowed to stand. Indeed, the Court itself would find itself diminished with an unchecked Executive.
Moreover, Trump has talked about his two appointees (Gorsuch and Kavanaugh) as “my justices,” and about the Court as “my Supreme Court.” Surely even the conservative justices and especially the Trump appointees would look for high profile ways to show that he doesn’t own them, that they really are independent. A congressional appeal to the courts is not a slam dunk for either side.
And just suppose Trump loses, and defies the Court’s order to comply with congressional subpoenas. That would in itself be the most damning high crime, and might even move enough Republican senators to convict him.
But the wheels of justice grind slow, and Trump may succeed in running out the clock. Then it will be up to the electorate in 2020.