Another Tricky Day

Trump’s lawless stonewalling of the impeachment inquiry represents a genuine constitutional crisis. But while he’s considerably worse than Nixon, it ain’t 1974:

If a court does order the administration to comply with congressional subpoenas, Trump’s first line of defense is the fact that Republican appointees control the Supreme Court. There’s no guarantee than any such order will be upheld by this Supreme Court, no matter how clearly existing caselaw says that it should.

But let’s assume the best-case scenario for impeachment investigators. Suppose that the courts move swiftly, that they soundly reject Trump’s defiance of congressional oversight, and that the Supreme Court orders Trump to end that defiance. What comes next if Trump refuses to comply with that order?

I asked Josh Chafetz, a Cornell law professor and author of Congress’s Constitution: Legislative Authority and the Separation of Powers, what legal options exist shy of impeachment. His response was pretty fatalistic. “At the point at which we’re talking about ignoring court orders,” Chafetz told me, “what does ‘legal options’ even mean any more?”

The remedy, if it came at all, would have to be political. If Trump were to defy both the House and the judiciary, Chafetz predicts that the president “would outrage a decent chunk of the public” and that Trump’s approval rating would crater. That “would have the effect of turning a bunch of GOP elites against him, which, in turn, might drive his approval still lower. I think at that point it ends with his ouster.”

But Chafetz adds that he’s not especially certain of this outcome and he “could very easily see it going other ways, too.”
Trump presides over a Republican Party that is both more united and more homogenous than the party Nixon presided over. Even if President Nixon wanted to defy the 1974 Nixon decision, it’s unlikely he could have gotten away with such a decision because much of his own party would have turned against him. 

For one thing, political parties were far less “sorted” in 1974 than they are today. There were still conservative Democrats and liberal Republicans and these factions wielded considerable power within their party coalitions. After Nixon left office, for example, Republican President Gerald Ford picked the leader of his party’s liberal wing as vice president.

So lawmakers in 1974 were accustomed to working across party lines because that was often the only way to find enough ideological allies to get a bill through Congress. Today’s lawmakers are far less accustomed to forming such cross-partisan alliances.

Similarly, for reasons that Princeton political scientist Frances Lee explains, Nixon-era Republicans had a particular incentive to work with Democrats that Trump-era Republicans do not. For most of the 1970s, largely due to the fact that many Southern conservatives still identified as Democrats, the Democratic Party had an enormous advantage in the battle for control of Congress. Because Republicans expected to be in the minority, they had a strong incentive to make nice with Democrats because forming bipartisan alliances was the most reliable way for Republicans to wield power.

Lee’s thesis is that when “neither party perceives itself as a permanent majority or permanent minority,” the parties tend to polarize. Why cooperate with your partisan rivals when you can undermine them and increase your own chances of gaining the majority in the process?
Republicans have a strong incentive to stick with Trump no matter how often Trump thumbs his nose at the law. Republicans don’t see Democrats as potential allies; they see them as bitter rivals trying to take something they want.

While it’s still unlikely that impeachment will lead to Trump’s removal, the fact that impeachment is already gaining popular support does make it more likely that the process can be part of delivering Trump a crushing defeat in 2020. (We should also remember that Trump’s win was a highly contingent fluke, not some evidence of infallible political instincts.) But Trump’s actions make the stakes for the future of American democracy incredibly high, because Trump winning or the election being close enough to be stolen would establish a norm of de facto full executive impunity.