On Wednesday evening, Rachel Maddow did a segment on the way the Trump administration is completely stonewalling all of the congressional requests for documents. The administration is simply ignoring these requests, not bothering even to argue for why the materials are covered by executive privilege. And while the administration is not communicating with Congress about its withholding these documents, it clearly went out of its way to tell the news media of its policy of non-cooperation.
Rachel Maddow brought into her discussion the presidential historian on whom MSNBC usually relies, Michael Beschloss. The two of them agreed that this stonewalling strategy will not work out for Trump. They cited the case of United States v Nixon, in which the Supreme Court decided unanimously (with one justice abstaining) that Nixon must turn over to Congress the famous “Nixon tapes” that had been subpoenaed. (And that then precipitated the end of Nixon’s presidency.) Just so, Maddow and Beschloss agreed, Trump will be compelled by the Supremes to comply with the subpoenas that (it is anticipated) these congressional committees will issue in the face of the failure of the Trump administration to comply voluntarily.
I’m wondering if they are right to be so sure that what happened to Nixon at the Supreme Court in 1974 will be repeated if the case of Trump’s stonewalling goes all the way to the high Court now.
The arguments that could be made against their supposition rest on what I consider the central fact of the political crisis of this era: namely, the transformation of the Republican Party — over the course of the past quarter century — from a normal American political party into a rogue party, into an “outlier” in American history, into — to put it plainly — a political force basically morally bankrupt and devoid of principle.
This transformation of the Republican Party is relevant in two ways:
First, the Republican Party’s judicial bench in Nixon’s era — and Nixon had appointed four of the nine justices — were the fruit of a normal American party. The Constitution and the rule of law had some standing among those men (of course, they were all men). As the Republican Party has devolved since then, the judges the GOP has put onto the bench have seemed increasingly like mere partisans wearing robes. (That seems especially true of Trump’s appointees — Gorsuch and Kavanaugh — but not only them.) It is a depressing sign of the times that many people’s hopes that the Court will uphold the law rather than just rule for the Republican position have to rest on whether Chief Justice John Roberts might break with his fellow “conservatives.”
Second, the Republicans in Congress today are strikingly unwilling to go against this lawless President– a level of subservient loyalty that exceeds the extent to which Republicans in the Watergate era backed Nixon as the investigations proceeded. The fact that the great majority of Republicans in both Houses of Congress backed Trump’s clearly unconstitutional use of a bogus “national emergency” to appropriate himself funds that Congress had denied him augurs not at all well for the possibility that the congressional Republicans would hold Trump accountable for this attack on the system of checks and balances represented by the present stonewalling.
On the other hand, some factors that support the supposition of Maddow and Beschloss that Trump won’t get away with that stonewalling include:
- As the Supremes were unanimous in the Nixon case, one might say that the defense of the Constitution can afford to lose some justices and still prevail.
- As Trump’s stonewalling is completely indiscriminate — NO documents, NO witnesses — and as no arguments for privilege have been offered, the attack on checks and balances is more blatantly unconstitutional than the one from Nixon, which concerned only the tapes, and for which some argument for “executive privilege” was offered.
And one more point that, for me at least, weighs on the side of optimism on what would happen if/when this case gets to the Supreme Court: both Rachel Maddow and Michael Beschloss are smart and knowledgeable. And the fact that neither of them seemed greatly in doubt about how the Supremes would decide I find at least somewhat reassuring.
So the question remains.