WASHINGTON ― With President Donald Trump aggressively refusing requests from one theoretically co-equal branch of government in Congress, what happens if he also decides not to comply with the third branch, the courts?
“It will be very interesting,” said one informal Trump adviser close to the White House, speaking on condition of anonymity. “That’s a good question. I think it’ll be great theater.”
So far, Trump and his administration have obeyed federal court rulings on such matters as his travel ban and many of his attempts to undo environmental regulations. But those have all been about policies Trump and executive branch agencies have sought, not about Trump personally.
Ruth Ben-Ghiat, a history professor and expert on fascism at New York University, says Trump shares many traits with past and present autocrats around the world ― including a disdain for other institutions.
“He would have no problem contesting a ruling that poses a threat to his finances or power, including at the Supreme Court level,” she said.
White House officials did not respond to HuffPost’s queries about the matter, but Trump’s critics say he has telegraphed quite clearly how he would react to, for example, a Supreme Court ruling ordering the release of his tax returns.
“I predict that Trump would defy the Supreme Court and the Republican senators would do what they’ve done since he was sworn in: nothing,” said Rick Tyler, who once worked for Sen. Ted Cruz, a Texas Republican who speaks frequently about the importance of the Constitution but who has gone along with Trump’s behavior and actions as president.
Dick Durbin, a Democratic senator from Illinois, said a Trump refusal to abide a court order would no longer surprise him. “I don’t put anything past them,” he said.
The Supreme Court’s primacy in disputes between the president and Congress is not mentioned in the Constitution itself, but was established as precedent in 1803 by the court’s chief justice at the time, John Marshall. The landmark Marbury v. Madison ruling settled a case involving a presidential appointment by outgoing President John Adams. The court has been acknowledged as establishing the law of the land ever since, even by embattled President Richard Nixon, who resigned in 1974 two weeks after complying with a Supreme Court demand that he turn over secretly recorded tapes from the White House.
Bandy Lee, a Yale University psychiatry professor who has been warning of Trump’s behavior for years, said Congress’ failure to push back against him only encourages him further.
“We have allowed him to strip away constraints, and even in the area of impeachment or holding him responsible for his deeds, we have shown hesitation, which gives him a powerful signal,” she said. “He is the first to know that he is guilty ― but having gotten away with so many things, he is likely to continue pushing his limits, including ordering those around him to break the law.”
Last month, Trump’s Justice Department released a redacted version of special counsel Robert Mueller’s report that detailed Russian efforts to help the Trump campaign and Trump’s subsequent efforts to block Mueller’s investigation. Since then, Trump has gone to great lengths to stop congressional Democrats from looking any further. He is trying to stop former White House counsel Don McGahn and Mueller himself from appearing before Congress. And Treasury Secretary Steven Mnuchin has refused a House request to turn over six years’ worth of Trump’s tax returns.
Trump made his strategy plain in comments to reporters two weeks ago: “We’re fighting all the subpoenas.”
One top Republican Party official and fundraiser, who spoke on condition of anonymity, said Trump is mainly trying to slow things down, preferably so no new negative information comes out before the 2020 election.
“He’ll see how far he can push things and get away with it,” the official said. “All of this is a delay game, really.”
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Ben-Ghiat said using the legal system to muddle things is a favorite tactic of modern authoritarians such as Turkey’s President Recep Tayyip Erdogan and former Italian Prime Minister Silvio Berlusconi. Before Trump became president, he was notorious for suing and being sued thousands of times over his unwillingness to honor terms of a signed contract or when he was trying to silence critics and journalists.
“Berlusconi, Trump and Erdogan all have been in thousands of suits. Berlusconi is a very similar case since he transferred a business model to head of state governance,” Ben-Ghiat said. “Litigation is built into the business and now governance model of Trump.”
But Trump’s success with that sort of stonewalling will depend in some measure on his underlings’ willingness to defy congressional or court orders and suffer the consequences.
On the matter of Trump’s tax returns, for example, the decision belongs to Mnuchin and the Treasury Department, not to Trump ― and any court order on that topic would be directed to Mnuchin, said George Conway, a prominent Washington, D.C., lawyer and husband of a top Trump aide.
“Any injunction would apply to anyone in Treasury and the IRS who has control over the records. Are they really ready to risk contempt sanctions? I doubt it,” Conway said. “Unless Trump has personal physical control over the tax returns, I think there’s a good chance the order gets enforced.”
In any event, the GOP official said, Trump himself is likely to comply with an order from the Supreme Court, even if he doesn’t like it.
“Because he’s the most transactional, the most pragmatic president ever,” the official said. “When he encounters a barrier, he pivots.”
Igor Bobic contributed reporting.