A Slow-Motion Coup d’Etat

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Many of us now suffer outrage fatigue from the Trump Administration’s relentless lying, corruption and lawbreaking. Our fatigue makes it hard for us to see. But what we are witnessing this week is the initial stages of a slow-motion coup d’etat.

No, it’s not the fictional one of which Trump complains constantly—the alleged attempt to overturn the results of the 2016 election. It’s precisely the opposite. It’s a series of apparently coordinated attempts to overturn the rule of law in this country and, in particular, to thwart the impeachment process that our Constitution explicitly specifies.

At this moment, the primary mechanism of the coup is the joint refusal—coordinated by circumstance if not by conspiracy—to comply with lawful subpoenas issued by the House of Representatives and its duly authorized committees and agents. Refuseniks so far reportedly include the President, members of the White House staff, the Vice-President, several other present and former Executive officials and the President’s private and personal lawyer, Rudy Giuliani.

Giuliani, in particular, occupies no known official post of or on behalf of the United States. If he can stonewall a duly issued subpoena of Congress, then anyone can, and the rule of law vanishes. That is the legal and practical precipice on which we now stand.

The only (barely) plausible pretext for all this apparently coordinated stonewalling is the claim that the House must vote en masse to open an impeachment investigation before it has subpoena power. But this pretext is nonsense for three reasons.

First, the Congress has inherent subpoena power in aid of its explicit legislative and investigative authority. Each House must have that power independently because neither House has power over the other.

If neither House can investigate the President or the Executive Branch, then our vital separation of powers and its checks and balances become another kind of house. They become a house of cards that collapses, leaving us with a dictatorship misnamed a democracy, like the “Democratic People’s Republic of Korea,” aka North Korea.

Second, nothing in the Constitution requires a whole-House vote to open an impeachment investigation or hearings. Although past impeachments may have involved such votes, the House is not a judicial body like the Supreme Court, which must operate by precedent. It’s a legislative body that can change its rules and procedures at any time, most especially under exigent circumstances as at present. (If the House and Senate were bound by precedent, there would still be filibusters for confirming Supreme-Court appointments, and men named Gorsuch and Kavanaugh would not sit on the Court.)

Our Constitution explicitly so states. According to Article I, Section 5, “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.”

The words “[e]ach House” explicitly grant the power to make its own rules to each House of Congress separately. The House and Senate need not work together to develop their separate rules.

The logic of the impeachment process itself corroborates this point. In impeachment the House serves as a sort of “grand jury” and “indicts” a president, while the Senate acts as judges and jury and tries the case for his removal from office. If the president could determine the procedure for his own indictment, the fox would be in charge of the henhouse.

Common-sense reinforces these constitutional principles. How can the House properly impeach a president, by a process similar to indictment, if it can’t gather evidence? The stonewalling we are seeing is, at best, a ploy to delay or thwart the independent power of impeachment, which the Constitution vests solely and explicitly in our House of Representatives.

Can anyone argue with a straight face that the President and his cronies are withholding evidence that would help his case? If you believe that, you have to believe that Trump has gone to great lengths to conceal his college grades and test scores because they are impressively good, or that he has withheld his tax returns because they would reveal him to be an honest multi-billionaire who voluntarily pays all his taxes to the penny, deals with no disreputable foreign banks, and stonewalls, pays off or defrauds no one.

No, what we have here is not good lawyers interposing valid objections to overbroad or legally shaky subpoenas. What we have is political operatives, much like Soviet commissars, “advising” powerful executives to ignore the law and the Constitution and protect themselves from serious scrutiny. Some of these operatives may have attended law school, but their arguments would fail the test of first-semester constitutional law.

Buried in the mountains of false assertions made by the president’s defenders, there may be a few lonely claims of legitimate executive privilege. If they exist, those claims could be settled quickly by competent, reasonable lawyers negotiating in good faith.

But “executive privilege” does not allow a president accused of self-dealing, corruption and abuse of power to hide his wrongdoing under the pretext that national security requires concealing it. Anyway, what the president’s scofflaws are now claiming is not executive privilege, but the power to tell the House how to run its affairs—a power that our Constitution explicitly and specifically grants the House alone.

No doubt Trump and his backers and donors intend these specious arguments to throw up a smoke screen and make everything seem hopelessly “political.” But not everything is hopelessly political in fact.

Nothing is less political than a subpoena. It’s the instrument by which Anglo-American law requires every man and woman, no matter what their stations, to give witness to the truth in a court of law or other tribunal. That power is the essence of the rule of law and what connects our law with reality. It has been inherent in English and American courts, legislatures and official tribunals from Magna Carta on. Lose it or allow it to be subverted, and we lose eight hundred years of lawful government.

What Trump and his minions are doing is answering a lawful investigation with the age-old taunt of the bully: “Make me!” That’s the precipice on which we as a nation now stand, and that’s what creates a true constitutional crisis.

Our courts ought to make short work of these transparently specious arguments. But they may not. They may refuse to “make” the president and his scofflaw operatives obey the law. To preserve their own power and legitimacy, they may refuse to adjudicate a dispute between the “political” branches, legislative and executive. Or they may drag out any decision until the gravitational pull of the next election commences.

In any event, as an early commentator on our Republic once noted, our Supreme Court has no power to make anyone do anything. It has no army.

If the president and his cronies continue to stonewall, and if the courts refuse to intervene quickly and decisively to say what the law is, we Americans will be cast on the mercies of the ultimate deciders in any banana republic: the men with the most powerful weapons.

Sad and terrible as the truth may seem, that day is nearer than we think. It’s not at all too early for the generals and admirals to start thinking about which side they’ll stand on when and if that day comes.

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