Refusing a Judge's Orders Without an Appeal

For several years Washington Post opinion writer Jennifer Rubin has been relentless in her pursuit of President Trump’s danger to the democracy.  Her recent column, “If the Administration Defied a Court Order, All Bets Are Off,” examines the Administration’s refusal to provide court-ordered documents; she suggests that Trump has crossed a new line in a presidency filled with red lines.

Quoting an article from the Post, she writes that despite a judge’s order,

 [f]ederal prosecutors on Friday declined to make public transcripts of recorded conversations between Michael Flynn and Russia’s ambassador to the United States in December 2016.

Such a refusal by the Trump Administration is not unusual; indeed, it has had a recent “wholesale refusal” of congressional subpoenas.  What is unusual is that government lawyers did not ask the judge to stay (suspend the enforcement of) his ruling nor did they even appeal the judge’s order to a higher court; rather they simply refused to provide the transcripts.  Rubin quotes former prosecutor Mimi Rocah:

Normally when prosecutors don’t want to make something public for national security reasons, etc., they file a document under seal with the judge explaining that reasoning and requesting relief from the presumption that things should be made public…. The fact that the government didn’t do that here is puzzling. Instead, they took a very unusual tact [sic] of refusing the judge’s order publicly, which suggests that they didn’t think the judge would go along with keeping the material under seal.

 The judge in the case, writes Rubin, is known for his toughness, so it’s unlikely that the Administration will succeed in its stonewalling. 

Regardless of the judge’s response and the ultimate resolution of the issue, it’s important to recognize what the Administration is trying to do: refuse a legitimate court order without the usual legal recourse to negotiation or appeal.

The loss of democracy often occurs in small steps.  Presumably the Administration will be called out and required to produce the documents the judge has ordered.  Presumably they will eventually provide the documents.  Nevertheless, for the time being the Trump Administration has defied a legitimate court order without taking the proper legal steps to justify itself.  In doing so, the Administration has set up a confrontation between the executive and the judicial branches of government.  Regardless of the eventual outcome, this is a “shot over the bow” in what is likely to be a long struggle with the courts.