Trump Runs Out the Clock

As a wealthy real-estate developer before his successful bid for the presidency, Donald Trump frequently countered challenges to his businesses or to himself personally by manipulating the legal system.  One of his primary tactics was to use multiple appeals to stretch out the already-protracted legal process until his opponent was forced to give in.

Potential challengers quickly learned the cost of confronting Donald Trump.

As President, Trump has continued this waiting-out tactic, so far quite successfully.  He is refusing to provide any documents to Congress to or allow any of his subordinates to testify in the impeachment proceedings.  Most of this stonewalling is not constitutionally permissible, for it abrogates Congress's ultimate responsibility to provide a check on presidential power through the impeachment process. So in order to circumvent and delay, Trump has either sued Congress or allowed Congress to sue him. Trump claims Executive Privilege, but Executive Privilege covers only very limited situations, mostly concerning national security or confidential conversations between presidents and their immediate advisors.  The vast majority of presidential actions are not covered by Executive Privilege.  Presumably, therefore, the President will eventually lose most these suits in the courts, as he did in the recent ruling against his keeping former counsel Donald F McGahn II from testifying.  Not surprisingly, Trump's lawyers have already appealed the court decision so the legal process will delay McGahn's testimony until after the impeachment proceedings are concluded, when that testimony will probably be moot.  Trump loses the court decision but his tactics will win anyway. 

Not coincidentally, the Republican defense of the President has in many cases rested on dismissing what they call “hearsay evidence.”  The direct first-hand testimony to counter this defense could undoubtedly come from exactly those people whom Trump is preventing from testifying: Mulvaney, Bolton, and so on. Trump wins again.

It's important to recognize what is happening here.  As Stephen Levitsky and Daniel Ziblatt point out in How Democracies Die, democracy requires a respect for the democratic process.  This respect includes not only for the law but also for the "soft guidelines" of politics, which they identify as:

• “mutual toleration”—leaders don't treat political rivals as existential enemies, but rather as fellow loyal Americans;
• “forbearance,” or “restraint”—leaders don’t “play politics to the max”; that is, they don't use every legal power they have a right to in order to destroy their rivals.

Democracy is not possible without the soft guardrails.  President Trump has been willing to push them systematically, sometimes to breaking. 

To be successful, the impeachment process must convince the American public that the President should be removed.  So far, the proceedings have not moved the needle of Trump's favorability in the polls.  The prolonged legal proceedings will assure that the most convincing evidence against Trump will not be public until long after the Senate votes on the President's removal from office.

It is possible that the Supreme Court will take some of these cases directly, bypassing the regular appeals process.  Given the makeup of the court and the support for a strong executive, especially among Trump's appointees, however, this is unlikely.  Even if the Court did expedite the process, it would not be in time for the impeachment proceedings (although congressional investigations would continue).  Once again Trump wins.

It may be that Trump and his defenders do not consider this "cheating."  And in a legal sense, it isn't.  Once again, however, the soft guardrails upon which the democracy depends have been breached, and large segments of the public have either not noticed or not cared. But democracy's fragile supports have been weakened further.