Jacquelyn Martin/AP Photo
Senate Majority Leader Mitch McConnell speaks to members of the media on Capitol Hill, September 24, 2019.
How will Republicans in the other branches of the federal government handle President Trump’s refusal to allow administration officials to testify to Congress? House Republicans have already made clear they’ll hang with the Donald—perhaps in several senses of the word “hang”—as he insists on having his goons (excuse me, Cabinet secretaries) defy their subpoenas. But it’s not at all clear that Senate Republicans, much less the five Republicans on the Supreme Court, will be able and willing to defer to the Donald in matters this egregious.
If indeed the House impeaches Trump, the Senate will conduct some form of trial, in which House Democrats will be the prosecuting attorneys and will surely call witnesses and demand documents. Should Trump continue to refuse to produce those witnesses and documents, the prosecution will argue that he’s defying the Senate. They might appeal to the presiding officer, who will be Chief Justice John Roberts. Of course, Mitch McConnell will likely seek some way to short-circuit all this, perhaps by prevailing on a party-line vote that limits the trial to three minutes, or some equivalently patent evasion. But would the Senate Republicans up for re-election in swing states (Susan Collins, Cory Gardner, Martha McSally, perhaps a few more) and those who’ve already broken with Trump (Mitt Romney and, well, Mitt Romney) go along with that? Politically, that hardly seems like the smart play.
And suppose the Democrats elect to take Trump to court, either now or sometime later in the process, for his stonewalling, despite the power the Constitution grants the Congress to conduct impeachment proceedings? Can Trump count on the Supreme Court’s Republicans to uphold his resistance?
I’m not at all sure he can. The Gang of Five (Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh) know that they’re increasingly regarded more as Republicans than judges—and for good reason! Ruling against Trump’s withholding of documents and witnesses—as Republican Warren Burger’s Court ruled, unanimously, against Richard Nixon’s refusal to hand Congress the tapes that finally did him in—would give today’s high-court Republicans an easy way to escape the taint of partisanship, creating more political space for them to issue one nutcase-originalist or gerrymandering-upholding decision after another. What better way for Trump appointees Gorsuch and Kavanaugh to display their ostensible independence? My hunch is that the only Court Republican willing to side with Trump to the bitter end would be Thomas.
And if the Court ruled that Trump had to comply with Congress’s investigation or a Senate trial, what would Collins and Company do then? Even Mitch McConnell might have trouble pulling that rabbit out of a hat.
