Kavanaugh Trump
Credit: The White House/Flickr

House Democrats have got their impeachment investigation off to an impressive start, discombobulating President Trump, unnerving his congressional allies, and galvanizing media and public attention. But it would be short-sighted for journalists and civic activists to focus exclusively on that probe. In fact, the fate of this presidency—and its myriad actions to ignore or junk landmark laws and programs—still rests largely in the hands of federal judges.

That may not be bad news for Donald Trump, who has often expressed faith in what he refers to as “my judges.” At the same time, Mitch McConnell has enabled a judicial confirmation conveyor belt that could tilt the federal judiciary even further rightward.

Other than Trump’s pressuring Ukraine’s president to investigate a political adversary, almost all claims of the administration’s illegality are now in the hands of the courts—including hugely consequential matters like Trump’s rescission of DACA protections and the administration’s deregulatory and defunding measures aimed at crippling the Affordable Care Act.

So far, judges and justices adjudicating anti-administration claims have given wildly contradictory signals, with some denouncing the administration’s claims as “repugnant to the nation’s governmental structure and constitutional values,” while others have practically parroted their arguments. Worse yet, the impeachment investigation itself could be thwarted by unsympathetic courts, either through reviewing challenges to House subpoenas or intervening at the behest of the administration or its allies.

Indeed, even before October 8, when the administration’s legal strategists issued an unprecedented blanket defiance of all House requests for testimony or evidence, House Speaker Nancy Pelosi and Intelligence Committee Chair Adam Schiff indicated that they  planned— unlike all modern congressional investigators—not to use the courts to enforce subpoenas, and, insofar as possible to avoid provoking the administration or its collaborators from proactively seeking judicial protection.

But that hope has already vanished. On October 25, a subpoenaed former National Security Council staffer asked the D.C. District Court to sort out whether he is legally obligated to honor a Congressional subpoena or the White House’s directive to ignore it. The lawsuit is odd, but probably sufficient to put much about the impeachment investigation in play in the courts. In response, wary House leaders withdrew the subpoena, serving notice that the lawsuit was thereby mooted. But on November 8 the NSC staffer’s counsel announced that he would not withdraw the suit—which Acting White House Chief of Staff Mick Mulvaney is now seeking to join. No matter how this standoff shakes out, it spotlights how impeachment’s adversaries want the judiciary to get involved.

House Democrats’ decision to test these uncharted waters—steering clear of court enforcement—is understandable. Previous generations of federal judges firmly supported Congress in handling its constitutional responsibility to check the executive branch. But adherence to that tradition by the current cohort of federal jurists cannot be taken for granted. Trump’s legal team sees at least a good chance that a Supreme Court majority could overturn or side-step precedents checking executive illegality during the Teapot Dome and Watergate scandals.

In fact, the very day of White House’s declaration of non-cooperation, a Justice Department lawyer asserted that Watergate era District Judge John Sirica’s March 1974 decision to turn impeachment-relevant grand jury materials over to Congress was “wrongly decided.”

D.C. Chief District Judge Beryl Howell, an Obama appointee, sternly dismissed that claim and ordered the administration to provide Congress unredacted Grand Jury evidence secured in Special Counsel Robert Mueller’s investigation. In response, Justice Department lawyers moved to keep secret the material until they appeal to the Supreme Court, where they hope to overturn this decision.

Trusting the Supreme Court’s five-justice conservative majority to squelch unfriendly lower courts is already the Justice Department’s keystone approach to fending off anti-administration challenges. For the past year, Trump’s Solicitor General, Noel Francisco, has upended judicial and departmental practice, frequently bypassing lower federal courts and instead seeking preemptive Supreme Court interventions to cut off regular order evidentiary and appellate procedures. The intention is as clear as it is brazen: to shield agency actions from any meaningful judicial scrutiny whatsoever.

On July 26, for example, the conservative bloc took time off from its summer recess to reward Francisco’s “expedited” application to short-circuit lower courts’ rulings that put a hold on Trump’s $2.5 billion border wall. In a single opaque paragraph, the majority stayed a District Court decision to preliminarily enjoin construction until its legality was decided at trial. The Catch-22 of this maneuver, as Justice Stephen Breyer noted in his dissent, was that, by the time a trial could be completed, the wall would likely already be built. In other words, if Trump gets his wall finished, much of the credit will belong to his Supreme Court allies willing to go outside the box to get it done.

In effect, the five Republican appointees’ keenness to ignore the judiciary’s modus operandi shows them less committed to vindicating the rule of law than to facilitating a GOP president bent on operating outside it.

If given a chance, these same justices could threaten the impeachment inquiry itself, be it debilitating key subpoena provisions, abetting the administration’s transparent priority of running out the clock before November 2020, or even backing up Trump’s widely ridiculed talking point that the entire impeachment investigation is unlawful.

Such possibilities are hardly far-fetched: while a 2-1 majority of D.C. Circuit Appeals Court judges recently approved a House subpoena seeking Trump financial records from his accounting firm, dissenting judge Neomi Rao elaborated a 66 page roadmap for judges or justices so inclined to rationalize shutting down or crippling virtually any congressional probe of this or any White House. Perhaps even more cheeky than her disdain for Congress’s oversight investigation authority was Rao’s gratuitous suggestion that courts could second-guess congressional impeachment results by determining what presidential conduct could constitute an impeachable “high crime or misdemeanor.” This grenade ignored express Supreme Court precedent—in a 1993 ruling by the impeccably conservative Chief Justice William Rehnquist—that Congress had the “sole” authority to process impeachments, precluding any judicial review of impeachment proceedings or determinations.

Judge Rao’s argument may be substantively extreme, but her hostility toward challenges to Trumpian overreach is not unique. Most (not all) decisions and opinions rejecting, limiting, or delaying claims of administration illegality have come from Republican appointees, and most (not all) decisions receptive to such challenges have come from Democratic appointees.

So, can this impeachment inquiry succeed without obtaining judicial orders compelling compliance? How much will the impeachment findings, its public impact, and outcomes be undermined?  Time will tell. So far, an array of current and former administration officials have responded to subpoenas with testimony and documents, providing potent grist for the impeachers’ mill, despite the White House telling them to stay away. But none of these cooperators are either current senior office-holders or members of Trump’s inner circle. Virtually all are career officials or former political appointees who are critical of Trump’s pressure campaign against Ukraine and his out-sourcing of diplomacy to Rudy Giuliani.

Impeachment proponents have amassed a compelling case. But more unequivocally damning revelations must be known to senior confederates, with more incriminating evidence withheld in documents. Without sworn, televised testimony from Attorney General Bill Barr, Secretary of State Mike Pompeo, Acting Chief of Staff Mick Mulvaney and, Giuliani, the public resonance, credibility, and, hence, the outcome of the effort could be curtailed.

Trump’s wager that “my judges” will save him may be a good bet, but it is not a sure one. In some instances, Republican-appointed judges, including Trump appointees, have played it straight, followed the law, and ruled in favor of the president’s challengers. Chief Justice John Roberts has demonstrated that, at least some times, he will not  tolerate administration perfidy. Consider his blistering rejection of Trump’s “contrived” attempt to add a citizenship question to the 2020 census. Still, the overall pattern is ominous: a federal judiciary that is not merely right-leaning ideologically, but increasingly tribal and outright partisan, has often neutered substantial court challenges to Trumpian abuse. That has already cast a long shadow over impeachment as well.

Simon Lazarus

Simon Lazarus is a lawyer and former member of President Jimmy Carter’s White House domestic policy staff. He writes frequently on the law and the politics of legal and constitutional issues.