We either have three co-equal branches of government or we have something that looks more like a dictatorship and less like a democracy.
ADVERTISEMENTPresident Donald Trump has taken to referring to his impeachment as a “coup.” In October, for example, he tweeted: “As I learn more and more each day, I am coming to the conclusion that what is taking place is not an impeachment, it is a COUP intended to take away the power of the……..People.” (That tweet is copied out verbatim, excessive ellipses included.) In his irate letter to House Speaker Nancy Pelosion Dec. 17, Trump echoed the same sentiments: “this [attempted impeachment] is nothing more than an illegal, partisan coup that will, based on recent sentiment, badly fail at the voting booth.”
I’m not sure the president is entirely wrong to use the word “coup” to describe what’s taking place. Just not in the way he intends it.
A coup is generally understood as an illegal seizure of governmental power, often accomplished suddenly and violently. Notable coups in history include Napoleon Bonaparte’s 1799 efforts to seize power in France, or Francisco Franco’s actions in 1936 to overthrow the democratically elected government of Spain.
But what happens when one co-equal branch of government is delegitimized by another, not violently or suddenly, or even with the vanquished branch putting up much of a fight? It may not look like a traditional overthrowing of a government, but it does feel like a coup of sorts: call it a partial coup, maybe. Given Trump’s aggressive stonewalling of legislative branch oversight and impeachment hearings, and Congress’s ineffectiveness in dealing with said stonewalling, it feels like we are in the midst of a slow-moving, intra-governmental takeover.
The framers of our Constitution set up a system of three co-equal branches of government with checks and balances, calibrated to ensure that no one branch could ride roughshod over the others. For example, the legislative branch can pass bills and the president, as the head of the executive branch, is empowered to sign or veto those bills. Once bills are signed into law, if their legality is challenged, the judicial branch gets to decide if those laws are constitutional. The branches of government are figuratively placed on a three-way balancing scale. Think the classic children’s game "Tip-It."
It’s well-established that the legislative branch spends or appropriates money, exercising its so-called “power of the purse.” Congress also enjoys oversight authority of the executive branch. An unchecked executive branch is not what the Founding Fathers envisioned when they were deciding how to construct an enduring republic. Unfortunately, Trump inarguably has taken steps to erode these congressional powers and prerogatives.
During its impeachment inquiry, the House sought the testimony of several administration officials and executive branch employees with knowledge of the incidents at hand, namely Trump’s interactions with Ukraine. Trump ordered all of these officials not to testify. To be sure, some executive branch employees disobeyed the prohibition and appeared before Congress — brave patriots like former Ambassador Marie Yovanovitch, Dr. Fiona Hill and Bill Taylor. But many complied with the president’s directive. Trump also ordered executive branch agencies not to turn over any documents sought by the House.
Make no mistake about it, when the executive branch refuses to allow the legislative branch to perform its constitutional duties of oversight and/or impeachment inquiries, when the executive branch refuses to produce documents relevant to the issues being investigated by congressional committees, when the executive branch orders witnesses to ignore and thereby violate lawfully issued congressional subpoenas, this is, indeed, a kind of coup. It’s the executive branch trying to delegitimize — or overthrow — the legislative branch. In a very real sense, Trump is declaring that the executive branch will not allow a co-equal branch of government to do what the U.S. Constitution requires it to do.
This executive branch revolt is no different than if Trump refused to comply a Supreme Court decision. This very conflict almost occurred when the court declared it unlawful to include a citizenship question on the national census earlier this year, and the president started hinting he might just include it anyway. Trump blinked, or cooler heads prevailed, and that particular constitutional crisis was avoided.
Given who Trump was before he became president — a dictator of sorts in his own little forever-financially floundering business bubble — it’s no real surprise he has tried to seize far more power than our Constitution allows. It should surprise exactly no one that Donald Trump is not really a checks and balances kind of guy.
But there is one surprising aspect of Trump’s campaign to neuter the legislative branch: the complicity of congressional Republicans. The typical coup involves actual violence or at least the prospect of violence, as those wielding power usually don’t it up without a fight.
Republicans could take at least some steps to retain Congress’s status of a co-equal branch of government. As a thought exercise, unrealistic though it may be, congressional Republicans could say, “Mr. President, it’s wrong to enlist or extort foreign interference in our elections. It’s wrong to attach personal conditions designed to assist you politically to money Congress appropriated to help an ally defend against unlawful Russian aggression.” This condemnation would, at a minimum, make it clear to the president that Congress will not take kindly to any future usurpation by the executive branch of legislative branch powers.
Of course, this is not how the Republicans have responded to Trump’s power grabs. Rather, they have said the president has done nothing wrong, has abused no presidential powers, has not overreached in the least. The Republicans claim that the Democrats are the ones overreacting. It doesn’t take a political scientist to discern that the Republicans’ approach — supporting and defending every Trump overreach — will inarguably serve to encourage continued and likely even more dramatic executive branch abuses. Congressional Republicans, at the very least, seem to be content to let Congress be delegitimized without a fight. This is a passive coup, with the vanquished apparently willing to be taken over, and happy to relinquish their power.
Some may argue that the Democrats are also partially responsible because they opted not to spend months, nay years, fighting each subpoena battle in the third co-equal branch of our government — the judiciary. Of course, there are some congressional subpoena battles presently being waged in the courts. Take the House litigation attempting to enforce the congressional subpoena served on former White House counsel Don McGahn. Democrats believe the lawyer has information related to the Mueller report’s findings that Trump told McGahn to fire Mueller. Trump has ordered McGahn not to comply with the subpoena and the House has filed suit.
McGahn’s lawyers claim that administration officials are beyond the reach of congressional subpoenas by virtue of something called “absolute immunity.” The only time this legal theory has been litigated was in 2008, when U.S. District Court Judge John D. Bates rejected the argument.
McGahn has already lost one court challenge, and it is likely he will eventually appeal all the way to the Supreme Court, a battle that may not conclude before the 2020 presidential election.
If the Supreme Court sides with the White House on McGahn — or several other major cases involving investigations into Trump— it would represent a dramatic neutering of both the legislative and judicial branches. But even if, someday, the Supreme Court rules in favor of the House and orders McGahn to testify, McGahn very likely invoke executive privilege.
To defeat that claim, the House will have to file suit anew, at which point Congress, not to mention the country, will find itself on a seemingly endless road of court rulings and appeals. Suffice it to say, stonewalling works to Trump’s advantage. Indeed, it’s a tactic that actually facilitates Trump’s power grab.
ADVERTISEMENTThe end of America’s story has yet to be written. Eleanor Roosevelt reportedly said no one can make you feel inferior without your consent. Will our elected representatives continue to consent to being treated like a lesser branch of government? Will they accede to this slow-moving revolt orchestrated by the executive branch? We either have three co-equal branches of government or we have something that looks more like a dictatorship and less like a democracy.
- Glenn Kirschner is a former assistant U.S. attorney for the District of Columbia. He is currently an NBC News/MSNBC legal analyst.
This piece was first published by NBC Think.
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