If Trump Defies the Courts, We're in a Nightmare. We Need to Arm Them to Fight Back | Opinion

President Donald Trump's repeated defiance of the law amid the impeachment investigation has revealed gaping holes in our governmental system that urgently need to be filled. In a previous column, I explained that we must create a mechanism to expedite the judicial review of congressional subpoenas, given how brazenly Trump ignores them. However, let us suppose that a federal appeals court or the U.S. Supreme Court has ruled that a subpoena is enforceable and the president must obey. Let's further assume that the president is Trump, and he decides the court is wrong—maybe because he says a subpoena issued by a Democratic House is illegitimate—and defies the order. Now what?

While any American citizen would like to believe that we are a nation of laws and no president is above them, given the White House counsel's letter to four House leaders in early October declaring that no one in the Trump administration would participate in the impeachment effort, it is clear that this White House takes the position that this president is above the law in this case. In fact, the president's lawyers have argued in court filings that a president cannot be even investigated for criminal wrongdoing.

In the Watergate era, the Supreme Court ruled that President Richard Nixon must turn over tapes to a federal court. Nixon complied, despite knowing in all likelihood it would lead to his removal from office. If there were subpoenaed materials that a federal appeals court or the Supreme Court ordered Trump to provide that he knew would lead to his undoing—let's imagine, say, transcripts of conversations with Russian President Vladimir Putin stored inappropriately in a secret server—it is not at all clear that he would comply.

What happens if we, as a nation, were to devolve into such a constitutional confrontation over the next year? Would Senate Republicans support the president's defiance, thereby making impeachment impossible, and argue that it is somehow in the long-term interest of the executive branch to resist a judicial order?

The United States has never faced the issue of what to do if a subpoena from the legislative branch is then upheld by the judicial branch against the executive branch, and the executive branch refuses to accept that result. What can the other two branches do to enforce the law?

This is put at issue because of not only the extremist views expressed in the White House counsel's letter, but also the Justice Department Office of Legal Counsel's opinion, fully relied on by special counsel Robert Mueller, that a sitting president cannot be indicted and is therefore not criminally accountable while in office. If the president is found to be in contempt of court by refusing to comply with a subpoena, but he cannot be prosecuted, what consequence does a contempt of court ruling then carry? What remedy is left for Congress and the courts?

One might contemplate the U.S. Marshals Service, which enforces federal court rulings, being sent with an order to search out and retrieve from the White House any documents required by the court, but then one must also consider that the president's control over the Secret Service and other executive branch protection services could result in the U.S. Marshals being restrained from doing their job. Moreover, unlike the Capitol Police (which is part of the legislative branch), the U.S. Marshals Service is an executive branch entity that is part of the Department of Justice. Its role is to serve as the enforcement arm of the federal courts, but if the president ordered the service to stand down, the courts would be powerless to enforce their order. Again, then what?

The term "constitutional crisis" has been thrown around a lot, but this would clearly be one. Yet, given the combination of the White House counsel's letter and the Department of Justice's opinion, we cannot ignore the possibility that we may have to confront this very dark scenario.

While the current impeachment process seems to be going forward at a pace that does not allow for waiting for court decisions on the various congressional subpoenas, it is certainly conceivable that court decisions on these issues are handed down by next fall. In the middle of the presidential campaign, Trump could decide it is better to take the political hit from defying a court order rather than release material that might be far more politically damaging.

As with the issue of expedited judicial review of congressional subpoenas, to avoid this kind of constitutional breakdown in the future, we may well need a statutory procedure for how to deal with what, until now, may have been considered an unimaginable scenario. Along these lines, the 25th Amendment was added to the Constitution to deal with the issue of presidential succession in the event of a need to remove a president from office under very extreme circumstances. However, for the purpose of this hypothetical, I am assuming that the vice president and the Cabinet—the relevant players in the 25th Amendment procedures—remain loyal to the president in his defiance of the other branches. Given how sycophantish those current officials have been, that may well be a safe assumption if this scenario under Trump were ever to develop.

Under these circumstances, should a president be subject to arrest? How would the arrest be undertaken? If arresting the president were to be viewed as constitutionally impermissible because it involves a criminal procedure against a sitting president (which begs the question of whether there are circumstances, like a president shooting someone on Fifth Avenue, which most certainly have to be subject to criminal prosecution), there still needs to be some way for documents, tapes, computer files and "secret servers" to be seized.

A reform that might be considered is to actually put in place a statutory procedure that would allow for the U.S. Marshals Service, were it to be barred from the White House or other executive branch offices by the Secret Service or other executive branch law enforcement personnel, to make a request to the Joint Chiefs of the armed forces to provide whatever resources are needed to enforce the court order. In the event the president or the attorney general outright blocks the Marshals Service from doing its job, the statute would need to provide that the courts can directly seek intervention of the military to enforce the order.

Donald Trump
U.S. President Donald Trump walks toward Marine One on October 23 in Washington, D.C. Mark Wilson/Getty

This requires a view that, under these circumstances, our highest military echelon are true patriots (which they undoubtedly are) and would operate to uphold the underlying principles of our civilian government republic. It would also require an exemption from the so-called "Posse Comitatus Act," which prohibits the use of the military to aid civil officials in enforcement of the law. This may seem like an outlandish idea, but it has the benefit of putting into law that in the event of this kind of constitutional standoff, the president cannot engage in autocratic, king-like behavior because the military will be subject, under this kind of extreme scenario, to judicial directive. Admittedly, this does begin to sound like something out of an episode of Homeland.

While there are arguments against putting in place a mechanism like this, its adoption by Congress and the simple fact of it being signed into law might actually prevent the scenario I am suggesting here from ever happening. There is no doubt some would argue that the Supreme Court would knock down such a statute as unconstitutional, in that under the Constitution the military is clearly subject to the orders of the president as commander-in-chief, but the very scenario under which a mechanism like this might ever be legally challenged would likely be one where the Supreme Court's own ultimate constitutional authority was at stake. The justices might see that upholding such a reform law is the only way to avoid our whole system of government from cracking while maintaining the checks and balances so critical to our democracy.

It is very discomforting to think that we might actually need a plan to address a nightmare situation like this. However, there are no such protections in place today, and there will not be a possibility for creating such an approach until we have elected a new president. Thus, for now, we must instead contemplate the unthinkable: What if President Donald Trump were to go beyond defying Congress and then also defy the courts? I sincerely hope this is not something we have to find out the answer to over the next 12 months.

Tom Rogers is a senior contributing columnist for Newsweek, the founder of CNBC and a CNBC contributor. He also established MSNBC, is the former CEO of TiVo, currently executive chairman of WinView, and is former senior counsel to a congressional committee.

The views expressed in this article are the writer's own.

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