Daniel Drake interviewed David Cole, former national legal director of the ACLU, for The New York Review:
Cole: The sheer
number of judges who have called the administration to task for violating their
orders is astounding. I have practiced constitutional law for more than forty
years, and I have never seen anything even close to the defiance and bad-faith
obstruction of court orders this administration has shown. Some of the
violations could be the result of miscommunications, short-staffing, and the
like, and neither Trump nor his attorneys have, as far as I know, asserted that
they have the authority under law to disobey court orders. But they are repeat
offenders many times over, and actions speak louder than words.
The
overall tenor of the administration’s responses to court orders, especially in
immigration cases, appears to reflect a message from the top that outright
obstruction of court orders will be not just tolerated but welcomed. That is
obviously not how the system is supposed to work. Government officials have a
responsibility to do justice, and to understand that with power comes
responsibility. That ethic seems in remarkably short supply in this
administration.
Question: What
options do we have? Judges can hold government officials in contempt for their
actions. They can impose fines and even imprisonment to coerce parties to
follow court orders. They can hold hearings, compel government officials to
attend, and require that they answer direct questions on the record. In extreme
cases they can recommend prosecution for defiance of court orders—though the
decision to prosecute would be up to United States attorneys, who Trump has
ensured are loyalists. So I wouldn’t hold my breath for a prosecution.
Answer: That
means true accountability lies with the American people. Do we sit by and
accept such behavior? Or do we take to the streets (and eventually the polls)
to express our disapproval of what the government is doing in our name? If we
do the latter, as the brave people of Minneapolis did, it can have tangible
results. Trump was forced by the people, the political leaders, and the judges
in Minneapolis to retreat. That’s an important form of accountability that we
should never underestimate.
On the
other hand, while Judge Boasberg’s initial ruling was ignored, the essential
principle in that case—that the Alien Enemies Act could not be used to expel
foreign nationals without due process—has, since that time, continued to apply.
The Trump administration has not attempted to use that rationale again, and
their efforts to get Judge Boasberg impeached or cited for misconduct have
failed. The courts seem, to some extent, to be holding up against the
executive’s assault. Are there other hopeful signs of the judicial branch’s
ability to restrain this drive to authoritarianism?
By and
large, the federal courts have been the principal institutional check on abuse
by this administration. As the Harvard Law professor Jack Goldsmith, a former
high-level Justice Department official in the George W. Bush
administration, has argued, the courts have blocked many of Trump’s
initiatives. This includes the Supreme Court, which, in addition to the order
you note about the Alien Enemies Act deportations, required Trump to facilitate
the return of an El Salvadoran man who had been wrongly deported, blocked Trump
from deploying the National Guard to states where governors have objected, such
as Minnesota, California, and Oregon; and stopped him, for now, from firing a
Democratic appointee to the Federal Reserve, Lisa Cook. By the end of the current
term it will issue rulings on his imposition of worldwide tariffs and his
attempt to deny birthright citizenship to children of certain foreign nationals
born here—and may well rule against him on both initiatives.
The
Court’s “shadow docket” rulings, on requests for emergency relief while cases
are making their way through the courts, have been troubling. And the Court
will almost certainly give Trump more unchecked power to fire heads of agencies
that Congress sought to make independent. So the jury is out on how the Supreme
Court will respond to Trump. But one thing is certain: over the past year, the
courts have played an essential part by reining in the executive. Progressives
unhappy with the Supreme Court have long castigated the judiciary as
ineffectual, political, or worse. But where would we be now without them?
Question: In a recent interview, your Georgetown colleague Steve
Vladeck made the point that in the clash between the executive and judicial
branches, the crisis is due in large part to the absence of the legislative
branch—what Vladeck calls the “indolent Congress.” While Republicans maintain a
majority in the Senate and House, this indolence seems likely to continue, but
within the bounds of the Constitution, what kind of powers can the minority
party exercise in Congress to help put a check on the president?
Answer: Sadly,
there’s not much that the minority party in Congress can do. In our system of
majoritarian rule, at the moment the Republicans exercise the power of
initiative in both houses of Congress. Democrats can ask hard questions in
hearings called by Republicans, as Representative Jamie Raskin of Maryland and
his colleagues on the House Judiciary Committee did this week in a remarkably
combative hearing with Attorney General Pam Bondi. But the Republicans control
what hearings are held on what subjects, what bills come to a vote, what
subpoenas are issued, what investigations are conducted. Democrats’ only power
is to withhold votes, as they have done with respect to the budget, where they
have sufficient support from a handful of Republicans. But for the Democrats—and
Congress—to exercise any meaningful checking function, we’ll have to wait for
the midterms.
Question: What
do you make of Trump’s suggestions that the midterm elections should be
nationalized? How much of a realistic threat does this present?
Answer: I
don’t think we can discount that threat. Trump has already shown how far he is
willing to go in obstructing elections that he loses. At the moment, it seems
the Republicans are likely to lose the midterms in a big way. That will be
Americans’ first formal opportunity to register their assessment of the job
Trump has been doing. His approval ratings are low—currently hovering around 40
percent—and the Republican share of the vote has dropped precipitately in the
handful of elections that have occurred since he took office. Those signs
suggest that, if the midterms were held today, the Democrats could win in a
landslide, even though partisan gerrymandering has rigged many results.
Trump of
course knows that. So we cannot ignore the risk that he will try to obstruct
the results by asserting baseless claims of election fraud and seeking to take
control of the ballot counting. At the same time, that has never happened in
this country; the Constitution assigns that work to the states. Such a
transparent effort to subvert democracy would not play well. We are, after all,
a democracy, not an autocracy. Voting matters; it’s what legitimates government
authority. But at that point it will be on all of us as Americans to defend our
democracy.
Question: In
your most recent essay for the Review, “Trump’s
War,” writing about Trump’s invasion of Venezuela and abduction of its
president, you say that “It was an illegal operation, actually. Illegal on so
many fronts that it can be challenging to keep them straight.” Given the
Supreme Court’s ruling in Trump v. United States that a
president enjoys absolute immunity for any acts conducted in his capacity as
president, what kind of justice or recourse can even exist for an executive who
seems to violate so many laws? That is, short of an unlikely Supreme Court
ruling overturning Trump v. US, what can be done to hold this
administration accountable when they’re out of office?
Answer: Well,
the first thing we need to do is make sure they are sent out of office, both in
the midterms and in 2028. A decisive vote to reject the administration’s
efforts to destroy the climate, the rule of law, and indeed the livelihoods—and
lives—of many people will be the most important form of accountability we can
deliver. If the people resoundingly reject Trump 2.0, the question will be less
how we hold the bad guys accountable than how we build back the norms and legal
limits necessary to stop this from ever happening again.
Criminal
accountability for Trump himself remains possible, even under the Supreme
Court’s misguided immunity decision. It left open prosecution of the president
for nonofficial actions, such as the rampant corruption that Trump has invited
into the White House. And even many official acts can still be the subject of
prosecution; the only absolute immunity the Court provided was for exercises of
unilateral executive authority over which Congress has no say whatsoever. So
Trump is not free and clear by any means. Impeachment also remains an option,
though it will require at least a significant subset of Republicans Senators to
vote their conscience rather than putting fealty to Trump and the MAGA movement
over what’s best for the country.
And yet
the most important thing to remember is that accountability is in our hands as
“we the people.” We can render judgment that this method of governing is an
object lesson in how not to run a responsible, caring, and humane democracy—but
only if we get engaged now and stay engaged until he leaves office. We can all
take a lesson from the people of Minneapolis.
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