David Cole on Trump administration's defiance of court orders

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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