Ex-President Trump, Congress, and the Courts
During his four years in office, Donald Trump appointed a myriad of conservative judges to the Supreme Court, the federal appellate courts, and the federal district courts, including three Justices on the Supreme Court. To his dismay, some are not doing his bidding. Unlike the state and federal legislators, he has supported, federal judges have lifetime tenure except for the types of extremely serious wrongdoing that can cause them to be impeached.
Trump expects GOP legislators and GOP appointed judges to show unquestioning loyalty to him, not to the law nor to the Constitution. Since Trump remains popular with his base, many GOP legislative officeholders cross him at substantial risk to their political careers because they may lose in the Republican primaries. This happened over the past year to a number of GOP office holders in the House and Senate who had voted to impeach Trump for his role inciting the January 6 insurrection and were primaried by MAGA Republicans or retired. https://www.politico.com/news/2022/08/13/cheney-10-house-republicans-trump-impeachment-00050991 and https://www.cbc.ca/news/world/republican-impeachment-trump-elections-1.6659963 Trump appointed judges, like Judge Aileen Cannon in Florida, have shown abject loyalty in their court rulings to Trump’s personal interests. https://slate.com/news-and-politics/2022/12/trump-mar-a-lago-cannon-criminal-investigation.html Other Trump appointed jurists are reliably conservative in their consequential rulings, e.g. repealing a woman’s right to choose in Dobbs, but they aren’t ruling for Trump because many of his lawsuits are simply nonsensical; they are filed more for their tactical political messaging than for their legal merit.
Judges are insulated by their lifetime tenure on the bench. We expect and require them to rule based on the facts and the law, a clear reading of and adherence to judicial precedents, not to their partisan preferences. While their rise in the judicial ranks can be accelerated by well-reasoned rulings favorable to the ideological positions of the party in control of the White House and Senate, their reputation among their colleagues suffers by poorly reasoned and excessively partisan decision-making and diminishes American’s respect for the rule of law and the independence of the judiciary.
Recently, Donald Trump personally has not fared well in the courts. The Supreme Court declined to overturn the lower court’s decision that Congress has the right to review his tax returns, the financial secrets he has jealously guarded for the past seven years. https://www.npr.org/2022/11/22/1136846873/supreme-court-trump-tax-returns and https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/22a362.html The DC Circuit Court of Appeals had reviewed Trump’s request to shield his tax returns from Congressional scrutiny under three separate tests: the Nixon v. GSA test, the Mazars v. Trump test, and the Mazars lite test and concluded that Trump failed to meet any of the three, and moreover the federal statute authorizing the Chair of Ways and Means to request Presidential returns was not unconstitutional on its face or as applied to Trump in a retaliatory fashion. https://www.cadc.uscourts.gov/internet/opinions.nsf/524B3B5CED10789D8525889900538BAB/$file/21-5289-1958452.pdf The statute in question, the Presidential Audit Program, dated back to the post-Nixon era in an effort to assure that a President’s tax returns were fairly and thoroughly audited by the IRS. Long standing precedent and tradition are that a Presidential candidate discloses his or her tax returns to the scrutiny of the American voting public that is being asked to give the greatest and most important powers in the nation; Trump chose not to. Quite unlike the autocracies that govern Russia and China and the theocracy that controls Iran, the US has a democratic tradition that the American people select and remove their representatives through their votes after free and fair elections; Presidential tenures are term limited, and Presidential powers are subject to extensive checks and balances with the other branches of government and compliance with the nation’s laws and constitution. After a lengthy court battle, Trump’s tax returns have now been turned over to the relevant House Committee for their review; the Ways and Means Committee has about a month to assess the returns before the GOP takes over the majority leadership of the House and buries the investigation into whatever financial shenanigans may be revealed in his tax returns. His accountant from Mazars, for example, recently testified before Congress that Trump reported one billion in tax losses over a two-year period. https://thehill.com/policy/finance/3747791-accountant-testifies-trump-reported-significant-tax-losses-for-a-decade/ The reason Trump lost this case was that he had a weak case to overturn a clear and specific statute directly on point to the required disclosure, but through the drawn out litigation he achieved his larger purposes of delay, delay, delay until his party returns to power in January and protects him.
When he left office in January 2021, Trump took with him many boxes of government documents that by law belonged to the American people. https://www.nytimes.com/2022/08/22/us/politics/trump-mar-a-lago-documents.html The records of each Presidency are supposed to go to the National Archives where they become part and parcel of the nation’s collective history, record keeping, and written memory. The National Archives determined that many of Trump’s Presidential documents were missing and requested their return. Some were top secret and highly classified, including nuclear and national security secrets. After a year of negotiations, Trump relinquished some and then claimed that he had returned them all. But in fact, he held onto many others surreptitiously and tenaciously. Ultimately, the FBI had to resort to a judicially issued search warrant to search Mar a Lago, find the stolen documents, and secure their return. Some may still be missing; has anyone checked the toilets in Mar a Lago, or could they be stored at one of Trump’s many other properties? One of Trump’s judicial appointees, Judge Cannon in Florida, enjoined the federal investigators in the FBI and Justice Department from looking at the seized documents in their criminal investigation into the missing documents. https://slate.com/news-and-politics/2022/09/trump-mar-a-lago-case-how-two-trump-judges-ended-aileen-cannons-reign-of-madness.html She appointed a federal master, a retired federal judge, to whom she assigned the job of determining which if any of the documents were privileged or belonged to Trump and which belonged to the federal government. When the master, Judge Dearie, asked Trump to put his claims of ownership or privilege in writing and under oath, Judge Cannon countermanded him and excused Trump from complying. The federal Court of Appeals panel for the 11th Circuit, all three of whom were GOP appointees and two of whom were Trump appointees, ruled unanimously, that it was not the job of the judiciary to prevent the federal investigation of Trump’s purloining highly classified government secrets, and ordered Trump’s case before his handpicked, loyal jurist to be dismissed. https://www.documentcloud.org/documents/23323385-trump-ca11-2022-12-01b and https://slate.com/news-and-politics/2022/12/trump-mar-a-lago-cannon-criminal-investigation.html The reason Trump lost this case was that he had a very weak case and could not meet any of the long standing criteria for judicial intervention in a federal criminal investigation and Judge Cannon had far exceeded her role as a judge in her efforts to insulate Trump from his own misconduct. https://pacer-documents.s3.amazonaws.com/206/22-13005/011012546585.pdf It is yet unclear what his goal was in taking, keeping, and hiding the documents and refusing to turn them over. It may be possible that it was a simple act of hubris and spite on his part after being turned out of office, or there could be personal and political embarrassment or incrimination in the documents that he seeks to conceal, or he may have thought to use the documents or the return of the documents as some form of negotiating leverage.
The greater peril for Trump lies ahead in the reports of the January 6 committee and the Department of Justice investigation of his efforts to overthrow the election of his successor; these could lead to his criminal indictment. The report of the January 6 Committee will catalogue and detail Trump’s efforts to overthrow the election of his successor, Joe Biden and is likely to make criminal referrals. https://www.usatoday.com/story/news/politics/2022/12/03/january-6-report-details-what-we-know/10794233002/ Due to the refusal of certain key players to testify before Congress, there are some evidentiary black holes being filled in by the House Committee such as the connections from Trump through Roger Stone, General Michael Flynn, and Steve Bannon to the radical extremist groups like the Proud Boys, Three Percenters, and/or the Oath Keepers who stockpiled weaponry, led the Capitol takeover, and were recently convicted of seditious conspiracy for their efforts on Trump’s behalf. https://www.npr.org/2022/07/12/1111132464/jan-6-hearing-recap-oath-keepers-proud-boys Some Trump efforts, such as filing unsubstantiated lawsuit after unmeritorious lawsuit to contest the election have exposed some of his attorneys to court sanctions and bar discipline, but frivolous and vexatious lawsuits are not the subject of criminal liability for Trump. In fact, the courts, not street fighting or Capitol invading, are the proper forum for legitimate election challenges. Other Trump actions will be illegal such as the fake elector schemes in seven states concocted and promoted by Trump’s attorneys Rudy Giuliani, John Eastman, and Kenneth Chesebro. https://www.nytimes.com/2022/10/12/us/politics/kenneth-chesebro-trump-fake-electors.html Likewise, there is nothing illegal about holding a peaceful protest rally on the Washington Mall, and there is nothing remotely legal about trying to assault and hang Mike Pence, kill Nancy Pelosi and other Congressional leaders and staff, assault federal law enforcement officers, ransack the US Capitol, refuse to call out federal forces to quell the insurrection, and trying to disrupt the counting of the electoral ballots for the Presidential election. Trump did not act alone; he had extensive help and assistance both inside and outside of government, and depending on their conduct, some of his closest consiglieres may be in serious legal jeopardy as well as Trump. We don’t know whether they will simply invoke their 5th Amendment rights against self-incrimination, whether they may be disposed to cut a deal to testify if it insulates them from prosecution, and whether they may be having second thoughts about the President’s conduct. https://www.justsecurity.org/82696/trump-and-the-insurrection-act-the-true-legal-framework/ and https://www.justsecurity.org/82713/seditious-conspiracy-vs-insurrection-assessing-the-evidence-against-trump/ Since Trump is paying their legal bills, and many of them are using the same firm of attorneys, the likelihood of witnesses flipping on Trump is severely diminished. https://www.washingtonpost.com/national-security/2022/12/05/trump-witnesses-legal-bills-pac/
The President’s conduct and utterances are becoming increasingly unhinged: for example, declaring the Constitution does not apply to him, or dining with antisemites and Hitler-philes at Mar a Lago. https://thehill.com/blogs/blog-briefing-room/news/3760916-trump-calls-for-termination-of-election-rules-in-constitution-to-overturn-2020-election/; https://www.axios.com/2022/11/25/trump-nick-fuentes-ye-kanye, and https://www.adl.org/resources/blog/extremists-react-trump-dinner-ye-and-nick-fuentes This is causing public consternation among some of his fellow Republicans while others remain tight-lipped about the President’s choice comments and choice of dinner companions. https://www.politico.com/news/2022/12/04/trump-termination-constitution-republicans-00072079