Reuters, US Chief Justice Roberts rebukes Trump’s attack on judge
N.Y. Times, Trump Administration Pushes Back Against Judge’s Orders on Deportations
A friend has written to ask, “Are we getting closer to a test [of the rule of law in the United States]?” The answer is yes.
How are we to predict what will happen when push comes to shove?
George Conway’s face has been all over YouTube, reminding us that if and when there is a direct confrontation between the courts and the executive branch, they only coercive power the courts have is the United States Marshals Service, and that the latter is under the control of the executive.
Well, yeah. But I think there are actually two sides to this coin.
Two Sides to the Coin: Who Will or Won’t Obey Which Orders?
Well may we ask, how do the courts enforce their orders when Trump tells his minions to violate the law?
But, by like token, when Trump tells his team to violate the law, how many of them will actually do it?
Let’s wargame this out.
Some on the Trump team are lawyers—actual members of the bar. Lawyers who engage in contempt of court—not to mention other violations like subornation of perjury or obstruction of justice—face fines, imprisonment, and disciplinary actions up to and including disbarment.
If you are a lawyer, there will probably come a time when a client will pressure you to violate the law or demand that you violate the law. You had bloody well not do it. It’s the wrong thing to do. But even if you don’t give a tinker’s damn about right or wrong, it’s still a really bad idea to violate the law on a client’s behalf.
Now, to push our little thought experiment to the next step: Maybe you are a member of the bar who has drunk deeply of the MAGA Kool-Aid. Maybe you think that a Trump dictatorship would be just fine and dandy. But are you SURE that the leap toward dictatorship is actually going to work?
Because, friend, if Trump doesn’t pull off his dictatorship, then you are going to be left up that famous tributary without a means of locomotion.
If you are a lawyer, you will be subject to disbarment, and will need to find another line of work—animal husbandry, maybe?
If you are not a lawyer, you can’t be disbarred—you were never “barred” in the first place—but there are plenty of other adverse consequences that could ensue.
In short, Conway is surely right as far as he goes: Just because the Supreme Court says “Jump,” that doesn’t mean that everyone in the land will ask “How high, sirs?”
But the same thing goes if and when Trump says “Jump—into defiance of the rule of law!” Lots of people will jump. But how many will not jump?
And Then There are the Knock-on Effects …
As Conway says, when push comes to shove, there will be a lot of folks out in the streets. But it won’t only be folks in the streets. Read the damn WSJ Editorial Board, for example: If the rule of law disappears and it becomes a jungle out there, how the hell can big business enforce its contracts—or have enough certainty to invest and thrive?
What will Trump do when every Fortune 500 CEO comes for him?
… At a Time When There is Massive Pain Throughout Society
If you’re Mango Mussolini and you want to go full authoritarian, maybe you don’t want to pick a time when government breakdowns are hurting your peeps and when trade wars are causing big pain.
Not a Rosy Scenario—But a Damn Uncertain Scenario
No, my name is not Rosy Scenario, and of course I don’t know how all of this is going to turn out. But I do know, to a high level of confidence, that there are a whole lot of moving parts—and a lot of those moving parts may not move in Trump’s direction.
Facing MAGA 