Today, however, Trump has transformed the Grand Old Party into a party of lawlessness and disorder. Trump's lawyers were in a federal courtroom last week [Oct. 23], along with Justice Department lawyers, arguing that Trump is so far above the law that he cannot even be investigated much less prosecuted for run-of-the-mill criminal offenses.
One day earlier, Trump had met at the White House with some of his Republican supporters in the House of Representatives to bless a plan to disrupt the ongoing impeachment inquiry being conducted by three Democratic-led House committees. Rep. Matt Gaetz, the Florida Republican and leader of the group, effectively delayed the inquiry for five hours by leading two dozen or so rule-breaking members into the secure, underground facility where the committees, with members from both parties, were to hear testimony from the next administration official called as a witness in the proceeding.
Trump's lawyers were arguing before the federal appeals court in New York City to quash a subpoena issued by the Manhattan district attorney, Cyrus Vance Jr., for Trump's personal and corporate tax returns as part of a tax-related investigation by the state prosecutor's office. The three-judge panel in the case, Trump v. Vance, appeared to be taken aback by the extraconstitutional audacity of the argument.
Inevitably, the arguments recalled Trump's campaign-time boast that he could shoot someone on New York's Fifth Avenue without losing a single vote from his supporters. Judge Denny Chin posed the hypothetical to Trump's lawyer, William Consovoy, to ask whether local authorities would be helpless to investigate. "Nothing could be done?" Chin asked, incredulously. "That's your position."
Consovoy, a go-to Washington lawyer for conservative and Republican causes, stuck to the position, according to the New York Times' account. "That is correct," he said, repeating himself for emphasis. "That is correct."
Trump's position contradicts the Supreme Court's 1974 unanimous decision in United States v. Nixon that ordered Nixon to turn over the White House tapes in a criminal proceeding in the face of a more carefully framed assertion of presidential privilege. It also contradicts the Court's decision in Clinton v. Jones (1997) that Clinton was subject to subpoena in a private civil lawsuit, a proceeding with much less public import than a criminal investigation.
Trump's position also goes beyond the protections afforded to heads of government in other Western-style democracies. As one example, the Israeli prime minister Benjamin Netanyahu is currently facing possible indictment in a two-year long investigation for possible fraud, bribery, and breach of trust. The Israeli attorney general announced plans in February to bring indictments, but Netanyahu tried to derail the charges in a pretrial hearing earlier this month [Oct.2].
Meanwhile, the House Republicans led by the Fox News regular Gaetz were making another argument unsupported by anything in the text or spirit of the Constitution. Gaetz, who represents part of Florida's Alabama-like western panhandle, has been one of the leading critics of the preliminary depositions that the three House committees are taking in closed-door meetings to prepare for public hearings on Trump's now all but certain impeachment.
The closed-door evidence gathering follows the pattern that the House's Republican leadership used in the Clinton impeachment. Some of the cable news channels dramatized the Republicans' hypocrisy by digging up footage from then-Rep. Lindsey Graham, one of the House's impeachment managers, and contrasting it with Graham's denunciation of the same procedure now as a Trump-supporting Republican senator from South Carolina.
Gaetz led some 40 House Republicans into the subterranean House room officially designated as "Sensitive Compartmented Information Facility" or SCIF that the Intelligence Committee uses to safeguard classified materials. The committee rules prohibit cell phones in the facility, but Gaetz carried his with him and sent boastful tweets from inside.
Some of those who massed with Gaetz outside the closed doors were in fact members of one or the other of the committees in the inquiry and thus had no need to barge in. Given the blatant hypocrisy, it was easy for some Congress watchers to sneer at a political stunt stage managed for maximum effect on TV newscasts.
However farcical, the episode was worse than a stunt, as Richard Primus, a law professor at the University of Michigan, noted in a long thread on Twitter. Primus described the demonstration as "an attempt by members of Congress to use physical disorder to block the work of Congress. That's terrifying. And completely inappropriate. Constitutional government can't function that way."
Trump and his supporters, however, have little regard for constitutional niceties. Thus, Trump scoffed last week at what he called the "phony" Emoluments Clause, the constitutional provision that he has openly violated since his first day in office. And Trump, let it be remembered, once proclaimed that the Constitution's Article II gives him the power to do whatever he wants — separation of powers notwithstanding.
Law and order are no help, but hindrance, as Trump's political and legal situation worsens, according to Primus. "As things come to look worse for Trump, he and his supporters will resort to increasingly desperate/destructive tactics," he tweeted. "That’s how institutions collapse."
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