There has been considerable discussion of late regarding the possibility of Robert Mueller serving a subpoena on Trump to testify to the Special Counsel or before a grand jury. Most agree that Trump would defy the subpoena, sending the matter ultimately to the Supreme Court. Then what happens?
Here’s my take:
SCOTUS quashes the subpoena
Obviously, if Trump is successful before SCOTUS the issue is put to rest and Trump will not honor the subpoena. Game over.
Result: Trump presidency continues.
SCOTUS upholds the subpoena 5-4
In this scenario, the four conservative justices affirm Trump’s position and Roberts writes the minority report. In all likelihood, Trump and his propagandists will spin this as a purely political decision and bemoan their victimhood at not having had the opportunity to appoint an additional conservative to the court. Trump will use this argument to defy the court ruling as partisanship and dare the court to enforce their ruling (a la Andrew Jackson in Worcester v Georgia – “John Marshall has made his decision, let him enforce it”). This would leave the matter to Congress, which at this point seems highly unlikely to move against the President and would be even less emboldened to stand against an opinion supported by all four conservatives on the court.
To those who look to U.S. v Nixon, remember that vote was 8-0 (Rehnquist recused) and the Democrats controlled Congress. Also, that was your father’s Republican party, with such decent Senators as Jacob Javits, Hugh Scott, Charles Percy, and Howard Baker, et al. And by the time U.S v Nixon came down, Nixon had few vocal supporters beyond fringe players like Rabbi Baruch Korff. There were no Limbaughs or Hannitys stoking the fires on a daily basis. There was no Fox News or Breitbart, and the Third Reich was quiescent.
Result: Trump defies court, Congress does nothing, presidency continues
SCOTUS upholds the subpoena 6-3
Here is where it gets interesting. In this scenario, Chief Justice Roberts joins the majority and writes the majority report, reminiscent of National Federation of Independent Business v Sibelius (the Obamacare case). The added weight of the Chief Justice joining the majority might be enough to sway some Republican voters and Congressmen. However, after Sibelius, many in the party began viewing Roberts with suspicion and the base would probably still continue to view the ruling as an exercise in partisanship. It’s a question of at what point are they willing to disenfranchise the base. While there might be some serious teeth gnashing, Trump will again defy the court and a Congress, skeptical of Roberts’ political influence and still fearful of alienating the base, will fail to act.
Result: Trump defies court, Congress does nothing, presidency continues
Scotus upholds the subpoena 7-2, 8-1, or 9-0
It seems unlikely that only one or two conservatives would flip. Most likely, if one votes against Trump they all will, in a show of Supreme Solidarity. In any event, a defection any of the “true” conservatives on the court, along with Roberts, poses a serious problem for Trump and his henchmen to explain away. The partisanship issue begins to fade. With a restless electorate, a growing number of Congressmen uncertain of their own future, and a full-blown Constitutional crisis, the party leaders would likely march to the White House to tell Trump it’s time to shit or get off the pot. Faced with these options, it is hard to imagine Trump agreeing to testify in a situation in which he will most certainly be exposed for the criminal and fraud that he is. Rather than agree to the subpoena, he will probably decide to play the martyrdom card, give a final rally in which he extols all of his fantasized accomplishments, try to pardon himself, resign the office, and run off to Mar-a-Lago.
Result: Trump resigns, a nation sighs with relief.
In considering these hypotheticals, there are only three serious options: 1) Trump wins, 2) Trump loses but defies the ruling without consequence, or 3) Trump resigns. Given his extreme narcissism, coupled with a truly criminal history and consciousness of his own guilt, testifying under oath is not a viable option. However, the point of this diary is that it is wishful thinking to believe that a simple victory in the Supreme Court will be enough to derail this nightmare.
Feel free to disagree….