When the Trump White House ignored congressional subpoenas, the response was to begin working those subpoenas through the courts. But in the wake of the latest development in the case of former National Security Advisor Michael Flynn, the Justice Department under William Barr has demonstrated that it can just as readily ignore orders from the court. And in ignoring both of it’s supposedly co-equal branches of government, the executive has taken the same position—we get to decide how Congress and the courts should do their job.
As The Washington Post reported, federal prosecutors simply failed to follow the orders issued by U.S. District Judge Emmet Sullivan that they turn over transcripts of conversations between Flynn and Russian Ambassador Sergei Kislyak, and they also refused to provide a unredacted portion of the Mueller report that they had been ordered to produce. Instead, they just made a statement that they had “not relied upon” the transcripts in charging Flynn with lying to investigators. In other words, the Justice Department informed Judge Sullivan that he couldn’t ask for something unless it had been directly used in sentencing—a rule that exists nowhere in the law.
If that invented reasoning from the DOJ sounds familiar, it’s because it follows the same line that both the White House and Trump’s private lawsuits have been following in court when it comes to congressional subpoenas. There Trump’s personal attorneys, both in and out of government, have argued a narrow view of congressional subpoenas being bound to “a legitimate legislative purpose.” That is, if there’s not an active piece of legislation under consideration, where the information being sought would be sure to make a difference, then Congress can’t ask for the information. The White House has even applied this standard to the House Ways and Means Committee’s request for Trump’s tax returns, even though the law in that case explicitly states that the committee can seek this information.
What Trump is claiming isn’t just an executive authority to ignore the other branches of government, but an ability to tell them how to do their jobs. And for both the legislature and the judiciary the real question now is … what are they going to do about it?
There’s a reason that Donald Trump keeps a portrait of Andrew Jackson on the Oval Office wall—one that goes beyond Jackson’s racism, hatred for following regulations, and tendency to simply shoot people to settle arguments. That reason is the case of Worcester v. Georgia. On the surface, that case may have seemed small, dealing with a single missionary living on Cherokee lands without a permit from the state. But the consequences were huge in every direction.
In that ruling, Chief Justice John Marshall declared that Indian nations were just that, nations. Treaties with them carried the same force as treaties with foreign powers, they could only be addressed by the federal government, and as nations they were not subject to laws passed by an individual state. Meaning that Worcester didn’t need Georgia’s permission to be on Cherokee land—and not so incidentally, that Georgia’s efforts to seize Cherokee lands were illegal.
Jackson didn’t like the ruling. He called the Supreme Court’s decision “still born” and declared they had no ability to force Georgia to obey their decision. Or, as it has come down popularly "John Marshall has made his decision; now let him enforce it!" But Jackson didn’t stop by just failing to use any federal authority to enforce Marshall’s decision. He disregarded it completely to continue a series of Indian “removals” that were already underway, and would continue, along the “Trail of Tears.” The Removal Act was Jackson’s idea. It was the one law that he did enforce, with all the power of both federal marshals and U.S. troops.
The deep racism and culturalism with which Jackson deployed against Native Americans didn’t just foreshadow the way Trump has handled immigration policies. Both men share an image of the executive as imperial, rejecting the independence of the courts and the oversight of the congress.
What happened in the Michael Flynn case might also seem like a small thing; the government failed to produce a letter and a portion of a report on the demand of a judge. However, the underlying claim of the Department of Justice is that they get to decide what portions of a court order must be obeyed.
The offhand dismissal of an order from a federal district judge is no small thing. Neither is continuous and blatant disregard for congressional subpoenas and the plain meaning of law. But the Trump White House is now engaged in all of these things.
And the fact that they are not surrounded by protests, would point to the idea that they’ll simply get away with it. After all, the courts and the congress may have their laws … now let them enforce them.
Published with permission from Daily Kos.