Schwab: Hope for separation of powers rests with justice

By Sid Schwab / Herald columnist

From federal District Court Judge Amy Berman Jackson’s ruling on Trump ordering White House personnel to ignore congressional subpoenas:

“However busy or essential a presidential aide might be … the President does not have the power to excuse him or her from taking an action that the law requires. …

“Presidents are not kings. This means that they do not have subjects … whose destiny they are entitled to control. Rather, in this land of liberty, … current and former employees of the White House work for the People of the United States, and they take an oath to protect and defend the Constitution of the United States.”

Your indefatigable columnist has previously asked on what basis any president could command current or former underlings to refuse congressional oversight. None, as it turns out. Not according to this judge, appointed for her competence rather than for past and future rightwing dogmatism. Which means the issue remains unsettled until we hear from the Supreme Court. It may well come down to Chief Justice John Roberts, who once claimed that his job would be to “call balls and strikes.” If he believes that, it’ll be an easy call.

After discarding truth and compromise in favor of Newt Gingrich’s scorched-earth policies (leading presently to that literal thing) and catering only to the wealthy, everything the Republican Party has become has set the stage for an amoral, confabulating, autocratic “president.” And now, when it arrives in the Supreme Court, this far-reaching case will determine the future of our democratic republic. It’ll announce whether the Constitution still means anything; whether, notwithstanding congressional Republicans’ subservience, having co-equal branches of government remains an American value.

If the male justices pledged allegiance to the law and not the Federalist Society, it’d be unanimous. Other than within today’s Republican Party, and possibly among its most tendentious judges, there’s nothing controversial about “original intent” regarding separation of powers, nor the requirement of Congress to oversee the executive. The Constitution was written by men familiar with monarchy and committed to the prevention of it footholding here. That presidential power is limited by and subject to congressional oversight is carved in parchment; that it’s indispensable to protecting Americans from autocracy is undeniable. No true conservative would contest that, nor would anyone who understands and believes in our form of government.

And yet, here we are. After decades of Republicans tilling the soil for a lifelong miscreant like Trump, America’s future comes down to one court decision: may Trump obstruct congressional oversight, or not. If Trump, “president” of the Electoral College of the United States, can compel members of the executive branch not to appear before or release documents to lawfully constituted oversight committees, and if it’s affirmed by the judges he’s appointed, mainlined for their partisan ideologies by Mitch McConnell’s hypocritical Senate after blocking highly qualified, widely admired nominees of President Obama, America as originally construed will have been erased. Which has been the aim since Newt’s “contract.”

Trump couldn’t have happened to us, nor would he still be in office, without preceding decades of Gingrichian abandonment of principle, and Mitch McConnell’s cynical continuation of it. While Republicans cower, Trump has declared himself above the law. “I have an Article II, where I have the right to do whatever I want as president,” were his exact words. As his lifelong cheating and lying and his bragging about sexual assault should have ended his candidacy, that claim should have ended his presidency. No patriot could accept it, and none have. It’s only Trumpists, who don’t now and may never have had love for America as it was intended to be, and once was.

This isn’t about the case for impeachment. It’s more fundamental than that; it goes to the very definition of the United States of America, and might be the most impactful court decision since Marbury v. Madison.

You can call impeachment a witch hunt. You can rationalize mountains of evidence of presidential misconduct, or, as congressional Republicans are doing, pretend it’s not there. You can convince yourself Ambassador Yovanovitch, et al., are liars. You can even love Trump because he “sticks it to liberals” and reinforces your enmities.

These things you can do, albeit mistakenly, without abandoning the essence of American governance. But if you accept his refusal of Constitutional oversight, you must finally admit you prefer dictatorship over democracy. Unless it’s a Democrat. That applies equally to Republican Congress-people and voters.

Email Sid Schwab at columnsid@gmail.com.