WASHINGTON ― With the president and his lawyers claiming he is shielded from prosecution and simultaneously able to pardon himself for any federal crime, are there any checks on Donald Trump’s actions at all from the courts?
And what happens if the courts rule against him on a matter he believes could threaten his presidency or even his liberty?
As Trump’s claims of overarching, even regal powers have grown more fervid in recent weeks, those questions have become increasingly worrisome to constitutional experts.
“I don’t want to be an alarmist,” said Sarah Turberville with the Constitution Project, a group that has been urging Congress to pass a law protecting special counsel Robert Mueller and his investigation into Trump’s campaign. “But you could see this coming to a head.”
“There certainly is such a worry,” said Laurence Tribe, a constitutional law professor at Harvard Law School.
Thus far, Trump does not appear ready to directly challenge the power of the judiciary over him ― or at least his most talkative lawyer, former prosecutor Rudolph Giuliani, does not. When discussing a hypothetical subpoena by Mueller demanding that Trump appear before a grand jury, Giuliani said he would seek to quash it in court rather than just ignore it.
Mueller would surely go to court to enforce an ignored subpoena, Giuliani said in a recent interview with HuffPost. And the special counsel could have the president held in contempt if Trump’s lawyers lost that dispute. “We want to avoid the argument that the president is operating above the law,” Giuliani said.
Multiple legal scholars contend that Trump and his team are already arguing that he is above the law. In a 20-page letter sent to Mueller in January, Trump’s lawyers claimed that the president, as head of the executive branch, has the authority to end any investigation undertaken within that branch as well as to render them moot using his pardon power.
Trump has personally expanded on that message in a number of Twitter statements in recent days. “The appointment of the Special Counsel is totally UNCONSTITUTIONAL!” Trump wrote Monday, shortly after tweeting, “I have the absolute right to PARDON myself.”
What’s more, given Trump’s demonstrated willingness to ignore established guidelines of behavior in public office, critics worry that he might easily trigger a constitutional crisis if courts started to rule against him.
Early last year, Trump said he had recently learned that conflict-of-interest laws did not apply to the president. Since then, he has continued to profit from his hotels and resorts, even from business clearly driven by his presidential position ― despite promises during the campaign that he would separate himself from his private company.
What happens when Trump similarly realizes that nothing in the Constitution specifically requires him to accept a Supreme Court ruling he doesn’t like and that the high court’s authority largely flows from a 215-year-old precedent?
“I don’t know what he would do,” said one former longtime Trump aide, who spoke on the condition of anonymity. “I just don’t know.”
The White House did not respond to HuffPost’s queries about the matter.
It was 1803 when Chief Justice John Marshall wrote the opinion giving the court the power it has today in the case of Marbury v. Madison. The Supreme Court ruled that James Madison, the secretary of state, acted illegally but that the law passed by Congress to remedy such situations was unconstitutional. In the process, the court established that it has the power to declare an act of another branch of government unconstitutional ― a precedent that the executive and legislative branches have honored ever since.
Turberville has been relieved to see the Trump administration honoring adverse court rulings so far, but she said those decisions have all concerned his policies, such as banning visitors from predominantly Muslim nations. Trump could behave very differently, she said, if the ruling were to involve him personally ― upholding a subpoena requiring him to turn over business records, for example.
President Richard Nixon complied with a Supreme Court ruling requiring him to turn over secretly recorded tapes of his White House conversations ― and ended up resigning just two weeks later.
“The federal courts don’t have an army. They don’t have a police force to enforce their rulings,” Turberville said. Instead, she said, judges rely on people of good faith ― including officials in the other branches of government ― to honor established norms.
“It is in the realm of possibility, hopefully not probability, that this president would seek to upend that. And then it would fall to Congress,” she said. “The only way to head off a constitutional crisis of this nature [would be] for Congress to impeach him.”
Tribe agreed that Congress could not tolerate such behavior by the president. “Even the Republicans in Congress who sit still as Trump gradually violates one constitutional norm after another may well rise up against outright defiance of a Supreme Court order,” he said.
Norm Eisen, the top ethics lawyer in President Barack Obama’s White House and now a senior fellow at the Brookings Institution, said that while he’s not as confident as he would like to be that Trump would honor a court order, he does not believe that Giuliani is ready to take on two centuries of Supreme Court precedent.
“I don’t think he’s ready to re-litigate Marbury,” Eisen said.
For his part, Giuliani told HuffPost that he’s not.
The lawyer said Trump could not be prosecuted for any crime while he remained president, even in an extreme hypothetical case such as if he had shot James Comey last year rather than just firing the FBI director.
But had that actually happened, Trump would immediately have been impeached, Giuliani said ― and then added the country was lucky not to have had any truly violent presidents to test that theory.
“Although, what if Aaron Burr had become president?” Giuliani joked. (Burr was Thomas Jefferson’s vice president in 1804 when he challenged Alexander Hamilton to a duel and killed him.)
While Giuliani said that Trump has broad powers under the Constitution, he said the courts do as well. “I think ultimately we all agree that the Supreme Court interprets the Constitution,” Giuliani said.