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Coming: The “Separation of Powers” Judicial vs. Executive constitutional confrontation

Yes, over more than two centuries, there have been many confrontations between the “separate but equal” Judicial and Executive branches of the U.S. government. But, arguably, none since the Civil War with the sweep and scope of the constitutional storm now descending upon the nation.

Consider the relevant legal issues now — or soon to be — under review at various U.S. courts ranging from district and appeals levels to the Supreme Court. They include:


• Trump travel ban (Q&A: Trump’s Muslim Ban at the Supreme Court)

• Presidential emoluments and pardons

• Indictment of a president

. Reserved Powers (Constitution 10th Amendment)

. New attack on Affordable Care Act

. Gun controls/NRA

. Freedom the press

• Deferred Action for Childhood Arrivals (“Dreamers”)

• “Sanctuary Cities”

• Census citizenship query

• Trump/Russia

• Trump organization members/Russia

• Trump and family long term business operations

• Russian oligarchs

• Michael Cohen

• Paul Manafort

• “Stormy Daniels” cases

• The many revanchist policies proposed by the U.S. Environmental Protection Agency and other Cabinet departments


And, in many of these cases, over-arching: Are the President’s tweets his policies? And admissible?

Having faced hundreds of legal confrontations over his multi-decade business career, the President might be thought of as the “favorite” in the impending judicial battles: Plaintiffs have often been forced to settle for pennies on-the-dollar (if anything) and non-disclosure agreements. So he may well be able to gain some relief in the current cases. And Trump’s lawyers have been very astute at prolonging cases over many months, even years.

But now the opposition is far more formidable: The Federal Department of Justice, the Federal Bureau of Investigation, states attorneys general, many “friends-of-the-court ” opponents, and, of course, Special Counsel Robert Mueller. They are likely to have remarkable staying power and legal argument, the threat of presidential firings in those ranks not withstanding. 

The President’s advocates can also point to the perceived “conservative majority” of Supreme Court justices (and the President’s rapid appointment of similarly perceived lower court judges) for some relief. But an abiding faith in the integrity of American judges — and our judicial system — suggests that these public servants will  “call them as they see them”, based on law, not politics. Earlier, justices with Republican credentials, chief justices ranging from Earl Warren to John Roberts, did so in surprising historic, controversial, high-stakes decisions.

And consider the American judicial integrity bequeathed by Chief Justice John Marshall, as summarized by Joel Richard Paul in his new, engaging biography, “Without Precedent Chief Justice John Marshall and His Times“:“Chief Justice John Marshall lived in a revolutionary age in which the country was polarized by competing ideologies …Democracy requires practical jurists and statesmen who prefer compromise to chaos and who understand that the single-minded pursuit of one’s own ideology at the expense of all else is the path to civil war…More than any other American John Marshall set the foundations of the Republic that have guided the nation for more than two centuries …”)

 It is not hyperbolic to suggest that determination of the length, impact and legacy of the Trump presidency is under seismic shift. Barring a political earthquake, the Republican-controlled Congress will certainly not impeach. Unless under extreme duress, the President will not resign.

Ultimately, the black robes will rule.

See you in court.