Trump Has Successfully Gamed the Courts

To see how this works out in practice, consider one ongoing case that predates the impeachment inquiry. In August, House Democrats went to court seeking to compel former White House Counsel Don McGahn to testify about potential obstruction of justice related to Special Counsel Robert Mueller’s probe. In late November, a district-court judge thunderously rejected the administration’s claim that McGahn was “absolutely immune” from testifying. “Stated simply, the primary takeaway from the past 250 years of recorded American history is that presidents are not kings,” wrote Judge Ketanji Brown Jackson.

That sounds like a win for Democrats, and legally, it is. But practically, who knows? The decision was quickly stayed. The case will have to slowly work its way through the circuit court, and then will almost certainly be appealed to the Supreme Court. It could be months before there’s a clear answer.

David A. Graham: Trump is now in open defiance of Congress

The judicial system is equipped to deal with frivolous lawsuits, but it isn’t set up to deal with them in an especially timely fashion. There aren’t obvious systemic fixes that would close the loophole Trump has discovered or created. The appeals process is structured for rigor, and most Americans would agree that the courts need to be deliberate and careful. Across the country, some courts have established “rocket dockets” for simple matters, but those are vulnerable to error and don’t necessarily make good models for the abstract questions raised by the Trump suits. It’s also easy to imagine an expedited process becoming subject to abuse. Beyond that, who is to decide what would merit the fast track? Many of the cases that come through federal courts, especially in D.C., are nationally significant. Who is to judge what’s most important?

One answer might be: judges. There are examples of federal courts acting quickly in a pinch, including where the presidency is involved. Almost exactly 19 years ago, on December 12, 2000, the Supreme Court ruled in Bush v. Gore, the matter of the Florida recount of that year’s presidential election, after moving at lightning speed to hear and decide the case. The justices concluded that they needed to step in and guarantee an orderly resolution to the presidential election, in an emergency situation. While their ruling is subject to criticism, the decision to hear the case on an expedited basis holds up.

It also proves that courts can move fast when they have a mind to do so. Choosing to treat the Trump-related cases as normal, even when there are signs of a national emergency, is a choice. Perhaps that insistence of maintaining normalcy will some day be remembered as a wise and courageous stand that stood against and helped dispel chaos. The nature of Trump’s challenges to the rule of law and impartial courts means that it might be a grave error, too, though—with the stubborn clinging to the regular pace amounting to cutting off one’s face to spite one’s nose. By the time history renders its verdict, it could be too late for the federal judges to render theirs.

David A. Graham is a staff writer at The Atlantic.