In a wholly unsurprising decision, the U.S. Court of Appeals for the D.C. Circuit has denied Donald Trump's attempt to claim total immunity for all actions he took leading up to and during the insurrection on Jan. 6, 2021.
In their ruling, the court makes a valid, if obvious, point. But in that point is a warning to us all, intentionally written that way or not. The court stated:
"At bottom, former President Trump's stance would collapse our system of separated powers by placing the President beyond the reach of all three Branches," the court wrote. "Presidential immunity against federal indictment would mean that, as to the President, the Congress could not legislate, the Executive could not prosecute and the Judiciary could not review. We cannot accept that the office of the Presidency places its former occupants above the law for all time thereafter."
Imagine the former president is reelected, installs a stooge as his attorney general, who is loyal to and protective of him, and has enough senators to shield him from any conviction during impeachment.
What happens then is exactly what the court wrote above—a president who is above all three branches and untouchable. In Trump's words: "Total immunity." Even, as his lawyer argued, if he ordered SEAL Team 6 to assassinate his political rivals.
If you think that's hyperbole, and it will never happen here, consider this statement from Republican Sen. J.D. Vance of Ohio. Vance stated that a reelected Trump should fire every civil service employee who is not loyal to Trump 2.0, and can simply ignore any court decision—even a Supreme Court decision—he deems illegitimate. Quoting former President Andrew Jackson Vance said, "The chief justice has made his ruling, now let him enforce it."
Of course, the Supreme Court has no enforcement mechanism, and Vance knows it. The only legal enforcement would come from the Department of Justice. But if that were run by a Trump toady, DOJ wouldn't lift a finger to enforce the law against Trump. Impeachment and removal from office? If Trump has enough senators willing to protect him, he'd swat that away like a fly.
That line of thinking doesn't merely apply to the Supreme Court, either. What if Trump, in a second term, vetoes a bill from Congress, and that veto is overridden, but Trump simply ignores that vote and refuses to implement the new law?
A veto override would require the same number of senators needed to convict him if impeached. Conceivably that would mean enough votes to remove him from office, but can we really be sure enough Republican senators would go back to their base having voted to remove him? My money is on Trump surviving impeachment and removal, for refusing to institute a law Congress enacted and again simply ignoring courts ordering him to comply.
And what does it matter if the Senate does convict Trump and he refuses to leave? If he does as Vance argued, and sweeps out all civil service and military of people not personally loyal to Trump, and he has a vice president unwilling to cross him, is there anyone left to enforce Congress' decision? You could potentially go through the entire presidential line of succession and not find a single person who would try to assume the presidency.
What the decision by the D.C. appeals court has illuminated in its writing is that our entire Republic is based on everyone following norms, like doing what a court orders you to do. But there are no guardrails to keep us from sliding into autocracy or dictatorship if an elected president ignores those norms and has enough people surrounding him who will protect him, or at least look the other way.
The only guardrail is the election itself. The only way to stop a slide into an authoritarian regime is to not elect one in the first place. Not a wannabe authoritarian and not the people who would violate their oaths to protect him from accountability and the law.
Other nations in history had to learn this lesson the hard way. In 2024, we'll know if the United States of America wants to join that list.
Eric Schmeltzer is a Los Angeles-based political consultant who served as press secretary to Rep. Jerry Nadler and former-Gov. Howard Dean.
The views expressed in this article are the writer's own.
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