With what numerous legal experts describe as a constitutional crisis already embroiling the White House and the judiciary, we are faced with the possibility that President Donald Trump might simply refuse to obey even the highest court in the land.
“If push comes to shove and Trump says, ‘I’m not bound by law,’ then the rest of us in the country have to regard him as an outlaw, literally somebody outside the law,” Professor Robert Post, the eminent constitutional scholar at Yale Law School, told the Daily Beast on Monday.
The Daily Beast suggested to Post that his doctorate in American history, along with his extensive legal experience, made him better prepared than most Americans for such a possibility.
“Nobody is prepared for this moment,” Post said, adding, “It’s terrifying. It’s absolutely terrifying.”
Post was dean of the law school from 2009 to 2017, including the time when JD Vance was a student there. Post does not recall Vance being in any of his classes.
“He was JD Hamel then,” Post said. “I shook his hand and gave him his diploma when I was dean, but I don’t remember him.”
Vance was a Republican candidate for U.S. Senate in 2021 when he spoke on a podcast of an 1832 Supreme Court case where Chief Justice John Marshall ruled that the Cherokee Indians were a sovereign nation and President Andrew Jackson did not have the right to force them off their treaty-awarded lands in Georgia.
Jackson ignored the ruling and thousands of Indians perished in a forced march to Oklahoma known as the Trail of Tears.
“When the courts stop you, stand before the country, like Andrew Jackson did, and say, ‘The chief justice has made his ruling. Now let him enforce it.’” Vance said, quoting a disputed comment from Jackson after he booted Cherokee Indians from northern Georgia.
Apocryphal or not, it was good for rousing voters and no doubt helped Vance win a Senate seat.
Now the vice president, Vance used a post on X over the weekend to stoke a present-day constitutional crisis, this one so broad as to threaten the American nation.
“If a judge tried to tell a general how to conduct a military operation, that would be illegal,” Vance wrote. “If a judge tried to command the attorney general in how to use her discretion as a prosecutor, that’s also illegal. Judges aren’t allowed to control the executive’s legitimate power.”
But Vance did not become a lawyer for nothing. Post noted, “He was kind of weaseling it in the way in which he wrote. It’s taken to be an invitation to defiance, and I think that’s not an unreasonable reading, but technically he left himself an out. And I think any person of good sense would do that.”
But Elon Musk, as has lately been his wont, has been speaking as a person with no sense at all.
“Democracy in America is being destroyed by judicial coup,” he posted on X as part of a perpetual effort to give himself an in.
From the resolute desk in the Oval Office on Tuesday, Trump suggested that the judges were the ones acting outside the law while issuing at least 10 stays during the first three weeks of his second term.
“It seems hard to believe that judges want to stop us from looking for corruption,” Trump said. “Maybe we have to look at the judges, because I think that’s a very serious violation.”
He added, “No judge should, frankly, be allowed to make that kind of a decision. It’s a disgrace.”
Trump, who has been cited for contempt on numerous occasions in various cases—10 times over one gag order in the Stormy Daniels hush money trial—said of himself, “I always abide by the courts.”
His approach to the courts goes back to a civil rights case in 1973—long before DEI—in the time of ‘C,’ the letter that the future president and his father used as a code to denote colored applicants for rental apartments in tier 39 properties. The evidence in United States v. Fred Trump, Donald Trump, and Trump Management, Inc. was so strong that the lawyers the Trumps initially consulted advised them to just settle. Donald balked at the possibility and sought out the legendarily combative attorney Roy Cohn at what was then New York’s hottest nightspot, Le Club. Cohn was known to be willing to do anything to win and just as much to get even with whoever crossed him. Trump came to embrace Cohn’s unrelenting approach to life as well as to the law.
Trump voiced it anew from his very core after the assassination attempt in Butler, Pennsylvania, in July last year, when he rose with an upraised fist, bleeding from a creased ear that testified to how close he had come to being killed.
“Fight! Fight! Fight!”
The image combined with those words helped put Trump back in the White House. He was joined in the Oval Office by the vengeful spirit of the long-dead Roy Cohn along with the giddy recklessness of the living Musk.
With so much at stake, at least some of the cases are likely to end up in the Supreme Court. Should Trump lose one or more cases at the appellate level, he may well refuse to accept it. He will almost certainly go to the U.S. Supreme Court.
Back in July, a 6-3 majority created what Post terms an “executive monster” by ruling that a sitting president largely enjoys immunity for acts committed as part of his official duties. Even if Trump lost one of the current cases, he could very well refuse to accept defeat and suffer little or no consequences.
As it stands now, Trump would not have to worry about being impeached. Speaker of the House Mike Johnson told reporters at a press conference at the Capitol on Tuesday that, “the courts should take a step back and allow these processes to play out. What we’re doing is good and right for the American people.”
Johnson, a constitutional lawyer, also offered his view of Vance’s statement.
“I will say I agree wholeheartedly with Vice President JD Vance, my friend, because he’s right.”
Even if there ever were legal grounds to take action against Trump, the macho MAGA Secretary of Defense Pete Hegseth would not likely go along with it. And, The Washington Post has reported that senior law enforcement and intelligence officials in the new administration are required to undergo a kind of loyalty test, answering such questions as “Who won the 2020 election?” and “Who were the real patriots on Jan. 6?” along with whether the storming of the Capitol was an inside job. Anybody whose replies are in keeping with Trump’s continuing falsehoods could not likely be counted upon to enforce the law to his detriment.
Trump would be able to sit smug with another Roy Cohn mantra he has embraced as his own: “What are you going to do about it?”
As Post sees it, the survival of our democracy would be in the hands of its citizens.
“The people have to be aroused,” he said. “And if the people tolerate it the way they’re tolerating it now, it’s going to be very bad.”
