On each occasion when Trump attacks judges or courts the threat of  “constitutional crisis” has been thrown around by numerous Democrats and the entire prime-time lineup of MSNBC and CNN but no crisis has happened. We may be facing such a theoretical crisis in the near future. But it doesn’t become real unless action is taken.

The crisis may arise when, as and if a grand jury subpoenas Trump to testify in the Mueller investigation after negotiations to get testimony outside a grand jury setting fall through.

Let’s go though the steps that might be taken if a grand jury seeks to compel Trump’s presence and the responses to court action that might ensue.

  • Trump announces that he can’t be compelled to give testimony because he is President of the United States and the subpoena is “fake.” So, he says, he’s not showing up.
  • Trump’s lawyers go to the federal district court and ask the court to quash the subpoena. The court declines to quash and orders Trump to appear.
  • Trump appeals to the Court of Appeals. The Court of Appeals agrees with the district court.
  • Trump asks the Supreme Court to hear his appeal of the adverse ruling.
  • The Supreme Court agrees to hear the appeal. Trump loses 7-2. The dissenters do not write a written dissent; they just vote to dissent.

(Assume that all the court cases are heard on an expedited basis.)

After losing in the Supreme Court, Trump tweets as follows: “Don’t agree with what the Supreme Court did and I’m not Going Along! No court can diktate to President  when it has no Right to boss him. Dissenters right! #stupidsubpoena”

Unbeknownst to anyone but the Justices, there is a strong attempt to make it unanimous (as done in the Nixon tapes case ordering Nixon to turn over the tapes) to avoid Trump saying he is following the reasoning of the dissent.  The two dissenters do, however, agree not to write an opinion that might embolden Trump’s resistance.

After the Trump tweet refusing to comply with the Supreme Court, Republican legislative leaders continue to maintain silence. Leader McConnell states, “I wish he hadn’t done it.” Speaker Ryan states, “I’m sorry he feels that way.”  But Rep. Jim Jordan (R. Ohio), in shirt sleeves as ever, states “I think Trump is right. Why should he comply with those unelected Harvard and Yale guys?”

Public opinion polls show a very small drop in Trump’s approval ratings in his “base.”


The best known presidential nose-thumbing at the Supreme Court probably never happened. President Andrew Jackson reportedly said of Worcester v. Georgia (1832), “[Chief Justice John] Marshall has made his ruling, now let him enforce it!” The case involved Native American rights in Georgia. Whatever he said, Jackson never actually defied the Supreme Court. The State of Georgia did so legislatively but Jackson and Georgia’s Governor worked it out.

Other worthies who have threatened to defy federal courts include Sen. Ted Cruz (gay rights); Newt Gingrich (national security) and Roy Moore (ten commandments). The latter only got in trouble because of his unbridled libido with underage girls but his fights with federal courts, not so much.

Trump’s possible defiance of the Supreme Court is unlikely to cause him a problem in a “constitutional crisis” because his extraordinary willfulness and embrace of vigorous ad hominem attacks against his opponents inhibit dissent. He knows this and has no fear of recriminations.

For example, were he to defy the Supreme Court in a subpoena case, it’s my opinion that impeachment would not happen even if both houses go Democrat in November. The House might agree to charge him but the Senate would not have the votes to convict. So no real “crisis.”

The likelihood that a defiant Trump would not be called to account is the direct result of the feckless character of Republican leadership. They just don’t care or if they do they are afraid to assert independence of Trump.

Conclusion: there can be no “constitutional crisis” unless legislative leadership asserts one. And I don’t see that happening.