America avoided a serious constitutional crisis during Watergate. We might not be so lucky this time
America experienced a brief constitutional crisis during the Watergate era, but when the U.S. Supreme Court ordered President Richard Nixon to turn over incriminating tapes, Nixon did so.
When Republican congressional leaders went to the White House and informed their president that he no longer had their support, Nixon quickly resigned the presidency.
We may be in much worse trouble today. The excessive moves by Elon Musk and his Department of Government Efficiency (DOGE) are already being challenged in federal court. A federal judge in New York City denied Musk and DOGE access to the Treasury Department federal payments system, including Social Security and Medicare records. Another federal judge in Rhode Island ordered the Trump administration to unfreeze federal grants and loans which President Trump and Musk had targeted.
Vice President J.D. Vance, an apparently brilliant graduate of Yale Law School, immediately questioned whether his boss must obey the orders of federal courts. On Feb. 9, Vance asserted that “judges aren’t allowed to control the executive’s legitimate power.”
Apparently the Trump administration can decide whether its exercise of naked power to slash and burn the federal government and rescind congressional appropriations is legitimate. In the same vein, Trump’s press secretary Karoline Leavitt asserted three days later that “we believe these judges are acting as judicial activists rather than honest arbiters of the law ... the real constitutional crisis is taking place within our judicial branch.”
Musk took the discussion a little further, in response to a federal court order to restore health-related web pages and data sets on federal government websites concerning HIV prevention and reproductive health care.
“This evil judge must be fired,” Musk asserted.
While Congress can impeach and remove a federal judge for criminal misconduct, neither Congress nor President Trump has the authority to remove a judge for issuing an opinion with which they disagree. A specific court decision can be appealed, including to the U.S. Supreme Court, but ultimately the decisions of the judiciary are supposed to be final.
What if the Supreme Court orders Trump to do something, or to refrain from doing something, and Trump essentially tells them to pound sand? Happily, this did not happen during the Watergate scandal. Ideally, our legislative branch would quickly respond with articles of impeachment, and would then remove Trump from office.
Sen. John Thune, newly installed as majority leader, gives a somewhat nuanced reaction to the current crisis. Thune recently noted the growing tension between Trump and the federal judiciary as a “natural give and take” but affirmed that the president must respect the judiciary.
“Do I believe that the courts have a very valid role and need to be listened to and heard in that process?”he said. “The answer is yes.”
Thune rushed to endorse his Senate colleague Tim Scott of South Carolina as an alternative to Trump at the beginning of the 2024 campaign season, but as the leader of the legislative branch now that Trump has returned to power, he has been largely subservient.
Meanwhile, at Haskell Indian Nations University in Kansas, approximately 30% of the staff, including professors, have been laid off at mid-semester due to Trump’s executive order concerning probationary federal employees. Students are not getting the education they bargained for.
Many other vital government functions, including feeding hungry children in Africa through USAID programs, have also been sidelined. We will learn fairly soon whether our constitutional checks and balances have held in the face of a determined assault by our president and his new friend Elon Musk.
Jay Davis of Rapid City is a retired lawyer and regular contributor to The South Dakota Standard.
Photo: public domain, wikimedia commons
