Waking Up To A Crisis

There’s nothing quite like the feeling one gets when you’ve gone to bed thinking that everything is safe and okay, only to wake up and find a crisis so big that you’re not immediately able to wrap your thoughts around it. That’s where we are this morning. Many of us were already in bed and fast asleep before U.S. District Judge Paula Xinis in Maryland handed down a decision that may not sound like much on the surface, but carries extreme weight within the ongoing legal battle over Abrego Garcia.

Two things in that decision should cause stomachs to wrench a bit this morning. First, she said the administration defied a “clear” Supreme Court order. The Supreme Court unanimously ordered Garcia’s return. Second, when DOJ attorneys brought up Monday’s conversation with El Salvador’s President, Judge Xinis dismissed that event as “two very misguided ships passing in the night.” She then emphasized that “the Court has spoken.”

This puts the US in a situation we’ve not experienced before. The Executive Branch is explicitly and intentionally ignoring a direct and unanimous order from the Supreme Court. Congress is not likely to file impeachment charges. The balance of powers intended in the framing of the Constitution has broken down. We are in a legitimate and unquestionable Constitutional Crisis.

Our coffee isn’t strong enough to handle that news this early in the day. Let us try and break things down a little bit, starting with the question of how does one hold an entire government in contempt of court? Can the President be arrested?

The general consensus is no, no one has the power to criminally prosecute and subsequently imprison a sitting President outside of the impeachment process.

Here’s the thinking behind that, in conversational terms: The Department of Justice, through its Office of Legal Counsel (OLC), has maintained for decades (in memos from 1973 and 2000) that indicting or criminally prosecuting a sitting President would be unconstitutional. The main argument is that facing criminal charges and a potential trial would fundamentally interfere with the President’s ability to perform their unique and essential duties as the head of the executive branch, as laid out in the Constitution. Imagine a president trying to deal with a major international crisis or domestic emergency while simultaneously preparing for court dates or even being detained – the OLC’s view is that this would effectively paralyze the executive branch and violate the separation of powers.

To that end, Judge Xinis has given DOJ attorneys two weeks to provide the testimony of four Trump administration officials who work for U.S. Immigration and Customs Enforcement, the Department of Homeland Security, and the State Department. If anyone gets a physical punishment in this case, it will be these individuals, not the President. While the President could then pardon those individuals, the charges could be brought back as a civil lawsuit, which the Presidential pardon doesn’t cover. This matter is that serious.

The Constitution actually provides a specific mechanism to handle alleged presidential wrongdoing while the president is in office: impeachment. The House of Representatives has the power to impeach (which is like formally accusing), and the Senate holds a trial to potentially convict and remove the President from office for “Treason, Bribery, or other high Crimes and Misdemeanors.” The Constitution explicitly states that even after being removed via impeachment, the former president is still subject to criminal indictment, trial, and punishment according to law.  

So, the established pathway is that a president must first leave office – either through impeachment and removal, resignation, or the end of their term – before they can face criminal prosecution in the regular justice system that could potentially lead to imprisonment.

Does anyone think that impeachment stands a chance in a Republican-dominated House? No. Everyone knows that the bill would be dead before it reached the floor. That’s not going to happen, which fuels the crisis.

While a sitting president isn’t considered immune from investigation (think Special Counsel or Congressional investigations) or even certain civil lawsuits related to conduct outside their official duties, the actual criminal prosecution leading to potential imprisonment is seen as something that can only happen after they are no longer the sitting President. While this DOJ policy hasn’t been definitively tested at the Supreme Court, it remains the guiding principle for federal prosecutors, and attempts at the state level would likely face similar significant constitutional challenges.

If impeachment is off the table, and for now, it is, then what are our options? Do we just have to stand around and take this bullshit?

This is where the crisis part gets intense – a US President openly defying a direct Supreme Court order, with Congress unwilling to impeach due to party control, plunges us deep into what scholars would call a constitutional crisis. No one person actually confirms that the crisis has started, but legal scholars agree that the situation warrants that label.

When impeachment, the primary constitutional remedy for presidential misconduct, is off the table politically, the direct legal options to force a sitting President to comply become extremely limited and fraught with difficulty. The Supreme Court itself could, theoretically, hold the President (or, perhaps more practically, subordinate officials carrying out the President’s orders) in contempt of court. Contempt powers can involve fines or even imprisonment, but attempting to imprison a sitting President raises those same profound constitutional issues about separation of powers and incapacitating the executive branch that prevent criminal indictment while in office. It would be an unprecedented constitutional clash with a very uncertain outcome regarding actual enforcement against the President themself. It seems far more likely that either the DOJ attorneys or the heads of U.S. Immigration and Customs Enforcement, the Department of Homeland Security, and the State Department.

Other legal avenues might include civil lawsuits filed by parties harmed by the President’s non-compliance, seeking further court orders or damages. However, these processes are often slow and might not compel immediate adherence to the original Supreme Court ruling. Congress, even without impeachment, still technically has tools like holding oversight hearings, issuing subpoenas (though enforcing them against a defiant executive is tough), or attempting to use budget powers to restrict actions – but again, if the controlling party lacks the political will, these are unlikely to be effective against the President directly,

So, this is the point at which we revolt, right? Uhm, no. In fact, we’ve been warned to not even suggest such a move at this juncture, so we’re not. While the legal mechanisms to directly compel or punish the sitting President in this specific scenario are severely constrained, it doesn’t mean we are without recourse or that violence is the only alternative. The options shift more towards civic and political action, outside of direct legal enforcement against the President.

Appeals to Conscience/Duty: Efforts to appeal to the conscience and constitutional duty of individuals within the administration, the military, or law enforcement who might be ordered to implement the defiance of the Court order. While rare and risky for those individuals, refusal to obey unlawful orders is a theoretical check. This would involve members of the military and other federal enforcement agencies going against a direct order on the grounds that they swore an oath to the Constitution, not the administration.

Mass Peaceful Protest and Civil Disobedience: Large-scale, sustained, peaceful demonstrations by citizens across the country can exert enormous public pressure. Civil disobedience – non-violently refusing to comply with certain laws or orders as a form of protest – can also highlight the crisis. The goal is to make the political cost of defying the Court and ignoring the rule of law unbearable, influencing not just the President but also those members of Congress who are currently enabling the situation. This is why it is extremely important that as many people as possible participate in the protests coming up this weekend and again on May 3. We can keep things peaceful and still make a dramatic statement to the White House that we’re not going to put up with their shit.

Intense Public Pressure: Focusing public attention and condemnation on the President’s actions and on the specific Senators and Representatives who are failing to act as a constitutional check. Highlighting their violation of their own oaths to uphold the Constitution can be powerful. Yes, that means contacting your representatives again. No, they’re not going to like it. But if the noise gets loud enough, even the GOP will back down.

Activating Civil Society: Supporting independent organizations – legal groups, civil liberties unions, pro-democracy organizations, bar associations – that can challenge the administration through available legal channels (even if limited), organize protests, educate the public, and advocate for the rule of law. Going to court at federal levels is fucking expensive. No one’s taking a case of this magnitude pro bono. There are too many people involved. We tend to prefer supporting the ACLU in these matters, but there are plenty of other options.

Focusing on Future Elections: Even if over a year and a half away, the political consequences become the main leverage. Efforts can immediately intensify around voter registration, organizing, supporting potential primary challengers (even within the GOP) or opposition candidates who pledge to uphold constitutional norms, and making this constitutional crisis the central issue. It’s interesting how quickly tones change when a member of Congress is told they’ll face a strong primary challenge next year if they don’t clean up this mess.

A President defying the Supreme Court with no check from Congress is one of the most severe tests of a constitutional democracy. Direct legal enforcement against the President becomes almost impossible under current understandings. However, the remaining options are rooted in the power of the people within a civic framework: sustained, peaceful public pressure, organization, activating independent institutions, and leveraging the ultimate power of future elections. It’s about demonstrating that adherence to the rule of law has overwhelming public backing, even when formal mechanisms are blocked. It requires persistence and civic engagement,

Is that as much fun as invading DC with swords and guns? Probably not, but we’re less likely to lose good people along the way.

Don’t forget: Noon, this Saturday. Make this protest huge.