Maybe It Actually Is A Suicide Pact?

by Neil H. Buchanan

The assertion that "the Constitution is not a suicide pact" is famous enough to have its own Wikipedia page.  It is one of those famous turns of phrase that seems applicable to a surprising number of situations.  Professor Dorf and I are among the legions of scholars who have reproduced it in our writing.  Often wrongly attributed to Abraham Lincoln, the exact wording comes from a famed dissent by Justice Jackson.  (Note, however, that Lincoln did embrace the concept without coining the phrase.)

The basic idea is both powerful and disturbing, because it is the quintessential example of wisdom that is essential but also open to abuse.  In former Judge Richard Posner's words, the concept evoked by the "not a suicide pact" meme should be "understood not as law but as the trumping of law by necessity."  (Note that he published those words in 2006, back when the verb "to trump" carried no irony or political weight.)  It is, at its very core, lawlessness in the name of something more important.

The hive mind at Wikipedia traces the idea back to the Founders, with a nice quote from Thomas Jefferson, who justified having set aside his own constitutional beliefs to approve the Louisiana Purchase.  He wrote:
"A strict observance of the written law is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to the written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the ends to the means."
And now, the obvious question for any discussion in 2020: How does this apply to Donald Trump?

During the fraud of an impeachment trial that Senate Republicans perpetrated only a few weeks ago, Rep. Adam Schiff pointed out that the Trumpists were playing a game of three-card monte (my words, not his).  No matter what card the sucker (that is, the American people) point to, they are told that they should have picked another card.

Specifically, Schiff noted that Trump's impeachment lawyers had argued that the second article of impeachment (obstruction of Congress) could not possibly be valid, because House Democrats had not exhausted their legal options through the courts.  This echoed the silly argument from law professor Jonathan Turley, who claimed that Democrats had heedlessly rushed impeachment through the House and had acted too hastily.  If they wanted to truly nail down their case, Turley intoned, they should have been patient.

Even if that were true -- and it is ridiculous to say that prosecutors in any case, most definitely including an impeachment, must hold off on bringing an incredibly strong case (Trump confessed multiple times, among other now-forgotten facts) because the case came together too quickly and might be made even stronger -- the Democrats implicitly invoked the suicide pact idea by saying, in essence, that there was no time to wait, because they were trying to prevent Trump from corrupting the 2020 election, and waiting around for courts to rule while Trump continued his corrupt acts would make any eventual victory in the courts an empty one.

It is also completely disingenuous, of course, for Republican senators to claim that they might have been more open to convicting Trump if only the House had been able to bring in more witnesses.  Moreover, Congress was obstructed by Trump's blanket order to all potential witness not to testify or provide documents.  Whatever nuanced set of rulings the courts might have produced, the takeaway was not going to be: "Congress has no ability to subpoena witnesses under any circumstances in pursuit of impeachment inquiries."

But Turley's point of view carried the day (and, as an aside, his dream seems to have come true in the form of a now-frequent slot on the op-ed page of The Washington Post), and Trump's people are now relying on the "they rushed it" defense.  Even Mitt Romney, who has received deserved praise for voting to convict Trump on the first article of impeachment, said of Trump's shutting down all potential witnesses: "I don’t think that was an appropriate approach, necessarily, but [Trump] did follow the law, and the House did not take the time to go to the courts as I think they should have."  Romney did not vote to convict on the second article.

But Schiff's "you can't make this stuff up!" argument -- which I likened above to three-card monte -- was in response not only to the baseless argument that Trump's defenders were offering in the Senate regarding obstruction of Congress.  Schiff pointed out that other Trump-directed lawyers were simultaneously contradicting that position, with DOJ lawyer James Burnham arguing in federal court that the House cannot even ask the courts to enforce its subpoenas.  Schiff drew gasps and laughter when he said:
"Today, while we’ve been debating whether a president can be impeached for essentially bogus claims of privilege, for attempting to use the courts to cover up misconduct, the Justice Department in resisting subpoenas is in court today … because, as we know, they’re in here arguing Congress must go to court to enforce its subpoenas, but they’re in the court saying ‘Congress, thou shalt not do that,'” he explained. “So the judge says: ‘If the Congress can’t enforce its subpoenas in court, then what remedy is there?’ And the Justice Department lawyer’s response is ‘Impeachment! Impeachment!"
Stripped to its bare minimum, then, Schiff was telling Republicans that they should stop being suckers and vote to convict Donald Trump even if they thought that there was a decent legal argument that the courts should have been given a chance to rule in the House's favor on the subpoenas.  In Posner's phrasing, "the trumping of law by necessity" here would involve Senate Republicans saying that they should not assume that the other branch of government would do the right thing -- and certainly that it would act quickly enough -- so they should stop the lawlessness by setting aside the law now.  Necessity requires it.

To be clear, the stripped-down argument that I attributed just now to Senate Republicans is, in Trump's classy wording, "all bullshit."  Again, Trump's argument boiled down to stripping the House of all investigative powers, making Article I's specification that the House has the "sole Power of Impeachment" meaningless.  "You can impeach, but the Senate can reject the charges because the President has blocked all evidence."  The Senate, given the sole power to try all impeachments, certainly was not required to adopt a rule that all subsidiary matters must be exhausted in the courts before it considers the evidence against a president.

That truly would be BS, and it would not even reach Posner's "trumping of law by necessity" level, because the Senate is not required by any law to wait for the courts to rule.  Insisting that they must do so, Senate Republicans turned the Constitution into a suicide pact by taking away their own power to check an out-of-control executive.  They invented a constitutional provision that does not exist.  They were not being asked to set the law aside for the greater good of the nation.

Be that as it may, now that Senate Republicans have set Trump free of all political constraints, the not-a-suicide-pact question flips to the courts.  Courts have long deferred to "the political branches" when dealing with most questions about politics.  Most absurdly, the Supreme Court has again and again refused to intervene in gerrymandering cases, with conservative justices claiming that the political process should solve any problems -- the very political process that has been hijacked to prevent solving the precise problem that the Court has been asked to solve.

We are, in any event, now in a moment where the Political Question Doctrine and non-justiciability precedents will be under greater scrutiny than ever.  In many situations, judges have long said -- again, even in situations where it is obvious that non-intervention by the courts would leave the problems unsolved -- that it is Congress's job, not the courts', to act as a check and balance on the president.

But now the party that dominates one house of Congress has had an opportunity to show that it will stop an openly lawless president, and it simply gave him a pass.  What are judges to do?  If courts see that Congress (more accurately, Republicans in Congress) refuses to fulfill its constitutional role -- to do its job -- should courts step in to stop the march to dictatorship, or should they say: “That’s not our job,” and let the Constitution die?

I am not imagining for a moment that the current Supreme Court would do this in any meaningful way, given that the conservative majority seems perfectly happy to join with the Republicans who put them on the bench to enact movement conservatism's full agenda.  My point, however, is that any particular judge ruling on any particular question of presidential power now has a reason to say, at the very least:
"Even if I believe that courts are supposed to have a hands-off approach in the overall separation of powers, that was because the Founders thought that Congress would jealously guard its prerogatives and check the president.  That clearly is not happening.  The Constitution is not a suicide pact, and if it takes courts to step more aggressively than we otherwise would into a breach that Congress created, we have no choice.  The system is out of balance, and we cannot pretend otherwise."
Or, from Jefferson's words quoted above: "The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to the written law, would be to lose the law itself."  We are, indeed, losing it.