Washington seems to be barreling toward a constitutional crisis.
Democrats are barraging President Trump with demands for witnesses and documents. Trump has answered by stonewalling, vowing to fight “all the subpoenas.”
As House Speaker Nancy Pelosi warned, Trump seems to be goading the Democratic-controlled House toward impeachment, perhaps because it’s a battle he thinks he can win.
Politicians on both sides are repairing to their tribal corners.
Is there anyone who can serve as honest referees in this partisan standoff?
One answer — don’t laugh — is lawyers. Specifically, Republican lawyers.
Even as Republicans in Congress have fallen in line to defend Trump at every turn, a surprising number of conservative lawyers have broken ranks and are condemning the president for abuses of power and denouncing his blanket claims of executive privilege.
Last week, John Yoo, the former Justice Department official who drafted a notorious memo justifying the torture of detainees under President George W. Bush, warned that Trump had gone too far in asserting unbridled presidential power.
“That's what Nixon did,” Yoo told NPR. “That's what other presidents who have failed have done.”
In an email exchange, Yoo told me he stands by the comparison, and added that Trump’s actions are sufficient grounds for the House to consider impeachment.
“Impeachment [is] the only solution to Trump’s challenge to the constitutional order,” he wrote.
Yoo isn’t alone. George Conway, a leading conservative lawyer (and dissenting husband of Trump aide Kellyanne Conway), declared that Trump is “a cancer on the presidency,” echoing White House Counsel John Dean’s famous warning to Nixon during Watergate. Conway urged Congress to remove Trump from office.
“Presidential attempts to abuse power by putting personal interests above the nation’s can surely be impeachable,” Conway wrote in the Washington Post. Last year, he changed his voter registration from Republican to “unaffiliated,” saying the GOP had become a “personality cult.”
Other attorneys have been more restrained, but only a little.
“The president’s conduct demonstrates a flagrant disregard for the rule of law— a disregard that is in direct conflict with his constitutional responsibilities,” 11 conservative lawyers wrote last month. They urged the House to continue its investigations, but stopped short of endorsing impeachment.
“This president is undermining the basic principle of checks and balances,” one of the 11, former Deputy Atty. Gen. Donald B. Ayer, told me. “It’s really kind of tyrannical. It’s un-American. It’s the sort of expansion of government power you would expect Republicans to worry about.”
In addition, more than 800 former federal prosecutors, many of them Republicans, signed a statement declaring that the report by special counsel Robert S. Mueller III, far from exonerating Trump, showed that he deserved to be indicted for obstruction of justice.
“It seems to me important, especially today, for lawyers to speak with consistency about the rule of law and apply it without consideration of party,” said Paul Rosenzweig, a former assistant to independent counsel Kenneth Starr in the investigation of President Clinton that led to his impeachment by the House in 1998. The Senate did not convict, and Clinton served out his term.
The existence of dissident Republican voices shouldn’t be noteworthy — but it is. There aren't many institutions in Washington that have resisted the descent into tribalism.
To take the most glaring example, the Republican caucus in the Senate — home to Lindsey Graham of South Carolina, who once called Trump “a complete idiot” and “a race-baiting bigot,” and Ted Cruz of Texas, who called him a “pathological liar” — is now, on most working days, a chorus of Trumpolatry.
Why are so many Republican lawyers standing against their party’s prevailing tide?
Maybe they just take their professional canons seriously.
“You are the guardians of the rule of law,” Rod Rosenstein, then Trump’s deputy attorney general, told the American Bar Assn.’s annual meeting last year. “Honorable lawyers defend the rule of law, even when it is difficult, so it will be there when we need it.”
On a more visceral level, some are offended by Trump’s disdain for lawyers. After all, two of Trump’s, Roy Cohn and Michael Cohen, were disbarred.
“There’s a point in the Mueller report where Trump complains that [then-White House Counsel] Don McGahn is always taking notes, and McGahn explains that real lawyers do that,” Ayer said. “If you want to be an autocrat, you don’t want people who care about what’s legal looking over your shoulder. They’re out to get the lawyers.”
And they know that this constitutional crisis, like most, is likely to end up in the courts.
In their recent book “How Democracies Die,” Harvard political scientists Steven Levitsky and Daniel Ziblatt noted that one way autocratic regimes rise to power is by undermining the media, the legal profession and the judiciary. All are potential independent checks on government.
“Democracy no longer ends with a bang, but with a whimper: the slow, steady weakening of critical institutions,” they wrote.
Trump has often described the courts in partisan terms. He has condemned judges appointed by Democratic presidents as biased against him, while extolling the Supreme Court as a Republican-led refuge.
“If the partisan Dems ever tried to Impeach, I would first head to the U.S. Supreme Court,” he tweeted recently.
The president seems to think government lawyers are duty-bound to defend his every whim, and that Republican judges are duty-bound to decide cases in his favor.