President Trump is preparing to thrust the country into a crisis as soon as the midterm elections are behind him—irrespective of which party wins the race for control of Congress—and Republicans are lining up to make sure he gets away with it, on the condition that he takes no disruptive steps until after they confirm Brett Kavanaugh to the Supreme Court.
It’s hard to interpret the events that have transpired over the past several weeks any other way. The exact contours of the crisis he will ultimately provoke aren’t entirely clear, but the basic shape of it is: He has concluded that he can only escape serious personal and legal consequences—from a number of threats, but particularly from Special Counsel Robert Mueller—with brazen abuses of power, and is laying groundwork to take those steps as soon as he can get away with them, aware that a change in partisan control of the House could stymie him just after the new year.
The most alarming thing about it is there may be no way to stop him.
Trump has been tempted to place himself above the rule of law since the beginning of his presidency, and increasingly so since Mueller took over the Russia investigation. What’s remarkable about the current moment is that Republican efforts to discourage Trump’s most corrupt instincts are faltering as Trump’s determination to follow through hardens.
Over the course of his presidency, Trump has sought to fire Mueller and to make his attorney general, Jeff Sessions, reverse his recusal from the Russia investigation. He has explored ways to pardon his way clear of legal jeopardy. According to multiple reports, he has been thwarted by his White House counsel, Don McGahn, and by Sessions himself, both of whom, in turn, enjoyed institutional backing from Senate Republicans.
Just a few months ago, Senate Republicans warned Trump that they would not confirm a new attorney general if he endeavored to fire Sessions for corrupt reasons, and have made their loyalty to McGahn abundantly cleared.
On Wednesday, Trump essentially fired McGahn. Yes, McGahn reportedly wanted to step down later this year anyhow, but Trump made his departure a foregone conclusion, without consulting him, amid a swirl of important revelations—including that McGahn spent much more time voluntarily answering Mueller’s questions than Trump’s personal lawyers knew, and has intervened to stop Trump from pardoning his former campaign chairman Paul Manafort.
As he maneuvered to knock out that guardrail, he simultaneously brought pressure to bear on key Republican senators, who have suddenly come around to the view that Trump will, or even should, fire Sessions—just so long as he waits until after Kavanaugh has been confirmed—which in effect means until after the election. “The fix is in,” said Sen. Bob Corker (R-TN).
This is the backdrop against which we should interpret the Republicans’ urgency to confirm Kavanaugh, marked most importantly by their abrupt reversal on the question of whether the Senate should insist upon reviewing Kavanaugh’s paperwork from his service as George W. Bush’s staff secretary—records that comprise the vast majority of Kavanaugh’s correspondence. That reversal followed a private meeting between key Senate Republicans and McGahn, who is the White House point man for judicial nominations, and whose personal lawyer—Kavanaugh’s former colleague Bill Burck—is managing Kavanaugh’s document production.
Democrats see these unorthodox machinations as part of an effort to bury damaging information in Kavanaugh’s records, and they may well be. But they could just as easily constitute an effort to make sure Kavanaugh is confirmed more quickly than a thorough review of his paper trail would otherwise allow.
Yes, it’s possible that Republicans will lose control of the Senate in January, so they naturally feel a bit hurried. But they are intent on confirming Kavanaugh before the election in November, foreclosing on the possibility of using the lame duck session to more completely review Kavanaugh’s public-service record. Their haste looks fairly arbitrary, unless we interpret it as an effort to lock in another Supreme Court justice before Trump takes drastic steps to protect himself from Mueller—steps that might otherwise place the Supreme Court seat itself at risk, harm Republicans in the midterms, or both.
The implication of recent reporting is that those steps will include, at a minimum, pardoning Manafort and firing Sessions. We can see his intentions both in overt and behind-the-scenes steps he’s taken against McGahn and Sessions in recent days, and in reports that he has consulted with his personal, criminal lawyers about both pardoning Manafort, firing Sessions, and impeachment.
Depending upon how willingly Republicans in the Senate will go along with Trump’s designs, Trump may also seek to rush a new, unrecused attorney general through the confirmation process, or abuse the vacancies act to install an acting attorney general who might corruptly interfere with the Mueller investigation.
If Republicans do well in the elections, all this scheming will have proved unnecessary, and Trump will be given a free hand to obstruct any investigation he’d like. But if Republicans lose one or both houses of Congress, the lame-duck period will be the critical window during which Trump can take corrupt steps to insulate himself from justice. By the time Democrats took control, their ability to set things right would be limited. They could conduct oversight, which would damage Republicans politically, but Republicans would at the very least have the power to block impeachment and the restoration of the Mueller investigation.
Ironically, Democrats may be better positioned to preempt a series of events like this now, from the minority, than after the election. They could align belatedly against Kavanaugh’s confirmation, which would shift the spotlight on to vulnerable Senate Republicans—all of whom would have to vote for Kavanaugh without access to his complete record to see him confirmed. House Democrats could announce that they will subpoena those records, and call McGahn to testify about his meeting with Senate Republicans, if they win control of the House. If steps like these successfully pushed the Kavanaugh confirmation into the lame duck session, Trump’s window to bring about a crisis would shrink. Additionally, Trump’s best laid plans could come undone if Mueller secures more indictments between now and the election. But on the current course, a crisis appears inevitable.