Oct 21, 2021 - Politics & Policy

The defy-default

Illustration of a close up an hourglass with stars falling through.
Illustration: Aïda Amer/Axios

Political figures are exploiting the slowness of the U.S. justice system, Donald Trump's attacks on its integrity and divisions in society to defy the law.

Why it matters: As polarization intensifies, it's placing tribalism above a shared national code of conduct. Increasingly, accountability rests not on the ballot box but with the nine-member, lifetime-appointed and currently conservative-majority Supreme Court.

Driving the news: The House and its committee investigating the Jan. 6 attack on the U.S. Capitol voted this week to hold former Trump adviser Steve Bannon in contempt for refusing to comply with its subpoena.

  • But even if Attorney General Merrick Garland ultimately signs off on prosecuting Bannon, getting through motions, a trial and appeals could take months if not years and outlast Democrats' control of Congress.
  • Former President Trump filed his own lawsuit this week to try to block relevant records from being turned over next month.
  • House Minority Leader Kevin McCarthy (R-Calif.) branded Bannon's subpoena "invalid" on Thursday, and said he has a right to challenge it.

Meanwhile, Rep. Jeff Fortenberry (R-Neb.), indicted Tuesday on charges of lying to federal investigators and falsifying records, posted a preemptive video.

  • With his wife and dog beside him in a truck, he denied wrongdoing, pledged to fight and decried "FBI agents from California."
  • He'd taken a page from Trump's playbook: attack the agents who'd questioned him.

Even President Biden, who's implored Americans to embrace civility, compromise and shared values, has pushed the envelope and looked to the courts to stop him.

  • He recently admitted his own extension of a federal eviction moratorium likely wouldn't stand up to constitutional scrutiny.
  • The president indicated he was forging ahead anyhow to try to give renters protection while the case worked its way through the courts.

How we got here: The defy-default accelerated two decades ago with the 9/11 terrorist attacks, as the White House and federal agencies assumed emergency powers and pushed the bounds of their authority.

The bottom line: Speed brakes put into the system by the Founding Fathers often let defiance go unchecked for years.

  • Today, plaintiffs and defendants weigh the conservative or liberal biases of state and federal courts as they calibrate their moves.
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