The limits of courts' control

 Matt Ford, New Republic - In normal circumstances, courts would have multiple tools to enforce compliance from defiant litigants. Judges can find people in contempt of court for disobeying their orders or interfering with their proceedings, which can result in fines or imprisonment. They can instruct the U.S. Marshals Service to bring in fugitives, to carry out warrants, and to ensure that the federal judiciary’s orders are generally complied with.

Perhaps the most extraordinary example of this power came in 1906. The Supreme Court agreed to review the case of Ed Johnson, a Black man who had been convicted of rape in Chattanooga, Tennessee, under highly dubious circumstances. After learning of the high court’s intervention, Sheriff Joseph Shipp allowed a lynch mob to enter the jail and hang Johnson from a local bridge.

The justices, outraged by the sheriff’s defiance and backed by President Theodore Roosevelt, brought Shipp and his associates to Washington, D.C., and tried them for contempt of court. He and a handful of others were sentenced to between two and three months in prison in 1909. To this day, United States v. Shipp remains the only criminal trial ever conducted by the Supreme Court. The justices theoretically retain the power to conduct similar trials in the future.

But do not expect to see Chief Justice John Roberts presiding over a criminal trial of Trump anytime soon. Constraining the executive branch is a different beast. Constitutionally speaking, finding the White House in contempt of court is like describing a new color. The primary function of the presidency is to enforce federal law, whether it be the acts of Congress or the rulings of the federal courts. Even then, there are degrees of injury. A president can defy Congress without causing irreparable damage because some friction between the elected branches is built into the constitutional system.

If the president defies the courts and Congress does not impeach him for it, the Constitution simply ceases to exist. There is no backup president whom a judge could call to enforce subpoenas or warrants if the regular one won’t do it. While the U.S. Marshals Service is best known for carrying out the judiciary’s will, it functionally exists as an agency of the Justice Department, and its Senate-confirmed officials can ultimately be fired by Trump himself. There is no reason to believe it would be immune to his will.