McQuade is a professor at the University of Michigan law school and was the U.S. attorney in Detroit during the Obama administration.
The legal and constitutional battles sparked by President Trump's behavior could affect how the federal government works for generations, long after the impeachment trial is over.
After the last Senate staffer turns out the lights, major questions remain to be decided outside of the Capitol about the limits of presidential power, the willingness of courts to decide political questions and the ability of Congress to exercise effective oversight and hold a president accountable.
Here are three of those questions.
What are the limits of presidential power?
The aggressive exercise of executive power by Trump has put this power under court scrutiny.
Trump's vow to "fight all the subpoenas" breaks from the traditional process – negotiation and accommodation – that previous presidents have used to resolve disputes between branches of the government.
As a result, several cases are currently pending, including a legal challenge brought by the House Judiciary Committee to compel the testimony of Don McGahn, Trump's former White House counsel. The House had sought McGahn's testimony about Trump's alleged obstruction of justice in the investigation of special counsel Robert Mueller into Russian election interference.
McGahn challenged the subpoena issued by the Judiciary Committee on the grounds of absolute immunity, arguing that he – a close aide to the president, and a member of the co-equal executive branch – need not appear before Congress to answer questions at all.
U.S. District Judge Ketanji Brown Jackson rejected this argument, saying that while McGahn could possibly assert executive privilege about individual questions, he could not refuse to appear altogether.
Executive privilege is not specified in the Constitution. But the Supreme Court has recognized that a president may shield from disclosure certain sensitive information and communications to encourage candid advice from aides and to protect national security and other sensitive information.
"However busy or essential a presidential aide might be, and whatever their proximity to sensitive domestic and national-security projects, the President does not have the power to excuse him or her from taking an action that the law requires," Judge Jackson wrote.
The case is now on appeal, and during oral argument in early January, the committee's lawyer said that additional impeachment articles could be filed based on McGahn's testimony.
In 1974, in United States v. Nixon, however, the court stated that the privilege is not absolute, and must yield in some circumstances, such as a criminal investigation. Absolute immunity, which courts have not recognized, goes even further than executive privilege, permitting an aide to refuse to appear altogether.
Regardless of the outcome of the case, a court decision in the McGahn case will provide clarity that will weaken or strengthen the negotiating position of future presidents.
Should courts step into political conflicts?
Some of the cases still pending could determine how much power courts have in impeachment matters.
Under what is known as the "political question doctrine," courts typically avoid what are known as "political questions"that involve branches of government in conflict. They have dismissed most cases that present such questions, deferring to the other branches to resolve them. In the more than 200 years between 1789 and 2017, when Trump took office, courts heard only five cases for presidential claims of executive privilege in response to a congressional subpoena.
In the 1993 case of Nixon v. United States (no, not that Nixon, U.S. District Judge Walter Nixon), the Supreme Court held that a federal judge could not appeal to a court seeking to overturn his conviction at a Senate impeachment trial. The Constitution, the court ruled, gives the Senate the sole power to try all impeachments.
Concurring opinions in the Nixon case, however, left open the possibility of an appeal to courts for an impeachment trial that was conducted "arbitrarily," that is, lacking procedural fairness.
Trump's personal lawyer, Rudolph Giuliani, suggested at one time that Trump file a court challenge to dismiss the articles of impeachment.
While that seems unlikely in light of the Nixon case, the political question doctrine is likely to figure in other pending cases, such the effort by Congress to seek grand jury material from Mueller's investigation.
During oral argument earlier this month in the case over grand jury material pending before the court of appeals, one of the judges expressed reluctance to decide the case because it involves a political question.
As the courts decide the cases involving McGahn's testimony, the Mueller grand jury material, and any challenge arising from Trump's impeachment trial, the contours of the political question doctrine will become more defined.
Will the executive, legislative and judicial branches collide?
In the impeachment's aftermath, the extent of Congress' ability to serve as a valid check on presidential power will become more clear.
The framers of the Constitution envisioned a Congress that would provide oversight over a president. They did not count on members of Congress having more loyalty to their party than to their institution.
If the Senate were to acquit the president in the face of additional incriminating evidence, the institution's ability to serve as a credible check on future presidents could be damaged.
The impeachment trial itself could cause all three branches to collide. Former national security adviser John Bolton has publicly stated that he would testify if subpoenaed by the Senate. Trump has said he would he would invoke executive privilege to block Bolton's testimony.
If the Senate wanted to compel the testimony, the presiding Chief Justice John Roberts would decide the standoff between the president and the Senate. If he were to rule in favor of the Senate and order Bolton to testify, could President Trump appeal that decision to the Supreme Court? Would the Court be willing to decide such a political question about impeachment? Would the Senate arrest and jail a witness for refusing to testify?
There are no rules for what happens then.
Throughout his presidency, Trump has been a disrupter of normal procedures. It appears that he will continue that trend even after impeachment.
This article is republished from The Conversation under a Creative Commons license. Click here to read the original article.
Children watch a July Fourth Parade along the Walkway of Heroes and Independence Avenue on July 04, 2026 in Tappan, New York.
The Great American Grumpfest
Our nation’s 250th birthday party didn’t feel especially patriotic and wasn’t as much fun as the 200th anniversary was.
President Trump, who did his best to co-opt our holiday for his personal aggrandizement, was a major reason. The party he threw in Washington, D.C., was crankier than uplifting, and less about celebrating our shared past and a promising future than about reminding us how far we have strayed from our founders’ plan to create a republic that future Americans would keep in good working order.
Credit Trump this much. He has a singular gift for picking at scabs that other politicians would rather ignore and pushing us into reckonings we don’t need.
The thing is, Americans have seen all this before. Sometimes the makeover we were encouraged to undertake was more conservative, sometimes more liberal. Whatever direction we were pushing, however, the reckoning we had in mind this time had to be more forthright and the conclusion more definitive than it was the last time.
Our current discontents, the ones behind the reckoning President Trump has been trying to inspire, are not trivial. Included among them are immigration, birthright citizenship, exploding healthcare costs, election rigging, a gag-inducing national debt, how we educate our children, too many genders, racial differences we can’t move past, a lopsided economy that favors more well-off Americans, and historic levels of political corruption and graft. Add to these the several foreign adventures he has pushed us into or is anxious to undertake, and you have the makings of a national headache the likes of which we haven’t had in half a century.
All the elbow-throwing and overheated rhetoric we’re using today have begun to look almost normal in all the ways that bickering neighbors and feuding family members appear normal. But they have also made us look mean-spirited and have portrayed our differences as irreconcilable. To ourselves, of course, but also to many people outside the United States who might be forgiven for turning their heads and not looking at the national car wreck we Americans show no interest in avoiding.
The good news, as I suggested above, is that Americans have had a great deal of practice dealing with challenges and national car wrecks like these.
This essay begins to lay out the reasons why.
By way of illustration, we have our seemingly insatiable demand for more bad news about race in America.
Sixty years after being released from the legal constrictions that bedeviled both white and black Americans, many white people have come to believe the color that used to make them unassailable is now a sign of a moral inferiority born of a racial animus they can never wash off. Many black people, on the other hand, are insisting that America is as hopelessly stacked against them as the formerly unassailable white people’s ancestors used to tell their black ones.
The result is that many people today are buying into racist nightmares and mumbo jumbo that their black and white ancestors worked hard and effectively to put in each other’s heads.
This might be dismissed as crazy behavior if it weren’t so important to rituals Americans have long used to express their deepest fears about each other while figuring out what move they can make that won’t end with their world crashing down on everybody’s head.
Unfortunately, the kind of cultural sleight of hand we have used to ramp up our racial differences has been appropriated by people who have many other cultural fears and unresolved differences with each other. Their clumsy but culturally prescribed missteps are making all these other issues look as irremediable as our racial problems.
A good place to start an answer to how we back away from ledges is Alexis de Tocqueville’s writing on early-19th-century American democracy. He had an optimistic take on Americans’ unscripted displays of public bravado, recrimination, and payback.
For him, these were occasions when people tried to mitigate the effects of the unfair hand they were dealing someone else or had themselves been dealt by behaving in ways quite at odds with how they would otherwise be expected to act. These inversions of what Tocqueville called “the natural order of conscience” presented themselves as a loud but culturally muted challenge to the hypocrisies that people had built into the world they’d made together.
One of his favorite illustrations of early-American hypocrisy involved slave masters sleeping with their less-than-worthy slaves. To the best of my knowledge, he didn’t pick up on all the ways that slaves messed with their owners. Their well-chronicled and quiet resistance showed that even severely ill-treated people can exercise more control over their lives than outsiders appreciate.
Be that as it may, such inversions of a people’s “natural order of conscience” make a good public show of them wrestling with demons they can’t or may not want to shake off, but in any case, are nowhere close to figuring out how to cast out.
Implicit in these disruptions was the discomforting idea that people might flip the entire script and turn the world on its head in more permanent ways. That kind of flipping worked out better for us in our revolution against England than in our Civil War. These events taught us the value of stepping back from historically unprecedented ledges.
Americans of late have been giving loud expression to a long list of things they don’t like about each other and the last makeover they started but didn’t finish a half-century ago. The outcome of our fights today will be as revealing as they are embarrassing to everyone who imagined they could recast our country in a way that privileged their favorite kind of Americans.
Their disappointment with the accommodations they strike will be palpable, but the middling results they achieve with all their pushing and shoving won’t be anything they can’t live with.
Anthropologists who have written about such moments in other cultures less “advanced” than our own show that people find ways to work around their seemingly irreconcilable differences without ever fully resolving them. Indeed, the patches and repairs people make have the unheralded effect of reinforcing rather than undermining the legitimacy of the practices and values they thought were fundamentally flawed.
For example…
White guilt and black pessimism do more good than putting cash into the pockets of professional shamers and handwringers. They give the rest of us who don’t feel guilty or powerless more time to make the world less racially unequal. Good news.
Regarding illegal immigration, the entrance requirements for future immigrants will remain stringent. Americans will applaud the continued detention and deportation of the few illegal immigrants who commit serious crimes. Good news.
All the people who came to the United States without being legally vetted and were locked up for a time will be released in numbers small enough to avoid serious media attention. Along with the several million other good people who snuck in but avoided capture, the former detainees will go to school, find gainful employment, pay their taxes, and stay out of trouble. Many will eventually become citizens. Good news.
Investigations into election tampering and Donald Trump’s 2020 presidential loss will come to an unceremonious conclusion the day after his second term ends. Many Americans will grumble about this, but there will also be some quiet partying, too. Good and bad news.
Congressional hearings into all the grifting accomplished by people tied to the Trump administration will end without anyone having to pay a dime back to the American taxpayers. Bad news, we’ll learn to live with.
New laws and regulations will be created in the hope that the kind of corruption practiced by President Trump will not be repeated for another 250 years. Good news, I hope we’ll live long enough to enjoy.
Show trials for people who allegedly vandalized the Lincoln Memorial Reflecting Pool, if they happen, will get big television viewer ratings. Good news.
Trials for pardoned Capitol insurrectionists who committed serious crimes after their release should get more attention, but won’t. Bad news.
We will continue to hear nothing from most of the people who were pardoned for crimes they committed in the insurrection at the Capitol on January 6, 2021. They will keep their mouths shut and their heads down for the rest of their life. Good news.
The gold-gilded ornaments that Donald Trump had plastered all over the White House will be shipped to Mar-a-Lago, where the former president will sell them on eBay. Fun news.
American taxpayers end up paying for most of the new East Wing, the removal of the miniature gladiatorial arena that was built behind the White House, and the restoration of the White House rose garden. Bad news.
The Triumphal Arch was never built. Good news.
Trad wives and gay couples raise perfectly lovely children. Good but unsurprising news.
Trans men and women learn that most Americans can’t figure out who they used to be. No one gives a second thought to their use of “family bathrooms” or “unisex bathrooms” in public settings, businesses, and schools. Communities will sponsor athletic teams that have trans boys and girls just to show they can. Good news.
Budget deficits will be kicked down the road for someone else’s children to pay down. Bad news.
Federal agencies that had their budgets and employee ranks slashed during President Trump’s second term are getting some of the money and lost positions back. Good news.
Elite universities will buy their way out of DEI purgatory by competing for conservative scholars whose inflated salaries dwarf those of their liberal colleagues, who will think about suing their institutions for reverse discrimination but won’t be able to figure out who would pay for it or care. More fun news.
Okay. I’ve probably missed some ways that Americans will step back from the ledges they have been making noises about leaping off. But to the extent that my predictions pan out, the best and most important moral of the stories about us stepping away is this: everything we lost and took back, or had returned to us, will have happened without our government collapsing, civic traditions crumbling, or our people beating each other up.
The reason why is that the differences Americans have with each other really weren’t as irreconcilable as we made them out to be. The empty-sounding bromide that Americans have more that unites us than divides us turns out to be true, not just metaphorically but in fact.
Now that is really something to celebrate.
Daniel J. Monti (danieljmonti.com) is Professor of Sociology at Saint Louis University and the author of American Democracy and Disconsent: Liberalism and Illiberalism in Ferguson, Charlottesville, Black Lives Matter, and the Capitol Insurrection.