Glenn Kirschner Trump tweets that impeachment is a 'coup.' He's almost right — but not in the way he thinks.

We either have three co-equal branches of government or we have something that looks more like a dictatorship and less like a democracy.
President Trump Departs White House For Texas
The end of America's story has yet to be written. Al Drago / Bloomberg via Getty Images file
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By Glenn Kirschner, former assistant U.S. attorney for the District of Columbia and NBC/MSNBC legal analyst

President Donald Trump has taken to referring to his impeachment as a "coup." In October, for example, he tweeted: "As I learn more and more each day, I am coming to the conclusion that what is taking place is not an impeachment, it is a COUP intended to take away the power of the……..People." (That tweet is copied out verbatim, excessive ellipses included.) In his irate letter to House Speaker Nancy Pelosi on Dec. 17, Trump echoed the same sentiments: "this [attempted impeachment] is nothing more than an illegal, partisan coup that will, based on recent sentiment, badly fail at the voting booth."

I'm not sure the president is entirely wrong to use the word "coup" to describe what's taking place. Just not in the way he intends it.

A coup is generally understood as an illegal seizure of governmental power, often accomplished suddenly and violently. Notable coups include Napoleon Bonaparte's 1799 efforts to seize power in France and Francisco Franco's actions in 1936 to overthrow the democratically elected government of Spain.

But what happens when one co-equal branch of government is delegitimized by another, not violently or suddenly or even with the vanquished branch putting up much of a fight? It may not look like a traditional overthrowing of a government, but it does feel like a coup of sorts: Call it a partial coup, maybe. Given Trump's aggressive stonewalling of legislative branch oversight and impeachment hearings, along with Congress' ineffectiveness in dealing with said stonewalling, it feels like we are in the midst of a slow-moving, intra-governmental takeover.

What happens when one co-equal branch of government is delegitimized by another, not violently or suddenly, or even with the vanquished branch putting up much of a fight?

The framers of our Constitution set up a system of three co-equal branches of government with checks and balances, calibrated to ensure that no one branch could ride roughshod over the others. For example, the legislative branch can pass bills, and the president, as the head of the executive branch, is empowered to sign or veto them. Once bills are signed into law, the judicial branch gets to decide whether those laws are constitutional if their legality is challenged. The branches of government are figuratively placed on a three-way balancing scale. Think the classic children's game "Tip-It."

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It's well-established that the legislative branch spends or appropriates money, exercising its so-called power of the purse. Congress also enjoys oversight authority of the executive branch. An unchecked executive branch is not what the Founding Fathers envisioned. Unfortunately, Trump inarguably has taken steps to erode these congressional powers and prerogatives.

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During its impeachment inquiry, the House sought the testimony of several administration officials and other executive branch employees with knowledge of the incidents at hand, specifically Trump's interactions with Ukraine. Trump ordered all of those officials not to testify. To be sure, some executive branch employees disobeyed the prohibition and appeared before Congress — brave patriots like former Ambassador Marie Yovanovitch, Dr. Fiona Hill and Bill Taylor. But many complied. Trump also ordered executive branch agencies not to turn over any documents sought by the House.

Make no mistake about it, when the executive branch refuses to allow the legislative branch to perform its constitutional duties of oversight and/or impeachment inquiry, when the executive branch refuses to produce documents relevant to the issues being investigated by congressional committees, when the executive branch orders witnesses to ignore and thereby violate lawfully issued congressional subpoenas, this is, indeed, a kind of coup. It's the executive branch trying to delegitimize — or overthrow — the legislative branch. In a very real sense, Trump is declaring that the executive branch will not allow a co-equal branch of government to do what the Constitution requires it to do.

This executive branch revolt is no different than if Trump refused to comply a Supreme Court decision. This very conflict almost occurred when the court this year declared it unlawful to include a citizenship question on the national census and the president started hinting that he might just include it, anyway. Trump blinked, or cooler heads prevailed, and that particular constitutional crisis was avoided.

Given who Trump was before he became president — a dictator of sorts in his own little forever-financially floundering business bubble — it's no surprise he has tried to seize more power than our Constitution allows. It should surprise no one that Donald Trump is not a checks-and-balances kind of guy.

But there is one surprising aspect of Trump's campaign to neuter the legislative branch: the complicity of congressional Republicans. The typical coup involves violence or at least the prospect of violence, as those wielding power usually don't give it up without a fight.

But there is one surprising aspect of Trump’s campaign to neuter the legislative branch: the complicity of congressional Republicans.

Republicans could take at least some steps to retain Congress' status as a co-equal branch of government. As a thought exercise, unrealistic though it may be, congressional Republicans could say: "Mr. President, it's wrong to enlist or extort foreign interference in our elections. It's wrong to attach personal conditions designed to assist you politically to money Congress appropriated to help an ally defend against unlawful Russian aggression." Such condemnation would, at a minimum, make it clear to the president that Congress will not take kindly to any future usurpation by the executive branch of legislative branch powers.

Of course, this is not how the Republicans have responded to Trump's power grabs. Rather, they have said the president has done nothing wrong, has abused no presidential powers, has not overreached in the least. The Republicans claim that the Democrats are the ones overreacting. It doesn't take a political scientist to discern that the Republicans' approach — supporting and defending every Trump overreach — will serve to encourage continued and likely even more dramatic executive branch abuses. Congressional Republicans, at the very least, seem to be content to let Congress be delegitimized without a fight. This is a passive coup, with the vanquished apparently willing to be taken over and happy to relinquish their power.

Some may argue that the Democrats are also partly responsible because they opted not to spend months, nay years, fighting every subpoena battle in the third co-equal branch of our government — the judiciary. Of course, some congressional subpoena battles are being waged in the courts. Take the House litigation attempting to enforce the congressional subpoena served on former White House counsel Don McGahn. Democrats believe McGahn has information related to special counsel Robert Mueller's findings that Trump told McGahn to fire Mueller. Trump has ordered McGahn not to comply with the subpoena, and the House has filed suit.

McGahn's attorneys claim that administration officials are beyond the reach of congressional subpoenas by virtue of something called "absolute immunity." The only time this legal theory has been litigated was in 2008, when U.S. District Judge John D. Bates rejected the argument.

If the Supreme Court sides with the White House on McGahn, it would represent a dramatic neutering of both the legislative and judicial branches.

McGahn has already lost one court challenge, and it is likely he will appeal all the way to the Supreme Court, a battle that might not conclude before the 2020 presidential election.

If the Supreme Court sides with the White House on McGahn — or several other major cases involving investigations into Trump — it would represent a dramatic neutering of both the legislative and the judicial branches. But even if, some day, the Supreme Court rules in favor of the House and orders McGahn to testify, he will very likely invoke executive privilege.

To defeat that claim, the House will have to file suit anew, at which point Congress, not to mention the country, will find itself on a seemingly endless road of court rulings and appeals. Suffice it to say that stonewalling works to Trump's advantage. Indeed, it's a tactic that facilitates Trump's power grab.

The end of America's story has yet to be written. Eleanor Roosevelt wrote that no one can make you feel inferior without your consent. Will our elected representatives continue to consent to being treated like a lesser branch of government? Will they accede to this slow-moving revolt orchestrated by the executive branch? We either have three co-equal branches of government or we have something that looks more like a dictatorship and less like a democracy.

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