Asking the Senate to perform as Hamilton envisioned is not hard. Recently, 38 House Republicans dealt Mr. Trump his first legislative loss as president-elect by defeating a continuing resolution he backed. Surely senators are at least as independent as House members.
How does fealty work in office? This is the real test of appointees’ personal integrity, evidencing whether their loyalty is to the Constitution or to Mr. Trump. In the Defense Department, for example, where military officers are obligated not to follow illegal orders, what happens if Mr. Trump orders a domestic deployment that violates the Posse Comitatus Act? Will Pete Hegseth, whom Mr. Trump has chosen to be the secretary of defense, urge rescinding the order or just pass it along to the armed services? Will uniformed officers, perhaps advised by government lawyers, demur? How deep into the chain of command could this chaos extend, and what lasting damage might it cause?
Analogous illegal orders could cause significant crises across the intelligence community, which is considered the dark heart of the deep state by many, Mr. Trump among them. But the federal departments and agencies most at risk are law-enforcement agencies, especially the Justice Department. If Mr. Trump orders that his choice for attorney general, Pam Bondi, prosecute Liz Cheney for potential subornation of perjury before the House’s Jan. 6 committee, what will Ms. Bondi do? She could say there is no prohibition on members of Congress encouraging witnesses to tell the truth in legislative hearings and no evidence that Cassidy Hutchinson or other witnesses perjured themselves.
Or Ms. Bondi could instruct Mr. Trump’s pick for deputy attorney general, Todd Blanche, who represented the president-elect in several criminal cases, to investigate not only Ms. Cheney but also Ms. Hutchinson and other witnesses. Mr. Blanche will be an interesting test case. He is a former federal prosecutor. He knows the rules. Will he uncritically follow Ms. Bondi’s order, at the risk of his own legal ethics and possible disciplinary action from the bar association? If Mr. Blanche passes the order down to the assistant attorney general for the criminal or national security division, or directly to the U.S. attorney for the District of Columbia, what then? And once presented to career trial attorneys, what will they do, with their own professionalism at stake? All these questions and decisions also apply to F.B.I. staff members and other investigators, who will face scenarios comparable to those at the Justice Department.
As a result, there could be a Justice Department in continuing crisis. Whatever happens there and at other agencies, however, I believe the federal judiciary, including the Supreme Court under Chief Justice John Roberts, and especially the trial courts, will not long tolerate the sort of malicious prosecutions Mr. Trump is considering in his retribution campaign. The example of district court judges in the District of Columbia, whether appointed by Republican or Democratic presidents, handling Jan. 6 defendants is instructive, especially their sentencing decisions. They may not all have been like Watergate’s “Maximum John” Sirica, an appointee of President Dwight Eisenhower, but they were tough. There’s nothing like the judiciary’s life tenure, compared with serving “at the pleasure of the president for the time being.”
