How the looming Trump Constitutional crisis could play out

The email quoted below was sent to me last night by my old friend, Terrence Goggin. He was my history professor at West Point and was one of two volunteer legal advisors who helped us when I and three of my classmates filed formal complaints with the Secretary of the Army seeking to end the regulation that required compulsory attendance at church at West Point and the other service academies.

Goggin served as an aide to Daniel Patrick Moynihan in the Nixon White House and was a fellow at the Kennedy School of government at Harvard University and went on to serve as a representative in the California Assembly from 1974 to 1984. He had a private legal practice in California from 1990 to 2014 and recently informed me that while he provided legal advice under the radar at West Point, I and my classmates were his first private clients as an attorney.

I decided to share Goggin’s e-mail because I think it gives a good summary of the impending crisis in Washington and what might happen if push comes to shove in the courts, especially if Trump decides to start defying court orders.

Terrence Goggin’s email to me:

Early Sunday morning, Politico summarized the state of play as Trump steamrolls through Washington: “Courts flex their power to slow him down…Supreme Court Showdowns Loom.”

This is more than just interesting. As in any good drama, there is a point, a counter point and a resolution. It’s the resolution stage that matters, “bigly”.

In a mere four weeks, in seven United States District Courts, the Trump/Musk administration has met a counter point: a shield of multiple Judges ordering the whole circus to pause. Most especially, the USAID firings and a wide-ranging Order to deny the Muskivites access to the disbursement operation of the US Treasury.

It is the latter court Order that has sent the Trump/Musk government into a meltdown. Yesterday, Musk demanded the judge issuing the Order to be impeached. Two Republican Senators have called for the judge to be indicted as a traitor. Why this particular court Order? Of all the 100 plus executive orders, why is the U.S. Treasury executive order the one that ignited a firestorm? The reason is obvious. The Congressionally appropriated money ready for disbursement by the US Treasury is the jugular of a functioning government.

Seize control of those $6 trillion in disbursements, and you negate Congress’ power of the purse and, POOF! The administration becomes a dictatorship controlling:
1.) the execution of the laws,
2.) the law-making power, and
3.) the appropriating power.
The last two are specifically reserved to Congress in Article I. of the Constitution. Musk’s mission would be achieved. No further action is required because the administration can cut funding to whatever and whoever they want. They have the total control of totalitarianism.

So back to point, counterpoint and resolution. The nation in four weeks has gone from a functioning democracy to an emerging totalitarian dictatorship to a full stop. The dictatorship is indefinitely paused pending a resolution in the Supreme Court, which will take approximately 18 months unless expedited by SCOTUS, which would need five justices in support. I don’t see either Roberts or Barrett voting to expedite such a momentous case unless there are five votes right now to decide to affirm the U.S. District Court’s ruling.

The next two weeks are crucial. Otherwise, the SCOTUS decision will be made in 2026, with a midterm election pending, something the Republicans would not like. On the other hand, the Democrats wouldn’t mind running on the issue of the massive Trump cuts in the midterms either. But once a dictatorship is established, history shows that only force can get rid of it.

There is talk in the administration of ignoring the District Court’s Order and seizing control of the U.S. Treasury disbursements by fiat. That would bring a Gunfight at the OK Corral resolution, rather than an orderly legal resolution. The District Court could order anyone violating its Order to be held in contempt and order its U.S. Marshals or the Military to arrest them. All sorts of possible scenarios could flow from that, including potential “blue on blue” violence. In other words, inter-departmental violence: U.S. Marshalls, or the FBI vs the Military.

That is my fear. It is similar to nuclear war. Once blue on blue violence starts, it can easily become uncontrollable and require the military to intervene, which last happened at the start of the Civil War. That would be a very bad result. However, one could argue that it’s better than a totalitarian dictatorship.

Later Sunday morning, the Trump/Musk Administration upped the ante by indicating that the lower court orders are illegal. Vice President JD Vance declared that “Judges are not allowed to control the executive’s legitimate power.” The New York Times noted that “it raises the question whether the administration would stop abiding by Court rulings if it deemed them to be illegitimately impeding Trump’s agenda.”

That implies that the administration is prepared to take the law into their own hands and require the courts to enforce their orders by contempt proceedings, utilizing U.S. Marshalls to arrest officials in contempt of court orders. Then we have a Gun Fight at the OK Corral, a standoff followed by a bloody gun fight. The U.S. Marshalls won that fight.

The U.S. Marshalls work for the Federal Courts, but the President appoints the Director of the U.S. Marshalls. The President could order the U.S. Marshalls not to enforce a court’s contempt order. In that case, the default enforcement authority would be the U.S. Military, who are sworn to defend the Constitution and have historically done so when the President refused to enforce the requirements of the Constitution.

The military has done it twice. In 1861, before Abraham Lincoln was sworn in, the sitting President James Buchanan ordered General in Chief of the Army Winfield Scott to turn over control of the Army’s forts and arsenals in the south to Southern seceding states. Scott refused on grounds it was an illegal order and ordered the Federal Forces to resist. On January 6, 2021, Chairman of the Joint Chiefs of Staff General Mark Milley was ordered by the Acting Secretary of Defense, per the White House and presumably the President, to stand down and refuse the request of the Speaker of the House and the Vice President to defend the capital with the National Guard and expel the insurrectionists from the Capitol, in order that the complete the counting of the presidential electoral votes could take place as mandated by law. General Milley complied with the Speaker and the Vice President’s request and ordered the National Guard to clear the Capitol. President Trump has recently indicated he may have General Milley court martialed for that and other actions but so far, he has not done so.

Both of these precedents give strong support to the United States courts to order the U.S. Military to enforce contempt orders against members of the administration who refuse to abide by the Constitution as the U.S. courts have determined. If they fail to follow final adjudicated court Orders, they will be arrested, just as the insurrectionists of January 6 were arrested, tried and convicted. Without inherent enforcement capabilities, the Constitution and its established Courts are nothing but a phantom and a fantasy. The U.S. Military has historically provided that capability.

This creates a blue on blue confrontation, where armed elements of the Administration would oppose armed military forces carrying out arrest warrants of administration officials who refuse to comply with court Orders. This will not end well but it will end, unless Trump backs down, as he did on January 6. The U.S. Military will follow the Constitution and the law. And their attorneys will tell them that their Commander in Chief has issued an illegal order. The military will do what the Supreme Court orders them to do, given their diverse makeup, their sworn oath to the Constitution and their tradition of Duty, Honor, Country.

Goggin’s point about the United States military and what General Milley did on January 6 is well taken. Trump has not yet begun a wholesale firing of general officers in the Pentagon. If Goggin’s scenario is correct, it would appear that we have a lot riding on whether there are any of what we might call Constitutional generals left in the Pentagon when Trump and Hegseth are done with it.