DENVER – Four Democratic Attorneys General sat on stage at George Washington High School on Wednesday night, trying to decide if the limits of their power to resist this White House as lawyers has been reached.
“This is the first time, this week, in the past days, where I really think we’re getting to the precipice of a constitutional crisis,” Nick Brown, the attorney general from Washington state, told a crowd assembled to hear what the justice system can do for them in this moment of great trial. “I don’t say that lightly.”
President Donald Trump’s administration has called for the impeachment of judges, slow-walked court orders and, this week, so brazenly challenged a district court judge that court proceedings are now focused on whether administration officials should be held in contempt.
Many elected Democrats, if not most of them, have been quick to call this a constitutional crisis, and claim that the evidence now clearly shows the courts cannot contain Trump. But Democratic attorneys general — in most cases, elected officials who campaign and fundraise, too — sound very different on this score. Until now, they’ve explicitly cautioned against declaring a constitutional crisis. They point to the court orders they’ve won, to the cases that are still ongoing with Trump officials filing briefs and showing up in courtrooms, as a victory — and one that Democrats should be celebrating.
“Even in the midst of all this craziness and nonsense and real undermining our democracy, at least from my perspective — and I know a lot of us share this viewpoint — for the most part, I think our system has been working the way it has been intended to work,” Brown told the crowd. “For the most part, our system, our justice system, our courts have been working the way that they’re supposed to work.”
These attorneys general have been trying to convince everyone of this since the week of Trump’s inauguration, when they first took Trump to court over executive actions and won temporary stays. Instead, they’ve watched with dismay as their court victories, carefully constructed by Democrats across the country working together, are put on the backburner as apocalyptic visions of a Democratic Party incapable of doing anything in the face of Trump take hold. But their version of things is being tested now, too. In the next couple of weeks, we may know if their form of resistance was the right one, or naive.
The four gathered in Denver — Brown, Aaron Ford of Nevada, Anne Lopez of Hawaii and the event’s host, Phil Weiser of Colorado — all quickly affirmed NOTUS’ question on whether the court system can handle this flood of legal questions.
“I have no doubt that the answer is yes,” Lopez said. “It has for the last 89 days.”
“We’re going to continue to be able to withstand this onslaught, which by the way is by design,” Ford said. “There is a psychological and vengeance-oriented focus around this mass attempt to overwhelm people that we will not fall prey to.”
Still, they showed signs of distress.
“It has to hold,” said Weiser. “Because if you lose the rule of law, you lose everything.”
The Denver event was billed as a “community impact hearing,” one of a string of them hosted across the country by the Democratic Attorneys General Association. As House Democrats headed home for the congressional recess and heard an earful from constituents to “do more,” the attorneys general were faced with a question: Why isn’t it working?
One woman teared up when talking about the upheaval at her job with the U.S. Forest Service (she had been let go and then brought back, but only to count the days until the end of a 45-day contract). A housing advocate said the withdrawal of federal funds had not only cost her a job but made it impossible for any other housing group to be able to afford to hire her. The complaints were not just personal: What will happen in the next big forest fire? What will happen to people whose housing assistance is running out? People talked about money they thought they had won back from court rulings that still remains unallocated.
The response from the attorney generals was heartfelt but lawyerly. They said they’ve seen a lot of allocated money distributed, and in cases where it hasn’t, they’ll go back to court to get it.
The Democratic Attorneys General Association is unique among Democratic campaign arms in this Trump moment. For one, it has an arm that pushes out legal research and case help that’s been gaming out for months expected court fights with the Trump administration. There has been shock at the speed with which Trump has moved on so many separate issues at once, but the attorneys general have generally said the substance isn’t far off from what they planned for. The public squabbling over how to respond to the Trump administration from governors and senators has therefore not been a part of the attorney general response for the most part: They talk about who is going to take what to court, and then they take it to court.
Their track record is pretty good. Courts have temporarily stopped Trump from doing many things he wants to do as lawsuits move forward.
“I would say the results thus far are a combination of deeply concerning to mildly encouraging,” Weiser told reporters in Denver. Mildly encouraging was having Justice Department lawyers respond to court orders, he said, and Chief Justice John Roberts standing up for a federal judge after Trump called for the judge’s impeachment.
“Now we’re hearing about a matter where we are seeing a threat not to follow a court order,” Weiser went on, referring to the El Salvador deportation case. “That may well come to a head, and that’s going to be a critical test for our republic.”
On Thursday, the 4th Circuit’s J. Harvie Wilkinson III, a Ronald Reagan appointee, and two others on the appeals court rejected the government’s request to halt a district court order to return Kilmar Armando Abrego Garcia from an El Salvador mega-prison. In a surprising opinion, Wilkinson said the government was attempting to deny due process, which he called a “foundation of our constitutional order.”
The attorneys general can sidestep most of the political fights in Washington — whether the fallout over Schumer’s government spending strategy or difficult votes on immigration.
“I don’t view myself as ‘part of the resistance.’ I’m not,” Ford told NOTUS. “It’s different for the legislature. It’s different for Congress. It’s different for other people. My role as attorney general is to defend and uphold the rule of law, and when he violates it, I will meet him in court and I will beat him in court.”
But in Colorado it’s clear that this endeavor is not void of the same challenges facing the more overtly political ranks within the Democratic Party. They too are grappling with a messaging battle, just as party leaders are.
“We win in court, but we oftentimes lose in the court of public opinion,” Ford said, “because people don’t know what we’ve done,”
Another challenge is that what they’ve done happens behind courtroom doors with no cameras. And, temporary stays and the like aside, real victory can take a very long time.
“People’s attention span, rightly, is short,” Brown told NOTUS. “I mean you can’t just dwell on all that trauma we’re seeing and still function.”
Weiser, who is running for governor to succeed Colorado’s Jared Polis, added: “We’re going to fight for our freedoms in Colorado … we’re not going to be bullied by Washington.”
This entire system of resistance may be at risk now, as the fallout from the administration’s deportation flights to El Salvador play out in the upcoming D.C. contempt hearing. This may be the moment when the legal resistance runs out of steam.
The attorneys general’s solution to a broken court system sounds a lot like the rest of the Democratic resistance: calling for help.
“The fervor will die down on this like it does everything else,” Ford told the crowd, speaking of the current outrage over the deportations and the seeming dismissal of the courts by the White House. “These guys are patient. They will take their time to undo your rights. So don’t just be there now, be there when the fervor dies down.”
The attorneys general said they needed the public to show up, to keep showing up. Some battles can’t be won in a courtroom.
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Evan McMorris-Santoro is a reporter at NOTUS.