Trump Has Successfully Gamed the Courts

At its simplest level, the impeachment of President Donald Trump looks like a collision between the legislative and executive branches of government. In that fight, each side is trying to defend its prerogatives as it sees them: For Congress (or at least the Democratic-led House), this includes the power to appropriate foreign aid, and the power to conduct oversight; for the executive branch, this means the power to make foreign policy as it sees fit, and to protect its internal deliberations.

What is missing from this portrait is the crucial role of the third branch of government, the judiciary, which has powerfully shaped the impeachment process by declining to exercise its prerogatives, rather than defending them. By choosing to treat the