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presidential immunity
Don't Wait for the Supreme Court to Put the Brakes on Trump's Fascism
The court has given the country sparse assurance that it will push back on Trump’s unique claims of expansive presidential powers.
Dec 01, 2025
The “F-word,” fascism, has recently seen increasing use in American public discourse—and for good reason. Some critics claim that the word, fascism, has been overused—and wrongly applied to the behavior and propaganda of President Donald Trump and his regime. They are wrong. Even though other words do describe Trump’s behavior, such as authoritarian, corrupt, cruel, vindictive, racist, or misogynistic, they do not wholly capture the political essence of Donald J. Trump. “Fascist” clearly does.
What are the classic hallmarks of fascism? The analyses of several historians and other experts, such as Ruth Ben-Ghiat (Strongmen), Timothy Snyder (On Tyranny), Jason Stanley (How Fascism Works) and Umberto Eco ("Eternal Fascism," 1995 article in the New York Review of Books) describe fascism as including these features: mythologizing the past; persecution of racial, religious, or ethnic minorities and celebrating violence against them; pseudo patriotic and militaristic spectacles; big business capture of government; suppression of civil liberties, including free speech; white supremacy, combined with a sense of victimhood; and male dominance. Without any doubt, Trump and his regime qualify as fascist, or at the very least, incipient fascist.
Only recently, the Trump regime issued a memorandum (NSPM-7) in which Trump directs his officials to investigate supposed incidents of “anti-Americanism, anti-capitalism and anti-Christianity.” Trump falsely claims that leftists and other “antifa” activists use violence to accomplish their political goals. The memorandum facilitates Trump’s threat to go after “the enemy within”—which is anybody who opposes his policies or toxic rhetoric. The “enemy within” designation was widely used by Hitler’s Nazi regime to denigrate Jews. The similarities between the propaganda and legal distortions of that regime and those of the Trump administration are chilling. (See, Hitler’s Justice: The Courts of the Third Reich, by Ingo Müller). Trump has also announced that he will use the military to enforce the criminal laws throughout the country—despite the prohibitions contained in the Posse Comitatus Act of 1878.
What hope can we have that the Supreme Court of the United States will put the brakes on Trump’s fascist policies?
Will the Republican majority on the Supreme Court—embracing the unitary executive theory—eventually approve of Trump’s twisted and vindictive use of political prosecutions to silence his political foes?
The starting point toward venturing an answer to this question has to be the court’s 2024 decision in Trump vs. United States, in which it held that a president has absolute immunity for “official acts” taken in the performance of his presidential duties. That shocking decision constituted not only a “get-out-of-jail-free” card for Trump in the prosecutions the court was then reviewing; it also cloaked him with immunity for any crimes he might commit in the future as president. As a practical matter, that immunity will probably include any US murder charges which might have been brought for his having ordered alleged drug smugglers to be killed on boats in the Caribbean, since he was arguably acting as commander-in-chief of the armed forces when giving the orders. (International jurisdictions might not go along with the Supreme Court’s immunity grant).
With the exception of the April 2025 decision which the Supreme Court issued in the deportation case of Kilmar Albrego Garcia, (holding that the government had violated the immigrant’s due process rights by deporting him to El Salvador, and that the government had to “facilitate” his return to the US), the court has given the country sparse assurance that it will push back on Trump’s unique claims of expansive presidential powers.
In its emergency (“shadow”) docket rulings during Trump’s second administration, the Supreme Court has granted stays or reversals in the vast majority of cases in which the administration has appealed against US district court decisions that had slapped down various unprecedented power claims asserted by Trump. When those cases are eventually decided on their merits, the court may well embrace the “unitary executive” theory upon which many of the administration’s claims have rested. Should that come to pass, Trump’s descent into fascism may well be accelerated. Unfortunately, there is no space to elaborate on those shadow docket decisions here.
Most recently, Trump threatened on social media six Democratic members of Congress with “execution” and “death” for alleged “sedition,” that is, their having had the nerve to make a video reminding military officers and enlisted personnel that they have the right, and in some cases, the duty, under the Uniform Code of Military Justice, to refuse obedience to illegal orders. Those threats inspired at least hundreds of anonymous death threats against those Democrats in the ensuing days. That was one of Trump’s most crazy and reckless capers. It was also one of his most fascistic.
Trump’s placement of incompetent sycophants into top positions of the Justice Department and his directing them to prosecute his political rivals and critics is one of the most destructive of American norm-busting actions undertaken by Trump. Will the Republican majority on the Supreme Court—embracing the unitary executive theory—eventually approve of Trump’s twisted and vindictive use of political prosecutions to silence his political foes? Nobody knows, but the prospects are not very encouraging.
The resistance to Trump’s fascism must come from us.
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How Will John Roberts Be Remembered? As a Democracy Destroyer
It is unlikely that any Chief Justice in history played more of a role in destroying more of our nation’s democracy rules than this man.
Sep 15, 2025
Chief Justice John Roberts is smart and skilled. He will be remembered, however, as a historic failure.
This is not a claim to make lightly, but his record compels it, because Roberts’ legacy will be defined by two catastrophic roles he played.
First, Roberts has played the lead role in destroying indispensable rules of our democracy.
Second, Roberts has played the lead judicial role in serving as the handmaiden to President Trump’s efforts to turn our democracy into an autocracy. (This historic failure will be detailed next week in Part II).
Roberts’ role in destroying essential rules of our democracy
Chief Justice Roberts has taken the lead in writing a series of opinions that have destroyed essential rules governing our democracy. They deal with:
- The sacred right of every eligible citizen to vote.
- The integrity and honesty of the political system.
- The right of citizens to have an unrigged opportunity to choose their representatives.
- The idea that public officials should not be allowed to sell influence with their office.
- The foundational principle that no person is above the law.
The following opinions, written by Roberts and joined in all but one case only by the Republican-appointed majority on the Court, have done unprecedented harm to our democracy.
Roberts wrote the majority opinion for a 5–4 decision in Shelby County v. Holder (2013). It declared key sections of the landmarkVoting Rights Act of 1965, the most consequential voting rights law ever enacted, to be unconstitutional. The Act was reenacted periodically over decades until the Shelby County decision.
The Roberts opinion unleashed a wave of regressive and discriminatory voting changes by states and local jurisdictions that disadvantaged minority voters and impeded their voting rights and their ability to fully participate in the democratic process.
McCutcheon v. Federal Election Commission
Roberts wrote the majority opinion for a 5–4 decision in McCutcheon v. Federal Election Commission (2014) which struck down the aggregate limit on all contributions by a donor in an election cycle, a provision previously held constitutional by the Supreme Court in Buckley v. Valeo in 1976.
In Buckley, the Supreme Court had found that unlimited contributions given to support candidates were inherently corrupt. The McCutcheon decision, however, eviscerated the limits on individual contributions to candidates by unleashing billionaires, millionaires, and other big money donors to give unlimited, often huge, contributions to Super PACs to benefit specific candidates.
Roberts wrote the majority opinion for a 5–4 Court decision in Rucho v. Common Cause (2019), in which the Court decided that it could not act on challenges to partisan redistricting plans. The decision claimed that the Court is incapable of establishing standards for determining when partisan maps become unconstitutional, no matter how extreme.
The Rucho decision means that there are no constitutional restrictions on partisan gerrymandering, no matter how rigged the plans are. The result is that politicians get to choose their voters rather than voters choosing their representatives.
Roberts wrote the unanimous opinion in McDonnell v. United States, (2016), which vacated the conviction of former Virginia Governor Robert McDonnell for honest services fraud and extortion. In his opinion, Roberts said that McDonnell’s actions did not constitute “official acts” under the applicable laws, including the bribery law.
In its decision, the Court adopted a narrow, unrealistic construction of the term “official act” to exclude various acts of an officeholder that should be covered, even when those acts are done in direct exchange for gifts or other benefits. For all practical purposes, the Court has left the country without effective bribery laws to prevent public officials from selling their office for financial benefits.
Roberts wrote the opinion for a 6–3 majority in Trump v. United States (2024), which gave Trump presidential criminal immunity. The decision violated a guiding principle of our Founders that no person is above the law. The Roberts opinion placing Trump above the law and also giving him personal control of the Justice Department and FBI can be seen in such outrageous Trump pronouncements as the statement that he has “The right to do anything I want to. I’m the president of the United States,” and “I run the country and the world.”
It is unlikely that any Chief Justice in history played more of a role in destroying more of our nation’s democracy rules than Roberts. And that is how he will be remembered.
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Garland Urged to 'Show Any Smattering of Spine' and Release Jack Smith Report on Trump
"This is his last chance to do something right," said one activist.
Jan 07, 2025
U.S. Attorney General Merrick Garland faced calls Monday to release special counsel Jack Smith's final report on his investigations into Donald Trump as quickly as possible after the president-elect's legal team demanded that the Justice Department withhold the findings from the public.
In an emailed letter to Garland—sent on the fourth anniversary of the January 6, 2021 attack on the U.S. Capitol that Trump incited—the president-elect's attorneys demanded that Smith "terminate all efforts toward the preparation and release of this report," claiming its disclosure would "violate the Presidential Transition Act and the presidential immunity doctrine."
"If Smith is not removed, then the handling of his report should be deferred to President Trump's incoming attorney general, consistent with the expressed will of the people," wrote Trump's lawyers, who were permitted to review the two-volume report in recent days.
One of the authors of the letter to Garland, Todd Blanche, is Trump's nominee to serve as deputy attorney general in the incoming administration.
The demand from Trump's lawyers intensified calls for Garland to make Smith's findings available to the public.
"Merrick Garland has exactly one more chance to show any smattering of spine—he has two weeks to release Jack Smith's report," wrote activist Jon Bauman, president of the Social Security Works PAC. "This is his last chance to do something right."
Smith was tasked with investigating Trump's unlawful hoarding of classified documents at his Mar-a-Lago estate and his efforts to subvert the 2020 presidential election. The special counsel dropped both federal cases shortly after Trump won the 2024 election, arguing that "the Constitution requires that this case be dismissed before the defendant is inaugurated."
But Smith stressed that the decision was "not based on the merits or strength of the case against the defendant."
Under federal regulations, special counsels are required to submit reports on their findings to the attorney general, who can decide whether to publicize the findings.
In addition to Trump's pressure campaign against Garland, two of the president-elect's former co-defendants in the classified documents case are pushing Trump-appointed U.S. District Judge Aileen Cannon to bar the Justice Department from releasing Smith's report.
Politico noted that it's not clear whether Cannon has the authority to grant that request.
"After she dismissed the case—ruling that Smith's appointment as special counsel was unconstitutional—the Justice Department appealed to the Atlanta-based 11th Circuit Court of Appeals," the outlet observed. "That court, not Cannon, currently has control of the case."
Smith said in a filing on Tuesday that his office is "working to finalize a two-volume confidential report to the attorney general explaining the special counsel's prosecution decisions."
"The attorney general will decide whether any portion of the report should be released to the public," the new filing continues. "The attorney general has not yet determined how to handle the report volume pertaining to [the classified documents case]... but the department can commit that the attorney general will not release that volume to the public, if he does at all, before Friday, January 10, 2025 at 10:00 am."
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Legal Expert Explains Why Trump Effort to Squash Sentencing Is BS
"Hasn't Trump delayed accountability long enough?" asked Norm Eisen of the Brookings Institution.
Jan 06, 2025
Arguments from lawyers for President-elect Donald Trump in a legal filing made public Monday amounted to "nonsense," said longtime legal analyst Norm Eisen, as the Republican leader attempts to avoid a sentencing that would cement his status later this month as the first convicted felon to serve as president of the United States.
Trump's attorneys filed a "notice of automatic stay" three days after New York Supreme Court Justice Juan Merchan upheld the president-elect's criminal conviction of 34 counts of falsifying business documents. The case—one of four pending criminal cases against Trump while he ran for president last year—pertains to a $130,000 hush-money payment made to adult film actress Stormy Daniels just before Trump's 2016 electoral victory.
In upholding the conviction, Merchan rejected Trump's motion to vacate a New York jury's guilty verdict last May and scheduled his sentencing for January 10.
On Monday, lawyers Todd Blanche and Emil Bove—who are also Trump's nominees for deputy attorney general and assistant to the deputy attorney general—claimed the case should be paused because of a U.S. Supreme Court ruling last summer which gave presidents broad immunity for "official acts" they take.
"I call BS," said Eisen, a senior fellow at the Brookings Institution, explaining on the social media platform X that presidential immunity "does not apply here" because the case pertains to events that took place before Trump was first elected president.
Trump's claim that he should enjoy "sitting-president immunity" is also "nonsense," said Eisen, as he has not been the sitting president since January 2021 and won't be again until January 20, 10 days after the scheduled sentencing.
"His claim that sitting-president immunity extends into the transitional period while he is 'president-elect' is nonsense," said Eisen. "There's no such doctrine in American law. He's making this up."
Blanche and Bove demanded that Merchan indicate by 2:00 pm on Monday whether he would block the sentencing.
"Lawyers don't impose deadlines on judges; it's the other way around," said MSNBC legal analyst Kristy Greenberg. "But that didn't stop Trump's lawyers from giving Judge Merchan a deadline of TODAY at 2:00 pm to say whether he'll proceed with 1/10 sentencing, or else they will file an emergency appeal."
A spokesperson for the district attorney's office told The Washington Post that the judge was expected to file a response Monday.
In the filing, Eisen said, "Trump argues that 'further criminal proceedings are automatically stayed by operation of federal constitutional law.'"
"Wrong again!" he wrote. "There is no automatic stay. He's making this shit up as he goes along."
"Hasn't Trump delayed accountability long enough?" said Eisen. "You know if he gets this stay, his sentencing will never occur. I strongly oppose a stay—and so does the interest of justice."
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An American King? Fear the Immunity of President Trump
The growing power of the presidency has been taking place in plain view, as unilateral powers have accumulated decade after decade in the Oval Office, while the recent choice of president has also become a grim choice about the nature and powers of the presidency itself.
Nov 07, 2024
As the dust settles over election day, it’s worth reflecting that it’s not only the election results that have been at stake, but the future of the presidency and its powers. Over the course of the first quarter of this century, the American presidency has accumulated ever more power, rendering the office increasingly less constrained by either Congress or the courts. With Donald Trump’s reelection, the slide toward a dangerously empowered president has reached a moment of reckoning, particularly when it comes to foreign affairs and warfare.
Presidential Powers
Throughout American history, presidents have repeatedly sought to increase their powers, nowhere more so than in the context of war. As historian James Patterson has pointed out, “War and the threat of war were major sources of presidential power from the beginning.” Whether it was George Washington’s insistence that he was the one to formulate foreign policy when it came to diplomacy, treaties, and more; Thomas Jefferson’s assertion of complete control over whether or not to attack the Barbary Pirates; James Polk’s decision to take actions which risked war with Mexico; or Abraham Lincoln’s “sweeping assertions of authority” in the Civil War era, executive claims to authority when it comes to matters of foreign relations and warfare have been a persistent feature of American history.
The Trump administration took unchecked presidential authority to a new level...
The twentieth century saw a continued rise in the powers of the presidency. As historian Jeremi Suri noted in his book The Impossible Presidency, the four terms of Franklin D. Roosevelt were a transformative moment, essentially multiplying the responsibilities of the president with the ultimate goal of “mak[ing] the national executive the dominant actor in all parts of American life.” The presidents who followed Roosevelt continued to display such enhanced powers, especially when it came to foreign affairs.
As legal scholar Matt Waxman has reminded us, FDR’s successor, Harry Truman, went to war in Korea without congressional authorization. Dwight D. Eisenhower, who did consult with Congress over the need to protect U.S.-allied Pacific coastal islands from possible Chinese aggression and, in his farewell address, warned against “the military-industrial complex,” still believed “that the president had broad powers to engage in covert warfare without specific congressional approval.” In fact, his successor, John F. Kennedy, exercised those powers in a major way in the Bay of Pigs incident. Richard Nixon unilaterally and secretly launched the invasion of Cambodia in 1970, and Ronald Reagan created a secret Central American foreign policy, while arranging the unauthorized transfer of funds and weaponry to the Nicaraguan rebels, the Contras, from the sale of U.S. arms to Iran, despite the fact that such funding was prohibited by an act of Congress, the Boland Amendment.
The Twenty-First Century
Even within the context of repeated presidential acts taken without congressional assent (or often even knowledge) and in defiance of the constitutional checks on the powers of the presidency, the twenty-first century witnessed a major uptick in claims of executive power. In the name of war, this century has seen an astonishing erosion of constraints on that very power, as Yale law professor Harold Hongju Koh details in his illuminating new book, The National Security Constitution in the Twenty-First Century.
At the dawn of this century, the attacks of September 11, 2001, led to an instant escalation of presidential power and executive unilateralism. In the name of national security, President George W. Bush issued an order that authorized the indefinite detention of prisoners in what quickly came to be known as the Global War on Terror. He also set up an offshore prison of injustice at Guantánamo Bay, Cuba, and authorized military commissions instead of federal court trials for terrorism suspects captured abroad.
Meanwhile, Congress and the courts consistently deferred to the will of the president when it came to actions taken in the name of that war on terror. One week after the attacks of 9/11, Congress passed the Authorization for the Use of Military Force (AUMF), which undermined its own power in Article I of the Constitution to declare war and weakened its powers of restraint on presidential actions carefully articulated in the 1973 War Powers Resolution (WPR), passed to guard against the very kind of secretive engagement in war that Nixon had unilaterally authorized in the Vietnam era.
Buy the BookNow, turning their backs on the power given them by the Constitution and the WPR, Congress, with that AUMF, acceded to the expansion of presidential powers and opened the door to the disastrous wars in Afghanistan, Iraq, and elsewhere early in this century. The president, it stated, was “authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons.”
In October 2001, Congress also passed the USA Patriot Act. It included an expansion of presidential power at home in the name of protecting the nation in the war on terror, including authorizing greatly expanded surveillance policies that would come to include, among other things, secret surveillance and searches that took place without evidence of wrongdoing, notably in Muslim communities in this country that were considered inherently suspect in the name of the war on terror.
As a result, when, in January 2009, Barack Obama entered the White House, his administration found itself with a strikingly expanded definition of the powers of the presidency on the table.
Obama’s Presidency
A former constitutional law professor, Barack Obama pledged to overturn some of the Bush administration’s most egregious, extralegal breaches, including the very existence of the Guantánamo Bay Detention Facility and the use of torture (or what the Bush administration had politely termed “enhanced interrogation techniques”) authorized by executive unilateralism as part of the war on terror. In what became known as “trust me” government, Obama also pledged to reform the excessive surveillance policies implemented in the war on terror. In 2013, David Cole, a civil rights attorney and currently the National Legal Director of the ACLU, credited Obama with making substantial “shifts” toward restraint by formally declaring an end to many of the Bush administration’s “most aggressive assertions of executive power.”
But while Obama did indeed trim some of the most striking excesses of the Bush era, his record of presidential reform fell significantly short. Jameel Jaffer, the founding director of the Knight First Amendment Institute, for instance, disputed Cole’s claims, citing the Obama administration’s continued reliance on illegal and extralegal policies that Bush’s aggressive actions had already put in play — among them, warrantless wiretapping, indefinite detention, and the military commissions to try prisoners at Guantánamo. In addition, as Jaffer pointed out, the Obama administration frequently relied on the powers granted the presidency in that 2001 AUMF to authorize targeted lethal drone strikes globally, as in the case of the drone-killing of U.S. citizen Anwar al-Awlaki, without further congressional authorization, by expanding the definition of “imminence” in order to appear to be complying with the international rule of law.
When it came to such targeted killings — a military tactic introduced under President Bush but greatly expanded during the Obama years for strikes in Pakistan, Somalia, and Yemen — the president reserved for himself the right to have the final say in authorizing such strikes. As the New York Times reported at the time, “Nothing else in Mr. Obama’s first term has baffled liberal supporters and confounded conservative critics alike as his aggressive counterterrorism record. His actions have often remained inscrutable, obscured by awkward secrecy rules, polarized political commentary, and the president’s own deep reserve.”
Although he served as legal adviser to the Department of State in the Obama administration, in his warnings about the perils posed by the slide towards unilateral presidential powers, Harold Hongju Kou concedes that the president could have done more to curtail the Bush era enhancement of the powers of the president. “[T]he cautious Obama administration,” he writes, “succeeded in swinging the national security pendulum only part of the way back” to restraint on executive power via the courts and Congress. While the “cascade of illegality” that defined the Bush era’s war on terror was indeed somewhat addressed by Obama, it remained, Koh reminds us, “undercorrected” — including not seeking “stronger accountability for past acts of CIA torture, and the stubborn continuation of a Guantanamo detention policy.”
While President Obama adhered more closely to restraints on presidential power than his predecessor, his administration did not make the kinds of structural and procedural changes necessary to deter future presidents from following in the footsteps of the Bush administration, as we were soon to learn, since, as Koh points out, enhanced unilateral presidential and executive powers would be “sharply re-intensified” under Donald Trump.
The Trump Years
Indeed, the first Trump presidency vastly accelerated the claims of expanded presidential power. Jack Goldsmith and Bob Bauer, lawyers who worked in the Bush and Obama administrations, respectively, served, as they put it, “very different presidents” and hold “different political outlooks.” Yet they agree that the Trump administration took unchecked presidential authority to a new level. In their 2020 book, After Trump: Reconstructing the Presidency, they contended that “Donald Trump operated the presidency in ways that reveal its vulnerability to dangerous excesses of authority and dangerous weaknesses in accountability.”
And as they make all too clear, the stakes were (and remain) high. “The often-feckless Trump,” they wrote, “also revealed deeper fissures in the structure of the presidency that, we worry, a future president might choose to exploit in a fashion similar to Trump — but much more skillfully, and to even greater effect.” And with the Supreme Court’s recent decision upholding the immunity of Donald Trump for acts taken while in the Oval Office, the shackles that once tied presidential acts in wartime to Congressional authorization are arguably now fully off the table, should a president be determined to act on his or her own say-so. (As Justice Sonia Sotomayor wrote in her dissent, the ruling “will have disastrous consequences for the presidency and for our democracy,” arguing that it will, in essence, “let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends.”)
The Biden Years
When it comes to recognizing limits on presidential powers, President Biden has had a distinctly mixed record. He immediately withdrew Trump’s executive order known as “the Muslim ban,” set out to close Guantánamo (but has not yet succeeded in doing so), rejoined the Paris climate accord, and revived international ties around the world that had been disrupted by Trump. And yet, that quintessential institutionalist, who prided himself on his ability to work with Congress, nonetheless veered in the direction of presidential unilateralism in the conduct of foreign affairs.
As Professor Koh put it: “In foreign affairs, even the longtime senator Joe Biden — who widely proclaims his love of the Senate — now operates almost entirely by executive fiat,” including a reliance on “classified policy memoranda, with minimal congressional oversight.” Overall, in fact, Biden issued more executive orders than any president since Richard Nixon. Though Biden wisely relied upon an interagency group of lawyers to advise him on national security decisions, following their advice, he issued “nonbinding political agreements, memoranda of understanding, joint communiques, and occasionally ‘executive agreements plus,’” just as Obama had done on the Paris climate accords and the Iran nuclear deal, relying on “preexisting legislative frameworks” rather than new Congressional authorizations. When it came to the war in Ukraine, Biden leaned heavily on “the coordinated use of sanctions, enhanced almost weekly post-invasion.” Most of those sanctions were set, as Koh also points out, “by executive orders and regulatory decrees,” rather than in consultation with Congress.
Our Future
A second Trump presidency will undoubtedly take unilateral presidential powers to a new level. After all, he already indicated that he might withdraw the U.S. from NATO and end support for Ukraine. Nor is Trump likely to be deterred by Congress. Reporting on Project 2025, the Heritage Foundation’s nearly 1,000-page prescription for a second Trump presidency, written primarily by former office holders in the first Trump administration, New York Times reporters Jonathan Swan, Charlie Savage, and Maggie Haberman reported that Trump “and his associates” plan to “increase the president’s authority over every part of the federal government that now operates, by either law or tradition, with any measure of independence from political interference by the White House.”
In particular, Project 2025’s stance on nuclear weapons is a reminder of just how dangerous a president who refused to be restrained by law or precedent will be. After all, in his first term in office, Trump unilaterally pulled out of the Iran nuclear deal and reimposed sanctions on that country, leading its leaders to increase its nuclear capacity. Meanwhile, the march toward nuclear confrontation has accelerated worldwide. In response, Project 2025 argues for ramping up America’s nuclear arsenal yet more. “[T]he United States manifestly needs to modernize, adapt, and expand its nuclear arsenal,” the treatise declared, in order to “deter Russia and China simultaneously,” adding that the U.S. needs to “develop a nuclear arsenal with the size, sophistication, and tailoring — including new capabilities at the theater level — to ensure that there is no circumstance in which America is exposed to serious nuclear coercion.”
Consider all of that a frightening vision of our now all-too-imminent future: a president freed from the restraints of the constitution, unchecked by Congress or the courts — or by his cabinet advisors. In the words of MSNBC’s Ali Velshi, Project 2025 has set the stage for Donald Trump to be the very opposite of what this country’s founders intended, “a king,” surrounded not by “groups of qualified experts” but by “unblinking yes-men.”
(Dis)Trust in the Presidency
The growing power of the presidency has been taking place in plain view, as unilateral powers have accumulated decade after decade in the Oval Office, while the recent choice of president has also become a grim choice about the nature and powers of the presidency itself. Notably, the rise in executive powers has coincided with a creeping distrust of government in this country. Since the early 1960s, when nearly 80% of Americans said they trusted government “most of the time,” the public’s faith in this country’s federal government hovers at just over 20%, according to the Pew Research Center. And no wonder. When the office of the president refuses to accept the checks and balances that underlie the democratic system, the country’s trust in negotiated, reasonable, and restrained outcomes understandably falls away.
Sadly, in this era, the benefits of restoring the very notion of checks and balances that birthed the nation have come to seem ever more like a quaint dream.
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Watchdogs Vow Accountability for Trump Crimes Despite Presidential Win
Public Citizen said it would "mobilize Americans to resist Trump's agenda of cruelty and corruption."
Nov 06, 2024
Government watchdogs on Wednesday said they are "not going anywhere" and will continue pushing for U.S. President-elect Donald Trump to face accountability for his 34 felony counts and other alleged crimes, even as the Republican and his allies threatened the special counsel who has been prosecuting him.
"Trump will still be sentenced for the 34 felony counts on which he has been convicted, and other pending legal proceedings must
also move forward,"
said Robert Weissman and Lisa Gilbert, co-presidents of consumer advocacy group Public Citizen, which spent Trump's first term exposing corruption and unethical profiteering in his administration.
The group pledged to "mobilize Americans to resist Trump's agenda of cruelty and corruption" as it was reported that Special Counsel Jack Smith, who was appointed by the U.S. Department of Justice to investigate Trump's alleged mishandling of classified documents and his role in the January 6, 2021 attack on the U.S. Capitol, was in talks with the DOJ to wind down the federal prosecutions.
Under DOJ policy, a sitting president cannot face prosecution while in office.
Smith filed charges against Trump over the allegations, but the cases were thrown into uncertainty by the U.S. Supreme Court's ruling in July that held presidents have legal immunity for "official acts" while in office.
In legal filings that were unsealed last month, Smith argued Trump should not be entitled to immunity from prosecution because he "resorted to crimes" when he attempted to overturn the 2020 election results.
Trump said in recent weeks that he would fire Smith "within two seconds" if he won the presidency.
His allies, including Sen. Lindsey Graham (R-S.C.) and Rep. Steve Scalise (R-La.), have also demanded an end to what they call "lawfare" against Trump, with Scalise
saying Wednesday that the election results proved American voters want federal and state officials in to "immediately terminate the politically motivated prosecutions of President Donald Trump."
Graham wrote on the social media platform X on Wednesday, addressing Smith and his team, that "it is time to look forward to a new chapter in your legal careers as these politically motivated charges against President Trump hit a wall."
Trump was convicted of 34 state felony counts in New York for falsifying business records related to a hush-money payment to adult film star Stormy Daniels. He is currently scheduled to be sentenced on November 26, but his lawyers are likely to ask for an indefinite delay.
There's also state case in Georgia stemming from Trump's attempts to reverse his 2020 loss.
The work of ensuring Trump is "not about the law," said Weissman and Gilbert, "will continue in earnest [and] will be more important in 2025 than ever before."
Citizens for Responsibility and Ethics in Washington (CREW) said Trump's victory "is making the urgency of accountability and checks on the presidency clearer than ever before."
"We're going to keep standing up against corruption and authoritarianism," said CREW, "as we have been for years."
Public Citizen was among more than 200 groups that announced a virtual event called "Making Meaning of the Moment," planned for November 7 at 8:00 pm. More than 20,000 people had registered as of Wednesday evening.
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Pro-Democracy Alliance Says Supreme Court's Trump Immunity Ruling Must Not Stand
"The ramifications of this ruling are not abstract, especially following the January 6 attack on the Capitol," said one coalition member. "This decision impacts everyone, because the actions of the president of the United States affect all of us."
Sep 23, 2024
Dozens of civil society groups on Monday told the U.S. Senate Judiciary Committee that congressional action is "imperative" to ensure the Supreme Court decision in Trump v. United States does not stand, warning that the court's ruling on presidential immunity in July "poses a significant threat to our democracy."
In deciding that a U.S. president has "absolute immunity" for "official acts" taken while in office, said the groups, the court "effectively [provided] the president with sweeping legal immunity for criminal acts" two-and-a-half years after former President Donald Trump urged his supporters to block the 2020 election results from being certified with a violent riot at the U.S. Capitol on January 6, 2021.
"The idea that a president should be granted constitutional protection from prosecution for otherwise criminal 'official acts' is an affront to the fundamental principle of American democracy that no one is above the law," reads the letter sent to the committee by groups including Public Citizen, Accountable.US, and Free Speech for People.
The organizations asked the committee to enter the letter into the official record ahead of a hearing on the Trump v. United States ruling, which is set for Tuesday.
The signatories quoted Justice Sonia Sotomayor's dissent to the ruling, in which she listed scenarios in which a president could now be immune from prosecution following the 6-3 decision.
"The idea that a president should be granted constitutional protection from prosecution for otherwise criminal 'official acts' is an affront to the fundamental principle of American democracy that no one is above the law."
"Under the ruling, if the president '[o]rders the Navy's Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune,'" wrote the groups.
Jonah Minkoff-Zern, co-director of Public Citizen's Democracy Campaign, emphasized that even without hypotheticals, the harm done by Trump v. United States is clear.
"The language in Trump v. United States suggests the president, in theory, could do whatever they want, whenever they want, without facing accountability under criminal law, so long as they could claim to be carrying out 'official acts,'" said Minkoff-Zern. "The ramifications of this ruling are not abstract, especially following the January 6 attack on the Capitol. This decision impacts everyone, because the actions of the president of the United States affect all of us. It's telling that so many different organizations have signed onto this letter."
The ruling sent a case regarding Trump's alleged attempts to conspire to obstruct an official proceeding on January 6 back to a lower court, ensuring that he won't face trial for charges against him before the November election, in which the Republican is running against Vice President Kamala Harris.
The groups pointed to a number of congressional actions that could be taken to "address the harms" of the ruling, including the passage of:
- Rep. Joe Morelle's (D-N.Y.) "Not Above the Law" constitutional amendment, which would reverse the decision;
- Senate Majority Leader Chuck Schumer's (D-N.Y.) No Kings Act, which would establish that president and vice presidents don't have immunity from prosecution for criminal acts, and
- Sen. Mazie Hirono's (D-Hawaii) amendment to "clarify that Presidents and other federal officeholders are, in fact, accountable to the law for their actions."
"Our country elects our leaders through a democratic process," said Public Citizen co-president Lisa Gilbert, "and those duly elected leaders, including the president of the United States, must follow the law, not stand above it."
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New Revelations Show Just How Corrupt the Supreme Court Really Is
Call me naïve. At the beginning of this year, I felt confident in asserting that the court was a conservative court, a Federalist Society court, even a Republican court—but not a MAGA court.
Sep 18, 2024
Last spring, Justice Samuel Alito had drafted an opinion dropping federal charges against many of the January 6 insurrectionists who violently stormed the Capitol. The ruling in Fischer v. United States had not yet been released. Then The New York Times published a startling story: Alito himself had flown the flag of insurrection at his home. (He briefly blamed it on his wife: “She is fond of flying flags.”) Days later, it was reported that he had flown such flags at his vacation home as well.
Awkward! Grounds for recusal? Time to rethink the ruling? Nah. Instead, Chief Justice John Roberts quietly took Alito’s embarrassing name off the opinion and slipped his own name onto it instead.
That is just one of the gobsmacking revelations from a story by Jodi Kantor and Adam Liptak that appeared in The New York Times last weekend. The lurid news of the day quickly overwhelmed it—the gunman arrested outside Donald Trump’s golf course, the continued smear campaign by former President Trump and Sen. JD Vance (R-Ohio) against the Haitian immigrant community in a small city in Ohio, and more.
Throughout American history, overreach by the Supreme Court has provoked a response.
But we must not let these revelations fade from view. They paint a damning and indelible picture of how John Roberts, for all his vaunted “institutionalism” and piety about calling “balls and strikes,” steered the court to shield Trump from accountability for his misdeeds.
Call me naïve. At the beginning of this year, I thought I had few illusions about the court. I had just published a harshly critical book, The Supermajority. But I felt confident in asserting that the court was a conservative court, a Federalist Society court, even a Republican court—but not a MAGA court. It had not yet shown an appetite for excusing Trump from the reach of the law.
So I, along with most legal observers, assumed that the justices would let Trump’s trial proceed. I thought there was a good chance it would be unanimous, that Roberts would work behind the scenes to ensure that the court spoke with one voice on major issues of presidential power and constitutional law. That’s what other chief justices did, most notably Warren Burger in United States v. Nixon, the Watergate tapes case and the closest analogue to the Trump trial ruling.
After all, we all thought, Trump v. United States was legally easy. Indeed, the possibility of criminal charges was the stated reason why Republican senators did not vote to convict him of the January 6 charges in Trump’s second impeachment trial.
Many of us, too, sensed there was a deal afoot—a unanimous ruling that Trump could not be thrown off the ballot by one state under the 14th Amendment and a principled ruling on the criminal trial.
Behind the velvet curtain of the court, though, there was no deal. Roberts wrote a memo in February—before the court had even announced that it would hear Trump’s appeal—declaring that the court would give the former president a huge win. “I think it likely that we will view the separation of powers analysis differently” from the appeals court, he wrote. As Kantor and Liptak summarized, “In other words: grant Mr. Trump greater protection from prosecution.”
They detailed myriad other ways that Roberts steered rulings Trump’s way. He froze out Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson. The ruling was sloppy and immunized vast areas of potential presidential wrongdoing. The Times noted that NYU Law professor Trevor Morrison had discovered that Roberts selectively edited a quote from a key earlier ruling to help Trump.
The resulting ruling tells future presidents that they can break the law, plainly and flagrantly. As long as they conspire with other government officials, it will be effectively immunized. (Order your White House counsel to pay hush money, as Richard Nixon did, not your campaign manager, and you’ll be off the hook.)
The opinion has widely and correctly been scorned as one of the worst in American history—a rip in the constitutional fabric. The Times’ tick-tock makes clear that this was not a baffling anomaly. Rather, it is the biggest, most visible, and perhaps most consequential in a series of actions taken by a corrupted court. It follows Citizens United, Shelby County, and other rulings that systematically undid key democratic protections.
Throughout American history, overreach by the Supreme Court has provoked a response. Dred Scott did in the 1850s—it helped lead to a civil war. Reactionary rulings such as Lochner did in the early 20th century. Trump v. United States should join with the Dobbs abortion rights ruling to spur a similar backlash today.
We’ve argued for an 18-year term limit for Supreme Court justices, because nobody should have too much public power for too long. And we’ve urged a binding code of ethics, which would have forced Justices Alito and Clarence Thomas to step out of these key cases. These reforms are widely popular. Most recently, a Fox News poll this summer found that 78% support term limits.
The court is a broken institution. It’s time to fix it. The latest revelations remind us that otherwise, the fix is in.
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The Corrupt Right-Wing Supreme Court Is the Cancer at the Heart of US Democracy
Republicans on the Supreme Court, 5 of the 6 appointed by presidents who lost the national vote, are the main reason why Americans can’t have nice things.
Aug 29, 2024
Republicans have pulled off a coup against an entire branch of government, and nobody seems to have noticed. But if you pay attention, it’s shocking.
Sometimes you can learn as much from attending to what Republicans suddenly stop saying as from what they are talking about. In this case, it’s their half-century-long obsession with convening a constitutional convention to rewrite the U.S. Constitution. Under Article V of our Constitution, when two-thirds of the states formally call for a “con-con” to rewrite our nation’s founding document, it officially comes into being.
They can then make small changes like enshrining the right of billionaires and corporations to bribe judges and politicians, or insert the doctrine of corporate personhood into the document, or simply throw the whole thing out and start over. Many on the right are hoping to insert a national ban on abortion into a new constitution; others want to end the right of women to vote, do away with all antidiscrimination laws, outlaw labor unions, or return the selection of senators to the states.
So far, 19 Republican-controlled states have signed on to a call for for a convention under Article V. The project, heavily funded by righ-twing billionaires, even has its own website: conventionofstates.com. Consider just a sampling of recent GOP supporters of the project:
- Sen. Marco Rubio (R-Fla.): “One of the things I’m going to do on my first day in office is I will put the prestige and power of the presidency behind a constitutional convention of the states.”
- Texas Gov. Greg Abbott: “We need a Convention of States to restore the rule of law in America.”
- Florida Gov. Ron DeSantis: “An Article V Convention of States is the best way to bring power back to the states and the people.”
- Rep. Jodey Arrington (R-Texas): “We need to go back to our founding document, back to our Constitution, and put the restraints on Congress that our founders intended.”
- Sen. Ted Cruz (R-Texas): “An Article V Convention of States is a powerful tool given to us by the founders to rein in the federal government.”
- Sen. Rand Paul (R-Ky.): “I’m a big fan of the Convention of States project. I think it’s the solution to Washington’s overreach.”
But over the past year, Republicans have suddenly fallen silent on the issue. Project 2025, for example, the all-encompassing wish-list for the GOP and its billionaire owners, lacks even one single mention of a constitutional convention.
Why would this be?
The simple and obvious answer is that Republicans are rewriting the Constitution right now, this year and last, through their proxies among the six corrupt Republicans on the U.S. Supreme Court.
Having succeeded in seizing the court, the GOP has been able to relax about their plan to call a convention. So far, just in the past two years, Republicans on the court have taken an ax to the Constitution. They have:
- Turned presidents who are inclined to break the law into kings or monarchs who are no longer accountable to police, courts, or juries, essentially rewriting Article II, Section 2 of the Constitution.
- Ended the constitutional rights of women to their own bodies, ignoring or rewriting the 1st, 4th, 9th, and 14th Amendments to the Constitution.
- Gutted the power of federal agencies to protect consumers and our environment, essentially rewriting Article I, Section 7 of the Constitution.
- Fully legalized the bribery of politicians so long as the bribes are paid after the deed is done (making it a “tip”) rather than before (which the court said would still be a bribe) overriding multiple constitutional prohibitions on bribery.
- Overturned parts of the 14th Amendment to the Constitution and the Voting Rights Act to legalize racially discriminatory gerrymandering where it benefits Republicans.
- Rewritten the Second Amendment and legalized bump stocks to put functionally fully-automatic weapons of war on our streets.
And, it appears, they’re just getting warmed up. Next year could see an end to gay marriage, contraception for single people, the abortion pill, the right to possess pornography (which they get to define) or read “banned” books, any meaningful regulation of billionaire-owned social media, further gutting of union rights, and the insertion of religion into schools nationwide… among other things.
Given how radical and willing they are to overturn established law, constitutional doctrine, and to create new law or constitutional doctrine out of thin air, it’s easy to see why Republicans would shift their efforts away from trying to rewrite the Constitution and toward supporting their shills on the court.
This has not gone unnoticed by U.S. President Joe Biden and his Democratic colleagues. Last month, when the six corrupt Republicans on the Supreme Court ruled that presidents can commit crimes without consequences if they call them “official acts,” President Biden spoke out with an uncharacteristic ferocity:
This decision today has continued the court’s attack in recent years on a wide range of long-established legal principles in our nation, from gutting voting rights and civil rights to taking away a woman’s right to choose to today’s decision that undermines the rule of law of this nation.
Two weeks later, The Washington Post reported:
President Biden is finalizing plans to endorse major changes to the Supreme Court in the coming weeks, including proposals for legislation to establish term limits for the justices and an enforceable ethics code, according to two people briefed on the plans.
With Vice President Kamala Harris having replaced President Biden at the top of the Democratic ticket, and the House still under the control of extremist Republicans under Rep. Mike Johnson (R-La.), it appears that President Biden’s Supreme Court agenda has receded into the background.
But Vice President Harris and Minnesota Gov. Tim Walz should be (and almost certainly are) putting considerable attention and work into how to restrain the Supreme Court from doing further violence to our constitutional system of government once they’re in office.It must be, in fact, their first order of business, for two major reasons.
The first is that several of the rulings by Republicans on the court have had the effect of amplifying and solidifying Republican control over the nation. By single-handedly overturning the voting rights act and legalizing bribery by billionaires, they’ve created a political imbalance that fails to represent the people of our country and instead just does what their favorite billionaires and giant corporations want.
As Michael Moore reports, multiple polls have found in recent years:
- 90% of Americans want stronger gun control laws.
- 89% want an end to partisan and racial gerrymandering.
- 84% want free pre-kindergarten.
- 79% want the morbidly rich and corporations to pay their damn taxes.
- 76% want a higher minimum wage.
- 73% want an end to student debt and free college.
- 72% want action on the climate crisis and money out of politics.
- 71% want an end to union-busting.
- 70% want marijuana legalized nationwide.
- 69% want to maintain gay marriage and abortion rights.
- 65% want to end the electoral college and put term limits on SCOTUS justices.
None of these things are happening because of the Republican lock on the Supreme Court, the third and unelected branch of government which is today only beholden to whichever billionaire offers individual members the best gifts, goodies, and expensive vacations.
Had the actual winners of the national vote become president in 2000 and 2016, the only Republican on the court today would be Clarence Thomas, and America would be a very different nation.
Instead, we’ve had two illegitimate Republican presidents who essentially packed the court. Justice Sandra Day O’Connor was clear about why she cast the tie-breaking vote to hand the presidency to George W. Bush in 2000: She told friends she didn’t want her replacement to be chosen by Al Gore. And, of course, Donald Trump would never have become president without help from Russian President Vladimir Putin.
These Republicans on the Supreme Court, 5 of the 6 appointed by presidents who lost the national vote, are the main reason why Americans can’t have nice things—from a national healthcare system to free college to a functioning democracy that does what the majority of its citizens want—like every other democracy in the world.
The second reason Harris and Walz should be preparing to act immediately after they’re sworn into office on January 20 of next year (G-d willing!) is that a president’s power is at its peak the moment she takes office. After that, it’s largely downhill, as opposition politicians and the press pile on and even members of their own party begin to highlight cracks in the new administration’s policy chops.
This is why FDR, LBJ, Ronald Reagan, Barack Obama, and Biden all got so much done in their first 100 days. If they hadn’t started out with their top and most controversial priorities, they never would have been able to get to them.
And, because the cancer at the heart of our democracy is currently centered in the Supreme Court, it’s why President Harris and Gov. Walt must focus their energy and political capital on taking on this out-of-control Supreme Court’s power as soon as they take office.
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After Immunity Ruling, Trump Indicted Again for Trying to Reverse 2020 Election
"Congratulations to Donald Trump on being the historic first-ever major party presidential nominee to be indicted after the convention," quipped one observer.
Aug 27, 2024
This is a breaking news story... Please check back for possible updates.
Republican presidential nominee and former U.S. President Donald Trump was hit Tuesday with yet another federal indictment for his efforts to overturn his 2020 election loss to President Joe Biden.
Special Counsel Jack Smith filed a superseding indictment that revises earlier felony charges against Trump in the election subversion case. The revised indictment comes in response to the U.S. Supreme Court's July Trump v. United States ruling, which affirmed presidents' "absolute immunity" for "official acts" taken while in office.
None of the four charges against Trump—conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of and attempt to obstruct an official proceeding, and conspiracy against rights—have been dropped.
However, parts of Smith's initial indictment—like Trump's conversations with officials at the Department of Justice after the 2020 election—are no longer admissible under the high court's ruling.
"Trump is therefore absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials," Chief Justice John Roberts wrote for the 6-3 majority in the decision.
To secure the new indictment, Smith presented his evidence to an entirely new grand jury.
"So, a new group of American citizens, doing their civic duty, sat and heard this evidence and returned 'a true bill' against Trump for the four charges in this superseding indictment," observed MSNBC's Katie Phang.
Reacting to the new indictment on his Truth social network, Trump fumed with his usual overcapitalization that "no Presidential Candidate, or Candidate for any Office, has ever had to put up with all of this Lawfare and Weaponization directly out of the Office of a Political Opponent."
"The whole case should be thrown out and dismissed on Presidential Immunity grounds, as already ruled unequivocally by the U.S. Supreme Court," Trump said. "What they are doing now is the single greatest sabotage of our Democracy in History."
Grant Stern, the executive editor of Occupy Democrats, quipped on social media, "Congratulations to Donald Trump on being the historic first-ever major party presidential nominee to be indicted after the convention."
Trump was impeached twice during his presidency, including for inciting the January 6, 2021 storming of the U.S. Capitol by believers of the then-president's "Big Lie" that the 2020 presidential contest was "rigged" by Democrats. He was not convicted by the Senate in either case.
In May, a New York state jury found Trump guilty on all 34 felony counts related to the falsification of business records regarding hush money payments to cover up sex scandals during the 2016 presidential election. It was the first time in U.S. history that a former president was convicted of felony crimes.
In Georgia, the state Court of Appeals last month paused proceedings in a separate election interference case against Trump and other defendants until an appellate panel determines whether the prosecuting district attorney should be disqualified for an alleged conflict of interest. Trump faces 10 felony charges in the case, including violations of the Racketeer Influenced and Corruption Organizations Act, conspiracy to commit impersonating a public officer, conspiracy to commit forgery in the first degree, false statements and writing, and filing false documents.
Last month, U.S. District Judge Aileen Cannon—a Trump appointee—dismissed 40 felony charges against the former president over his alleged mishandling of classified government documents after he left office. On Monday, Smith urged an appeals court to reverse Cannon's dismissal.
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