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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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