The Majority Report recently dedicated an episode on the discussion of legal accountability for those in the Trump Administration. The unquestioned belief, not assumption, was that once Democrats take back over leadership of the government, be it after the 2026 midterms or the 2028 general election, the Trump administration will be subject to investigation and possible prosecution.
Question(s): If a President is immune from all official acts, and can confer immunity via pre-emptive pardons on all those who broke the law furthering his agenda, or benefiting his personal prosperity, then how exactly will legal accountability ever occur? What laws are in place to deter future Presidents from ruling like it is 2025?
Answer(s): It won’t. There aren’t.
Unfortunately, the Majority Report (and others in the media) appear to have forgotten the very important legal constraints, which will prevent prosecution of the President, and his enablers: (1) The Pardon Power of Article II, Section 2 of the Constitution, and (2) Supreme Court Trump vs United States July 2024 granting the President—ALL PRESIDENTS—“absolute immunity” from “...all his official acts” (whatever those are). These two powers are cumulative in impact, immunizing via Pardons all those who have otherwise broken the law, and formally immunizing the President through a special immunity privilege granted courtesy of the Supreme Court decision. It doesn’t end there. Just in case he has any doubts as to the extent “absolute immunity” protects him, the President also has the untested ability to pardon himself. If you believe in the rule of law, then these laws don’t just slow down the wheels of justice; they bring those wheels to a screeching halt, burning out the brakes in the process. There are no ways through them or around them...at least, not today there aren’t.
It should not require a degree in “rocket science”, nor “rocket law”, to put the puzzle pieces together and see the end picture of what will happen by the end of this Presidential term. There will be a flurry of pre-pardons, from the highest to the lowest positions inside and outside of government. The incoming President (assuming the new one is from the opposite Party) will realize Presidential immunity prevents prosecution of “official acts” (which can be argued to be anything and everything). The pre-pardons will remain in place. Accountability and justice will be paralyzed. We are trapped...or are we?
We clearly need something that exists outside Congress and the Supreme Court to protect us from an Executive who abuses the powers of the office. The absence of a specific line within the Constitution...“The President does not enjoy absolute prosecutorial immunity, from official or unofficial acts”...or something to this effect, left an opening for the Supreme Court to invent powers counter to what we have all understood and believed our President—or any American for that matter—should have. With that decision, combined with the pre-existing Pardon Powers in Article II, it is time to now acknowledge these truths:
- We do not have Constitutional mechanisms to deter and prosecute crimes committed via Executive power and,
- The absence of prosecutorial deterrence allows the Executive to rule with impunity today.
Election results are too fickle, and these vulnerabilities are too dangerous, to assume we will always elect leaders who will not abuse the office in this manner. Their continued existence cannot be allowed to remain. We are therefore left with little choice. The (only) permanent solution to our national predicament, which can reverse and prevent a descent into permanent autocracy, is Constitutional Reform: Remove the Pardon Powers and remove “absolute immunity” for our Presidents.
Here is where some will jump in and be quick to point out today’s divided Congress will not support any type of Constitutional Reform. Today, that is true. But what about tomorrow? Look at the bigger picture and consider this scenario:
A Democrat (or Republican, for that matter) wins office as President in 2028, does not even get a simple majority in the House or Senate, yet asks Congress to submit Constitutional Reforms to remove Pardon Powers and remove unlimited Presidential Immunity? Do you really think Congress will not move forward on this issue? Better yet, recall the results of the 2022 midterm elections where the House went to the Republicans and the Senate had a Democrat majority by a single seat. If President Biden had asked to make these reforms, do you really think the House and Senate would have refused? Do you believe the Red States would have refused as well? It was truly a missed opportunity for our Democracy, as these reforms would likely have prevented the election of the current President and at very least, would have made the threat of prosecutorial exposure very real. In each of these hypothetical cases, divided government and a divided nation make Constitutional Reform MORE, not LESS likely to succeed. It is counterintuitive until you put basic human emotions into play. The desire for one-upmanship against each other is why a movement for Constitutional reform will succeed. All this movement needs is a responsible Presidential candidate, or a responsible political party, who says “Limit this Office”. Political physics will take care of the rest.
The Pardon Power, a holdover privilege of the kings of Europe, was meant to impart mercy to ordinary citizens who may have had excessive punishment or changed their lives in a meaningful way, during or after incarceration. There were no limits placed on how many the President could pardon nor were there any checks to reverse those pardons. These powers were never intended to be used as a tool for governance and certainly the Founding Fathers never imagined they could be manipulated into a Constitutional chainsaw. But when the Pardon Power combines with the immunity decision, the President can (now) ignore Congress, ignore the Judiciary, ignore the States, and ignore 250 years of American Presidential restraint. With the threat of prosecution of both the President and his enablers nullified, government contracts for wind farms can be terminated, breaking the Law of Armed Conflict in a “double tap” of a suspected drug boat can be normalized, judge rulings to suspend deportations can be ignored without fear of contempt, international treaties can be broken, etc. It is hard to imagine a Secretary of Defense willing to order the military to break all kinds of U.S. and international laws with the knowledge that once the administration he/she supports ends, no pardon will exist to immunize him/her from those actions. These powers and this issue are at the root of all the daily outrage we experience and endure.
The checks and balances the Founders and every Social Studies professor assumed would prevent an autocracy have failed, if in fact, those protections were ever really there. Impeachment has been shown to be toothless and impossible. Remember the results of the first Impeachment? Even if you get the House to Impeach, the Senate made up a rule that the President cannot be impeached unless first convicted of a crime; a rule not specified within the Constitution but conveniently “assumed” it was there, simply because the language of the Constitution was imprecise. This was ridiculous legal logic---but it worked. We should’ve realized we were in a Catch-22 and demanded something be done to correct the Impeachment Clause when President Biden took office. We didn’t, he didn’t, and a President got elected with this absurd and paralyzing interpretation of the Constitution intact, with new, limitless immunity powers to-boot.
The next comment will be, “Make Congress do their job.” Reply: How? There is no tool, outside of elections, to force Congress to do their job. Creating such tools would require a restructuring (i.e. totally new Constitution) that I can neither imagine nor support. Someone else is going to have to put pen to paper to this one. But whatever comes from that proposal, it will be a government totally unrecognizable from what we have today. Perhaps we could make a 4th branch of government, placing the Justice Department outside the Executive Branch. There are countries which have done this. But again, it would require a Constitutional Amendment to create this 4th, co-equal branch and would still (first) require abolishing the Pardon Powers and removing Presidential Immunity. Otherwise, an independent 4th law enforcement branch would remain impotent from prosecuting a sitting or former President (and those who broke the law supporting him/her) as the Pardon Powers and Presidential immunity would remain fixed legal obstacles.
The same could be said with, perhaps, removing the Pardon Powers and giving them to Congress or, abolishing gerrymandering and/or Citizens United. But again, it would still require Constitutional Amendments to do these things and in the case of gerrymandering and Citizens United, the President would retain the core powers of pardons and immunity, allowing him/her to “rule” unchecked. While I agree money in politics is corrupting and needs to be addressed, correcting “Citizens United” in no way would ever guarantee to prevent the election of someone unfit for office. Gerrymandering and Citizens United are an attempt to filter out bad characters from running for office. Removing Pardon Powers and Presidential Immunity are about creating a fixed block against Executive malfeasance. If given two options on which Constitutional reforms to pursue, only one of these options is guaranteed to protect our democracy. Bottomline, the Pardon Powers and Presidential Immunity give our Presidents a blank check to rule with impunity. There are no other changes we could conceive of which would sufficiently restrict our Presidents from behaving...and ruling...like kings.
When the usual safeguards fail…when the three branches of government will not or cannot constrain overreach of our President, and a portion of the electorate vote for autocracy, then there must be something else available to hold a President, and any person who breaks the law on their behalf, vulnerable to prosecutorial action. It is important to remember there were multiple opportunities which would have prevented election of the current Presidency, where either the Constitution wasn’t specific enough and those loopholes were exploited (ref: 1st Impeachment—President “must” be convicted of a crime first before Impeachment is possible) or where policies, not law (i.e. White House Office of Legal Council “cannot indict a sitting President”), impeded prosecution (ref: Jan 6th insurrection and rebellion, under 14th Amendment, prevents a person from holding federal and state office). The Constitution had fail safes, but they weren’t good enough. Therefore, it is to the Constitution we must return, by building additional safeguards and repairing others. I agree our Presidents should have some sort of qualified immunities to do their jobs; those immunities must be clearly articulated in any Constitutional reforms. But unbridled, undefined immunity, and the unchecked ability to immunize minions, is how we got to where we are today. Without immunity protections, prosecutorial vulnerability will be hovering over the head of a President and his sycophants like the sword of Damocles, hopefully deterring even the most brazen acts. But if they don’t, then the threat, and the capability, to prosecute after leaving office will always remain.
Ok. So perhaps you are highly skeptical reforming the Constitution will succeed. What would a successful effort possibly look like and what pitfalls should that effort avoid?
A disciplined reform campaign will seize upon every incident of Presidential excess and use it as ammunition to support the need for Constitutional reforms. Each time Constitutional reforms are mentioned, they will remove the spotlight he craves from “him” to “us”…building his frustration and diminishing ours. There are other advantages as well. Campaigns pursuing Constitutional reforms offer a way to dominate the social media-sphere as they cannot be easily twisted into counter-narratives which opponents claim are self-serving and benefiting only Democrats. Plus, it is extremely easy to put those who oppose reforms on the defensive: “What? You want all Presidents, even Democrats, to have these king-like powers?” Those who do not like the current President already abhor the destruction of the Constitution he is dismantling and will realize these reforms will protect us from copycats for the next 250 years. Conversely, those who support the current President can be convinced, or simply made uncomfortably aware, that a new President of extreme “progressive” or “woke” tendencies will have the same unchecked power to run rampant over issues they hold near and dear. They might not be supportive before the 2028 election but if the Democrats win the Presidency, it is hard to imagine a lack of enthusiasm after Inauguration.
Running campaigns solely on “affordability” is a trap and should be avoided. At best, link the idea there can be no “affordability” without “accountability”. Voters consciously and subconsciously realize neither party has the definitive answer(s) to address “affordability” issues. Besides, I personally know farmers and business owners who have been negatively impacted by today’s tariff policies and yet they still are completely loyal to this administration. Positive economic policies which boosted farmer income didn’t get middle America’s vote last time. What makes us think campaigns based upon “affordability” will work this time? Bottomline, the left, center, and right are not going to respond to the kitchen table. They are going to respond to authenticity. And truly, what is more authentic than offering to diminish your own power, should you win the seat of power you seek?
7 million people demonstrated for “No Kings”. This is solid evidence reforming Presidential powers is a winning issue, it is the right issue, and it is an issue Americans on both sides will support. We must accept there are no quick fixes. We must also accept that holding the current President and his enablers accountable under the current Constitution will likely be impossible. Don’t let these realities stand in the way of what needs to be done.
The fantasy of a shining knight coming to the rescue, and our unbridled anger towards the other side of America, are holding us back and we need to jettison both. They prevent us from understanding the root cause(s) which are responsible for this situation and therefore, we aren’t problem-solving. We need to channel the blinding desire to exact ultimately emotionally unsatisfying retribution against this Presidency...and his voter-followers...to a movement that is more steely-eyed, responsible, and hopeful.
Any Americans who flip to Democrats in 2026 and 2028 will do so only because of the excesses of the current administration…not because they believe in the social and economic policies of the Democratic party. If the Democrats want to keep these voters, then they will need to show these Americans something more than empty promises to build more homes or decrease prices.
We can either keep complaining and wandering rudderless or we can take charge of our collective destiny and start figuring out lasting solutions. How short sighted and disappointing it will be if Democrats win the 2026 and 2028 elections and fail to create firewalls to prevent what has happened from ever happening again.
