By Thomas Neuburger. Originally published at God\u2019s Spies<\/a><\/strong><\/em> \u201cWhen the president does it, that means it\u2019s not illegal.\u201d<\/em> I recently wrote a piece, unpublished so far, that contends at length that it\u2019s over constitutionally. The state has been transformed, by both corrupt parties, into an American kingship. I\u2019ve been writing an ongoing series (\u201cThe Fourth American Constitution<\/a>\u201d) contending just that.<\/p>\n The change is now complete, the last piece in place. Yes, the corner cases<\/a> need to be sorted, cases that in practice will almost never occur \u2014 for example, could the president commit rape in the nation\u2019s defense? But the territory is already marked, defined, surveyed. Unstopped reconstruction is next.<\/p>\n Trump v. US<\/em><\/b><\/p>\n In defense of that point, I want to go back to the ruling in Trump v. US<\/a><\/em>, the one that cements what previous administrations have tended toward, that the president has near-absolute power.<\/p>\n This is not a new idea; just an expanded one. The growth of the imperial president, which took off in the second third of the 20th century, is reaching its final form in the 21st. From Bush-Cheney\u2019s expansion of the president\u2019s domination of Congress<\/a> in a self-declared \u201ctime of war,\u201d and with Obama\u2019s help, the legalization of torture<\/a>; to Obama\u2019s de facto adoption of the president\u2019s right to murder American citizens<\/a> and his failure to roll back any of the power Bush-Cheney assumed, the table was set for Trump and the Court\u2019s decision in Trump v. US<\/em>.<\/p>\n According to the Brookings Institute, one of the implications<\/a> of this new decision is that presidential immunity \u201cis absolute with respect to a president\u2019s exercise of his core Article II powers.\u201d As I wrote in \u201cOur Lawless Elites<\/a>\u201d, this means that the president has the right to break the law whenever he acts as president.<\/p>\n \u2018When the president does it, that means it\u2019s not illegal\u2019<\/b><\/p>\n Am I being too extreme? Slate says no<\/a>:<\/p>\n Consider, for instance, how the ruling analyzes Trump\u2019s meddling with the Department of Justice after the 2020 election. It acknowledges that the president and his allies pressed the agency to open criminal investigations into the voting procedures in key swing states that Joe Biden carried. Under this plan, the DOJ would pretend to uncover election fraud in these states, then urge their legislatures to create an \u201calternative slate\u201d of electors who would cast their votes for the losing candidate, Trump. When then\u2013acting Attorney General Jeffrey Rosen refused to go along with the scheme, Trump threatened to fire him<\/a>. Smith\u2019s indictment zeroed in on this scheme to support his allegation that the president engaged in an unlawful conspiracy to thwart Congress\u2019 certification of the election.<\/p>\n<\/blockquote>\n So the crime is \u201cunlawful conspiracy\u201d to subvert congressional certification of the president\u2019s own election. Illegal? Roberts says no.<\/p>\n Roberts held that Trump\u2019s demands for a sham investigation were constitutionally protected. Why? Because, he wrote for the court, the president has \u201cexclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials.\u201d<\/p>\n<\/blockquote>\n Roberts also says this (Trump v US<\/a><\/em>, p. 5): \u201cThe Executive Branch has \u2018exclusive authority and absolute discretion\u2019 to decide which crimes to investigate and prosecute, including with respect to allegations of election crime.\u201d<\/p>\n The President Can\u2019t Be Constrained by Congress or Courts<\/b><\/p>\n Roberts literally means that when the president is fulfilling any<\/em> of his Article II duties, whatever he does, he can never be prosecuted for it. Not ever. Never.<\/p>\n The combination, in other words, of the Court\u2019s agreement with the \u201cunitary executive\u201d view of the Executive branch \u2014 that the President, not Congress, owns the Executive Branch \u2014 along with the Court\u2019s assertion of presidential immunity when serving his Article II role, puts him or her \u201cconclusively and preclusively\u201d above the law.<\/p>\n Roberts:<\/p>\n In the latter case [i.e., when the presidential act stems from the Constitution], the President\u2019s authority is sometimes \u201cconclusive and preclusive.\u201d When the President exercises such authority, Congress cannot act on, and courts cannot examine, the President\u2019s actions. It follows that an Act of Congress\u2014either a specific one targeted at the President or a generally applicable one\u2014may not criminalize the President\u2019s actions within his exclusive constitutional power. Neither may the courts adjudicate a criminal prosecution that examines such Presidential actions. The Court thus concludes that the President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority<\/strong>.<\/p>\n<\/blockquote>\n Not only, under this ruling, is selective and fraudulent federal prosecution fully enabled, but the prosecutorial power of all Executive agencies is as well. Slate again:<\/p>\n Georgetown Law\u2019s Marty Lederman promptly flagged<\/a> that holding as a \u201cprofound\u201d shift in the law, one that will be \u201cweaponized\u201d by \u201cexecutive branch lawyers and officials for time immemorial.\u201d He also noted that this new rule is not limited to the Justice Department, but seemingly applies to all <\/em>federal agencies, many of which have their own law enforcement operations. Roberts essentially decreed that Congress may no longer bar the president from corrupting these agencies by instructing them to open fraudulent investigations and lie to the public. That is, Lederman warned, \u201can extraordinarily radical proposition\u201d\u2014a loaded gun that an unscrupulous president could easily brandish to shoot down the rule of law.<\/p>\n<\/blockquote>\n \u2018An Unscrupulous President\u2019<\/b><\/p>\n The key phrase in that last passage is \u201can unscrupulous president.\u201d Bush II, as president, legalized torture by Executive Branch agencies, and Obama, as president, confirmed that power by failing to prosecute Bush. Obama, as president, ordered an American killed<\/a>, and neither Trump nor Biden rolled that example back. And naturally, both parties love calls for \u201cincreased security<\/a>.\u201d<\/p>\n All of these acts, and more, are available to an unscrupulous president. Problem is, most presidents are unscrupulous. Certainly all recent ones are. What did our elites think was going to happen \u2014 that only angels would win power? Or did they build what elites wanted all along \u2014 the fall of the New Deal state, under which the voice of the many had grown relatively strong, and the re-established rule of the moneyed few?<\/p>\n The latter must be presumed. When a person relentlessly tries to achieve a goal, we must presume he wants it.<\/p>\n So what do we do?<\/p>\n Next Steps<\/b><\/p>\n The focus on \u2018what to do next\u2019 is now first in our thoughts. This will mean testing ideas, refining, revising. I\u2019ll offer these few ideas initially:<\/p>\n I\u2019ll expand on (3) later. Many paths come to mind, from national dismembership due to climate change stress (this could be a good thing), to something that looks like a slow-moving civil revolt<\/a> or general strike.<\/p>\n I\u2019ll say for free that at least one of those things will occur<\/em> \u2014 I\u2019m just not sure which will come first, or who of us will be ready, when that time comes, to mobilize toward the next phase.<\/p>\n The \u201cbeing ready\u201d part matters. More in a bit.<\/p>\n![\"\"](\"https:\/\/www.nakedcapitalism.com\/wp-content\/uploads\/2025\/09\/00-king.jpg\")
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\u2014Richard Nixon<\/p>\n<\/blockquote>\n\n
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