Trump's Lawbreaking: Can Congress Respond?

Former President Trump has been accused of breaking federal laws and violating the Constitution on several occasions. These include the firing of fraud-finding inspectors general, an Inauguration Day pardon of the January 6 insurrectionists, and an attempt to dismantle independent agencies. While the Supreme Court has granted Trump immunity from criminal prosecution for official acts, Congress has the power to check the president's excesses and hold them accountable. Congress can use its powers of oversight, the purse, and lawmaking to curb the president's actions. However, Congress's ability to check the president's power is limited, and it remains to be seen if they will effectively counter Trump's aggressive approach.

Trump's history of breaking the law

Trump has a history of breaking the law, or at least attempting to do so, and then attempting to justify his actions.

Trump has been accused of violating the Impoundment Control Act of 1974 by withholding $214 million in Defense Department aid for Ukraine without obtaining authorization from Congress. The Government Accountability Office, a nonpartisan public auditor, reported this violation, which was also a key reason for his impeachment. Trump disputed this conclusion, claiming he acted lawfully under his authority to carry out American foreign policy.

In another instance, Trump attempted to freeze all federal grants and loans across the government, amounting to about $1 trillion. This was a massive legal and constitutional breach as it affected everything from education to healthcare, and only Congress has the power to appropriate funds for federal government activities.

Trump also issued an executive order to end birthright citizenship, which a federal judge blocked, calling it "blatantly unconstitutional". He fired fraud-finding inspectors general across the government without providing notice or rationale to Congress. He pardoned the January 6 insurrectionists and purged the Federal Bureau of Investigation, removing top career officials.

Trump has also targeted platforms carrying content critical of him, attempting to censor his critics by calling on Congress to pass the "Take It Down Act". He has filed frivolous lawsuits against media defendants, threatening to silence critics and drawing resources away from important reporting work.

Trump has even publicly admitted that he believes he can break any law, stating, "He who saves his Country does not violate any Law". He has made it clear that he believes he is above the law and that constitutional limits and legal restrictions do not apply to him.

Congress' powers to check a rogue president

The presidency of Donald Trump exposed vulnerabilities in the US constitutional framework and legal regulations, which had previously been hidden because presidents from all political parties willingly complied with behavioural standards that kept the presidency within the bounds of constitutional democratic governance. Scholars, policymakers, and judges must now consider how to safeguard the rule of law from a rogue president rather than waiting for the next crisis.

Congress has the authority to check a rogue president in several ways. Firstly, Congress has the power of the purse under the Constitution, meaning it appropriates the money for the activities of the federal government. Presidents cannot unilaterally decide to impose a blanket freeze on spending or refuse to spend money without involving Congress. Secondly, Congress can limit the president's power to use the military domestically under the Insurrection Act and better define and restrict the president's emergency powers. Thirdly, Congress can set boundaries on the pardon power regarding war crimes and encourage courts to be more sceptical when evaluating the executive branch's invocation of the state secrets doctrine to shield governmental actions from scrutiny.

Additionally, Congress can empower inspectors general across the government, especially in national security agencies, and protect them from politically motivated firing by a rogue president. Congress should also focus on enforcing and improving existing civil and criminal laws that address non-consensual intimate imagery (NCII) rather than opting for broad takedown regimes that are likely to be abused. Furthermore, Congress has the power to shut down or move agencies, such as USAID, which was established as an independent entity by a law passed by Congress in 1998.

While Trump's actions may have violated rules, laws, and the Constitution, it is important to note that the president's power over national security matters is not unlimited. The US Supreme Court has made it clear that presidential power, even during times of military conflict abroad, remains subject to constitutional constraints.

Trump's attempts to censor critics

Trump has been accused of attempting to censor his critics and limit free speech. One of the most prominent examples of this is his endorsement of the Take It Down Act, which he has openly declared he would use to remove online content about himself. The bill is intended to address the serious problem of non-consensual intimate imagery (NCII) and the distribution of such content. However, critics argue that the bill is overly broad and could be easily manipulated to remove lawful content that powerful people simply do not like. There are concerns that the bill lacks safeguards and could lead to censorship and abuse.

Trump has also been accused of targeting platforms and media organizations that carry content critical of him, both as an elected official and as a private citizen. He has filed lawsuits against media defendants, which some argue threaten to silence critics and divert resources from important reporting work. Additionally, Trump's orders banning DEI (diversity, equity, and inclusion) efforts and forbidding schools from teaching about "gender ideology" have been criticized as violating the First Amendment and targeting viewpoints that the government disagrees with.

Furthermore, Trump's administration banned the news organization AP from accessing the White House and Air Force One, which are critical for covering the president. The AP has sued, arguing that the press and the people have the right to choose their words and not be retaliated against by the government. Trump has also sued media organizations himself, such as the Des Moines Register, claiming that a pre-election poll that showed Vice President Kamala Harris leading in Iowa was fraudulent.

Trump's actions and statements regarding free speech and censorship have sparked concern among critics, who see his moves as a sweeping crackdown on free expression.

The Supreme Court's decision to grant Trump immunity

On July 1, 2024, the Supreme Court of the United States ruled in a 6-3 decision that former President Trump is at least presumptively immune from criminal liability for his official acts, with absolute immunity for some "core" acts. This ruling, known as Trump v. United States, sets a precedent for presidential immunity, stating that immunity from criminal prosecution extends to all of a president's "official acts" with absolute immunity for acts within exclusive presidential authority.

The decision was made in response to Special Counsel Jack Smith's indictment of Trump, which alleged that he conspired to overturn the results of the 2020 election and undermined the nation's election process. Trump's counsel argued for immunity, claiming that the presidency confers immunity from prosecution, which was initially rejected by federal district court judge Tanya Chutkan. However, the Supreme Court's ruling stated that presidents "may not be prosecuted for exercising [core constitutional powers]," including commanding the military, issuing pardons, and overseeing foreign relations.

The ruling has sparked intense debate and concern, with critics arguing that it places presidents above the law and grants them legal cover to break it. The decision has also been compared to the Enabling Act of 1933 in Germany, and several members of Congress have proposed constitutional amendments to reverse the ruling. The case now returns to the lower courts to determine whether the conduct at the center of the charges against Trump was official or unofficial, further delaying any potential trial.

While the Supreme Court's decision grants Trump immunity for official acts, it is important to note that it does not provide immunity for any private or unofficial acts. The court left it to the lower courts to determine which of Trump's actions are immune and which are not, and the decision does not prevent Congress from speaking out against any potential future breaches of the law.

Trump's actions against noncitizens

During his first term, Trump's actions against noncitizens included the use of active-duty military personnel to respond to protests against police violence, and the implementation of travel and immigration bans against countries that did not provide sufficient information to the US government. Trump also attempted to restrict asylum, separate families at the border, cut off access to asylum, strip people of protection under Temporary Protected Status (TPS) and Deferred Action for Childhood Arrivals (DACA), and add a citizenship question to the census to chill participation by immigrants and mixed-status families.

In addition, Trump's administration implemented a policy of rejecting any immigration application that contained blank spaces on specific forms, even if the applicant was not required to provide an answer. This built upon the "'extreme vetting' philosophy of the first Trump administration, which went beyond explicit country-based travel bans and the suspension of refugee resettlement. The Trump administration also attempted to prevent abortion access for unaccompanied immigrant minors.

On the first day of his second term, Trump issued ten executive orders aimed at overhauling US immigration law and policy, with the aim of expanding the legal authorities used to enforce immigration law against immigrants already in the US, while also expanding the infrastructure needed to accomplish "mass deportations".

Trump's so-called border czar, Tom Homan, indicated that the administration planned to continue deportations, including those of suspected gang members, despite court orders and legal challenges. This defiance of the court's ruling could pit one of the coequal branches of the government against another.

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