Presidential Law-Breaking: Is It Legal?

The question of whether a president's attempt to break the law is itself breaking the law is a highly contested topic, with legal experts and politicians holding differing views. On the one hand, some argue that the president is not above the law and must be held accountable for any illegal actions. This view is supported by the principle that all Americans, regardless of their position, are subject to the law. On the other hand, others claim that the president has a degree of immunity from prosecution for criminal acts committed while in office. The Supreme Court's decision to grant immunity to former President Trump sets a precedent that has sparked debate and concern among those who believe it gives presidents free rein to act without consequence. The debate centres on the interpretation of the Constitution and the powers it grants the president, with some arguing for a strict reading that holds all citizens, including the president, equal under the law, and others advocating for a more flexible interpretation that grants the president greater autonomy.

Presidential immunity from prosecution

The concept of presidential immunity is deeply rooted in the separation of powers and the rule of law, which are fundamental principles of the American political system. While the prosecution of a sitting president may be barred, it has long been presumed that prosecution after leaving office is permissible. This assumption was reflected in President Ford's pardon of President Nixon following the Watergate scandal. The Framers of the Constitution explicitly provided no immunities for the president, recognising the importance of holding the nation's leader accountable under the law.

The Supreme Court's 2024 ruling in Trump v. United States significantly shaped the contours of presidential immunity. The Court concluded that presidents are entitled to absolute immunity from criminal prosecution for actions taken within their core constitutional authority, and presumptive immunity for all official acts. However, the Court clarified that there is no immunity for unofficial acts. This distinction between official and unofficial acts has sparked further debate, with critics arguing that the Court's broad definition of "core powers" effectively allows presidents to commit crimes under the guise of official business.

The implications of the Court's ruling are far-reaching. It grants presidents immunity for official acts, including their conversations with Department of Justice officials and certain interactions with the vice president. However, the Court left open the question of how far the boundaries of official acts extend, particularly in the zone of twilight where the president's powers overlap with those of Congress. This ambiguity has raised concerns that the ruling could be exploited by authoritarian leaders to pursue power by any means necessary, undermining the very foundation of American democracy.

The debate surrounding presidential immunity from prosecution remains a highly contentious issue in American politics. While some argue that immunity is necessary to enable presidents to serve the country without fear of political retaliation, others contend that it elevates the president above the law and threatens the democratic principles upon which the nation was founded. The ongoing legal battles and political discussions surrounding this issue will continue to shape the balance of powers among the three branches of the American government.

Supreme Court grants Trump immunity

The Supreme Court has granted former President Donald Trump immunity for a wide range of criminal conduct committed while in office, including his attempts to use the Justice Department to obstruct the results of the 2020 election. The court's ruling sets a dangerous precedent, giving future presidents legal cover to break the law and act above the law when using their official powers.

In the case of Trump v. United States, the court's Republican-appointed justices, including the three Trump appointees, announced a new constitutional immunity from criminal liability for presidents' "official acts", or any actions taken using the powers of the office. This decision gives Trump a free pass for his past crimes and ensures that future presidents will know they can escape criminal accountability for corrupt actions, even those that strike at the heart of democracy.

The court rejected Trump's most extreme claim of absolute immunity from criminal prosecution for any crimes, but it granted him substantial immunity for criminal conduct, including his attempts to enlist Justice Department officials. The court left open many questions about when and for what conduct presidents will be immune from criminal prosecutions, and it sent the current federal prosecution of Trump for interfering in the 2020 election into disarray.

The Supreme Court's decision to grant Trump immunity has been criticized by legal experts and civil liberties organizations such as the American Civil Liberties Union (ACLU). They argue that the decision undermines the principle that the president is not above the law and poses a threat to democracy and the rule of law. The ACLU's brief in Trump v. United States warned that there are "few propositions more dangerous" in a democracy than the notion that an elected head of state is above the law.

The Supreme Court's ruling on Trump's immunity is part of a broader trend of expanding presidential power. The court has embraced the "unitary executive theory", which holds that the executive branch has sole authority over hiring and firing agency employees and controlling their policies. This theory, first formulated by the Reagan administration, has been advanced by conservatives seeking to grow the power of the presidency.

The implications of the Supreme Court's decision to grant Trump immunity are far-reaching and have sparked concerns about the concentration of power in the executive branch and the potential for autocratic tendencies. The court's ruling on Trump's immunity sets a precedent that may embolden future presidents to act with impunity and undermine the system of checks and balances that is crucial for democracy.

Trump's federal buyout program

On January 28, 2025, millions of federal employees received an email from the Office of Personnel Management (OPM) with an offer to resign by February 6 in exchange for eight months of pay and benefits. This was part of a deferred resignation program, which was also offered to employees of the Central Intelligence Agency (CIA). The Trump administration's federal buyout program was an attempt to make the government smaller and more efficient and to bring federal agencies in line with the administration's priorities.

The legality of the buyout program has been called into question by legal and government experts. One concern is that the program may violate the Anti-Deficiency Act, which prohibits the government from spending more money than Congress has appropriated. There is uncertainty over whether a sweeping federal buyout, with promises of payments eight months into the future, can be legally implemented, especially as the federal government's funding is set to run out in mid-March. Another legal concern stems from the Administrative Leave Act of 2016, which places strict limits on how federal employees can be placed on leave. The Trump administration's deferred resignation program could be seen as circumventing this law by effectively placing employees on leave while continuing to pay them.

Unions and prominent Democrats have warned federal workers against accepting the buyout offer, and a lawsuit has been filed to block the program. The White House expects up to 10% of federal employees to take the buyout, but it is unclear how such a massive program would work in practice, both logistically and legally. The current cap on voluntary separation incentive payments is $25,000, which would be far exceeded by eight months of salary. House Republicans are considering increasing this cap to $40,000 as part of budget reconciliation legislation.

Trump's stonewalling

One example of Trump's stonewalling is his administration's refusal to comply with a subpoena for former White House counsel Don McGahn to testify about Trump's efforts to obstruct the investigation into Russian meddling in the 2016 election. The White House asserted that certain presidential aides are "absolutely immune" from testifying, a claim rejected by two judges in a recent ruling.

Another instance is the blocking of Gordon Sondland, the ambassador to the European Union, from testifying before Congress about Trump's discussions with other diplomats regarding Ukraine. The Trump administration also attempted to prevent Congress from accessing the unredacted Mueller Report and underlying evidence related to investigations into Trump and his associates.

Trump's second term agenda

In his second term, President Donald Trump's agenda appears to be shaped by the Heritage Foundation's Project 2025, a conservative policy blueprint that aims to reduce the size and scope of the government while reasserting executive authority. While Trump previously distanced himself from the project, his early actions in his second term align with many of its proposals. Here are some key aspects of Trump's second-term agenda:

Immigration and Border Security

Trump has promised to create "the largest mass deportation program in history," using the National Guard and empowering domestic police forces. He plans to end birthright citizenship and reinstate first-term policies such as "Remain in Mexico," limiting migrants on public health grounds. He also intends to suspend the U.S. Refugee Admissions Program and restrict asylum seekers.

Environment and Energy Policy

Trump has signed executive orders promoting the use of Alaska's energy resources and expanding oil and gas drilling in the region. He has also pulled the U.S. out of the Paris Climate Agreement and plans to curtail offshore wind development. Trump's energy policy is anchored in fossil fuels, promising to "drill, baby, drill" and end all incentives for electric vehicle market development.

Government Reform and Bureaucratic Restructuring

Trump aims to reduce the role of federal bureaucrats and regulations, particularly in the environmental and energy sectors. He has revived the Schedule F executive order, making it easier to remove certain federal employees and reduce the size of the federal workforce. Trump also intends to eliminate the Department of Education and use federal funding to pressure K-12 school systems to abolish tenure and adopt merit pay for teachers.

DEI, LGBTQ, and Civil Rights

Trump has called for rolling back diversity, equity, and inclusion programs in government institutions, using federal funding as leverage. He promises to end "boys in girls' sports" and roll back protections for transgender students. Trump also intends to ask Congress to require that only two genders can be recognized at birth.

Regulation, Federal Bureaucracy, and Presidential Power

Trump seeks to reduce federal regulations and strengthen executive branch influence. He claims that presidents have exclusive power over federal spending, even after Congress has appropriated money. He also suggested that the Federal Reserve should be subject to more presidential power.

National Defense and America's Role in the World

Trump's approach to world affairs is more isolationist and protectionist. He pledges to expand the military, protect Pentagon spending, and build a new missile defense shield. He remains critical of NATO and top U.S. military brass, praising authoritarians like Hungary's Viktor Orban and Russia's Vladimir Putin.

Healthcare

Trump calls for repealing the Affordable Care Act but has not proposed a replacement. He has also played up his alliance with Robert F. Kennedy Jr., a longtime critic of vaccines and agricultural pesticides.

Economy and Trade

Trump's tax policies favour corporations and wealthier Americans, promising to extend his 2017 tax overhaul. He proposes tariffs on foreign goods and plans to block purchases of "vital infrastructure" by Chinese buyers. He also intends to use impoundment powers to cut waste, stop inflation, and "crush the deep state."

Education

Trump has announced a plan to revolutionize higher education by shifting endowments from private universities to a new institution called the American Academy. He also intends to protect students from the "radical left" and "Marxist Maniacs" infecting educational institutions.

Law and Order

Trump has unveiled a new plan to stop out-of-control crime and keep Americans safe. He intends to stand strongly with law enforcement and reduce violent crime.

The question of whether a president can break the law or is above the law is a complex and controversial issue. While the president is not explicitly exempt from obeying laws and orders, the Supreme Court's decision in Trump v. United States granted immunity to Trump and future presidents from prosecution for criminal acts committed while in office. This sets a precedent that suggests presidents may have a degree of immunity from criminal liability for their official acts. However, this decision has been criticized by legal experts and civil liberties organizations like the ACLU, who argue that it gives presidents a "blank check" to break the law and escapes criminal accountability.

Frequently asked questions