By Thomas Neuburger. Originally published at God’s Spies
“When the president does it, that means it’s not illegal.”
—Richard Nixon
I recently wrote a piece, unpublished so far, that contends at length that it’s over constitutionally. The state has been transformed, by both corrupt parties, into an American kingship. I’ve been writing an ongoing series (“The Fourth American Constitution”) contending just that.
The change is now complete, the last piece in place. Yes, the corner cases need to be sorted, cases that in practice will almost never occur — for example, could the president commit rape in the nation’s defense? But the territory is already marked, defined, surveyed. Unstopped reconstruction is next.
Trump v. US
In defense of that point, I want to go back to the ruling in Trump v. US, the one that cements what previous administrations have tended toward, that the president has near-absolute power.
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’s expansion of the president’s domination of Congress in a self-declared “time of war,” and with Obama’s help, the legalization of torture; to Obama’s de facto adoption of the president’s right to murder American citizens and his failure to roll back any of the power Bush-Cheney assumed, the table was set for Trump and the Court’s decision in Trump v. US.
According to the Brookings Institute, one of the implications of this new decision is that presidential immunity “is absolute with respect to a president’s exercise of his core Article II powers.” As I wrote in “Our Lawless Elites”, this means that the president has the right to break the law whenever he acts as president.
‘When the president does it, that means it’s not illegal’
Am I being too extreme? Slate says no:
Consider, for instance, how the ruling analyzes Trump’s 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 “alternative slate” of electors who would cast their votes for the losing candidate, Trump. When then–acting Attorney General Jeffrey Rosen refused to go along with the scheme, Trump threatened to fire him. Smith’s indictment zeroed in on this scheme to support his allegation that the president engaged in an unlawful conspiracy to thwart Congress’ certification of the election.
So the crime is “unlawful conspiracy” to subvert congressional certification of the president’s own election. Illegal? Roberts says no.
Roberts held that Trump’s demands for a sham investigation were constitutionally protected. Why? Because, he wrote for the court, the president has “exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials.”
Roberts also says this (Trump v US, p. 5): “The Executive Branch has ‘exclusive authority and absolute discretion’ to decide which crimes to investigate and prosecute, including with respect to allegations of election crime.”
The President Can’t Be Constrained by Congress or Courts
Roberts literally means that when the president is fulfilling any of his Article II duties, whatever he does, he can never be prosecuted for it. Not ever. Never.
The combination, in other words, of the Court’s agreement with the “unitary executive” view of the Executive branch — that the President, not Congress, owns the Executive Branch — along with the Court’s assertion of presidential immunity when serving his Article II role, puts him or her “conclusively and preclusively” above the law.
Roberts:
In the latter case [i.e., when the presidential act stems from the Constitution], the President’s authority is sometimes “conclusive and preclusive.” When the President exercises such authority, Congress cannot act on, and courts cannot examine, the President’s actions. It follows that an Act of Congress—either a specific one targeted at the President or a generally applicable one—may not criminalize the President’s 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.
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:
Georgetown Law’s Marty Lederman promptly flagged that holding as a “profound” shift in the law, one that will be “weaponized” by “executive branch lawyers and officials for time immemorial.” He also noted that this new rule is not limited to the Justice Department, but seemingly applies to all 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, “an extraordinarily radical proposition”—a loaded gun that an unscrupulous president could easily brandish to shoot down the rule of law.
‘An Unscrupulous President’
The key phrase in that last passage is “an unscrupulous president.” 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, and neither Trump nor Biden rolled that example back. And naturally, both parties love calls for “increased security.”
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 — that only angels would win power? Or did they build what elites wanted all along — 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?
The latter must be presumed. When a person relentlessly tries to achieve a goal, we must presume he wants it.
So what do we do?
Next Steps
The focus on ‘what to do next’ is now first in our thoughts. This will mean testing ideas, refining, revising. I’ll offer these few ideas initially:
- It’s important to accept, unflinchingly, where we are. Middle class wealth and power of the 1950s and 60s — relative at least to our nation’s previous years — is gone for good. Attacked by every administration from Reagan till now, it will not come back.
- National Democrats, in the aggregate, offer little protection. At best they slow the decline, at worst they concur.
- The solution will come from outside regular channels, if one comes at all.
I’ll 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 or general strike.
I’ll say for free that at least one of those things will occur — I’m just not sure which will come first, or who of us will be ready, when that time comes, to mobilize toward the next phase.
The “being ready” part matters. More in a bit.
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I’ve been thinking about civilizational collapse from the POV of Turchin and Toynbee. In that light, Trump is simply the “right” man at the right time to take advantage of a long and gradual dismantlement of many safeguards, coupled with technological advances that enable very sophisticated tools for manipulation and control.
All this is to say that we have much bigger problems to solve than simply Donald J. Trump himself.
I’d say the system was designed to select for someone exactly like Trump. When you run your electoral process like a reality show, don’t be surprised when the reality show guy wins.
If you ask Hawaiians, many will tell you that there hasn’t been a scrupulous U.S. president since Grover Cleveland.
https://www.digitalhistory.uh.edu/disp_textbook.cfm?smtID=3&psid=1104
A recent talk
with Luke Kemp of Goliath’s Curse: The History and Future of Societal Collapse that is going to be published end of this month, had some interesting takes on the way collapse is framed from the perspective of the elites, vs the rest. A few soundbites that got my attention included that in more cases than we think, this ‘collapse’ was framed as catastrophic by the elites, but that sometimes the living standards of ordinary people actually improved (he cites some bits like increased relative height of people before and after the collapse of Rome including the surrounding areas that seems to indicate improved nutrition etc).
Though I can’t speak to any of the facts specifically and would love to hear what other people make of it (the talk) or the book (once published), I welcomed the small possibility of some positive outcomes.
Loath as I am to rain on parades, our host Yves has opened on the subject, pointing out that the collapses dealt with in that new work and the one we are facing down are apples and oranges because we are not agricultural workers and peasants, and a functioning state and society matter very much to us for things like drinking water and the roads which lead to hospitals.
My heart melted when I heard him arguing for deep democracy and sortition…
Another example from the “unitary executive” view of the Presidency is that as they swear an oath on taking office to ‘preserve, protect and defend the Constitution of the United States’ that it implies that they have to be above the Constitution in order to do so. Total made-up lawyer bs but that is the sort of thing that they will try. I suppose that there is a sort of inevitability to this process and you had the same with the Roman Emperors. You had one Emperor named Vespasian (69-79 AD) who would josh with his former officer friends and who would josh him right back. Later on Roman Emperors adopted the practice of having them being treated as living gods and above humanity so that familiarity was long gone. I notice in many American films a “reverence” to the Presidency so I think it only a matter of time until the 22nd Amendment limiting the Presidency to two terms will be done away with as too restricting. There’s going to be trouble.
Even during Vespasian’s time, the tendency towards deifying emperors was well underway: Vespasian, ever the joker, left the dying words/joke: “my, I think I’m becoming a god.”
But formalization of the protocols did not mean the emperors themselves took them seriously: Diocletian, who imposed a lot of the formal protocols about deified emperors, like gold dust to generate fake halos, happily retired to plant cabbages near Split, after all, and happily mocked the messenger from one of his successors about how happier one is while farming vegetables than emperoring…
This brings to mind Payl Jay’s account of the Jan 6 fiascos “A Failed Coup Within a Failed Coup”, in which the first coup attempt was Trump’s attempt to tamper with the election. I remember a recording of a phone call he made that seemed completely incriminating and thinking it sus that Democrats didn’t focus on that for their lawfare. I guess it had passed me by that, as Neuberger sets out here, it was run through the courts and we discovered that coups of that type (lame duck president curing itself) are legal in the USA and, I suppose, always were.
“The solution will come from outside regular channels…”
That will have to be the case since the regular channels are all busy planting trees in Israel – https://www.jns.org/250-us-legislators-plant-state-trees-in-negev-while-seeing-sites-of-oct-7/
Reminiscent of the mention in Michener’s The Source about tree planting symbology and application for visitors.
Everything possible is being done to make sure that the usual the divisions and distractions are all in place by the mid-terms.
The main thing that would need to be avoided by the current establishment:
People focusing on their record and actions.
They’d much rather people haggle over disinformation on social media and base their political choices on perceived slights from strangers.
But don’t all non federal prosecutors have this “selective prosecution” option, only restricted by grand juries–enemy of all ham sandwiches? The problem here seems to be more with our ruling class in general which is perfectly happy to have a king as long as they may get to install their own king later.
In other words it’s not just Trump (or Nixon who was once accused of “imperial” presidenting). Nixon in his defense said he was only doing what predecessors had done and got away with, and there was some truth to that.
But one must concede that Trump is in a whole other world when it comes to defying even the appearance of just rule. It seems only public opinion will be able to restrain him.
not sure why everyone is up in arms about this… The founders gave the president substantial and immense powers by design
for four years at a time. very similar to Roman dictators, which they studied at length.
why is anyone surprised when SCOTUS affirms original intent of the constitution?
The increasing king-like powers of the US president have been accompanied by increasing inequality as presidents of the last 50 years or so have relentlessly advanced neo-liberalism. Inequality increases, to cite Lambert, 1-because markets, 2- go die.
A recent book has outlined what led past societies to reorder themselves in a way that benefited the majority of population following extreme inequality: warfare, revolution, state collapse and plague. Disturbing…
Interview with Walter Scheidel, author of The Great Leveller: https://www.economist.com/open-future/2018/09/10/can-inequality-only-be-fixed-by-war-revolution-or-plague
To be fair, the American presidency has acted like a “elective monarchy” for a very long time now, and it could be argued that even our presidential elections are largely ceremonial rather than actually putting any sort of real check on the limits of the Executive branch.
This is because the limits of what the president can and cannot do by Executive Order have never been really formally-defined, so all presidents have pushed the envelope to test the limits of executive power whenever the opportunity arose. All the Roberts court has done was codify what already existed as American presidents have always acted like defacto monarchs with few consequences.
I mean, you could even question whether or not we could even be called a “Constitutional Monarchy” as presidents have also had a lot of leeway in ignoring our Constitution whenever they felt like it, and a sitting president cannot be arrested for a crime as he must be formally-impeached first.
My attitude as an American of East Asian ancestry has always been, “Constitutional check on the President’s de facto ability to run roughshod over supposedly inalienable rights? Don’t make me laugh.”
https://en.wikipedia.org/wiki/Executive_Order_9066
Speaking of Nixon: he and Kissinger ignored Congress when they carpet-bombed Laos, Cambodia and Vietnam. I’m no legal expert, but it appears that several high crimes were committed here. Not only was Congress’ constitutional powers circumvented, the Nixon admin did not even inform Congress of their actions. Many thousands of innocent people were slaughtered and unexploded ordnance still kills people to this day. Neither Kissinger, nor Nixon were held to account for these actions. “Watergate” was small potatoes.
Since then, Congress has largely rolled over and allowed the sitting emperor more or less whatever he pleases. Recent events have taken this to a new level. The institutional rot and corruption of the so-called US justice system is well covered. Good ol’ Judge Napolitano has talked about the lawlessness at length.
History rhyming?
This is kind of like the Roman Senate willfully appointing dictator perpetuo (to Julius Caesar) and then augustus princeps to Octavian. All the while the Senate and Roman elites pretending that “the Republic” was still functioning as usual.
And now to top it all off, we have a mentally-ill buffoon as emperor.
I have always believed that if the president is subject to the law, then Supreme Court justices should be appointed by an independent body rather than by the president.
Just maybe, not so fast with words like “pretend” and “sham”
“DOJ would pretend to uncover election fraud…”
“Roberts held that Trump’s demand for a sham investigation…”
Please see recent article (Associated Press, Sept. 9, 2025″ entitled
“Michigan judge tosses case against 15 accused fake electors for Trump in 2020”
“A Michigan judge dismissed criminal charges Tuesday against a group of people who were accused of attempting to falsely certifying President Donald Trump as the winner of the 2020 election in the battleground state, a major blow to prosecutors as similar cases in four other states have been muddled in setback.
District Court Judge Kristen D. Simmons said in a court hearing that the 15 Republicans accused will not face trial. The case has dragged through the courts since Michigan Attorney General Dana Nessel, a Democrat, announced the charges over two years ago.”