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When Donald Trump reenters the White House on January 20, he will do so emboldened by a power no previous new president has ever enjoyed: immunity from criminal prosecution for any act committed in his official capacity.
The protections, granted in a July ruling by the U.S. Supreme Court’s far-right supermajority, fundamentally change the dynamics of the Oval Office.
“The justices wrote a manual for a president who wants to break the law,” said Michael Waldman, president of the nonpartisan Brennan Center for Justice. “In practical terms, if you’re a president who wants to break the law, make sure your co-conspirators are also government employees — then you’re off the hook.”
The immunity ruling, in Trump v. United States, is the clearest example yet of the judicial feedback loop the former president created during his presidency from 2017 to 2021. With the active support of Republicans in the US Senate, then-President Trump appointed three new far-right judges to the nation’s highest court, creating a 6-3 conservative-to-liberal supermajority.
Trump duly paid back that supermajority. First it abolished the constitutional right to abortion in the case of Roe v Wade, and then it granted him substantial immunity from criminal prosecution.
The immunity ruling has had direct consequences for the federal prosecutions against Trump brought by special counsel Jack Smith. It could change the parameters of a second Trump term, which he has already indicated will be devoted to retaliation against his political enemies, mass deportations of undocumented immigrants, mobilization of the military against domestic targets and other legally questionable steps.
A similar feedback loop also operates in the lower courts. Take Trump’s appointed U.S. District Judge in Florida, Aileen Cannon, who in July dismissed the criminal case against him for hoarding classified documents at his Mar-a-Lago club. The verdict is being appealed.
In these historically important elections, the question is whether Trump can strengthen and deepen this feedback loop during a second term. And if so, how he would use it.
The most obvious way to strengthen an already powerful mechanism is to appoint more judges. Last time, Trump filled a whopping 234 seats on the federal judiciary.
This included three Supreme Court justices: Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. He also appointed 54 appeals court judges, the most powerful judges in the country outside of Supreme Court justices — just one fewer justice in four years than Barack Obama accomplished in his eight years as president.
At the top of Trump’s priority list will be strengthening the far-right hold he already has on the Supreme Court. He could ensure supermajority dominance for years to come if he could replace the older ultra-right justices, Clarence Thomas, who is 76, and Samuel Alito, 74, with similarly strident ideologues half their age.
Given their own fondness for the political values of the Make America Great Again movement, the two most senior justices could well be tempted to resign while Trump was in the White House to ensure continuity. Thomas, a right-wing supporter, has been on the Supreme Court for 33 years.
“The most likely retirement would be that of Judge Thomas,” said Steve Vladeck, a law professor at Georgetown University Law Center and an authority on the Supreme Court.
An even bigger price for Trump would be if one of the three liberal-leaning justices were forced to resign from her lifelong position. All eyes will be on the eldest of the trio, Sonia Sotomayor, 70.
If Trump could replace even one liberal constitutional state, the supermajority would be strengthened from its current dominant status to a status that would be untouchable. A 7-to-2 balance would root out any ambiguity, remove any chance for compromise or moderation, and guarantee a watertight far-right jurisprudence for at least a generation.
“If Donald Trump takes over the White House and the Republicans control the Senate, it will be the next, two, three judicial appointments, and this will be our entire judiciary,” Massachusetts Senator Elizabeth Warren recently told CBS News. “There will be no one to stop them, and with a Supreme Court that has basically said Donald Trump can be a king, there will be no checks on him.”
In the lower courts, Trump would also push to continue his reform of the judiciary, both by aggressively pursuing new appointments to the federal court and by standing up for judges who pay lip service to Maga values. If Republicans regain control of the U.S. Senate next week, there will be few obstacles to pursuing his goal.
“The extent to which the Senate had any kind of backbone during the confirmation process for new judges during the Trump administration is likely to disappear,” Vladeck said. “The restrictions on Trump’s most extreme choices would disappear.”
A key goal would be to push the powerful appellate courts further to the right. The New Orleans-based Fifth Circuit, the nation’s most right-wing appeals court, already has six Trump appointees among its 17 active judges, and a second Trump term will aim to improve that number.
Waldman pointed out that the most ideologically driven Trump appointees came toward the end of his presidency, indicating the increasingly radical direction in which he was moving. Those later appointments included Matthew Kacsmaryk, who was appointed a federal district court judge in Texas in June 2019.
Some of the most controversial cases to reach the Supreme Court in recent months were brought by Kacsmaryk in his northern district of Texas. This included the ban on the abortion drug mifepristone (the Supreme Court restored access to the drug this summer).
Cannon, the judge who threw out the case of classified documents, was also a late appointment by Trump. She accepted her federal position just two months before he left the White House.
Extreme appointments of judges would be only one side of the coin. There are indications that Trump could go on the offensive in a second term to tackle troublesome federal judges who prioritize loyalty to the Constitution over loyalty to Trump.
One of the great frustrations of his four years in the White House was that federal judges repeatedly refused to allow him to act in an unconstitutional manner. The courts blocked, among other things, his initial Muslim travel ban, asylum restrictions at the border and attempts to allow discrimination against transgender patients in health care.
Trump will likely tighten his approach in a second term. John Eastman, the lawyer at the center of the conspiracy to overturn the 2020 presidential election, has called for the resignation of sitting judges. “We need to start calling out these judges for behaving in such an incredibly partisan manner from the bench,” Eastman recently told a national conservative conference.
Waldman has identified another legal strategy that Trump could pursue in a second term as a way to sidestep constitutional objections to his most egregious policies. It is based on identifying relatively obscure federal statutes that were drafted decades or even centuries ago and were written so loosely that they would give him significant leeway.
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For example, Trump has threatened to invoke the Insurrection Act, originally enacted in 1792, which would allow him to use the US military against Americans domestically. The law is so broadly applicable that it gives a president broad powers to decide when the law can be triggered, and Waldman’s Brennan Center has called for strengthening the statute to prevent abuse.
During his rally at Madison Square Garden last week, Trump also checked the Alien Enemies Act of 1798, a federal statute used to intern Japanese nationals in World War II. The law, which allows citizens of other countries to be arrested and removed in the event of war, “invasion or predatory incursion,” could be used as legal justification for his plans to mass deport millions of undocumented immigrants.
“Even a diligent judge would be hard-pressed to impose restrictions on some of these statutes, which have very few guardrails and give presidents an awful lot of power,” Waldman said. “It turns out that it was mainly self-control that ensured that these powers were no longer abused.”
Even Trump invoking the vast powers granted to him by vague old laws pales in comparison to Vladeck’s worst fears. What if Trump dares to ignore the rule of law itself?
“My biggest concern is the very real specter of the courts ruling against him, and him telling the courts to pound sand,” Vladeck said. “What if he tells his supporters that the Supreme Court justices are a bunch of Rinos [Republicans in name only] and tries to defy them? Who will stand up for justice at that time?”
