Donald Trump’s lawyers have been arguing in court that he should have immunity from prosecution for crimes related to his insurrection because they constituted official acts committed while he was president. Special counsel Jack Smith has countered that this is tantamount to saying presidents should “operate in a realm without law.”
Now Trump has effectively confirmed it: A presidential realm without law is exactly what I want, Jack. In an angry, all-caps social media rant, Trump declared that “A PRESIDENT OF THE UNITED STATES MUST HAVE FULL IMMUNITY” in order to “PROPERLY FUNCTION.” As observers quickly noted, this is best seen as a threat and a promise: A second Trump term, if voters give him one, will certainly include an untold amount of presidential lawbreaking.
But there’s more. What if this openly telegraphed intention to strain the boundaries of the law in office—or even to commit crimes—is not merely an incidental by-product of Trump’s legal defense but has become a key feature of his political appeal? There are strong indications that Trump is intentionally trying to raise expectations among his core supporters for just that—a presidency unbound by the law. And there are even signs it’s having exactly that effect.
To be clear, Trump’s demand for immunity—which is being decided by a federal appeals court—is weak and likely to fail, as I recently detailed. Indeed, this is exactly why Trump is loudly calling on the Supreme Court to rescue him from accountability by enshrining the notion that post-presidents cannot be prosecuted for crimes committed in office:
ALL PRESIDENTS MUST HAVE COMPLETE & TOTAL PRESIDENTIAL IMMUNITY, OR THE AUTHORITY & DECISIVENESS OF A PRESIDENT OF THE UNITED STATES WILL BE STRIPPED & GONE FOREVER. HOPEFULLY THIS WILL BE AN EASY DECISION. GOD BLESS THE SUPREME COURT!
Trump also declared that even presidential acts that “CROSS THE LINE” must be given “TOTAL IMMUNITY” from prosecution. The Justice Department has a long-standing rule against prosecuting sitting presidents. But here Trump insists (inflating his lawyers’ arguments into something even more grotesquely absurd) that for presidents to be effective, they must be free to cross legal lines with immunity from future prosecution that is absolute.
This might sound like bluster or desperation. But make no mistake: Trump is making a genuine declaration here about his intentions for a second term. He wants his voters to hear him loud and clear.
To grasp the full force of this, consider some of Trump’s more concrete threats. Trump has reportedly told friends and allies that he wants the Justice Department to investigate a range of former Trump advisers turned critics. Again and again, Trump has publicly vowed to prosecute Joe Biden and his family based on a series of invented crimes.
In this spirit, Trump has explicitly told his voters, “I am your retribution.” Trump has baselessly declared that Biden’s Justice Department is prosecuting conservatives. In all kinds of ways, Trump has positioned his own prosecution as an act of heroic martyrdom on behalf of his supposedly persecuted supporters.
As it is, Trump extensively politicized law enforcement against his enemies during his first term, as Marcy Wheeler has documented. Now he is claiming the right to dramatically ramp this up under the fig leaf of “retribution” for his own prosecutions, while also insisting presidents must have absolute immunity from prosecution themselves.
Take those together, and Trump is relentlessly conditioning his supporters to expect a second term in which he will bend or break the law to wield the machinery of the state to persecute his opponents, perhaps on a mass scale—as he recently put it, to “root out” the “vermin.” Trump is telling his supporters that he will carry out their retribution, that he will persecute their enemies, that this is their due. What sort of impact might this be having on their expectations?
We don’t have much polling that speaks directly to this point. But the Public Religion Research Institute regularly asks two questions that perhaps shed some light on the potential for severe civic damage here:
As of last summer, surprisingly large percentages of Republicans—and even larger percentages of voters who view Trump favorably—say things have gotten so bad that political violence is justified and that we need a leader to break rules to set things right.
Robert Jones, the president of PRRI, said these are reasonable proxies for getting at what Trump voters and Republicans might see as justifiable in terms of presidential lawbreaking and retribution against political foes. These groups say this at significantly higher rates in PRRI polling than Democrats, independents, and overall Americans, Jones noted.
“Following Trump, large percentages of Trump voters and Republicans today now understand their political opponents as enemies of the country,” Jones told me. “Everything is on the table when you’ve conceived of political struggle this way.”
Fortunately, the percentages of Republicans who don’t see rule-breaking and political violence as justified are somewhat higher than the percentages who do think they’re justified. But still, the groups in the latter category are unsettlingly large.
Similarly, a recent CBS poll found that a stunning 55 percent of self-identified MAGA voters think that if Trump wins reelection, he should “get revenge by criminally charging political opponents.”
Our discourse on these matters is encrusted in euphemism. Media accounts routinely echo the idea that Trump’s motive in threatening to prosecute enemies is “revenge.” But by all indications, the prosecutions of Trump are fully in keeping with due process and the rule of law. There isn’t anything to get revenge for. As Jonathan Chait argues, Trump’s explicit public promise is to entirely eradicate the firewall separating presidents and prosecutors that Trump pretends Biden has breached. Uncritically allowing that Trump’s threats are in some sense retributive concedes too much. He and his allies are laying a pretext for the persecution that they want to carry out.
Meanwhile, a ubiquitous genre of commentary purports to locate an undercurrent of virtuous sentiment driving the belief among Trump’s supporters that he is the victim of illegitimate prosecutions—they’re disillusioned with meritocracy, our institutions, the professional managerial class, whatever. But Trump continues to make these excuses look silly: His supporters remain staunchly behind him even as he explicitly vows to inflict state-sanctioned punishment on his and his voters’ enemies without cause—and to place himself above the law entirely.
Trump is priming his supporters to expect and want these things—indeed, to crave them. He appears to be building an army of backers who in the end may not settle for anything less.
