Trump wants immunity for the cops who serve him -- and retribution for the cops who don't
Trump wants immunity for the cops who serve him -- and retribution for the cops who don't
The former president's contradictory gibberish on police immunity makes more sense when viewed through the lens of his narcissism.
In continuing our tour of the lesser-covered but still potentially disastrous Trump campaign promises, I want to look today at the former president’s repeated vow to confer some sort of “immunity” on law enforcement officers.
During Trump’s disastrous interview at the National Association of Black Journalists forum last month, Semafor’s Kadia Goba asked him about this. In particular, she asked if he thought the Springfield, Illinois deputy who killed Sonya Massey — one of the more horrific police shootings recently caught on video — should be given “immunity.”
Trump stammered. He said the killing “didn’t look good to me,” and did not appear to object to the murder charges brought by local prosecutors against deputy Sean Grayson. He then quickly pivoted to a non-sequitur about violence in Chicago, then garbled, “There’s a big difference between being a bad person and making an innocent mistake.”
Later in the interview Trump claimed, as he often does, that crime is soaring, and that post-George Floyd efforts to hold police more accountable are to blame. The truth of course is that Trump is the first president since George H.W. Bush to leave office with a higher murder rate than when he started. Crime has also dropped since Trump left the White House, and in most places is nearing the historic lows we saw prior to the pandemic.
Trump’s calls to immunize police are clearly in reaction to the modest reforms we’ve seen since the murder of George Floyd. And they’re of a piece with his 2016 and 2020 campaign promises to “unleash” or “unshackle” the police to go after the bad guys without fear of recrimination.
It can be difficult to cobble together a coherent policy from Trump’s vague, stream-of-consciousness rambling. But his answer to Goba and his other public statements on police immunity suggest that, while he thinks police officers should be given the benefit of the doubt, those who engage in egregious, unambiguous abuse — like Grayson’s killing of Massey — could merit criminal charges.
This, in fact, is pretty much how things already operate today. Less than 2 percent of police officers who kill someone while on duty are ever charged with a crime. We can debate whether that number is too high or too low. The point is that while criminal charges for police abuse are marginally more common today than they were before George Floyd, they’re still vanishingly rare.
The main thing Trump appears to want to change is who makes these decisions. Currently, the decision to charge police officers is made by locally-elected district attorneys or, in rare cases, by U.S. Attorneys independent of the White House. Trump wants these decisions to be made by him, or at least by those loyal to him.
But Trump also clearly has no idea what he means by “immunity,” how immunity currently works, or what he could do to change it. For starters, he doesn’t seem to understand that immunity for police officers from criminal charges isn’t . . . well, it isn’t anything. It doesn’t exist.
Trump first invoked this idea earlier this year while making the once ridiculous — and now, thanks to the Roberts court, all-to-real — argument that as president, he should be immune for any crimes he may have committed while in office. In the process, he compared the immunity he thinks presidents need to the immunity he thinks police officers need.
But police immunity from criminal prosecution isn’t a policy any serious person has ever suggested — not police unions, not Jeff Sessions, not the Manhattan Institute.
You could make a persuasive argument that when prosecutors consistently fail to charge police officers for clear crimes, the police enjoy a sort of de facto immunity. But there is no law, policy, or regulation anywhere in the country that says police officers can’t be charged with crimes.
Trump appears to be confusing criminal liability for police with the post-George Floyd debate over qualified immunity — a form of immunity from civil liability, not criminal charges. It’s about how much protection police officers should get from lawsuits.
Qualified immunity makes it extremely difficult to get lawsuits for police abuse in front of a jury. To do so, a plaintiff must show not only that an officer violated their constitutional rights, but that the officer’s actions were unconstitutional under “well-established” law. This generally means that you have to find a case in which another officer engaged in similar behavior, after which a federal court ruled that his actions were unconstitutional.
The justification for this high barrier to lawsuits is that we don’t want to hold police officers financially liable for, as Trump put it, “honest mistakes.”
In the real world, there’s really no risk of that. Over 99.9 percent of police officers who get sued are indemnified from damages by the jurisdictions that employ them (that figure is not hyperbole). Jury awards and settlements are paid by taxpayers, not the officers themselves.
It’s even more difficult to sue federal law enforcement officers. In 2022, the Supreme Court all but overturned the 50-year-old precedent that created a narrow opening for such lawsuits. That effectively gave federal officials complete immunity from lawsuits for constitutional violations — even for brazen misconduct, such as framing an innocent person.
So if Trump is proposing a policy he doesn’t actually understand, where does that leave us?
As with the myriad issues Trump doesn’t appear to fully grasp, the danger is that he will appoint people who do, and thus could do quite a bit of damage.
So here’s what his acolytes might try to do, sorted by probability and potential impact.
(One note: By “impact” I don’t mean to diminish the effect some of these policies will have on real people. I’m referring more to how much the changes will diverge from current policy, and how much damage they’ll do to democratic norms.)
High probability, low impact
A Trump DOJ will almost certainly stop providing oversight for constitutional violations by police. Traditionally, when local prosecutors have refused to prosecute police for clear constitutional violations, federal law enforcement has stepped in — the FBI will launch an investigation, which might result in federal criminal charges. It’s a near-certainty that Trump will appoint DOJ leadership and U.S. attorneys who refuse to intervene in such cases.
It’s also a near certainty that a Trump DOJ would stop seeking new consent decrees with police agencies with a pattern and practice of abusive policing. It’s also likely that the DOJ will stop enforcing existing decrees — or just laxly enforce them. Project 2025 calls on the next administration to “promptly and properly eliminate all existing consent decrees.”
A second Trump administration would also likely tie favored police and prosecution policies to federal funding. Currently, presidents don’t have much influence over local policing (though Trump will seek to change that, too). But they can use funding and other incentives to reward policies the president favors, and discourage those he doesn’t. Project 2025, for example, explicitly calls for denying federal funding to cities that don’t use stop-and-frisk. (Given the overwhelming data on these policies, it seems safe to say that the more discriminatory and racist the policy, the more Republicans seem to support it.)
More generally, Trump and the Project 2025 people want less discipline in policing. They want officers using more force, more often (unless it involves people with close ties to Trump). They want more militarization, less deescalation, and less negotiation. This is the main reason why they also want to end federal training for state and local law enforcement, which they consider to too woke, too weak, and too conciliatory.
High probability, moderate impact
Moving up in seriousness, a Trump DOJ may also interfere when local prosecutors do try to hold bad cops accountable. His administration could threaten to withhold federal funding to jurisdictions in which local prosecutors and police agencies discipline bad cops, as he tried to do with sanctuary cities. A Trump DOJ may also try to bully cities away from voluntarily implementing police reforms, as Attorney General Jeff Sessions tried to do in Chicago.
Trump is also likely to pervert the intent of the DOJ’s Civil Rights Division by opening investigations of local prosecutors and police agencies who do hold officers to account by launching “civil rights” investigations of those agencies based on alleged “reverse discrimination,” as previous Republican administrations have done in other contexts. Trump has already vowed to open “civil rights investigations” of “radical leftist prosecutors” who “refuse to charge criminals.”
Project 2025 calls for this as well — criminally charging progressive DAs for not enforcing certain laws. (Back in reality, no DA has the resources to enforce every law. All DAs prioritize based on the resources they have). The 2025 blueprint also calls on the Civil Rights Division to divert resources from investigating police abuse to investigating public agencies, private businesses, and universities for DEI programs and affirmative action that engage in “reverse discrimination.”
Medium probability, catastrophic impact
The federal government’s influence on local policing is also increasing through the proliferation of multi-jurisdictional task forces, the units in which state, federal, and local law enforcement team up on issues like gangs, drugs, gun violence, terrorism, and sex trafficking.
There are now more than 1,000 of such task forces operating around the country. They also have a long track record of abuse, unjustified shootings, and corruption. This isn’t all that surprising, given that many are self-funded, don’t report to any local authority, and typically have little outside oversight.
Federal courts have ruled that local and state officers on these task forces are protected by the near-absolute immunity provided to federal officers instead of the already significant qualified immunity given to state and local police. The DOJ has also insisted that when it comes to policies governing body cameras, discipline and accountability, and transparency, task forces are bound by federal law, not state or local law, even when they’re exclusively enforcing state law (which is also increasingly common).
When local DAs try bring criminal charges against an officer who hurt someone while working on a task force, the DOJ tends to intervene to move the case to federal court, then refuses to prosecute. This has already been happening for a while, and to be fair, it’s a policy we’ve seen from administrations from both parties.
But when you combine this policy with two other Trump campaign promises, things start to get really hairy. Those promises are his vow to deport up to 20 million people, and his promise to send federal forces into cities where he believes crime is “out of control” — which is MAGA code for any large city run by Democrats, regardless of its crime rate.
As I wrote here a few months ago, the deportation plan alone would require a force larger than the U.S. Army. Trump and longtime immigration advisor Steven Miller have said they’d call up National Guard troops and deputize local police officers to help. But they’d still need more way more bodies than that. It seems likely that agencies like ICE and the Border Patrol would need to go on a hiring binge, and with significantly relaxed standards. Trump might also deputize private groups, such as the Proud Boys, or the nutty anti-immigrant militias who patrol the border.
The threat here is ominous. The deportation plan would be the largest forced displacement of human beings since World War II. Historically, such forced displacements have resulted in horrifying human rights violations, including mass casualties. You needn’t be alarmist to see the harm in sending a motley force of Guardsmen, local police, and possibly vigilante citizens into urban areas to apprehend people the president has declared to be “vermin’ and “scum,” while simultaneously promising that those who carry out these operations will face no accountability for violating civil, constitutional, or human rights. It’s scenario ripe for atrocities.
Low probability, catastrophic impact
To some extent, most of this is already uncharted territory. But now we’re getting into the truly scary stuff.
Trump and his allies, including people widely expected to be appointed to high-ranking positions in DOJ, have promised vengeance and retribution against the prosecutors, politicians, critics, and journalists they see as Trump’s enemies. They’re downright giddy about it.
Back in July, several media outlets reported that MAGA activist Ivan Raiklin has been assembling a Trump enemies list. The list apparently includes “high-ranking Democrats and Republicans, U.S. Capitol Police officers, officials at the FBI and other intelligence agencies, witnesses in Trump’s impeachment trials, and journalists at The New York Times, CNN, The Washington Post, and other news outlets.”
Once Trump takes office, Raiklin plans to recruit far-right sheriffs to arrest the people on that list. Raiklin also thinks he can also recruit tens of thousands of ex-military personnel, people he says were discharged for refusing COVID protocols.
This is an unserious, unconstitutional, pie-in-the sky, batshit-insane scheme. But so was sending a bunch of idiots to the Capitol to stop Mike Pence from certifying electors in a bid to overturn the election. They tried it anyway. (Raiklin, by the way, is generally credited as the first person to float that Pence/electors scheme.)
So far, media outlets have been unable to find any sheriff who will commit to the plan. I’m not sure how much comfort we should take in that. Democrats currently run the DOJ. I doubt any sheriff is going to publicly volunteer himself as a participant in a criminal conspiracy to violate the Constitutional rights of, among others, the people who currently oversee the Justice Department. If Trump were able to make the DOJ into his personal law firm, fixer, and enforcer, I suspect things could change.
The scheme doesn’t seem likely to get far in blue states. A Democratic attorney general, a state police force in a solidly Democratic state, or a Democratic governor with the National Guard would snuff it out pretty quickly.
I’m less confident about red states, particularly those with feverishly MAGA attorneys general and governors. It could get at least far enough to intimidate and chill dissent, which is the whole point. And it’s more likely to get that far if the law enforcement officers who carry it out know they won’t be prosecuted for doing so.
Raiklin, by the way, isn’t just some fringe activist out of nowhere. He’s a former Defense Intelligence Agency analyst, and was an aide to QAnon conspiracist and unregistered foreign lobbyist Michael Flynn — the man Trump appointed National Security Advisor, the single most sensitive position in U.S. government. Raiklin and Flynn remain close, and Trump has said he’d appoint Flynn to another high-ranking position.
I suppose that on some level, once we reach the point where sheriffs are making out-of-jurisdiction arrests of journalists and politicians with complicity from the DOJ, whether or not those sheriffs can later be charged or sued is probably the least of our problems. Like the mass deportation plan, when the details were reported, the MAGA faithful on sites like X-Twitter didn’t react with denial or skepticism. They reacted with glee.
What Trump really wants
The irony here is that Trump doesn’t really want complete immunity for law enforcement — civil or criminal. For example, has consistently demanded the prosecution of the district attorneys, FBI agents, and the special counsel attorneys he believes are conspiring against him.
And on his campaign site, he writes this about progressive prosecutors and police chiefs:
I will also work with Congress to give the victims of their Marxist policies the right to sue local officials for harm and suffering, and it has been great that they have caused. If your small business is pillaged because shoplifting goes unpunished, if you're brutally attacked by a violent felon released without bail or bond, then you will be entitled to massive damages.
Just a few weeks after the NABJ interview where he incoherently defended his “immunity” promise, Trump filed a lawsuit against the FBI search of Mar-a-lago. Trump’s lawsuit claims the search was “political prosecution,” and he’s asking for $100 million in damages.
This lawsuit likely isn’t going anywhere*, thanks large to the very sort of immunity Trump has promised to continue, but on steroids — in this case, the near-absolute immunity that the Roberts court has granted to federal officials, and which all three Trump-appointed justices supported.*
(*At this point, it seems necessary to add a couple caveats here. First when it comes to Trump and the Roberts, just about anything is possible. And second, if Trump wins in November, it’s entirely possible that he’ll try to order the DOJ to settle with him for the $100 million. Or he may just appoint leadership who would settle. He could then cite this is as proof that the prosecution was a “witch hunt,” claim vindication, and pocket $100 million in public money. Would this work? Who knows! John Roberts made clear in his immunity opinion that presidents exerting their authority over DOJ are official acts, even when done for corrupt purposes. Also, you can’t investigate if they were done for corrupt purposes. As preposterous as this sounds, I can’t say it won’t happen, mostly because our system isn’t designed to adjudicate a president credibly charged with felonious conduct who then then sues the DOJ and somehow gets reelected to the White House.)
It seems clear from his public public statements and legal maneuvering that what Trump actually wants is absolute immunity for the law enforcement officers and public officials who support him and his policies, and punishment and retribution for those who don't.
That isn’t the rule of law. It’s rule by the whims, prejudices, and obsessions of a single man.
We have a word for that: It’s authoritarianism.
It's not that the authoritarian impulse is new to our system. It's always been there, sometimes on the Democratic side, more frequently--especially post-1980--on the Republican side. But in the past, there has been bipartisan pushback, sometimes (although not often enough) quite vigorous.
With the vanishing of authentic conservatism on the Republican side, there's no longer a Republican impulse to check the power of the state through principled libertarian or conservative theories of governance. Democrats, meanwhile, are uneasy about being seen as hostile to law enforcement (the "defund the police" business still resonates), and have allowed themselves to be backed into a policy corner by the right, although there's still an opportunity to take a principled pro-law enforcement stand.
On the right, we've reached the dawn of "big government Republicanism," which appears to be evolving quite rapidly into a form of fascism. It's not out of the question that if Republicans take power in November (or two years from now, or four), they will move toward a fascist welfare state along the lines of apartheid South Africa, with enormous state benefits provided to certain segments of the population, in exchange for which those fortunate citizens will agree to give up democratic checks on the police powers of the central state.
Unfrickin believable and a clear and present danger to the people. We don’t live in a police state. Protecting incompetence is criminal.