Former President Donald Trump on his plane after a campaign rally in Waco, Texas, on Saturday, March 25, 2023 [Evan Vucci/AP Photo]
Note from the author: I want you to know that if I could have every American read one piece I've published, this would be my pick. By a large margin.
Legally and factually speaking, being the sitting president doesn’t make you above the law. Not legally, not constitutionally, not morally, not in any document any founder ever signed, or any US law ever passed, and no not even in the Trump Vs US SCOTUS ruling.
If the president shoots a random person on Fifth Avenue, a police officer can and should arrest him. If he’s running a billion-dollar pardon sale scam, state and federal authorities both have standing to investigate and charge him. And if he commits any crime that any other American would go to jail for, he goes to jail for it too. A broke guy in Tulsa who steals from his employer loses his job and does time; yet currently the president is a prolific child molester who enjoys no legal consequences because he won a rigged popularity contest, despite no legal backing for that collective presumption.
Every judge, every attorney general, every sheriff, every prosecutor who declines to investigate or charge documented criminal conduct because the man committing it is currently president has made a choice. They may not have said the words. But their actions have said them plainly: the president is above the law. That’s the only conclusion their inaction supports.
And you’re not pro-democracy if you’re not willing to apply the law the same to a president as to a homeless person.
Most Americans have come to believe that Donald Trump is effectively above the law because he is the sitting president. Not because they want him to be, but because they think the Supreme Court made it that way. They point to Trump v. United States and say the Court gave him immunity; they point to impeachment and the 25th Amendment and say those are the only two remedies. They’ve concluded, reasonably but inaccurately that until Congress acts with a supermajority, nothing can touch him. They’re wrong. And the people who benefit from that confusion have every reason to keep it going.
Trump v. United States created a partial shield in federal court for official acts. But the Court never defined what an official act actually is, and no court has ever held that bribery, selling pardons, child molestation, or sex trafficking qualify. More importantly, the ruling explicitly did not weigh in on state prosecution. This wasn’t the result of an oversight or a loophole, but a core doctrine in US law.
The dual sovereignty doctrine, which has been the law of this land since the founders wrote it into the architecture of the republic, gives every state independent authority to prosecute crimes committed within their borders; a presidential pardon cannot touch a state conviction. Congress doesn’t have to act. No supermajority is required. If the president commits a crime, a prosecutor with jurisdiction can charge him, and that’s how it has always worked. This article is going to prove that, doctrine by doctrine, objection by objection, because you deserve to know the truth; that not even the most conservative justice on the Supreme Court has ever argued that a president is completely above the law until removed from office through political means.
The founders weren’t subtle about why they built it this way. They’d watched a king operate above the law, and they designed a system with two parallel sets of courts, two parallel sets of prosecutors, two parallel sets of criminal codes, and two parallel sets of criminal statutes specifically so no single actor could capture the whole machine. The dual sovereignty doctrine wasn’t a legal technicality they left lying around; it was the design. States retain independent authority to prosecute crimes committed within their borders because the founders understood that the day would come when the federal government couldn’t be trusted to police itself. That day has a name now. It’s today.
There was a reasonable argument, once, that states should defer to federal institutions on matters like this because those institutions could be trusted to handle them. That argument had merit when the referees were presumed good faith actors.
The Justice Department is being used to target political enemies; the FBI actively helped cover up the Epstein files while powerful men whose names appear in those documents walked free. Handing the ball to a corrupt referee and waiting for a fair call isn’t deference. It’s surrender. We saw how the “wait for midterms, then try a few impeachments, then wait until the election, then charge him with crimes” strategy worked last time he was President. Have we collectively forgotten how this entire playbook was run before? The Heritage foundation came with a game plan to change things by exploiting every vulnerability they could find and learning based off their shortfalls in the first Trump term. The bad guys can’t be the only ones smartening up or we are all doomed.
If you’re telling your constituents that impeachment is the only solution for criminal behavior of a president, then I’m telling you that you don’t believe in democracy. Look at the record. Impeachment: four attempts, zero convictions, zero consequences, zero deterrence. Federal prosecution: sat on for four years by Merrick Garland, handed to a special counsel, and abandoned the moment the political calendar made it inconvenient. Civil suits: ongoing, unresolved, and irrelevant to a man who has no shame and unlimited legal fees. New York dropped its case because a judge decided the timing was wrong. Georgia spent eighteen months being litigated in bad faith, the prosecutor’s private life was investigated until they found something to use against her, and the case was ultimately set aside the moment Trump was about to be president again. Waiting for elections: we waited, he lost in 2020, went home, and came back.
Letitia James announced during her 2018 campaign that she was coming for Trump. She opened the investigation in March 2019, accumulated 930,000 documents, and had fraud documented back to 2011. She chose civil over criminal the entire time, filed her lawsuit in September 2022, and won a judgment of over $450 million in February 2024. Trump came back anyway, and the Justice Department is now using its full weight to prosecute her for it. The cautious path didn’t protect her or stop him. I have tremendous respect for NY AG Letitia James, she made a better version of the standard version judgement call by pursuing civil actions against the man himself. She did everything the right way and after enough delays, Trump was about to be president again and Judge Merchan decided no punishment was appropriate for the mad king. Lest humble Judge Merchan should gain his ire, rather than perhaps some financial or Epstein style “backroom benefits” for enough successful delays in decision making. So much for impartiality, I guess lady justice takes off her blindfold to make absolutely sure the person isn’t president.
We know how to fail. We keep trying the exact same thing, waiting and trying and failing in identical ways, and somehow expecting a different result.
Why can’t we switch it up? Meanwhile, Republicans pass blatantly unconstitutional laws and fight them out in court; they take the long shots, press every issue they have, and dare judges to stop them. And here’s what that strategy does that ours doesn’t: it forces courts to draw lines. The only way we find out where the boundary between the Supreme Court’s “official” and “unofficial” act actually falls is by bringing criminal cases that make courts decide, and every charge not filed is a definition left unmade. And deferral that Donald Trump has not earned the right to have. Every case not brought leaves that boundary undefined, and undefined boundaries drift toward more presidential power, not less. Our criminal justice system is now so used to deferring to power that it makes sense a billionaire president would become king. And that’s what he is if he is above the law as a result of his office.
So here’s what everyone on our side needs to understand about the law, stated as plainly as it can be stated.
The Justice Department has an internal policy memo saying a sitting president can’t face federal prosecution. Congress never passed that as a law, and the Constitution never established it; the department wrote the rule about itself, and it’s now stopped two separate special counsels, Mueller and Smith, from completing their work.
The Supreme Court’s 2024 immunity ruling in Trump v. United States gave presidents broad protection for official acts in federal court, and together, the memo and that ruling have built something close to a king at the federal level. But dual sovereignty is still there. No justice argued the immunity ruling should reach it, and no Congress has passed a law touching it. That defense is still standing. States retain independent authority to prosecute crimes committed within their borders, a doctrine established since the founding and upheld in Gamble v. United States (2019).
Now the objections, one at a time, because you’re going to hear all of them.
1. “Qualified immunity protects him?” No, qualified immunity is a civil doctrine; it applies to lawsuits for money damages, and it’s never applied to criminal prosecution in any jurisdiction in the history of the United States. It’s not a defense to a criminal charge. That’s the end of that argument.
2. “The Supremacy Clause protects federal officials from state prosecution?” No, the Supremacy Clause says federal law is supreme over conflicting state law, but it doesn’t say federal employees are immune from state criminal charges. The Supreme Court said so directly in Johnson v. Maryland (1920): holding federal employment doesn’t secure a general immunity from state law. And In re Neagle (1890) confirmed the protection applies only when the federal officer was acting within lawful federal authority. There’s no federal law authorizing the sale of pardons, so there’s nothing for the Supremacy Clause to make supreme.
3. “Trump v. United States makes him immune?” No, that ruling covers official acts in federal court, and that’s the entire scope of it. No justice argued it reaches state prosecution, not one, and the Court never defined what an official act is. No court has ever held that bribery, corruption, or selling pardons qualifies. The protection that stopped the federal cases doesn’t exist at the state level.
4. “The feds will just take over and kill the case?” No. First, understand what moving to federal court actually means: it is still a state case. Still state law, still a state prosecutor, still state charges, still the same criminal statutes, still pardon-proof. The federal court is just the room it’s in, and nothing got handed over to the federal government. They can attempt removal under 28 U.S.C. § 1442, but the state charges don’t evaporate; the immunity defense must be litigated before an actual judge who must actually rule on it. That’s months or years of legal exposure and a documented public record that can’t be executive-ordered away.
Trump and co regularly take people to court when they know they will lose the case. Why? Because even the cases you lose still involve forcing the other side to use time and energy and resources while possibly gaining bad press.
5. “What about Trump v. Anderson? States can’t do this.” Trump v. Anderson dealt with Colorado trying to enforce Section 3 of the 14th Amendment, a federal constitutional provision, against a federal candidate; the Court said states can’t unilaterally enforce clauses of the federal Constitution. But nobody here is asking states to interpret the federal Constitution. We’re asking state attorneys general to enforce their own laws against people who broke them, and those are different.
Which brings us back to the people with the power to act. Any elected official, any attorney general, any sheriff, any prosecutor who says in one breath that no one is above the law and in the next breath declines to investigate or charge documented violations of state criminal statutes against this president and his cabinet, has made a choice. Words are cheap. Jurisdiction isn’t. If you have it and you won’t use it, you own the outcome that we all suffer from.
I wrote this because too many people on our side believe that impeachment is the only legitimate path to accountability. That conviction is the prerequisite for consequence. That we have to wait for the votes, wait for the moment, wait for the landslide, wait until the stars align just right and then the consequence fairy will come down and make it all go away. Just like she did with his 34 convictions, right?
None of that’s in the Constitution, none of it’s in Trump v. United States, none of it’s in the Supremacy Clause or the dual sovereignty doctrine or any statute passed by any legislature. It exists only in the minds of people who’ve convinced themselves that charging a president with a crime is somehow more radical than letting him commit them freely.
The 25th Amendment isn’t saving us, and impeachment isn’t saving us. We won’t have the conviction votes, like we didn’t have them the last however many times, and we probably won’t even with a once-in-a-generation landslide in 2026. Of course, if you’re a Congressional Democrat you should pursue impeachment, because you have almost no power outside of that.
If you’re a prosecutor? Waiting and not charging has never been a successful deterrent.
We don’t need a supermajority or a wave election or to wait 6–8 more months and hope nukes aren’t dropped or that elections aren’t successfully stolen by a guy with time, resources, and intent, who is being told “break any law you want because the only way you go down is if you fail to keep this title.”
It requires prosecutors with jurisdiction and the willingness to use it, and those prosecutors exist in your state right now. The statutes exist. The conduct is documented. The only thing missing is the decision to act.
I wrote this because so long as we, as the opposition, have members who believe a president is above the law until another election passes, then we will be submitting to the lies of our enemies which were crafted to make us ineffective in our opposition.
The legal architecture behind everything in this article, including the full taxonomy of state constitutional tools via my academic working paper, with more resources for free download via the links at the bottom of this page.
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CALL TO ACTION
Who you are contacting: your state attorney general and your county district attorney. Find your attorney general at naag.org/find-my-ag, and find your district attorney by searching your county’s name plus “district attorney” or “prosecuting attorney,” since the title changes by state.
What you are asking for: In this moment of national crisis, we need to know that our law enforcement professionals will defend their oath to protect the Constitution, and that no one is above the law. If a sitting US president broke the law in our state, would you enforce the law on them like any other American? These two offices enforce state criminal law, which no president can pardon, and no justice in Trump v. United States argued that ruling reaches state prosecution. They already have the authority. What nobody has made them say out loud is whether they will use it.
Do not copy and paste anything from this article. Offices count identical messages once no matter how many arrive. Write it in your own words.
Say who you are and where you live in their jurisdiction. Say why this matters to you personally, in whatever terms are actually true for you. Then ask them the question, and tell them this: if you waste my time by answering everything but this question, then know that I won’t be fooled and I will be letting my fellow constituents know about your failure and obfuscation.
When you get a reply, share it online so your fellow constituents can know exactly who needs to be replaced come election season.
Send this article to somebody. Post it in your Indivisible chapter, put it in a group thread, or hand it to a friend who mistakenly believes that the Robert’s court made a president above the law. If the Supreme Court ever did rule a president beyond the reach of state criminal law, that ruling would be unconstitutional the day it was written, and our job would be to elect attorneys general and district attorneys who refuse to treat it as binding.
You've produced way too many great posts, it's hard to elevate any one of them to the top tier.
All of the terrible things you've predicted are coming true. One that you've mentioned but not really focused on is the question of what happens when the executive branch blithely disregards court orders.
I know you would advocate turning to free or strong states, and maybe that's the answer. But it sure does feel pretty hopeless right now.
You've produced way too many great posts, it's hard to elevate any one of them to the top tier.
All of the terrible things you've predicted are coming true. One that you've mentioned but not really focused on is the question of what happens when the executive branch blithely disregards court orders.
I know you would advocate turning to free or strong states, and maybe that's the answer. But it sure does feel pretty hopeless right now.
Just wrote to Rob Bonta (Calif. State Attorney General). Sic 'em, Bonta!!
Thank you, Christpoher, for bringing this to everyone. We need every tool we can get and Fight Like Hell, as Senator Mark Kelly says.