Is Trump really unaccountable for his actions?

Like the Queen of Hearts in Alice's Wonderland, Donald Trump has established "Off with their heads!" as the modus operandi of his second presidency.

He is swinging his sword in every direction, striking at honorable prosecutors and supposedly protected federal employees, stabbing at the heart of vital federal programs and stealing domestic tranquility from millions of immigrant families. In doing so, he is applying a severe stress test to democracy and the legitimate powers of the presidency.

This raises questions about last year's Supreme Court decision on presidential immunity. Trump acts like the court has armored him in Teflon, but that's not exactly what the court did.

Congress, legal experts, lower courts, the news media, and parties aggrieved by Trump's actions should look at the court's decision more closely for ways to hold Trump accountable for blatant lawbreaking and self-serving abuse of the Constitution.

The key passage in the Trump v. United States ruling is this: "Under our constitutional structure of separated powers, the nature of presidential power entitles a former president to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority."

Chief Justice John Roberts wrote that the first step in determining a president's immunity is "to distinguish his official from unofficial actions." Roberts continued, "If the president claims authority to act but in fact exercises mere 'individual will' and 'authority without law,' the courts may say so."

However, Roberts offered scant guidance for making that determination. In effect, he told lower courts to take a stab at it and let the Supreme Court decide whether they get it right.

A simple distinction is that official acts are those conducted with the explicit authorities a president is given in the Constitution and statutory law. Presidents have responsibilities as well as powers, such as the faithful execution of the nation's laws.

Trump is openly ignoring that particular duty and exceeding his lawful authority. His order to limit birthright citizenship contradicts the Constitution's 14th Amendment. He has violated civil service protections by firing career federal employees without cause or due process. He has impounded federal grants and loans to target "woke" programs, exceeding his authority under the Impoundment Control Act of 1974. He has tried to assume authorities the Constitution gives exclusively to Congress, flaunting its "structure of separated powers."

Since he lacks official authority to do these things, they should not qualify as protected official acts. According to legal experts, "Presidents are not absolutely immune from lawsuits" against actions "outside of their constitutional authority."

Roberts complicated the job of lower courts and Congress's duty to check and balance presidential power by ruling that "courts may not inquire into a president's motives" when distinguishing between official and unofficial acts. However, courts need not inquire into Trump's motives because he makes his motives clear.

He claims immigrants are "poisoning our blood" and turning America into "a garbage can for the world." He targets "woke" programs, a purely subjective political and ideological category. Trump has openly promised retaliation against his "enemies," including the Justice Department prosecutors who participated in legitimate investigations of his activities. Trump fired them for conducting "witch hunts."

Outside the Beltway, Trump's abuses already are victimizing innocent Americans and threatening the security of the middle-class voters who helped elect him. Under the guise of improving government efficiency and guided by Project 2025, we can expect him to push for cuts he championed in his first term, including safety-net programs, Medicaid and the Affordable Care Act. His ham-handed war on woke is already causing chaos among millions of Americans who depend on some form of federal assistance and have little power to defend it.

Trump seems not to care because he doesn't need to placate voters. He is a lame-duck president. On the other hand, Republicans who control both houses of Congress should care because they have much to lose in next year's midterm elections. Voters can keep score on Republican complacence by visiting PolitiFact's MAGA-Meter, which tracks more than 60 of Trump's promises.

Republicans in the 118th Congress surrendered to Trump's demands even though he wasn't president. The current session will severely test the majority party's patriotism and its commitment to middle America. Rank-and-file Republicans must deal with a president and a sycophantic Cabinet that thinks he's untouchable. Congress can't count on the usual executive branch guardrails to rein in Trump. He is systematically eliminating them and repopulating the administration with hand-picked toadies and amateurs whose only loyalty is to him.

Interestingly, a close reading of Trump v United States reveals a prescient quote from George Washington. A government "too feeble to withstand the enterprises of faction" could lead to the "frightful despotism" of "alternate domination of one faction over another, sharpened by the spirit of revenge." The way to avoid that outcome, Washington said, is to ensure that government powers remain "properly distributed and adjusted."

Trump is flooding the zone with proof that when we fail to hold leaders accountable, we fail each other and ourselves. If Republican lawmakers fail the test Trump is forcing on them, disenchanted voters should show in next year's election that the Republican Party has lost the right to govern.

William S. Becker is a former regional director at the U.S. Department of Energy and author of several books on climate change and national disaster policies, including the “100-Day Action Plan to Save the Planet” and “The Creeks Will Rise: People Co-Existing with Floods.”

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