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Opinion: The election shredded the rule of law

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Opinion: The election shredded the rule of law

Being elected president truly is a get-out-of-jail-free card for Donald Trump, but the greater concern should be for what this means for the rule of law in this country. On Friday, New York Judge Juan M. Merchan upheld Trump’s 34 felony convictions for falsifying business records. Merchan set sentencing for Friday, Jan. 10, and indicated that he would likely take the very unusual step of unconditionally discharging Trump’s sentence. In plain English, this means that Trump will face absolutely no legal consequences from his convictions — not prison, not probation, not a fine.

Trump’s lawyers are trying to halt even the signaled unconditional discharge while they appeal. But Merchan realistically has no alternative.

A prison sentence is incompatible with Trump serving as president of the United States. The appellate courts surely would overturn a prison sentence, holding that, under the Constitution, being elected president preempts the ability of a state to interfere with that by imprisonment. Trump could not perform his constitutional duties as president from a prison cell in New York. Nor would it make sense for a state judge to put the president on probation and supervise his actions with the threat of revocation and imprisonment.

Trump faced up to four years in prison for the crimes for which he was convicted in New York. A study by the New York Times found that of 30 convictions for falsifying business records in Manhattan in the last decade, no other defendant received an unconditional discharge. All but five received sentences such as jail and prison time, probation and fines; some who entered into plea deals received sentences involving specific conditions, such as paying restitution or completing community service.

Indeed, Michael Cohen, the person who arranged the payment of the hush money that led to Trump’s conviction, was sentenced to three years in prison and served 13 months in custody. Trump, who the jury found orchestrated and was responsible for authorizing the payments, will never serve a day in jail.

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But this is only a part of Trump’s get-out-of-jail-free benefit. He was indicted in the U.S. District Court for the District of Columbia for his acts in attempting to undermine the results of the 2020 presidential election. Had Trump lost in November, he would have been tried and faced a prison sentence if convicted. But the charges were dismissed after Trump was elected because of a Justice Department rule that a sitting president cannot be prosecuted.

This also was the basis for dismissing the indictment against Trump in federal court in Florida for improper handling of classified documents. The charges against him were serious: evidence tampering, willfully retaining national defense information and lying to investigators. If convicted, these charges also would likely have led to a significant prison sentence.

And it must be remembered that last summer the Supreme Court, in Trump vs. United States, ruled that Trump could not be prosecuted for anything he did using official powers granted to the president by the Constitution or a statute. This led to the dropping of some charges against him. The court’s decision provides protection for any official acts taken during his first term, and he assumes office knowing he faces little possibility of prosecution for any illegal acts in the next four years.

It is impossible to reconcile all of this with the most basic notion of the rule of law, the core of which is that no one, not even a president or former president, is above the law. It is captured in the idea, uttered from the beginning of American history, that we are “a country of laws, not people.” The last thing that the framers of the Constitution wanted was to create a president who could not be held accountable for breaking the law.

Trump still faces civil liability for some of his past conduct. Last week, a federal court of appeals upheld a $5-million verdict against Trump for his sexual assault of E. Jean Carroll. Another jury awarded Carroll $83.3 million against Trump for defamation. That verdict is now on appeal. Also, Trump is appealing a $355-million verdict for business fraud against him and his company.

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But none of these civil suits involve the crimes he committed or was charged with. Nor does there seem any way to ever punish him for those felonies.

The assault on the rule of law is also reflected in Trump’s promise to pardon those who participated in the Jan. 6, 2021, attack at the Capitol. So far, more than 1,500 individuals have been charged with federal crimes in connection to Jan. 6. Most of those were misdemeanors, such as trespassing, but hundreds have pleaded guilty to or were convicted of assault or other felonies. The conduct of all was illegal and unconscionable in a democracy, yet they could be absolved of criminal liability.

It is perhaps too easy to ignore that this situation is unique in our republic’s history. Never before has a convicted felon become president. Never before has election as president meant the dismissal of criminal charges. It flouts the very essence of the rule of law that election as president could be a get-out-of-jail-free card.

Erwin Chemerinsky, a contributing writer to Opinion, is dean of the UC Berkeley Law School.

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Trump admin sues Illinois Gov. Pritzker over laws shielding migrants from courthouse arrests

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Trump admin sues Illinois Gov. Pritzker over laws shielding migrants from courthouse arrests

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The U.S. Justice Department filed a lawsuit against Illinois Gov. JB Pritzker over new laws that aim to protect migrants from arrest at key locations, including courthouses, hospitals and day cares.

The lawsuit was filed on Monday, arguing that the new protective measures prohibiting immigration agents from detaining migrants going about daily business at specific locations are unconstitutional and “threaten the safety of federal officers,” the DOJ said in a statement.

The governor signed laws earlier this month that ban civil arrests at and around courthouses across the state. The measures also require hospitals, day care centers and public universities to have procedures in place for addressing civil immigration operations and protecting personal information.

The laws, which took effect immediately, also provide legal steps for people whose constitutional rights were violated during the federal immigration raids in the Chicago area, including $10,000 in damages for a person unlawfully arrested while attempting to attend a court proceeding.

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PRITZKER SIGNS BILL TO FURTHER SHIELD ILLEGAL IMMIGRANTS IN ILLINOIS FROM DEPORTATIONS

The Trump administration filed a lawsuit against Illinois Gov. JB Pritzker over new laws that aim to protect migrants from arrest at key locations. (Getty Images)

Pritzker, a Democrat, has led the fight against the Trump administration’s immigration crackdown in Illinois, particularly over the indiscriminate and sometimes violent nature in which they are detained.

But the governor’s office reaffirmed that he is not against arresting illegal migrants who commit violent crimes.

“However, the Trump administration’s masked agents are not targeting the ‘worst of the worst’ — they are harassing and detaining law-abiding U.S. citizens and Black and brown people at daycares, hospitals and courthouses,” spokesperson Jillian Kaehler said in a statement.

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Earlier this year, the federal government reversed a Biden administration policy prohibiting immigration arrests in sensitive locations such as hospitals, schools and churches.

The U.S. Immigration and Customs Enforcement’s “Operation Midway Blitz,” which began in September in the Chicago area but appears to have since largely wound down for now, led to more than 4,000 arrests. But data on people arrested from early September through mid-October showed only 15% had criminal records, with the vast majority of offenses being traffic violations, misdemeanors or nonviolent felonies.

Gov. JB Pritzker has led the fight against the Trump administration’s immigration crackdown in Illinois. (Kamil Krazaczynski/AFP via Getty Images)

Immigration and legal advocates have praised the new laws protecting migrants in Illinois, saying many immigrants were avoiding courthouses, hospitals and schools out of fear of arrest amid the president’s mass deportation agenda.

The laws are “a brave choice” in opposing ICE and U.S. Customs and Border Protection, according to Lawrence Benito, executive director of the Illinois Coalition for Immigrant and Refugee Rights.

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“Our collective resistance to ICE and CBP’s violent attacks on our communities goes beyond community-led rapid response — it includes legislative solutions as well,” he said.

The DOJ claims Pritzker and state Attorney General Kwame Raoul, also a Democrat, violated the U.S. Constitution’s Supremacy Clause, which establishes that federal law is the “supreme Law of the Land.”

ILLINOIS LAWMAKERS PASS BILL BANNING ICE IMMIGRATION ARRESTS NEAR COURTHOUSES

Border Patrol Commander Gregory Bovino leaves the Dirksen U.S. Courthouse in Chicago. (Brian Cassella/Chicago Tribune/Tribune News Service via Getty Images)

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Raoul and his staff are reviewing the DOJ’s complaint.

“This new law reflects our belief that no one is above the law, regardless of their position or authority,” Pritzker’s office said. “Unlike the Trump administration, Illinois is protecting constitutional rights in our state.”

The lawsuit is part of an initiative by U.S. Attorney General Pam Bondi to block state and local laws the DOJ argues impede federal immigration operations, as other states have also made efforts to protect migrants against federal raids at sensitive locations.

The Associated Press contributed to this report.

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Supreme Court rules against Trump, bars National Guard deployment in Chicago

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Supreme Court rules against Trump, bars National Guard deployment in Chicago

The Supreme Court ruled against President Trump on Tuesday and said he did not have legal authority to deploy the National Guard in Chicago to protect federal immigration agents.

Acting on a 6-3 vote, the justices denied Trump’s appeal and upheld orders from a federal district judge and the U.S. 7th Circuit Court of Appeals that said the president had exaggerated the threat and overstepped his authority.

The decision is a major defeat for Trump and his broad claim that he had the power to deploy militia troops in U.S. cities.

In an unsigned order, the court said the Militia Act allows the president to deploy the National Guard only if the regular U.S. armed forces were unable to quell violence.

The law dating to 1903 says the president may call up and deploy the National Guard if he faces the threat of an invasion or a rebellion or is “unable with the regular forces to execute the laws of the United States.”

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That phrase turned out to be crucial.

Trump’s lawyers assumed it referred to the police and federal agents. But after taking a close look, the justices concluded it referred to the regular U.S. military, not civilian law enforcement or the National Guard.

“To call the Guard into active federal service under the [Militia Act], the President must be ‘unable’ with the regular military ‘to execute the laws of the United States,’” the court said in Trump vs. Illinois.

That standard will rarely be met, the court added.

“Under the Posse Comitatus Act, the military is prohibited from execut[ing] the laws except in cases and under circumstances expressly authorized by the Constitution or Act of Congress,” the court said. “So before the President can federalize the Guard … he likely must have statutory or constitutional authority to execute the laws with the regular military and must be ‘unable’ with those forces to perform that function.

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“At this preliminary stage, the Government has failed to identify a source of authority that would allow the military to execute the laws in Illinois,” the court said.

Although the court was acting on an emergency appeal, its decision is a significant defeat for Trump and is not likely to be reversed on appeal. Often, the court issues one-sentence emergency orders. But in this case, the justices wrote a three-page opinion to spell out the law and limit the president’s authority.

Justice Amy Coney Barrett, who oversees appeals from Illinois, and Chief Justice John G. Roberts Jr. cast the deciding votes. Justice Brett M. Kavanaugh agreed with the outcome, but said he preferred a narrow and more limited ruling.

Conservative Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch dissented.

Alito, in dissent, said the “court fails to explain why the President’s inherent constitutional authority to protect federal officers and property is not sufficient to justify the use of National Guard members in the relevant area for precisely that purpose.”

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California Gov. Gavin Newsom and Atty. Gen. Rob Bonta filed a brief in the Chicago case that warned of the danger of the president using the military in American cities.

“Today, Americans can breathe a huge sigh of relief,” Bonta said Tuesday. “While this is not necessarily the end of the road, it is a significant, deeply gratifying step in the right direction. We plan to ask the lower courts to reach the same result in our cases — and we are hopeful they will do so quickly.”

The U.S. 9th Circuit Court of Appeals had allowed the deployments in Los Angeles and Portland, Ore., after ruling that judges must defer to the president.

But U.S. District Judge Charles Breyer ruled Dec. 10 that the federalized National Guard troops in Los Angeles must be returned to Newsom’s control.

Trump’s lawyers had not claimed in their appeal that the president had the authority to deploy the military for ordinary law enforcement in the city. Instead, they said the Guard troops would be deployed “to protect federal officers and federal property.”

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The two sides in the Chicago case, like in Portland, told dramatically different stories about the circumstances leading to Trump’s order.

Democratic officials in Illinois said small groups of protesters objected to the aggressive enforcement tactics used by federal immigration agents. They said police were able to contain the protests, clear the entrances and prevent violence.

By contrast, administration officials described repeated instances of disruption, confrontation and violence in Chicago. They said immigration agents were harassed and blocked from doing their jobs, and they needed the protection the National Guard could supply.

Trump Solicitor Gen. D. John Sauer said the president had the authority to deploy the Guard if agents could not enforce the immigration laws.

“Confronted with intolerable risks of harm to federal agents and coordinated, violent opposition to the enforcement of federal law,” Trump called up the National Guard “to defend federal personnel, property, and functions in the face of ongoing violence,” Sauer told the court in an emergency appeal filed in mid-October.

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Illinois state lawyers disputed the administration’s account.

“The evidence shows that federal facilities in Illinois remain open, the individuals who have violated the law by attacking federal authorities have been arrested, and enforcement of immigration law in Illinois has only increased in recent weeks,” state Solicitor Gen. Jane Elinor Notz said in response to the administration’s appeal.

The Constitution gives Congress the power “to provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions.”

But on Oct. 29, the justices asked both sides to explain what the law meant when it referred to the “regular forces.”

Until then, both sides had assumed it referred to federal agents and police, not the standing U.S. armed forces.

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A few days before, Georgetown law professor and former Justice Department lawyer Martin Lederman had filed a friend-of-the-court brief asserting that the “regular forces” cited in the 1903 law were the standing U.S. Army.

His brief prompted the court to ask both sides to explain their view of the disputed provision.

Trump’s lawyers stuck to their position. They said the law referred to the “civilian forces that regularly execute the laws,” not the standing army.

If those civilians cannot enforce the law, “there is a strong tradition in this country of favoring the use” of the National Guard, not the standing military, to quell domestic disturbances, they said.

State attorneys for Illinois said the “regular forces” are the “full-time, professional military.” And they said the president could not “even plausibly argue” that the U.S. Guard members were needed to enforce the law in Chicago.

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Video: Trump Announces Construction of New Warships

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Video: Trump Announces Construction of New Warships

new video loaded: Trump Announces Construction of New Warships

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Trump Announces Construction of New Warships

President Trump announced on Monday the construction of new warships for the U.S. Navy he called a “golden fleet.” Navy officials said the vessels would notionally have the ability to launch hypersonic and nuclear-armed cruise missiles.

We’re calling it the golden fleet, that we’re building for the United States Navy. As you know, we’re desperately in need of ships. Our ships are, some of them have gotten old and tired and obsolete, and we’re going to go the exact opposite direction. They’ll help maintain American military supremacy, revive the American shipbuilding industry, and inspire fear in America’s enemies all over the world. We want respect.

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President Trump announced on Monday the construction of new warships for the U.S. Navy he called a “golden fleet.” Navy officials said the vessels would notionally have the ability to launch hypersonic and nuclear-armed cruise missiles.

By Nailah Morgan

December 23, 2025

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