Holding police officers accountable when they commit crimes or violate the constitutional rights of those they’re allegedly here to “serve and protect” is one of the most difficult things to do in law. The police are protected by powerful, well-funded, and well-lawyered unions. They are protected by the judicial doctrine of qualified immunity, which prevents them from being personally sued for monetary damages when they damage or destroy property or lives. They’re protected by prosecutors and district attorneys who work alongside them and are often reluctant to charge them with crimes. And then, even when police officers are charged with crimes, they are often protected by sympathetic (white) juries who give the cops a pass when they brutalize or harass unarmed citizens. The entire system is designed to help cops get away with crime.
Now, Donald Trump has issued an executive order that will make it even harder to hold cops accountable—and flirts blatantly with martial law. Named the dystopian “Strengthening and Unleashing America’s Law Enforcement to Pursue Criminals and Protect Innocent Citizens,” this new order purports to “unleash high-impact local police forces; protect and defend law enforcement officers wrongly accused and abused by State or local officials; and surge resources to officers in need.”
The aggressive language in the order could be cribbed from any military police state in the annals of history, and that’s clearly the kind of polity that Trump would like to create and lead. The order instructs the secretary of defense to put down the bottle long enough to “determine how military and national security assets, training, non-lethal capabilities, and personnel can most effectively be utilized to prevent crime.” It also instructs the Department of Homeland Security to “advance the objectives of this order.”
Careful readers will note that this sounds an awful lot like the prelude to martial law, a framework where national military assets are deployed in American cities to enforce the president’s priorities. That would, of course, be a violation of the Posse Comitatus Act, which prevents the president from using the American military as a domestic police force. But I think it’s well established that Trump has never watched The West Wing and doesn’t respect the rule of law in this country anyway.
The most charitable view of this provision is that it will merely enable the federal government to make unused military equipment available to local law enforcement (then again, presidents already have the power to do this and it’s the reason why police often look like they’re heading into Fallujah every time a SWAT team shows up). The most dangerous read is that it will lead to army divisions patrolling our streets to quash dissent and, ultimately, “protect” Donald Trump’s reelection to a third term in office.
If they weren’t dripping hypocrites, conservative “states’ rights” aficionados would be rending their garments over this unconstitutional nationalization of the local police power. But I think most people reading already know that the states’ rights people only care about the concept when it comes to owning slaves and forcing pregnant people to give birth against their will. Apparently, all Abraham Lincoln needed to say was that he was sending Union troops to the South to “fight crime,” and then they would have been welcomed with open arms by the Confederacy. I wonder why he didn’t think of that.
Still, while the martial law concerns are significant, we are probably two or three unconstitutional executive orders away from that. The more immediate thrust of this order is to make it nearly impossible to hold cops accountable for crimes. Toward that end, it calls for officers to be indemnified by the federal government when they “unjustly incur expenses and liabilities for actions taken during the performance of their official duties to enforce the law.” This essentially extends the concept of qualified immunity to the criminal sphere. Now, even a cop who is held criminally liable can have their expenses paid for.
Cops will also get free lawyers, and not the kind of overworked, underpaid, noble attorneys who work for legal aid. Trump has been bullying law firms to provide pro bono services for conservative causes, but he didn’t really define exactly what those causes were supposed to be. This executive order closes that loop: “This mechanism shall include the use of private-sector pro bono assistance for such law enforcement officers.” As if cops didn’t already have access to the lawyers provided to them by their labor unions, now apparently they can make Wall Street lawyers work on their behalf for free.
No pro bono lawyers will be made available for the people the cops murder, beat up, or otherwise harass.
The order also directs the Department of Justice to go after state and local officials who “willfully and unlawfully direct the obstruction of criminal law, including by directly and unlawfully prohibiting law enforcement officers from carrying out duties necessary for public safety and law enforcement.” I can’t say for sure what this provision means, given that it is already a crime to “obstruct justice,” but I bet Hannah Dugan knows what Trump is talking about. Dugan is the Milwaukee judge who was illegally arrested in her own courtroom for refusing to let ICE arrest a defendant in that very courtroom. I can only assume that we’ll see more of that because of this executive order.
Finally, the EO instructs the attorney general to “review all ongoing Federal consent decrees, out-of-court agreements, and post-judgment orders to which a State or local law enforcement agency is a party and modify, rescind, or move to conclude such measures.” This is a provision straight out of Project 2025. It means that the Trump administration can and will remove any ongoing accountability or restrictions currently faced by police forces arising out of their prior bad behavior.
I cannot help but understand this order through its potential impacts on my lived experience. Let’s say a cop pulls me over for driving-while-Black. After he hops out of his M1-Abrams tank, he uses a military grade stun-gun on me because I gave him the side-eye while searching for my vehicle registration. I “resist” by saying things such as “Ow!” or “What the hell!” and he proceeds to beat me to within an inch of my life.
I’d want him to face criminal charges, but the prosecutor doesn’t want to take the risk. Even though I have a good case, they’re worried that if they press charges against the officer, they will face charges from the Department of Justice. Even if I can marshal considerable public pressure to get the prosecutor to file charges, the cop is now being defended, for free, by Brad Karp at Paul, Weiss or some other wealthy Biglaw attorney who has decided to be complicit with fascism. The trial proceeds, but let’s say I win (because corporate attorneys are not necessarily the best courtroom litigators). Even then, any damages I receive for being Tiananmen Square’d by the racist cop are covered by the government. The cop returns to the force soon after, because any accountability measure like a consent decree is also no longer available during the Trump administration.
Like all of Trump’s executive orders, this one can be rescinded by the next president (if we are allowed to have one). But unlike some of the others, I don’t necessarily trust that a future Democratic president will go back and rescind this particular order. Democrats, at least in my lifetime, have been almost as deeply committed to brutal police practices as the Republicans. It would take a Democrat uniquely committed to criminal justice reform to go back in and take away the indemnification Trump has provided, and one can only imagine the stink the police unions will make if such a Democrat takes it away.
During the campaign, Trump promised to give police officers immunity when they commit crimes. This executive order doesn’t do that, but it’s close enough. If you want to commit crimes in this country, the single best thing you can do for your criminal career is join the police. Trump is making it easier for police to get away with murder than ever before.
Pretty soon, we might not even be able to distinguish between an American police force and a hostile occupying army.
Elie Mystal is The Nation’s justice correspondent and a columnist. He is also an Alfred Knobler Fellow at the Type Media Center. His first book is the New York Times bestseller Allow Me to Retort: A Black Guy’s Guide to the Constitution, published by The New Press. You can subscribe to his Nation newsletter “Elie v. U.S.” here.
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