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Trump is showing how a second term would rewrite the rules of presidential power

Analysis by Stephen Collinson, CNN

(CNN) — Donald Trump is underscoring the profound choice that voters could face next year with expansive claims of unchecked presidential power alongside increasingly unapologetic anti-democratic rhetoric.

A weekend claim by the ex-president –- who refused to accept the result of the last election –- that Joe Biden is the one destroying democracy earned a rebuke from the current commander-in-chief’s campaign Monday. The exchange showed how Trump’s political career is built on an edifice of a spectacular falsehood that is nevertheless effective in motivating his voters. It’s also revealing of how Trump, who has pledged to use a new term to go after his opponents, sees no limits on his power if he wins next year.

The Republican front-runner is for instance arguing in multiple courts that by virtue of his role as a former president, he is immune from the laws and precedents under which other Americans are judged. This has huge consequences not simply for the courtroom accounting that is yet to take place over his first turbulent term. Given that he has a good chance of winning the presidency again – he’s narrowly leading President Joe Biden in some swing-state polling – it also raises grave constitutional questions over the limits on presidential power.

This is why the 2024 election will represent such a momentous episode in American history. The entire constitutional premise of US governance could be on the line.

Trump’s concept of the untamable presidency sheds light on how he would behave in a second term given his apparent belief that any action a president might take is, by definition, legal. He has already promised he’d use four more years in the White House to enact personal “retribution” against his political foes. If the twice-impeached former president wins the Republican nomination and the presidency, it is already clear that a second term would risk destroying the principle that presidents do not hold monarchial power.

Judge guts Trump’s theory of post-presidential immunity

The courts may end up being the only institution standing in the way of the ex-president, who faces four criminal trials – two of them over alleged election interference related to his false claims of fraud in the 2020 contest that he lost. He’s pleaded not guilty in all of the cases against him and maintains no wrongdoing.

In a blow to Trump’s strategy, his power grab was rejected last week in a landmark opinion by US District Judge Tanya Chutkan, who will preside over his federal election subversion case that is due to start in March. But consistent with his attempt to delay his criminal trials until after November’s election, Trump is likely to take the case all the way to the Supreme Court, which would face one of its most significant rulings on the scope of presidential power in decades if it decided to take up the case.

Chutkan rejected several strands of Trump’s argument in her sweeping opinion and got to the core of the ex-president’s vision of power when she wrote that his “four-year service as Commander in Chief did not bestow on him the divine right of kings to evade the criminal accountability that governs his fellow citizens.”

The idea that presidents are subject to the same legal curbs as any other citizen and that every American is equal under the law is a foundation of the US legal and political system. But it is one Trump consistently seeks to overturn.

The ex-president’s assault on the fabric of American democracy is also evident in how he tries to paint efforts to hold him to account for his attempts to destroy the integrity of the 2020 election as a bid by the Biden administration to cheat in the 2024 election.

Trump, for instance, this weekend took aim at arguments by Biden and other critics that his behavior represents a threat to the survival of American democracy if he wins the general election next year.

“Joe Biden is not the defender of American democracy,” Trump said during a campaign stop in Cedar Rapids, Iowa, on Saturday. “Joe Biden is the destroyer of American democracy and … it’s him and his people. They’re the wreckers of the American dream. The American dream is dead with them in office, it’s sad.”

The idea that Trump is a defender of democracy is absurd, given that he tried to interrupt the long tradition of peaceful transfers of power after the 2020 election, the result of which was confirmed by every recount and court that ruled on his false claims of voter fraud. But it is characteristic of Trump to accuse an adversary of the transgressions of which he is himself guilty. And the effectiveness of his unique ability to manufacture false realities – and to use them as tools of power – can be seen in the attitudes of millions of Trump supporters who now believe the 2020 election was stolen despite overwhelming evidence to the contrary.

Biden campaign spokesman Ammar Moussa warned in a statement that “Donald Trump’s America in 2025 is one where the government is his personal weapon to lock up his political enemies. You don’t have to take our word for it – Trump has admitted it himself.” Moussa added: “After spending a week defending his plan to rip health care away from millions of Americans, this is his latest desperate attempt at distraction – the American people see right through it and it won’t work.” Trump recently pledged to try again to kill the Affordable Care Act if he wins next year, then spent several days backtracking on an issue many other Republicans regard as a political loser.

Trump’s main opponents are scared to raise his threat to democracy

Fresh indications of the former and possibly future president’s autocratic leanings are emerging six weeks ahead of the Iowa caucuses, the first Republican nominating contest. Trump’s GOP opponents – who still trail him by considerable margins – have barely raised his anti-democratic rhetoric or his attempt to defy the will of the voters in 2020, which could scare away moderate voters in swing states during the general election. The former president’s rivals seem to want to avoid alienating GOP voters who sympathize with Trump’s claims – consistent with the party’s longtime failure to constrain or punish his repeated attacks on democracy.

In an extraordinary moment in Iowa on Sunday, Florida Gov. Ron DeSantis exemplified the way that candidates are scared to bring up Trump’s anti-democratic behavior. Amazingly, the governor implied that the ex-president’s transgression was not in trying to steal an election that he lost but in failing to do so successfully.

“Am I going to let them take an election for me?” DeSantis said. “Of course I’m not going to do that. I’m going to do everything I can to ensure that the people’s voice is heard. I’m sick of the whining about it, when you don’t do anything about it. Why would you have let them get away with it? I mean, I don’t understand. If you didn’t stop it when you were in office, how are you going to stop it when you’re out of office?”

One Republican who has criticized Trump – and effectively paid for her comments with her political career – is former Wyoming Rep. Liz Cheney, who said in an interview that aired this weekend that new Republican House Speaker Mike Johnson was “absolutely” a collaborator in Trump’s effort to steal the 2020 election and that her party was unfit to have the House majority because of its craven attitude toward Trump.

“I believe very strongly in those principles and ideals that have defined the Republican party, but the Republican Party of today has made a choice and they haven’t chosen the Constitution,” Cheney said on “CBS Sunday Morning.”

“And so I do think it presents a threat if the Republicans are in the majority in January 2025.”

Cheney warned that if Trump was reelected for a second term, he would not be constrained by the political system. She said that people don’t “fully understand the extent to which the Republicans in Congress today have been co-opted. … One of the things that we see happening today is a sort of a sleepwalking into dictatorship in the United States.”

One of Trump’s closest allies in Washington, South Carolina Republican Sen. Lindsey Graham, however, told CNN’s Dana Bash on “State of the Union” Sunday that he believed Cheney was acting out of personal animosity toward Trump.

“I think Liz’s hatred of Trump is real,” Graham said. “I understand why people don’t like what he does and says at times, but in terms of actions and results, he was far better than Biden. … And if we have four more years of this, Liz Cheney, then we won’t recognize America, and the world will be truly on fire.”

The presidency is not a ‘lifelong get-out-of-jail-free pass’

Chutkan is not the only judge who is seeking to rein in Trump’s effort to wield his former position as what she called “a lifelong ‘get-out-of-jail-free’ pass.” In another case Friday, an appeals court in Washington, DC, ruled the ex-president could be sued in civil courts over events related to the riot at the US Capitol on January 6, 2021.

Chief Judge Sri Srinivasan contradicted one of Trump’s bedrock beliefs that everything a president says or does in office is protected from liability.

The president “does not spend every minute of every day exercising official responsibilities,” the opinion said. “And when he acts outside the functions of his office, he does not continue to enjoy immunity. … When he acts in an unofficial, private capacity, he is subject to civil suits like any private citizen.”

In another case, arising from the indictment of Trump and associates in Fulton County, Georgia, Trump’s lawyers are arguing that the prosecution is an attempt to interfere in the 2024 election. And they are warning that the case may not be tried until 2029, given the possibility that Trump could win the next election and the constitutional principle that federal laws take precedence over state ones. “Under the Supremacy Clause and its duty to the president of the United States, this trial would not take place at all until after he left his term of office,” Trump lawyer Steven Sadow told the judge.

Trump’s arguments about protections offered to him simply because of his former role are not convincing judges – as is evident in Chutkan’s opinion.

“Defendant may be subject to federal investigation, indictment, prosecution, conviction, and punishment for any criminal acts undertaken while in office,” Chutkan wrote in response to claims by Trump’s attorneys that his falsehoods about a fraudulent election represented an attempt to ensure election accountability as part of his official capacity as president and are therefore shielded by presidential immunity.

But Trump has long been more adept at manipulating the political system. And if he succeeds in 2024, his legal arguments will have been a warning of a second term that he envisions with almost no guardrails.

This story has been updated with additional details.

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