It is difficult to overstate the gravity of what President-elect Donald Trump can do with his newly-minted power to commit crimes using official presidential powers with impunity — not to mention the horrors laid out in the 900-page Project 2025 transition plan for reshaping the federal government. Many Americans are understandably frightened by the potential reach of his vindictiveness.
But Trump can hardly turn the country into a dictatorship with a few strokes of a pen. The courts are still working in America. The sprawling federal bureaucracy is formidable. And presidents do not control the individual states.
Although the far-right Supreme Court majority in Trump v. U.S. created criminal immunity as a gloss on Article II of the Constitution, that provision affords presidents only a confined list of powers.
The president is commander-in-chief of the Army, Navy and state militias when they’re called into active federal service, and he can commission federal military officers. He can also “receive Ambassadors and other public Ministers” and pardon federal crimes. He can make treaties, and appoint ambassadors, agency heads and Supreme Court justices with the advice and consent of the Senate. And he “shall take Care that the Laws be faithfully executed” — except that, thanks to Chief Justice John Roberts, he is immune from prosecution if he uses these powers to commit crimes.
But bear in mind that, compared to those of Congress, the president’s express constitutional powers are limited. His powers over foreign affairs and immigration come from Supreme Court cases finding that these powers are merely “implied,” for example — they aren’t anywhere in the Constitution itself.
The greatest threat Trump poses to the rule of law, democracy and liberty nonetheless lies in his power over the military and law enforcement. Trump has made over 100 threats to prosecute political enemies, including President Biden himself, whom he said should be “arrested for treason.” He vowed in a speech to “appoint a real special prosecutor to go after the most corrupt president in the history of the United States of America, Joe Biden, and the entire Biden crime family.” (Biden, however, would get at least a presumption of immunity for all actions taken as president, thanks to the Supreme Court.)
Advisors from Trump’s first administration have since made public their efforts to stave off his worst impulses. John Bolton, his former national security advisor, said, “The United States missed an incalculable number of opportunities in Trump’s first term because senior officials necessarily concentrated on keeping a few key policies on track.” Those folks won’t be around to babysit him this time.
But criminal indictments require a few things to get off the ground. They require a law, facts and either a grand jury or a judicial officer (usually a magistrate judge) to sign off on the government’s proposed charges. In this moment, at least, the federal courts are still functioning with fidelity to the rule of law and the Constitution (with a few unfortunate exceptions, including the Supreme Court majority in Trump v. U.S.).
Of course, a Justice Department beholden to Trump could ruin lives in the investigative phase, regardless of whether there is any actual probable cause of a crime. But rogue prosecutors operating at the whim of Trump — a relationship that the Supreme Court specifically insulated from oversight, on the theory that directives to the attorney general are beyond criminal scrutiny — will in the vast majority of cases be stopped by federal judges.
If Trump pulls a biased judge, though — like Aileen Cannon in Florida, who wrongly dismissed the classified documents indictment against him — their rulings could be reversed on appeal, assuming the Supreme Court doesn’t step in to again side with Trump.
As for the military, enlisted officers take an oath to the Constitution and to obey the orders of the president and superior officers. But those in higher ranks only take an oath to the Constitution. They are not required to obey the president or superior officers — in fact, they are oath-bound to reject illegal, criminal or unconstitutional directives.
As of 2022, the military had 372,244 officers. For Trump to have the military at his criminal beck and call, he’d have to persuade a lot of officers to violate their oaths to uphold the Constitution out of loyalty or fear. Although he could pardon them in exchange for the commission of crimes, that carrot is unlikely to persuade many who have dedicated their careers to public service and fidelity to the Constitution.
Then there’s the broader federal workforce. In his last term, Trump had cooked up what was known as “Schedule F,” which would have stripped civil-service protections for federal employees, allowing him to replace them with personal loyalists. As part of the Project 2025 transition project, Team Trump has vowed to revive Schedule F, targeting over 50,000 career civil servants or converting their jobs to at-will posts with no protection from termination, and possibly banning collective bargaining.
That maneuver would be challenged in court, of course, but even if Trump won that case, the logistical nightmare of replacing and training tens of thousands of federal workers is a daunting prospect and unlikely to happen quickly, if at all. In the meantime, the approximately 2.93 million federal employees that dot the federal bureaucracy across hundreds of agencies will continue to do their jobs on behalf of the American people — the vast majority of them in compliance with the law.
Finally, there are the states, which presidents do not control. Trump may not understand this part, having erroneously stated in 2020 during the pandemic that governors “can’t do anything without the approval of the president of the United States.” But the Constitution gives only narrow powers to the federal government, leaving the balance to the states under the 10th Amendment. California Gov. Gavin Newsom has already called for a special legislative session to secure that state against Trump’s promises for a national abortion ban, mass deportations and selective disaster aid.
The threat Trump poses to the Constitution and American democracy is real, and it is here. But come Jan. 20, 2025, he will be neither a wizard nor a king.
Kimberly Wehle is author of the new book “Pardon Power: How the Pardon System Works — and Why.”
