https://www.thenation.com/article/politics/trump-executive-order-police-martial-law/
Trump’s Newest Executive Order “Unleashes” the Cops—and Flirts With Martial Law
The new order effectively allows police to get away with murder. And that’s just the beginning.
by Elie Mystal
April 30, 2025
The Nation
Donald Trump displays a signed executive order in the Oval Office of the White House in Washington, DC. (Samuel Corum / Sipa / Bloomberg via Getty Images)
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.
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.
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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.
ABOUT THE AUTHOR:
Elie Mystal
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.
https://www.thenation.com/article/politics/trump-judicial-appointment-whitney-hermandorfer/
Politics
Trump Has Made His First Round of Judicial Picks—and They’re Terrifying
The appointments—which include an attorney who helped steer a major anti-trans case—are about the failures of the Democrats as much as the ruthlessness of Republicans.
by Elie Mystal
May 8, 2025
The Nation
Donald Trump unleashed his first round of judicial nominees over the past week: four district court appointments and one appellate judge. Trump made 234 judicial appointments during his first term. He’ll now have the opportunity to make hundreds more, and we can be sure that the worst is yet to come.
The district court appointments are all from Missouri, and they’ll serve as trial judges there. They’re all reliable Republicans, all litigators, and two of them have been working for the Republican Missouri attorney general. I’m sure they’ll do horrible things to the rights of anybody who winds up in their courtrooms who isn’t white, male, and straight. The fact that they’re practicing litigators, instead of law professors created in a Federalist Society lab experiment, is at least notable. Whether Trump continues down this track or falls back on standard-issue Leonard Leo acolytes is an issue that bears watching.
The nominee who should really give pause to liberals—along with anyone who wishes the Democratic Party would fight harder for control of the courts—is Trump’s pick for the Sixth Circuit Court of Appeals: Whitney Hermandorfer. If confirmed, she’ll replace Jane Branstetter Stranch, an Obama appointee who took senior status last year, pending confirmation of her successor.
Joe Biden did indeed do that. He tapped Karla Campbell, one of Stranch’s former clerks. But the Senate, controlled then by Democrats, refused to confirm her. I have no idea why. Campbell, a white woman who worked for the Peace Corps and the Department of Interior in addition to her legal work, was as inoffensive a pick for a circuit judge as you could reasonably get. Republicans were playing hardball with all of Biden’s judicial nominees by the end, but there was no objective reason for the Democratically controlled Senate to capitulate to the minority party.
But capitulate they did. Campbell’s nomination was scuttled as part of a gross “deal” engineered by Senate majority leader Charles Schumer in the lame-duck session after the election. Republicans agreed to drop their objections to a number of district court appointments while Democrats agreed to withdraw the four circuit court judges awaiting Senate confirmation. The deal allowed Joe Biden to say that he appointed 235 judges to the federal bench during his term, one more than Trump. To be clear, I would have taken four circuit judges over 12 trial judges any day, and that’s even while accepting the false premise that the majority party couldn’t have confirmed all 16 of the judges their Democratic president nominated. But my “deal” wouldn’t have given Biden the bigger number of total appointments. I can only assume that some Democrats think 235 appointments was a “victory” since some Democrats think this is all a freaking game and don’t know where power actually lies in the federal judicial system.
Now, Hermandorfer is on the brink of filling the vacancy created by Republican obstruction and Democrat ineptitude. She should be easily confirmed by the Republican Senate. A Princeton grad who went on to law school at George Washington University, she’s a Federalist Society member who clerked for alleged attempted rapist Brett Kavanaugh (when he was on the DC Circuit) as well as Supreme Court Justices Samuel Alito and Amy Coney Barrett. It would be churlish for me to suggest that she’s anything but “well qualified.”
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But she will be an awful jurist by the standards of anyone who favors human rights. In recent years, she’s been working in the office of the Tennessee Attorney General, Jonathan Skrmetti. If that name sounds familiar to you, it should. Skrmetti is the named litigant in US v. Skrmetti, a case currently before the Supreme Court that revolves around Tennessee’s ban on gender-affirming care for minors. Skrmetti and the other bigots in the state are almost surely going to win that case when the decision comes down in a few weeks—and Hermandorfer will deserve much of the credit. As the “tip of the spear” (National Review’s words) for the Tennessee AG’s Strategic Litigation Unit, she has her hands all over the kinds of cases that make for big headlines across the culture-war universe—including US v. Skrmetti. She has also been in charge of defending Tennessee’s near-total ban on abortions.
All of this has at least some Republicans salivating. “This a great pick and hopefully just the first of many comparable choices to come,” gushed Michael Fragoso—former chief counsel to Mitch McConnell—in National Review. Fragoso also thinks this “puts to rest” any idea of a rift between Trump and the Fed Soc crew. Again, I’m not so sure about that and will wait for more evidence.
Hermandorfer has a long career ahead of her. She is now 37. To put that in perspective, when Obama elevated Jane Branstetter Stranch to the bench in 2010, she was already 57. I can hardly blame Stranch for taking senior status at the age of 72, but it highlights another failure of the Democrats’ approach to the courts: Historically speaking, Democrats nominate established professionals to the bench and then have to fight again for the seat every decade or so, Republicans nominate young people who can serve for almost half a century.
A person searching for “good” news might point out that at least Hermandorfer’s appointment will not meaningfully shift the balance of power on the Sixth Circuit. The 16-member court is already controlled by Republicans, 9–7. Replacing one Democratic justice for a Republican one just deepens Republican control, 10–6. But I’d argue that it’s worse than it seems. The two oldest judges on the circuit are both Clinton appointees in their late 70s. They’ll have to hang on for at least another four years. The circuit also has three George W. Bush appointees who are getting up in years and will soon be eligible for senior status. It’s not out of the realm of possibility that Trump could nominate five judges, in addition to Hermandorfer, to the Sixth Circuit before his term is up.
The Sixth Circuit oversees Kentucky, Michigan, Ohio, and Tennessee, by the way. We’re potentially looking at a court comprised, 12–4, of young, entrenched Republicans who control election laws in Michigan and Ohio.
One day, Democrats will get it. It’ll be too late, and they’ll be passing notes to each other through the bars in their cell blocks about what it was like to live in a democracy, but eventually Democrats will realize that their refusal to fight for the courts is why they failed.
Elie Mystal
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.
