Can America Still Be the Land of the Free in Trump 2.0?
Some Reflections on the Rule of Law and Justice this Memorial Day
Trump’s Memorial Day message
In the year 2025, Memorial Day weekend marked a new low for our nation in its commitment to freedom and justice, with Donald Trump at the helm. His all-caps attack message smeared Democrats, who sought to replace Trump’s assault on the rule of law with accountability in our courts of law, as “scum,” spread more falsehoods about immigrants, and outrageously attacked courts upholding the law as “USA hating,” before concluding with a rote “GOD BLESS AMERICA!”
His proclamation was vile for a day meant to memorialize those who gave their lives to protect our nation, “conceived in Liberty, and dedicated to the proposition that all men are created equal,” as the first Republican President, Abraham Lincoln, wrote in the famous Gettysburg Address. That liberty—our liberty—is tied in part to real limits on presidential power. It is tied to a Constitution that places checks on the potential for abuse of power, including through the power of the courts to ensure that our laws are followed and that no man is above the law.
Except now we are seeing the consequences of Chief Justice John Roberts and his fellow Republican appointees giving Donald Trump unprecedented, counter-constitutional immunity from criminal prosecution.
You may recall the landmark case last July in which the Supreme Court, headed by Roberts, gave Trump near-total immunity. Roberts orchestrated that despicable ruling, despite the express assurances he gave the American people during the hearing to confirm his nomination to the U.S. Supreme Court that “no one is above the law in our system.” In 2024, through that ruling and more, Roberts paved the way for Trump’s return to power and emboldened Trump’s lawless tendencies, his contempt for the law, as I detail in my new book, Without Precedent.
The question of immunity
But here is the thing that people aren’t talking about – and perhaps aren’t even paying attention to: While Trump has immunity from criminal prosecution thanks to John Roberts, Trump’s appointees do not. They can be held accountable for their actions—and even if Trump were to pardon them for crimes they commit following his orders, they can still be held accountable through civil suits, state criminal proceedings where applicable, and congressional investigations.
His agents deny court orders at their peril of being held in contempt by the courts and losing their licences to practice law. They are not immune.
However, the fight, even in this regard, is far from over. Even now, we can see Roberts’ interventions to block or reverse several lower court orders against Trump issued by district court judges courageously defending the law’s command. We do not yet know how far Roberts and the reactionary right-wing justices on the high court will go to protect Trump or where, if anywhere, they will draw the line. It’s something I am watching closely as we approach the end of the Supreme Court’s 2024-2025 term.
What’s at stake
I hope against hope that the Roberts Court will draw the line and stand up to Trump. I hope the Republican-appointed justices whom Leonard Leo helped install rue the day they went along with Roberts’ scheme to immunize Trump.
I do. It’s not just the absurdity of having a president who dodged the draft using the podium at West Point to assail the opposing party and make senile-ish remarks about trophy wives and yachts. It’s not just the daily barrage of attacks on laws, rules, regulations, contracts, and norms.
It is Trump claiming weeks after Inauguration that he is not sure he actually has to uphold the Constitution that he swore an oath to uphold, an oath John Roberts administered on January 20, 2025. Make no mistake: the combined efforts of these two men pose one of the greatest threats our democracy has ever seen – and one that is coming from inside our nation. The urgency and gravity of the danger that we will lose our democracy demand constant vigilance from us all.
On Memorial Day weekends, I say special prayers of deep gratitude for my grandfathers, one of whom fought at Iwo Jima and served as an aide to Fleet Admiral Chester Nimitz, and the other who served in the U.S. Navy’s Seabees in the Pacific during WWII. When I think about all the people who served our nation or gave their lives in defense of America and the idea of America, I cannot help but be appalled that the man who now sits as Commander-in-Chief is so morally unworthy of that power. He who is supposed to be the ultimate protector of the Constitution gleefully speaks, texts, and acts with such revolting, dishonorable disregard for it – and the Roberts Court is helping him do it. To care about this country and our ideals warrants condemning the actions of both.
What I’m reading:
Flags of Our Fathers by James Bradley
In its witch hunt against Diversity, Equity, and Inclusion, the Trump Administration removed the webpage about one of the Native Americans who helped raise the flag at Iwo Jima, Pfc. Ira Hayes, and this book helps tell the story of Hayes, who grew up on the Gila River Indian Reservation.
The New York Times’ coverage of John Roberts’ confirmation hearings
This includes a headline about his statement that no one is above the law, a commitment he betrayed in the immunity ruling last year.
Langston Hughes’ poem, Let America Be America Again (1935)
Poignant words from one of our nation’s greatest poets.
And, of course, the U.S. Constitution
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