Autocracy Watch Day 12: An authoritarian manipulates the law to stay in power.

The New York Times, NO. 12

An authoritarian manipulates the law to stay in power. Trump has started to.

Authoritarians change election rules to help their party, and they rewrite laws — or violate their spirit — to ignore term limits.

Mr. Trump’s biggest attempt to follow this playbook failed, when he was unable to undo his election defeat to Joe Biden in 2020. But that effort showed Mr. Trump’s willingness to break the law to remain in power.

In his second term, he has shown worrisome signs of using his power to entrench the Republican Party’s hold on the government. He has pressed Republicans to take gerrymandering to a new extreme. He issued an executive order in March that seeks to interfere with how states run their elections. These moves increase the chances that Republicans will keep control of Congress even if most voters want to oust them.

Mr. Trump has not taken concrete steps to remain in power for a third term, which the 22nd Amendment of the Constitution was written to forbid. He has alternated between floating the idea and suggesting he understands that he must leave the presidency for good on Jan. 20, 2029.

The Bottom Line
Even if he backs away from any scheme to serve more than two presidential terms, Mr. Trump’s attempts to tilt the electoral field in favor of Republicans is anti-democratic and could pervert American elections for years.

Started down the anti-democratic path

The clearest sign that a democracy has died is that a leader and his party make it impossible for their opponents to win an election and hold power. Once that stage is reached, however, the change is extremely difficult to reverse. And aspiring authoritarians use other excesses, like a cowed legislature and judiciary, to lock in their power.

The United States is not an autocracy today. It still has a mostly free press and independent judiciary, and millions of Americans recently attended the “No Kings” protests. But it has started down an anti-democratic path, and many Americans — including people in positions of power — remain far too complacent about the threat.

The 12 benchmarks in this editorial offer a way to understand and measure how much further Mr. Trump goes in the months and years ahead. We plan to update this index in 2026.

One of the striking features of the present administration is the regularity with which its leaders, from President Donald Trump on down, confidently describe the state of the law in ways entirely contrary to what had been seen as settled, on topics that range from flag burning to Congress’s TikTok ban to whether civil servants can be removed on a partisan basis. Sometimes, these proclamations may herald an effort to persuade courts to change prevailing doctrine, but at least as often they look more like an attempt to alter reality by establishing new legal facts on the ground. 

On October 24, influential White House adviser Stephen Miller appeared on Fox News when the issue of whether authorities in Illinois could prosecute misbehaving federal immigration agents under state law arose. Miller responded, “To all ICE officers: you have federal immunity in the conduct of your duties. And anybody who lays a hand on you or tries to stop or obstruct you is committing a felony.”

Whatever that is, it is not an accurate description of the state of the law. As Professor Steve Vladeck explains in this brief write-up, the actual rules are more complicated. There is indeed a zone of so-called Supremacy Clause immunity that will apply when “(1) the federal officer was performing an act that he was authorized to do by federal law; and (2) in performing the authorized act, the federal officer did no more than what was necessary and proper.” When either condition is not satisfied—when the agent is taking an unauthorized action or is acting under authorization but in a manner that exceeds what is necessary and proper—the immunity based on federal supremacy ends. 

As Vladeck notes, the prevailing rule in this category of immunity was formulated by Judge Michael McConnell, a conservative hero, and it does indeed allow state prosecutors to use state law to pursue instances of misbehavior by ICE agents.

Here’s another instance: in a piece at The Dispatch earlier this month, I tell how high administration officials, including Department of Homeland Security Secretary Kristi Noem and department spokeswoman Tricia McLaughlin, have repeatedly spoken as if citizens have no right to photograph or video record ICE raids or identify the officers by name. McLaughlin said, “Videotaping ICE law enforcement and posting photos and videos of them online is doxing our agents,” and added, “We will prosecute those who illegally harass ICE agents to the fullest extent of the law.” Noem went even further, describing “violence” against DHS agents as “anything that threatens them and their safety, so it is doxing them. It is videotaping them where they’re at.” 

In point of fact, however, the courts aren’t on board with that sort of nonsense. While the Supreme Court itself hasn’t yet faced the issue squarely, the seven federal circuits that have done so—the 1st, 3rd, 5th, 7th, 9th, 10th, and 11th—all agree that the First Amendment protects the right to record police performing their duties in public.* Those circuits cover such populous states as California, Texas, Florida, Illinois, New Jersey, Georgia, and Pennsylvania.

Here at Cato we’ve had the honor of participating as amicus in at least three (that I know of) of these circuit precedents: Fields v. City of Philadelphia at the Third Circuit in 2017, Adkins v. Department of Homeland Security at the Ninth Circuit in 2018, and Irizarry v. Yehia at the Tenth Circuit in 2022. Adkins, the Ninth Circuit case, was especially interesting because it involved two citizens arrested by Customs and Border Protection (CBP) for taking pictures at a border crossing that they believed documented unlawful searches and other problems; the agency, which had seized the men’s cameras and deleted their pictures, asserted that the sidewalks they were standing on were property it officially controlled, but it lost anyway. (Thanks to colleague Dan Greenberg for helping compile the cases.)

To some important extent, one of the audiences Noem and her department are seeking to reach was the same one Miller was explicit in addressing: ICE agents themselves. If the agents come to believe that they have blanket immunity whatever they do, or that citizens have no right to record them, they are more likely to take aggressive informal action, such as grabbing phones or taking news reporters into custody on charges of obstruction (perhaps later quietly dropped). These informal methods of repression, I observe, can very much set the tone for enforcement, no matter whether the agency does or does not expect courts to say later. 

If the agents are hearing a persistent message from their higher ups of “you’re immune no matter what you do,” it’s up to the rest of us to disabuse them of that error.

One of the striking features of the present administration is the regularity with which its leaders, from President Donald Trump on down, confidently describe the state of the law in ways entirely contrary to what had been seen as settled, on topics that range from flag burning to Congress’s TikTok ban to whether civil servants can be removed on a partisan basis. Sometimes, these proclamations may herald an effort to persuade courts to change prevailing doctrine, but at least as often they look more like an attempt to alter reality by establishing new legal facts on the ground. 

On October 24, influential White House adviser Stephen Miller appeared on Fox News when the issue of whether authorities in Illinois could prosecute misbehaving federal immigration agents under state law arose. Miller responded, “To all ICE officers: you have federal immunity in the conduct of your duties. And anybody who lays a hand on you or tries to stop or obstruct you is committing a felony.”

Whatever that is, it is not an accurate description of the state of the law. As Professor Steve Vladeck explains in this brief write-up, the actual rules are more complicated. There is indeed a zone of so-called Supremacy Clause immunity that will apply when “(1) the federal officer was performing an act that he was authorized to do by federal law; and (2) in performing the authorized act, the federal officer did no more than what was necessary and proper.” When either condition is not satisfied—when the agent is taking an unauthorized action or is acting under authorization but in a manner that exceeds what is necessary and proper—the immunity based on federal supremacy ends. 

As Vladeck notes, the prevailing rule in this category of immunity was formulated by Judge Michael McConnell, a conservative hero, and it does indeed allow state prosecutors to use state law to pursue instances of misbehavior by ICE agents.

Here’s another instance: in a piece at The Dispatch earlier this month, I tell how high administration officials, including Department of Homeland Security Secretary Kristi Noem and department spokeswoman Tricia McLaughlin, have repeatedly spoken as if citizens have no right to photograph or video record ICE raids or identify the officers by name. McLaughlin said, “Videotaping ICE law enforcement and posting photos and videos of them online is doxing our agents,” and added, “We will prosecute those who illegally harass ICE agents to the fullest extent of the law.” Noem went even further, describing “violence” against DHS agents as “anything that threatens them and their safety, so it is doxing them. It is videotaping them where they’re at.” 

In point of fact, however, the courts aren’t on board with that sort of nonsense. While the Supreme Court itself hasn’t yet faced the issue squarely, the seven federal circuits that have done so—the 1st, 3rd, 5th, 7th, 9th, 10th, and 11th—all agree that the First Amendment protects the right to record police performing their duties in public.* Those circuits cover such populous states as California, Texas, Florida, Illinois, New Jersey, Georgia, and Pennsylvania.

Here at Cato we’ve had the honor of participating as amicus in at least three (that I know of) of these circuit precedents: Fields v. City of Philadelphia at the Third Circuit in 2017, Adkins v. Department of Homeland Security at the Ninth Circuit in 2018, and Irizarry v. Yehia at the Tenth Circuit in 2022. Adkins, the Ninth Circuit case, was especially interesting because it involved two citizens arrested by Customs and Border Protection (CBP) for taking pictures at a border crossing that they believed documented unlawful searches and other problems; the agency, which had seized the men’s cameras and deleted their pictures, asserted that the sidewalks they were standing on were property it officially controlled, but it lost anyway. (Thanks to colleague Dan Greenberg for helping compile the cases.)

To some important extent, one of the audiences Noem and her department are seeking to reach was the same one Miller was explicit in addressing: ICE agents themselves. If the agents come to believe that they have blanket immunity whatever they do, or that citizens have no right to record them, they are more likely to take aggressive informal action, such as grabbing phones or taking news reporters into custody on charges of obstruction (perhaps later quietly dropped). These informal methods of repression, I observe, can very much set the tone for enforcement, no matter whether the agency does or does not expect courts to say later. 

If the agents are hearing a persistent message from their higher ups of “you’re immune no matter what you do,” it’s up to the rest of us to disabuse them of that error.

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Autocracy Watch Day 11-- An authoritarian uses power for personal profit

 The New York Times, NO. 11

An authoritarian uses power for personal profit. Trump has.

Authoritarians often turn the government into a machine for enriching themselves, their families and their allies. Mr. Trump glories in his administration’s culture of corruption.

He openly uses the presidency as an opportunity to pad his bottom line, in ways that range from the comically petty (like charging the Secret Service up to $1,200 per night for rooms at his hotels) to the shamelessly greedy (like the $40 million that Amazon paid for the rights to a Melania Trump documentary or his recent demand that the government pay him $230 million because he was investigated for breaking the law). He solicits favors from foreign governments, including an airplane from Qatar. His children also profit from their father’s position, through real-estate deals, crypto, a private club in Washington and more. And he rewards those who enrich them, recently pardoning the head of a cryptocurrency firm who worked with the Trump family.

In the first six months of this year, the Trump Organization’s income soared to $864 million, up from just $51 million a year earlier, according to a recent Reuters analysis. It’s worth noting that recent Supreme Court decisions have made corruption harder to police.

The Bottom Line
Mr. Trump’s culture of corruption may resemble the behavior of foreign autocrats more closely than any other category on this list. He is using what rightly belongs to American citizens — the power and resources of our democratic government — to enrich himself, and he is not trying to hide it.

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Mangino discusses plea withdraw on WFMJ-TV21

Watch my interview with Corey McCrae from WFMJ-TV21 about a plea withdraw after sentencing in Mahoning County drowning case.

To watch the interview CLICK HERE

Autocracy Watch Day 11: An authoritarian uses power for personal profit

 The New York Times, NO. 11

An authoritarian uses power for personal profit. Trump has.

Authoritarians often turn the government into a machine for enriching themselves, their families and their allies. Mr. Trump glories in his administration’s culture of corruption.

He openly uses the presidency as an opportunity to pad his bottom line, in ways that range from the comically petty (like charging the Secret Service up to $1,200 per night for rooms at his hotels) to the shamelessly greedy (like the $40 million that Amazon paid for the rights to a Melania Trump documentary or his recent demand that the government pay him $230 million because he was investigated for breaking the law). He solicits favors from foreign governments, including an airplane from Qatar. His children also profit from their father’s position, through real-estate deals, crypto, a private club in Washington and more. And he rewards those who enrich them, recently pardoning the head of a cryptocurrency firm who worked with the Trump family.

In the first six months of this year, the Trump Organization’s income soared to $864 million, up from just $51 million a year earlier, according to a recent Reuters analysis. It’s worth noting that recent Supreme Court decisions have made corruption harder to police.

The Bottom Line
Mr. Trump’s culture of corruption may resemble the behavior of foreign autocrats more closely than any other category on this list. He is using what rightly belongs to American citizens — the power and resources of our democratic government — to enrich himself, and he is not trying to hide it.

To read more CLICK HERE

Creators: Jury Nullification -- An Expression of Discontent with Government

Matthew T. Mangino
CREATORS
November 11, 2025

Jurors play a prominent role in the criminal justice system. Although few cases go to trial — statistically as few as four defendants in 100 — jurors wield the same power as legislators and judges.

Being a juror is a form of democratic participation, applying and interpreting the law through the lens of the community's values and experiences, and acting as a check on government power.

Traditionally, the role of a juror is portrayed as merely the "finder of fact." Juries make crucial decisions on the credibility and believability of witnesses — they decide the facts. A trial judge determines and instructs jurors on the law, which the jury must follow. Through the determination of facts and the application of the law, decisions of guilty or not guilty are to be made.

However, it is not quite that simple.

Beyond determining the facts, a juror's conscience is also a protected element of the justice system. The act of jury nullification — when a jury returns a verdict of not guilty despite its belief that the defendant is guilty of the crime charged — is the final check on governmental power.

That check on power has grown so much more important at a time when the president of the United States is ignoring limits on executive power.

In 2004, conservative U.S. Supreme Court Justice Antonin Scalia acknowledged the role of jury nullification. He wrote, "(The jury) right is no mere procedural formality, but a fundamental reservation of power in our constitutional structure. Just as suffrage ensures the people's ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary."

Jury nullification is taking hold in places like Washington, D.C. Recently, over a period of three weeks, grand juries in Washington rejected three separate efforts by federal prosecutors to obtain an indictment against persons accused of felony assault against federal agents.

A grand jury rejecting an indictment is extraordinary. A grand jury needs only to find probable cause that a crime has been committed to move forward. Robert Morgenthau, a longtime Manhattan district attorney, said he could get a grand jury to indict a ham sandwich.

According to The New York Times, the pattern of failure to obtain indictments "(I)ndicated that the ordinary people called upon to sit on grand juries were pushing back against efforts by prosecutors to harshly charge fellow citizens who had encountered law enforcement officers on the streets."

Something similar happened in Los Angeles recently as federal prosecutors struggled to obtain indictments against protesters arrested during demonstrations against federal immigration actions. Justice officials told The Los Angeles Times that prosecutors have struggled to get several protest-related cases past grand juries. In some cases, prosecutors reduced charges against defendants to misdemeanors after repeatedly falling short at the grand jury level.

Then there is Kendall Diaz, who was found "not guilty" of assaulting a U.S. Border Patrol agent in Spokane, Wash.

Diaz was arrested by federal immigration agents, accused of elbowing an ICE agent in the eye during a struggle in his own front yard. While the agent emerged from the encounter with a black eye, it appeared the jury, which reached a verdict in less than two hours, determined that Diaz's conduct, although captured on video, was not an intentional assault.

Last week, a Washington, D.C. jury acquitted Sean Dunn — the "Sandwich Guy" — of assaulting a federal officer. Dunn became the symbol of defiance when he hurled a sub sandwich that hit the chest of an agent wearing body armor. He went to trial, admitting he hit the officer to divert his attention from fleeing protesters.

Jurors are, in a sense, speaking for their fellow citizens. They are challenging the government's overreaching, overcharging and overzealous prosecution of protesters who were expressing their displeasure with the government.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner's Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino

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Autocracy Watch Day 10: An authoritarian creates a cult of personality

 The New York Times, NO. 10

An authoritarian creates a cult of personality. Trump has.

Emperors and kings often glorified themselves by displaying their portraits everywhere. The American tradition has rejected that kind of hagiography for living presidents. Our leaders haven’t needed to puff themselves up this way, until now.

Huge banners with Mr. Trump’s face hang from government buildings. He posts memes in which he wears a crown, including an A.I.-generated video that depicted him defecating on protesters. He held a lavish military parade on his birthday. At televised meetings, members of his cabinet gush sycophantic praise. He announced the creation of a meme coin with his likeness. To celebrate the country’s 250th birthday next year, the Treasury Department plans to put his face on a physical coin.

The Bottom Line
The Trump cult of personality plays into his claims — common among autocrats — that he possesses a unique ability to solve the country’s problems. As he put it, “I alone can fix it.” He seeks to equate himself with the federal government, as if it does not exist without him.

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Autocracy Watch Day 9: An authoritarian tries to take over universities

 The New York Times, NO. 9

An authoritarian tries to take over universities. Trump has started to.

Authoritarians, recognizing that universities are hotbeds of independent thought and political dissent, often single them out for repression. Mr. Putin and Mr. Erdogan have closed universities. Mr. Modi’s government has arrested dissident scholars, while Mr. Orban has appointed loyalist foundations to run universities.

A signature policy of Mr. Trump’s second term has been his attack on higher education. He has cut millions of dollars of research funding, tried to dictate hiring and admissions policies and forced the resignation of the University of Virginia’s president. It is a sustained campaign to weaken an influential sector home to many political progressives who do not support him — and to many young people, who typically form the crux of anti-authoritarian protest movements.

The Bottom Line
Because the federal government finances so much academic research, it has considerable power over universities. Initially, some universities seemed as if they might simply submit to Mr. Trump’s demands. More recently, several showed more willingness to resist, rejecting a proposal that would have rewarded them financially for adopting Trump-friendly policies.

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