CREATORS: How Does The 25th Amendment Protect Democracy?

Matthew T. Mangino
CREATORS
July 15, 2026

A 2016 article in Psychology Today explored whether having a mental illness would make it difficult for a candidate to get elected president. The author, Guy Winch, Ph.D., cited a study by Jonathan Davidson of Duke University Medical Center that found that of the first 37 U.S. presidents, "half of those men had been afflicted by mental illness — and 27% met those criteria while in office, something that could have clearly affected their ability to perform their jobs."

The study found that 24% of presidents met the diagnostic criteria for depression, including James Madison, John Quincy Adams, Franklin Pierce, Abraham Lincoln, and Calvin Coolidge.

Davidson and his team also found evidence of anxiety disorders, bipolar disorder and alcohol dependence among sitting presidents.

Although the 25th Amendment to the U.S. Constitution can prevent an incompetent president from remaining in office, the amendment was not created specifically for that purpose.

The 25th Amendment addresses what happens to the presidency and vice presidency if the president and/or vice president dies, resigns or becomes incapacitated or disabled.

About two years after the assassination of former President John F. Kennedy, Congress recommended a succession amendment. On Feb. 23, 1967, former President Lyndon B. Johnson, Kennedy's successor, who, by the way, may have suffered from bipolar disorder, signed the 25th Amendment into law.

Imagine in 1867 or 1967 if the president made a profane-laced statement in reference to Iran that "a whole civilization will die tonight," or a president who frequently naps at meetings took on the Pope as "WEAK on crime, and terrible for Foreign Policy." Is an 80-year-old, at times rambling, president with — as noted by The Hill — dark, unexplained bruising spanning the back of both hands — appropriate for the 25th Amendment consideration?

Succession has been a problem since the infancy of America. The original Constitution allowed for the vice president to become acting president if the president died.

That wasn't good enough for John Tyler who became "Vice President Acting President" in 1841 when former President William Henry Harrison became the first president to die in office. Tyler moved into the White House and assumed full presidential powers, including giving an Inaugural Address.

The first few sections of the 25th Amendment are straightforward. First, if the president dies or resigns — think Richard Nixon — the vice president takes over. Second, if the vice president dies or resigns — think Spiro Agnew — the president appoints a replacement approved by Congress.

Section 4 of the 25th Amendment is a little trickier.

Whenever the vice president and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the president pro tempore of the Senate and the speaker of the House of Representatives their written declaration that the president is unable to discharge the powers and duties of his office, the vice president shall immediately assume the powers and duties of the office as acting president.

Section 4 of the 25th Amendment has never been used, although officials considered invoking the section after the 1981 assassination attempt on Reagan.

However, like impeachment or indictment, the president has Due Process rights. The president can challenge the declaration of incapacity. If he or she does, the vice president and other administration officials must reassert the claims or the president resumes his authority.

If the claim is reasserted, Congress must decide the issue. Within 21 days of assembling, Congress must vote with a two-thirds majority of both houses that the president is unable to fulfill his constitutional responsibilities as president.

If the two-thirds super-majority is not met in both houses of Congress, "the president shall resume the powers and duties of his office."

For now, there is little chance of invoking the 25th Amendment. The President is Republican, the House is Republican, the Senate is Republican and the Vice-President is a sycophant. There are other options — the midterms are just months away ... a dramatic power shift is not out of the question.

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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A win for free press and supporters of the U.S. Constitution

A federal judge ruled on Friday that the Pentagon’s restrictions on news outlets violate the First Amendment and issued an order tossing parts of the Defense Department’s policy, handing a victory to The New York Times, which filed suit in December over the restrictions.

Judge Paul Friedman, of U.S. District Court for the District of Columbia, also ordered the Pentagon to restore the press passes of seven journalists for The Times. They had surrendered those passes in October instead of signing the policy, which empowered the Pentagon to declare journalists “security risks” and revoke their press passes if they engaged in any conduct that the Pentagon believed threatened national security.

In his 40-page ruling, Judge Friedman wrote that the Pentagon’s policy rewarded reporters who were “willing to publish only stories that are favorable to or spoon-fed by department leadership.”

Siding with an argument advanced by The Times, Judge Friedman added that the Pentagon had given itself too much power to enforce its new rules. The policy also violates journalists’ due process rights under the Fifth Amendment, he said, writing that it “provides no way for journalists to know how they may do their jobs without losing their credentials.”

The ruling was a defeat for the Trump administration, which has been engaged in a multifaceted pressure campaign against the news media. ABC News and CBS News’s parent company agreed to multimillion-dollar settlements to resolve suits that President Trump brought against the networks. The ABC late-night star Jimmy Kimmel was temporarily pulled off the air last year after Mr. Trump’s top communications regulator assailed his program and suggested that he might take regulatory action against the broadcaster.

Defense Secretary Pete Hegseth, a former host on Fox News, has continued Mr. Trump’s adversarial stance toward the news media. He proposed denying access to Pentagon to a reporter from NBC News, then removed several news organizations from their on-site workstations. Months later, he curtailed the unescorted roaming privileges of journalists within the complex.

Friday’s ruling against the Pentagon followed a similarly stark decision this month from a federal judge to restore the operations of Voice of America, a government-funded news organization that Mr. Trump had ordered shuttered a year ago in an executive order.

A spokesman for The Times said Judge Friedman’s ruling “reaffirms the right of The Times and other independent media to continue to ask questions on the public’s behalf,” adding that “Americans deserve visibility into how their government is being run, and the actions the military is taking in their name and with their tax dollars.”

Sean Parnell, the chief spokesman at the Pentagon, said in an X post, “We disagree with the decision and are pursuing an immediate appeal.”

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Trump administration doing legislative end run by suing friendly adversaries

Last June, the Trump administration hauled Texas into court, claiming that a decades-old state law once championed by Republicans violated federal law.

Within six hours, the two sides reached an agreement, reported The New York Times.

Instead of fighting, Texas immediately settled. Led by Attorney General Ken Paxton, a close ally of President Trump, Texas simply agreed the state law, which allowed undocumented high school students to pay in-state tuition at public universities, should be invalidated. The resolution eliminated any need for a slow and messy vote to overturn the statute in the State Legislature.

It was one of a string of lawsuits in which the Trump administration has reached settlements with friendly adversaries.

The strategy appears to have allowed the administration to do an end run around the legislative process and enact policies that will affect states and, in some cases, the whole country.

The settlements have come despite Supreme Court rulings that require lawsuits to be waged between adversarial parties and a reticence among administration officials dating to Mr. Trump’s first term with entering legal settlements that bind the government’s hands.

In some cases, like in Texas, the legal maneuver has allowed states to quietly break free from their own laws, outside the normal legislative process. In others, it has helped the Trump administration lock in changes at the federal level that could persist for years after Mr. Trump leaves office.

In Florida, for instance, the Trump administration in February reached a legal settlement with the Republican-led state requiring the Department of Homeland Security to forgo one of its authorities to admit immigrants for 15 years. Though reached with a state government, the settlement could affect immigration policy for the whole nation, through the next four presidential administrations.

In Kentucky, the federal Transportation Department proposed a settlement in a case with a pair of industrial companies challenging decades-old racial and gender-based preferences, acceding to the businesses and agreeing to end use of the preferences in its contracting nationwide.

Asked to comment on the pattern of settlements, a spokeswoman for the Justice Department indicated that the laws at issue in each case were problematic for different reasons. In Florida, a judge had already sided with the state before the agreement. And in Texas, the spokeswoman said the fact that the law remained on the state’s books, despite the parties agreeing it was illegal, amounted to a real dispute.

But the speed at which cases have been settled and the shared political priorities involved have led outside groups and former officials to call foul, arguing that the cases appear plainly collusive.

“This isn’t a controversy,” Shelby Leighton, a lawyer at Public Justice, said of cases the Justice Department has brought regarding in-state tuition. She is asking a judge in Kentucky to reject a settlement there similar to the one in Texas. “The federal government and the state government agree a hundred percent on the issue, and they’re just working together to do an end run around the democratic process.”

The Supreme Court has long maintained that federal judges cannot hear cases where there is no genuine dispute between the parties, warning that the Constitution bars judges from hearing cases that are not adversarial. Such collusive lawsuits are dangerous, the justices have found in multiple instances, because they exclude third parties with real stakes in the outcome.

For decades, the Justice Department has likewise discouraged legal settlements that could reduce the executive branch’s power in the long run.

In 1986, President Ronald Reagan’s attorney general, Edwin Meese III, sent a memo to colleagues specifically urging them to use caution when ending lawsuits through consent decrees, a particular type of settlement in which the resolution is monitored by a judge.

At the time, the Reagan administration was defending the government against a crush of lawsuits from environmental groups.

The department, Mr. Meese wrote, should not enter into a consent decree that “divests the secretary or agency administrator, or his successors, of discretion committed to him by Congress or the Constitution,” particularly if the power had been granted to allow government officials “to respond to changing circumstances.”

The vision was reaffirmed and expanded in 1999 by Randolph D. Moss, now a federal judge in Washington, under President Bill Clinton.

In the mid-2010s, during President Barack Obama’s second term, conservative scholars accused him too of collusive lawsuits, criticizing what they called “sue and settle” schemes, especially in the environmental realm. Academics cataloged a number of examples in which they said watchdog groups sharing the administration’s environmental goals sued the Environmental Protection Agency or a related department, followed by a quick settlement that shifted regulations.

But Mr. Trump’s officials have generally been critical of using legal settlements to achieve policy aims, particularly given their history of use to force police reform. Last year, Mr. Trump issued an executive order prompting the Justice Department to withdraw from oversight of nearly two dozen police departments. 

For that reason, the administration’s actions in Florida stunned many legal experts.

The state had sued the Biden administration in 2023, seeking to stop the federal government from paroling scores of migrants arrested at the southern border into the country, just as strict pandemic-era restrictions at the border were expiring.

At the beginning of February, Mr. Trump’s Department of Homeland Security entered a consent decree to settle the three-year-old suit, agreeing to impose a 15-year freeze on using a mass parole power that allows the government to quickly release migrants into the country while they wait for a court date.

Strikingly, of the six members of the Florida attorney general’s office helping represent the state when the suit was filed, four are now senior officials in Mr. Trump’s Justice Department. Just two months before the case was settled, a fifth — James Percival — took over as the top lawyer at the Department of Homeland Security.

A homeland security spokesman provided a signed ethics agreement Mr. Percival submitted to the Office of Government Ethics in which he agreed to recuse himself from lawsuits that he worked on, directly related to Florida. A separate signed authorization from the department’s secretary, Kristi Noem, directed Mr. Percival to step aside from cases involving the state “if you personally worked on litigation related to the same matter while serving in the Florida Office of the Attorney General.”

“Mr. Percival has fully complied with that commitment during his D.H.S. employment,” the spokesman said.

A spokeswoman for the Justice Department said that the agreement was approved by the department’s leadership and that the agency does not entirely avoid consent decrees.

Under the consent decree, Florida can return to court at any time to challenge any federal parole policy, citing the consent decree in which the government agreed to forgo the authority. The agreement will be overseen by Judge T. Kent Wetherell, a Trump appointee.

Tom Jawetz, who served as the Homeland Security Department’s deputy general counsel in the Biden administration, said the agreement would put “an asterisk” on future presidents’ ability to use the parole power, even if they hold different policy views on immigration than Mr. Trump.

“They’re going to have to think about, not just whether using parole is within their legal authority, but also whether Florida is going to believe it’s a violation of this consent decree, and what the consequences of being hauled into court will be over that decision,” he said.

In the case out of Kentucky that the Trump administration inherited, officials used a lawsuit as an opportunity to take a swipe at diversity requirements set out in a law passed by Congress.

On returning to office, one of Mr. Trump’s earliest priorities was purging race-based preferences and other hiring practices he deemed “diversity, equity and inclusion” from the federal government and beyond. The president has said those policies, intended to correct years of systemic racial inequality, amounted to reverse racial discrimination against white people.

Two federal contractors sued in 2023 over set-asides in the Disadvantaged Business Enterprise Program, which Congress enacted in 1983. Last year, the Transportation Department ceased defending the law and moved to settle with the companies, adopting their stance that the practice of favoring businesses owned by women or certain ethnic minorities was unconstitutional.

A judge has not yet accepted the settlement agreement. But after a coalition of minority-owned business groups intervened in the lawsuit, the Transportation Department bypassed the court proceedings, issuing a new federal rule that effectively tossed out the diversity requirements nationwide.

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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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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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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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Autocracy Watch Day 8: An authoritarian controls information and the news media

The New York Times, NO. 8

An authoritarian controls information and the news media. Trump has started to.

Democratic governments prize accurate information as a guide to decision-making. Authoritarians seek to suppress inconvenient truths.

Mr. Trump has sought to manipulate government information in several ways. He fired the head of the Bureau of Labor Statistics after the agency reported disappointing job growth this summer. He shut down federal data collection efforts related to climate change, presumably because the information might encourage people to take action.

He has also taken steps to control the media, both traditional forms and new ones. He arranged for the sale of TikTok from a Chinese company to investors with ties to his political allies. He pushed Congress to end funding for public radio and television. He extracted multimillion-dollar payments from ABC, Paramount (which owns CBS), YouTube and Meta to settle baseless claims that he has been treated unfairly, and he is pursuing lawsuits against The New York Times and The Wall Street Journal. All of these moves are meant to reduce coverage that does not parrot his views.

The Bottom Line
In place of an independent and free press, Mr. Trump evidently hopes to create a shadow ecosystem willing to promote his interests and talking points.

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Autocracy Watch Day 7: An authoritarian vilifies marginalized groups

 The New York Times, NO. 7

An authoritarian vilifies marginalized groups. Trump has.

Authoritarians tend to demean minority groups, trying to turn them into a perceived threat that provides a justification for a leader to amass power. Mr. Trump has repeatedly suggested that marginalized groups are responsible for the nation’s problems.

Immigrants have topped his list. Mr. Trump has blamed them for destroying communities and his administration has tried to dehumanize them by posting mocking videos of shackled immigrants. In response, many Latinos have stopped speaking Spanish in public and started carrying their passports to prove citizenship.

He has vilified transgender Americans and barred them from military service. He has fired women and people of color from leadership posts and ended programs that promote workplace diversity. His administration has attempted to erase aspects of Black history, including by removing books on slavery and segregation from military libraries and pressuring Smithsonian museums to minimize those subjects. At the same time, he has suggested that white people and Christians are victims, which echoes the autocratic habit of claiming that majority groups are in fact oppressed.

The Bottom Line
Mr. Trump is borrowing from the autocrats' playbook by suggesting that some citizens are legitimate and others are second-class.

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Autocracy Watch Day 6: An authoritarian declares national emergencies on false pretenses

 The New York Times, NO. 6

An authoritarian declares national emergencies on false pretenses. Trump has.

Authoritarians often curtail democracy by declaring an emergency and arguing that the threat requires them to exercise unusual degrees of power.

Mr. Trump’s recent predecessors were not perfect on this issue. They sometimes declared questionable emergencies. He has gone to another level. He has used manufactured emergencies to sidestep Congress and impose tariffs, deregulate the energy industry, intensify immigration enforcement and send the National Guard into Washington. Chillingly, he has claimed that a Venezuelan gang invaded the United States to justify the killing of foreign civilians in international waters, in defiance of U.S. and international law.

The Bottom Line
Mr. Trump’s willingness to kill people without due process, through the blowing up of boats that American officials could instead stop and search, represents one of his most extreme abuses of power. It raises the prospect that he may expand the use of emergency power to other areas, including domestic law enforcement.

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Autocracy Watch Day 5: An authoritarian defies the courts.

 The New York Times, NO. 5

An authoritarian defies the courts. Trump has started to.

Would-be authoritarians recognize that courts can keep them from consolidating power, and they often take steps to weaken or confront judges.

Mr. Trump has baldly defied federal judges on several occasions. In March, for instance, his administration ignored a federal judge’s order to turn around airplanes that were deporting migrants to El Salvador. More often, the Trump administration has engaged in gamesmanship, going around orders rather than directly disobeying them. One example: After a federal judge blocked his deployment of the Oregon National Guard, the administration moved to deploy National Guards from other states instead.

So far, Mr. Trump has defied no Supreme Court orders and has pledged not to. But the justices have too often played into his strategy by failing to stand up for lower courts.

The Bottom Line
It is a hopeful sign that he has not ignored the Supreme Court, and the court may yet block his most blatant power grabs. Still, the court’s reluctance to restrain him appears to have emboldened him to sidestep lower court orders he does not like.

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Autocracy Watch Day 4: An authoritarian uses the military for domestic control

The New York Times, NO. 4

An authoritarian uses the military for domestic control. Trump has started to.

Even democracies occasionally use their militaries on home soil. The military can keep order and protect citizens after a devastating storm. In extreme and rare circumstances, troops can enforce the law when local authorities refuse to do so, as happened in the segregated South in the 1950s and 1960s.

Authoritarians use the military much more frequently and performatively — to suppress dissent, instill fear and convey supreme power. Trump deployed the National Guard in Los Angeles to crack down on protests, despite local officials’ insistence that they had the situation under control. He attempted the same in Portland, Ore., and Chicago, before being restrained by federal courts. He has also begun to treat the military as an extension of himself, firing several high-ranking officials without good reason and summoning hundreds of leaders to Virginia to listen to overtly political speeches by him and his appointees.

The Bottom Line

President Trump’s use of the military for domestic control has been limited. But his willingness to use it as he has — and his threats to expand that use, through the invocation of the Insurrection Act and with troops beyond the National Guard — is extremely worrisome.

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