5 ms·

How does separation of powers work in the US? could Trump decide not to prosecute let say financial fraud in general?

etchalon 2y ago
The Executive Branch, of which Trump is granted oversight in our Constitution, is responsible for the enforcement of our laws. Our courts have established that the Executive branch can't decide which laws to enforce, but can prioritize which laws to enforce.
bell-cot 2y ago
IANAL, but at the Federal level I'd say "yes". States can do their own thing, using their own laws & resources, +/- the risk of annoying Trump.
perihelions 2y ago
Yes; the president in the US is in charge of the federal prosecuting agency, and has, in practice*, unlimited power to direct non-prosecution. (And, separately, also has plenary power to pardon federal crimes). *Late edit: there was an historic case study of this power balance, just a few weeks ago. When Trump directed the DoJ to suspend the criminal prosecution of NYC mayor Eric Adams, in order to corruptly use the continuing threat of prosecution as a cudgel to extort policy concessions from his office, no federal prosecutor had any ability to resist that order. At least seven resigned[0] rather than obey it. The illustration being: whatever laws might say and whatever ethical norms exist—a federal prosecutor, as an employee of the executive branch under the POTUS, has no practical ability to contradict what the POTUS directs them to do. [0] https://www.npr.org/2025/02/14/nx-s1-5298040/justice-department-eric-adams-fallout https://www.npr.org/2025/02/14/nx-s1-5298040/justice-departm... ("Fallout from Eric Adams case continues at the Justice Department")
- empath75 2y ago
  The check on everything that Trump is doing is _impeachment_, and congress can't get it's shit together to protect its own power. The whole design of the federal government was that ambitious assholes in Congress would keep ambitious assholes in the White House in check, and it doesn't work if Congress is full of lickspittles and cowards.
  - mandevil 2y ago
    For the longest time, it worked in the US because we had overlapping political parties. For reasons (mostly having to do with race) you had conservative and liberal Democrats and Republicans, and they overlapped a lot ideologically, so bills would pass mostly in a bipartisan way (even something like the creation of Medicare and Medicaid got about half the minority party to support it- https://www.govtrack.us/congress/votes/89-1965/h35 https://www.govtrack.us/congress/votes/89-1965/h35 and https://www.govtrack.us/congress/votes/89-1965/s151 https://www.govtrack.us/congress/votes/89-1965/s151). Over the past 30 years that has gone away and parties are strictly sorted ideologically. My personal theory for that is the decline of local news. With Facebook and Craigslist killing the local advertising business all that's left is national news sources, and so all people know about their local Rep or Senator is the letter after their name, and their opinion on the President, there is no room for looking at someone as an individual. And so the people who could be an individual have largely left, and replaced by a great mass of indistinguishable nonentities.
    - empath75 2y ago
      I think counter-intuitively, a lot of the anti-corruption reforms in congress basically destroyed the ability of congress to write compromise bills, because you could no longer buy people off by building a highway in their district or whatever. It would probably be a good thing to bring back horse trading and earmarks again, somewhat.
ramesh31 2y ago
>How does separation of powers work in the US? could Trump decide not to prosecute let say financial fraud in general? He can "do" essentially anything, per the supreme court. For 250 years we had norms and customs and decorum and shame that kept things from escalating to a constitutional crisis. But that has all been so thoroughly broken at this point that literally no one knows what will happens next. One thing is certain, that there will be no way out of this but elections.
- empath75 2y ago
  > He can "do" essentially anything, per the supreme court. This is often said, but it's not true and it has nothing to do with anything that Trump is doing. What they ruled is that he can't be _prosecuted_ for most actions he takes as president. It obviously doesn't mean that the Supreme Court can't overrule executive actions, because they continued to do that after that ruling was made. And as much as Democrats complained about it at the time, it's probably the only thing keeping Biden from facing some kind of phony indictment right now. The _only_ thing that is allowing Trump to get away with this is Congress's inability to act, or passive acquiescence to what he's doing.
  - ceejayoz 2y ago
    > It obviously doesn't mean that the Supreme Court can't overrule executive actions… What is their plan for enforcing said ruling?
    - empath75 2y ago
      They have only _ever_ been able to enforce their rulings through the acquiescence of the other branches. There's no enforcement mechanism in the constitution, and neither is judicial review, for that matter. If the president wants to ignore the court, and congress doesn't do anything about it, there's nothing the courts can do, and that has always been true.
      - ceejayoz 2y ago
ceejayoz 2y ago
Yes. For a concrete example, see marijuana.
- SoftTalker 2y ago
  Yes discretionary (non) prosecution is what opened the door to legalization. Very few lawmakers would run on that issue 20 years ago. But as prosecutors in some areas stopped bringing cases for possession, it became more normalized and full legalization became more acceptable as it was de-facto what was happening anyway. And, it's a new thing to tax which is always going to get attention.
- ty6853 2y ago
  The statute of limitations for many crimes exceed the term of any executive, so this is quite risky to rely on. You could just be prosecuted by the next guy for crimes done under the previous guy.
  - ceejayoz 2y ago
    The executive can fairly trivially prevent that on the way out. For example: https://en.wikipedia.org/wiki/Proclamation_4483 https://en.wikipedia.org/wiki/Proclamation_4483
    - ty6853 2y ago
      Absolutely true but it's worth noting this has only been done for a small fraction of marijuana crimes, and as far as I know not at all through the backdoor method commonly used (by all administrations) where they just prosecute otherwise legal gun ownership as "owned a gun plus owned weed" and backdoor it as a gun crime.
sunaookami 2y ago
The US has no real seperation of powers.
- wrs 2y ago
  Well, yes it does, but it doesn’t do any good if two of the branches decide not to exercise their power.
cmurf 2y ago
To the degree that would promote widespread corruption, it's inconsistent with the president's oath of office and the Constitutionally defined duty that the president uphold the law. But it's also a political question (this means the Court probably won't get involved, not that the question is normal politics) because the only way to end such an obvious travesty is to impeach, convict, and remove from office. To whatever degree the Congress can't do that, impugns the Congress who all take an oath to support and defend the Constitution, not a leader. To whatever degree people continue to elect those who support and defend a cult instead of the Constitution? They have given in to passion, and can't be reasoned with. Why argue with irrational people?
UncleMeat 2y ago
The constitution requires that the executive "shall take Care that the Laws be faithfully executed." The executive is not granted unlimited power to refuse to enforce the law. However, courts have historically given the executive leeway in how it chooses to prioritize things and this has led to plenty of cases where the federal government has official policy to deprioritize enforcement of certain crimes. This has not been abused too much in the past but I'm not sure if that norm will hold in the future.
- scryers_bloom 2y ago
  Unfortunately, the Constitution's text has been increasingly under subject of debate. Trump himself is trying to redefine the meaning of the jurisdiction clause in birthright citizenship.
- shadowgovt 2y ago
  Correct. In general, the backstop would be Congress saying "Enough" and threatening impeachment were the law not enforced. There have been interesting examples on both sides of the aisle of strategic non-enforcement. When states began legalizing marijuana, the law is quite clear (as per the supremacy clause) that federal law enforcement can still enforce the restrictions on growing and selling it. The Obama administration made extremely clear that within the states where it had been legalized, enforcing the federal law would be a career-limiting move for the relevant federal agents. AFAIK, every administration since has de-facto kept that policy regarding those states, even though Congress has never moved to make marijuana legal to use and distribute.

The Executive Branch, of which Trump is granted oversight in our Constitution, is responsible for the enforcement of our laws. Our courts have established that the Executive branch can't decide which laws to enforce, but can prioritize which laws to enforce.

bell-cot 2y ago

IANAL, but at the Federal level I'd say "yes". States can do their own thing, using their own laws & resources, +/- the risk of annoying Trump.

perihelions 2y ago

Yes; the president in the US is in charge of the federal prosecuting agency, and has, in practice*, unlimited power to direct non-prosecution. (And, separately, also has plenary power to pardon federal crimes). *Late edit: there was an historic case study of this power balance, just a few weeks ago. When Trump directed the DoJ to suspend the criminal prosecution of NYC mayor Eric Adams, in order to corruptly use the continuing threat of prosecution as a cudgel to extort policy concessions from his office, no federal prosecutor had any ability to resist that order. At least seven resigned[0] rather than obey it. The illustration being: whatever laws might say and whatever ethical norms exist—a federal prosecutor, as an employee of the executive branch under the POTUS, has no practical ability to contradict what the POTUS directs them to do. [0] https://www.npr.org/2025/02/14/nx-s1-5298040/justice-department-eric-adams-fallout https://www.npr.org/2025/02/14/nx-s1-5298040/justice-departm... ("Fallout from Eric Adams case continues at the Justice Department")

empath75 2y ago
The check on everything that Trump is doing is _impeachment_, and congress can't get it's shit together to protect its own power. The whole design of the federal government was that ambitious assholes in Congress would keep ambitious assholes in the White House in check, and it doesn't work if Congress is full of lickspittles and cowards.
- mandevil 2y ago
  For the longest time, it worked in the US because we had overlapping political parties. For reasons (mostly having to do with race) you had conservative and liberal Democrats and Republicans, and they overlapped a lot ideologically, so bills would pass mostly in a bipartisan way (even something like the creation of Medicare and Medicaid got about half the minority party to support it- https://www.govtrack.us/congress/votes/89-1965/h35 https://www.govtrack.us/congress/votes/89-1965/h35 and https://www.govtrack.us/congress/votes/89-1965/s151 https://www.govtrack.us/congress/votes/89-1965/s151). Over the past 30 years that has gone away and parties are strictly sorted ideologically. My personal theory for that is the decline of local news. With Facebook and Craigslist killing the local advertising business all that's left is national news sources, and so all people know about their local Rep or Senator is the letter after their name, and their opinion on the President, there is no room for looking at someone as an individual. And so the people who could be an individual have largely left, and replaced by a great mass of indistinguishable nonentities.
  - empath75 2y ago
    I think counter-intuitively, a lot of the anti-corruption reforms in congress basically destroyed the ability of congress to write compromise bills, because you could no longer buy people off by building a highway in their district or whatever. It would probably be a good thing to bring back horse trading and earmarks again, somewhat.

ramesh31 2y ago

>How does separation of powers work in the US? could Trump decide not to prosecute let say financial fraud in general? He can "do" essentially anything, per the supreme court. For 250 years we had norms and customs and decorum and shame that kept things from escalating to a constitutional crisis. But that has all been so thoroughly broken at this point that literally no one knows what will happens next. One thing is certain, that there will be no way out of this but elections.

empath75 2y ago
> He can "do" essentially anything, per the supreme court. This is often said, but it's not true and it has nothing to do with anything that Trump is doing. What they ruled is that he can't be _prosecuted_ for most actions he takes as president. It obviously doesn't mean that the Supreme Court can't overrule executive actions, because they continued to do that after that ruling was made. And as much as Democrats complained about it at the time, it's probably the only thing keeping Biden from facing some kind of phony indictment right now. The _only_ thing that is allowing Trump to get away with this is Congress's inability to act, or passive acquiescence to what he's doing.
- ceejayoz 2y ago
  > It obviously doesn't mean that the Supreme Court can't overrule executive actions… What is their plan for enforcing said ruling?
  - empath75 2y ago
    They have only _ever_ been able to enforce their rulings through the acquiescence of the other branches. There's no enforcement mechanism in the constitution, and neither is judicial review, for that matter. If the president wants to ignore the court, and congress doesn't do anything about it, there's nothing the courts can do, and that has always been true.
    - ceejayoz 2y ago

ceejayoz 2y ago

Yes. For a concrete example, see marijuana.

SoftTalker 2y ago
Yes discretionary (non) prosecution is what opened the door to legalization. Very few lawmakers would run on that issue 20 years ago. But as prosecutors in some areas stopped bringing cases for possession, it became more normalized and full legalization became more acceptable as it was de-facto what was happening anyway. And, it's a new thing to tax which is always going to get attention.
ty6853 2y ago
The statute of limitations for many crimes exceed the term of any executive, so this is quite risky to rely on. You could just be prosecuted by the next guy for crimes done under the previous guy.
- ceejayoz 2y ago
  The executive can fairly trivially prevent that on the way out. For example: https://en.wikipedia.org/wiki/Proclamation_4483 https://en.wikipedia.org/wiki/Proclamation_4483
  - ty6853 2y ago
    Absolutely true but it's worth noting this has only been done for a small fraction of marijuana crimes, and as far as I know not at all through the backdoor method commonly used (by all administrations) where they just prosecute otherwise legal gun ownership as "owned a gun plus owned weed" and backdoor it as a gun crime.

sunaookami 2y ago

The US has no real seperation of powers.

wrs 2y ago
Well, yes it does, but it doesn’t do any good if two of the branches decide not to exercise their power.

cmurf 2y ago

To the degree that would promote widespread corruption, it's inconsistent with the president's oath of office and the Constitutionally defined duty that the president uphold the law. But it's also a political question (this means the Court probably won't get involved, not that the question is normal politics) because the only way to end such an obvious travesty is to impeach, convict, and remove from office. To whatever degree the Congress can't do that, impugns the Congress who all take an oath to support and defend the Constitution, not a leader. To whatever degree people continue to elect those who support and defend a cult instead of the Constitution? They have given in to passion, and can't be reasoned with. Why argue with irrational people?

UncleMeat 2y ago

The constitution requires that the executive "shall take Care that the Laws be faithfully executed." The executive is not granted unlimited power to refuse to enforce the law. However, courts have historically given the executive leeway in how it chooses to prioritize things and this has led to plenty of cases where the federal government has official policy to deprioritize enforcement of certain crimes. This has not been abused too much in the past but I'm not sure if that norm will hold in the future.

scryers_bloom 2y ago
Unfortunately, the Constitution's text has been increasingly under subject of debate. Trump himself is trying to redefine the meaning of the jurisdiction clause in birthright citizenship.
shadowgovt 2y ago
Correct. In general, the backstop would be Congress saying "Enough" and threatening impeachment were the law not enforced. There have been interesting examples on both sides of the aisle of strategic non-enforcement. When states began legalizing marijuana, the law is quite clear (as per the supremacy clause) that federal law enforcement can still enforce the restrictions on growing and selling it. The Obama administration made extremely clear that within the states where it had been legalized, enforcing the federal law would be a career-limiting move for the relevant federal agents. AFAIK, every administration since has de-facto kept that policy regarding those states, even though Congress has never moved to make marijuana legal to use and distribute.