The ACLU has a blueprint to constrain Trump in a second presidential term

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Former President Donald Trump speaks at a campaign rally at the Trump National Doral Golf Club in Florida on Tuesday. / Getty Images

The American Civil Liberties Union has been listening to former President Donald Trump and his allies on the campaign trail as they pledge to crack down on protesters and use the justice system to prosecute political enemies.

"Trump is not shy about saying exactly what he plans to do," said Cecillia Wang, deputy legal director of the ACLU.

Wang and her colleagues published a memo Thursday to try to anticipate and counter potential abuses of executive power in a second Trump administration.

"Our memo that's being released now is really a story about a loaded gun that we've left in the hands of any president," Wang said.

For the ACLU, recent history is a guide. In 2020, Trump ordered that people protesting for racial justice be cleared from Lafayette Square in Washington, D.C., as he prepared for a photo opportunity in front of a landmark church. National Guard troops, federal agents and local police used tear gas and violence against those peaceful protesters. The ACLU filed lawsuits alleging violations of the First and Fourth amendments, and Wang said the group is prepared to do that again.

But even before the next inauguration, the civil liberties group is pointing out that Congress can plug gaps in the president's emergency powers — and that governors and mayors can direct their police to refuse to participate in federal law enforcement task forces.

"There are so many levers that the American people and their representatives in Congress and in local governments can pull in order to stop Donald Trump from trampling on people's civil rights," Wang said.

ACLU leaders say they're especially worried about Trump's threats to use the justice system to retaliate against his perceived political enemies. Trump has said he wants to investigate President Biden, his 2016 opponent Hillary Clinton and several of his own Cabinet officials who refused to bend to his will.

"Even if the person is eventually cleared of any wrongdoing, that can ruin someone's life," Wang said.

This month, a conservative Supreme Court majority gave Trump broad immunity from prosecution for discussing investigations with the Justice Department. That decision gives a future president a lot of power, constrained only by norms that the department adopted after the Watergate scandal.

"The independence of the Justice Department depends on the goodwill, the good faith of presidents, of attorneys general, to abide by them,” Wang said.

She said it's a mistake to give a president — any president — so much unfettered power.