Does POTUS have the power to jail political rivals, dissidents, or "legislative opponents"?

Question

It is claimed in a November 6th, 2024 instagram post by Alexandria Ocasio-Cortez that

in regimes like that, it is not uncommon to jail political dissidents or legislative opponents.. this is the world we very realistically may be entering

Question

Does POTUS have the power to "jail political/legislative opponents" or is this an unrealistic exaggeration?

What I know so far

My (layperson's) understanding is that:

• the separation of powers helps prevent instances of tyranny by ensuring checks and balances,
• constitutional protections should ensure minimal protections and that bogus laws can't be (easily) invented in order to entrap opponents, and
• judicial oversight would necessitate multiple different bodies all with different mandates to conspire in order to carry out such an act

Note

• Alternative video source (slightly easier to navigate to relevant section of video - statements at approximately 1 minute).

Answer 1

In India, we have a saying - the process is the punishment.

That is, you don't even need to convict a political opponent under a case - the whole process of foisting a real / fake case on them, arresting them with huge media publicity, and continue lambasting them in the media as they go through the judicial process trying to defend themselves is itself a punishing process that can be enough to distract a political opponent.

In fact, we saw this with Trump too, pre-election - he was embroiled in multiple cases, with lots of negative publicity, and you could see that he and his campaign really felt hassled fighting court cases and facing the public at the same time. (Note: I am not claiming the cases against him were without merit).

While there are enough checks and balances in the system to prevent an autocrat from freely using State power against an opponent, the system is also flexibly built under the assumption that only leaders with democratic values will be wielding those powers (but, as we are finding out in this millennium, that isn't true any more and autocratic leaders do tend to abuse the system a lot).

As President of the US, Trump will have a lot of influence over all investigating agencies and even on the judiciary (through judicial appointments). He can certainly abuse this power to harass his political opponents including jailing his opponents with real / fake cases. How much he abuses his power will depend on his own idea of how much power he thinks "the majority" have given him, how much space the democratic institutions allow him to abuse this power and how much the opposition in the US can mobilise the people against him to make him think twice about misusing the system.

Answer 2

It's not important whether the President can legally do these things, because the rules are so easily circumvented.

In theory the Judicial Branch and the Department of Justice are independent of the executive branch. But in reality the Attorney General (head of the Department of Justice) is appointed by the President, and can be fired at any time if they do something the President disapproves of. In theory the President cannot and should not influence the decisions of the Attorney General, but in reality if they get together in a room where there are no recordings it's virtually impossible to prove it happened. It's also impossible to prevent a President from choosing to appoint only an Attorney General who will do what he says.

There are two checks and balances that are supposed to prevent this (apart from the assumption that Presidents and Attorneys General will behave honourably). Those are 1) the impeachment power of the legislature 2) the ability of the electorate to vote out a President who violates this rule.

President Trump has already signalled his willingness to violate the independence of the Department of Justice by threatening to prosecute his enemies, and to get the cases against himself thrown out. It is virtually certain that his new Attorney General, whoever it is, will abandon all cases against Trump. If that doesn't happen feel free to downvote, but I'm confident that won't be the case.

In the current climate it's hard to imagine that the legislature would impeach and convict Donald Trump for doing those things. And the American electorate have already shown that they are OK with a President who commits criminal acts and interferes with judicial independence. In any case the posts by Alexandria Ocasio-Cortez are intended to state that President Trump will indeed try to do these things, and will probably get away with it, unless there is action by the electorate - such as voting in Senators and Representatives who would in fact impeach him if he did them. Ultimately the responsibility to prevent Presidential abuse of power lies with the electorate.

With thanks to @264champagnebottlesonice, many Republicans promote the "Unitary Executive Theory, in which the Justice Department isn't even theoretically independent of the Executive. They could certainly use this to persuade the legislature - and possibly the courts - that he was justified in directing the Justice Department to do anything he wanted.

The above shows how the President could prosecute his political enemies: and as sfxedit correctly points out, simply prosecuting someone can cause them significant trouble, even if they are eventually exonerated. However the judges (and jury) would decide actual guilt or inocence in a case. But the President also has the power to appoint judges, especially Supreme Court justices who would be expected to ultimately decide a high profile case. Three of the nine are already Trump appointees, and were selected for their views sympathetic to Trump. It is likely that he will appoint more and more judges who agree with his views.

(For anyone thinking this doesn't answer the question, the question was not "Can a President legally do this" it was "Does a President have the power to do this." Those are two different things.)

Answer 3

The answer is not clear.

Precedents were created during the Global War on Terror. If the government can designate individuals as terrorist with limited legal oversight, and then apply 'extraordinary measures' to terrorists, then it can apply those measures to anyone. Applying the GWOT precedents to US citizens, and especially to US legislators, would clearly shatter precedent. But the legality would have to be tested by the Supreme Court.

Answer 4

Current answers ignore both recent and historical precedents.

The US has a long history of looking the other way when a President wants to imprison an inconvenient political enemy.

Consider Eugene V Debs, Socialist political candidate and anti-Woodrow-Wilson activist, who was imprisoned for speeches encouraging draft resistance (even when carefully worded not to violate the already-First-Amendment-limiting anti-sedition laws passed in the context of World War I). Or anarchist activist Emma Goldman, who was also imprisoned for encouraging resistance to the draft--and, before that, for distributing information about birth control, in violation of the still-on-the-books Comstock Act of 1873.

Or consider Lincoln's suspension of habeas corpus during the Civil War--allowing the government to imprison people without demonstrating cause and to conduct military trials.

These laws are sometimes repealed and sometimes upheld, and sometimes stop being enforced. But they never go away entirely, and we are currently at a political moment where such actions are more likely to be permitted.

Specifically, the Supreme Court ruled in Trump v United States (2024) that the US President has absolute immunity from prosecution for acts carried out in office related to his core powers, as enumerated in the Constitution.

Of course, the office of President includes being Commander-in-Chief of the US Armed Forces.

Thus, the Court has issued a precedent that says there would be no legal recourse against a sitting President if he, for instance, directed the Army to place his political opponents in a military prison (or have them assassinated, etc).

Is this absurd, wrong, a clear abuse of power? Yes, of course. That doesn't change that it is what the opinion said; if you disagree, don't blame me, take it up with John Roberts.

Answer 5

In a practical sense, a US administration has plenty of options to "go after" their political opponents.

Consider the 2013 scandal where the IRS, under the Obama administration, specifically targeted tax exempt organizations based on their politics.

Or the 2016 FBI investigation into the trump campaign.

Even the most over the top dictators will usually cloak their behavior with some sense of legality, usually by stretching some existing law to apply to their political opponents. You can find a litany of examples throughout history of this scam playing out.

It helps when the legal system has extremely broad laws that can snare almost anyone, like the US legal system. It's just not usually used to snare the political class, who have usually been given the kid gloves treatment when it isn't something egregious and impossible for the machine to sweep it away.

The tldr is that while there's no inherent power in the presidency to jail people at will, their de facto power over the justice department gives them enormous potential to conjure up charges against political opponents. Charges that might very well stick, by virtue of our laws being very broad, and if they find a friendly judge that accepts some of the wild stretches that prosecutors sometimes engage in to make the suspect fit the crime.

Case in point, one potential Trump pick for AG has already insinuated they might charge Letitia James with conspiracy against rights.

Answer 6

At the end of the day, it all boils down to physical coercion, and at the end of the end of the day, because it is best equipped and trained, it hinges on the military.

Imagine a war — not a third world war but one that is a bit more serious than the ones of the past 80 years. The President, supported by his party, claims that a "fifth column" is operating within the U.S., uses the domestic threat as a reason to instate emergency measures, starts ruling by executive orders, rounds up the opposition and puts them into camps. The Supreme Court decides to hear a petition for habeas corpus and rules the imprisonment unconstitutional. The Office of Legal Counsel, referencing legal scholars like like John Yoo, rejects the Court's authority, claiming the executive prerogative of the Commander in Chief in war times. The court subpoenas the President with threat of contempt of court. The President refuses to produce the prisoner.

Stalemate.

Who wins?

The one who has the army on their side. The subpoena — indeed, any contested law! — is useless if it cannot be physically enforced.

Answer 7

A POTUS that uses any means necessary and ignores the limits of the law and constitution may have that power granted him.

A POTUS that upholds and defends the constitution is limited to using the powers and laws given by his office.

If a political opponent has gone outside lawful and constitutional means, the fullest remedy is death for treason. It is the courts that ajudicate that.

Those found guilty would have to rely on the mercy of the POTUS, or God himself.

This is only going after one's political opponents if applied asymmetrically, or those opponents are also enemies of the constitution and therefore the American people whose allegiance is to the constitution.

In this case if one is calling enemies of the people, such as those that perpetrated 9/11, political opponents, then the powers are indeed severe and are only limited by the mercies of God.

If there are errors in this simple explanation please let me know with reason in the comments.

Answer 8

No, not at the current time. Political opponents or political dissidents would be able to claim First Amendment protection.

Now, it is not impossible that US checks and balances would erode past the limit where this became possible. But that is not the case as of now, it is not what most of Trump's electorate voted for and aiming to do so would create real risks for Trump. Overreach is what sunk McCarthy for example.

This type of breathless claims by Ocasio-Cortez is just the flip side of the discourse of fear and loathing that got Trump elected, despite his well known shortcomings.

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This answers the question, which is phrased in the present tense : "Does POTUS have the power...?". It does not attempt to speculate on what might happen in the future. Nor is it claiming that Trump has no such intent. It is merely contrasting current laws and precedents to Ocasio-Cortez' claims.

Answer 9

Not really. Otherwise Biden and company would have squashed Trump by now.

But a president with a nominally favorable congress and senate has initially enormous power to create political isolation on any public critics: other politicians, judiciary and media know they are tilting at a heavy windmill by appearing to support criticizing the president. Resistance has to be largely covert or else very common-sense based if made public.

A very deft president (like Clinton) can survive - even prosper a bit - against an opposing congress & senate. And a dictatorial president could make a mess of relations with congress and especially the senators and lose support for bills close to the heart of their presidency.

On important issues related to the everyday economy the congress members will constrain the actions of a president: they have to watch their re-election every 2 years. On foreign policy, defense and trade agreements the senate has to approve major decisions.